Citation Nr: 20004672 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 14-11 946 DATE: January 21, 2020 ORDER Entitlement to a higher initial rating for low back disability rated as 10 percent disabling from September 19, 2011 is denied. Entitlement to a higher initial rating for a low back disability rated as 20 percent disabling from December 10, 2012 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 13, 2013 is denied. FINDINGS OF FACT 1. Throughout the appeal, the Veteran's degenerative arthritis of the spine and intervertebral disc syndrome (IVDS) is characterized by forward flexion of 60 to 65 degrees with functional loss due to pain, fatigue, and lack of endurance. 2. Prior to January 13, 2013, the record does not reasonably show that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a higher initial rating for low back disability rated as 10 percent disabling from September 19, 2011 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Codes (DC) 5242-5243 (2018). 2. The criteria for a higher initial rating for low back disability rated as 20 percent disabling from December 10, 2012 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Codes (DC) 5242-5243 (2018). 3. The criteria for an effective date prior to January 13, 2013, to establish TDIU have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty in the United States Navy from July 1975 to August 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 and December 2016 rating decisions from the Department of Veterans Affairs (VA) Providence, Rhode Island (RO). This case was previously before the Board in December 2016 and February 2018 and remanded for additional development. Increase ratings Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Lumbar spine and earlier effective date of TDIU The Veteran was initially rated under DC 5242 at 10 percent for degenerative joint disease of the lumbar spine from September 2011 to December 2012. Currently, he is rated at 20 percent under DC 5243 for intervertebral disc syndrome (IVDS) of the lumbar spine from December 2012. The Veteran reports that he is entitled to a higher evaluation since his back problems causes uncomfortable sitting, standing, walking and laying down. Moreover, he uses a back brace and medications to manage his condition. See BVA hearing transcripts (May 2016). Evaluations for intervertebral disc syndrome are to be performed either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Note 6. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. In this case the record does not reflect incapacitating episodes and therefore the Veteran will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. The Board finds that an initial rating higher than 10 percent from September 2011 to December 2012 and an initial rating higher than 20 percent after December 2012 is not warranted for IVDS. The Veteran was granted service connection from September 19, 2011 to December 10, 2012 due to limitation of forward flexion between 60 to 85 degrees. Then, the RO increased the rating to 20 percent from December 10, 2012 due to limitation of forward flexion between 30 to 60 degrees. The records and VA examinations do not reflect any limitation of forward flexion of less than 60 degrees from September 2011 to December 2012 and less than 30 degrees after December 10, 2012. See VA medical examinations (November 2011, February 2013, March 2017 and May 2018). Therefore, an increase rating in excess of 10 percent from September 2011 to December 2012 and an excess of 20 percent after December 2012 is not warranted. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for an initial rating higher than 10 percent from September 2011 to December 2012 and an initial rating higher than 20 percent after December 2012 is not warranted for IVDS and therefore it must be denied. In addition, the Board finds that an effective date prior to January 13, 2013, is not warranted for the award of a TDIU. In this regard, on December 2016, the Board granted TDIU benefits effective January 13, 2013 due to this been the date the Veteran met the schedule criteria. See BVA decision (December 2016). Moreover, the Board on December 2016 and January 2018 remanded this issue since it was inextricably intertwined with the other issues remanded in the decisions. The Veteran was afforded VA examinations on March 2017 and May 2018 and the examiners stated that the Veteran’s service-connected disabilities impact his ability to work. See VA medical examinations (March 2017 and May 2018). The Board acknowledges that the Veteran stated that he last worked full time around 2006 or 2007. See BVA hearing transcripts (May 2016) and see also Veteran’s application for increased compensation based on unemployability (April 2012). However, the evidence in record does not reasonably show that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation prior to January 13, 2013. The Veteran’s TDIU is based on functional impairment stemming from service-connected disabilities, and psychiatric disorder. The Veteran was granted a rating of 70 percent for his psychiatric disorder from January 13, 2013 and therefore met the criteria for TDIU. Additionally, the evidence on record did not show that any of the conditions previously remanded warranted a prior date or increase rating that would meet the TDIU criteria prior to January 2013. See 38 C.F.R. § 4.16. Thus, the effective date of the TDIU cannot predate that of his service-connected psychiatric disorder. As the Veteran's psychiatric disorder and TDIU are both effective on January 13, 2013, there is no legal basis for an earlier effective date for entitlement to a TDIU. Thus, entitlement to an effective date prior to January 13, 2013, for the grant of TDIU is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.