Citation Nr: 21000250 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 12-34 587 DATE: January 4, 2021 ORDER Entitlement to a 40 percent rating, but not higher prior to March 6, 2017 for paravertebral muscle spasm, low back is granted. Entitlement to a rating in excess of 40 percent beginning March 6, 2017 for paravertebral muscle spasm, low back is denied. Entitlement to a 40 percent rating, but no higher beginning December 4, 2018 for paravertebral muscle spasm, low back is granted. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) effective October 9, 2019 is dismissed as moot. REMANDED Entitlement to TDIU prior to October 9, 2019 is remanded. FINDINGS OF FACT 1. The Veteran’s paravertebral muscle spasm, low back has been manifested by favorable ankylosis, but no has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome (IVDS) with incapacitating episodes with a total duration of at least six weeks during the past 12 months, prior to March 6, 2017. 2. The Veteran’s paravertebral muscle spasm, low back has been manifested by favorable ankylosis, but no has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or IVDS with incapacitating episodes with a total duration of at least six weeks during the past 12 months, beginning March 6, 2017. 3. The Veteran’s paravertebral muscle spasm, low back has been manifested by favorable ankylosis, but no has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or IVDS with incapacitating episodes with a total duration of at least six weeks during the past 12 months, beginning December 4, 2018. 4. As the Veteran has been granted a 100 percent rating for his service-connected disability of major depressive disorder and granted special monthly compensation (SMC), for the period beginning October 9, 2019, the issue of entitlement to TDIU beginning October 9, 2019 is moot. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher prior to March 6, 2017 for paravertebral muscle spasm, low back have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.71a, Diagnostic Codes 5237-5243. 2. The criteria for a rating in excess of 40 percent rating beginning March 6, 2017 for paravertebral muscle spasm, low back have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.71a, Diagnostic Codes 5237-5243. 3. The criteria for a 40 percent rating, but no higher beginning December 4, 2018 for paravertebral muscle spasm, low back have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.71a, Diagnostic Codes 5237-5243. 4. The issue of entitlement to TDIU beginning October 9, 2019 is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to February 1976. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2013, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing held at the RO. A transcript is of record. In the September 2015 Board remand, the Board took jurisdiction of the Veteran’s claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In the September 2015 Board remand, the Board remanded the claims of entitlement to service connection for depression, increased rating for back disability, and TDIU for development. In a March 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for major depressive disorder and assigned a 100 percent rating, effective October 19, 2019; as this represents a grant of the full benefit sought, the matter is no longer before the Board on appeal. The remaining issues have been returned to the Board for appellate review. In the March 2020 rating decision, the AOJ granted increased ratings for paravertebral muscle spasm, low back from 10 percent to 40 percent, effective March 6, 2017, and assigned a 20 percent rating, effective December 4, 2018. The issue has been recharacterized, accordingly. As noted above, in the March 2020 rating decision, the AOJ granted service connection for major depressive disorder and assigned a 100 percent rating, effective October 19, 2019. Further, the AOJ granted special monthly compensation (SMC) based on the housebound criteria being met, effective October 9, 2019. Thus, for reasons explained in more detail below, the Board finds that the grant of a total rating for his psychiatric disability, which results in the Veteran having a “total” (100 percent) rating for the period beginning October 9, 2019, and the grant of SMC for the period beginning October 9, 2019, renders the TDIU claim moot for the period on appeal beginning October 9, 2019. See Green v. West, 11 Vet. App. 472, 276 (1998). The claim for TDIU has been recharacterized, accordingly. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 C.F.R. § 4.3. The Veteran has appealed from the initial rating assigned for the deep nonlinear scar and painful linear scars. In an appeal for a higher initial rating after a grant of service connection, all evidence submitted in support of a veteran’s claim is to be considered. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Board does not find staged ratings to be appropriate in this appeal. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a 40 percent rating, but not higher prior to March 6, 2017 for paravertebral muscle spasm, low back is granted. 2. Entitlement to a rating in excess of 40 percent beginning March 6, 2017 for paravertebral muscle spasm, low back is denied. 3. Entitlement to a 40 percent rating, but no higher beginning December 4, 2018 for paravertebral muscle spasm, low back is granted. The Veteran filed a January 2010 claim for increased rating for back disability. See January 2010 Correspondence. In the March 2020 rating decision, the AOJ granted increased ratings for paravertebral muscle spasm, low back from 10 percent to 40 percent, effective March 6, 2017, and assigned a 20 percent rating, effective December 4, 2018. The Veteran’s paravertebral muscle spasm, low back (back disability) is rated under Diagnostic Code 5237. Lumbar spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. The Veteran is rated under Diagnostic Code 5237 and the Board will consider all relevant diagnostic codes. Pursuant to this formula, a 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Unfavorable ankylosis is a condition with which the entire thoracolumbar spine is fixed in flexion or extension, resulting in several symptoms described in Note 5 of the General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are considered part and parcel of an injury to the spine and are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Note (1). The rating schedule also includes criteria for evaluating IVDS. Under Diagnostic Code 5237, IVDS is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on the Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the IVDS formula, a 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. Id. For these purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Turning the evidence of record, the Veteran was afforded VA back examinations in January 2011, May 2012, March 2017, and December 2018. The Board finds the Veteran’s back disability symptoms were most severely reflected upon March 2017 and December 2018 VA examinations, and the March 2017 and December 2018 VA examination reports most accurately represent the Veteran’s symptoms for the entire period on appeal. In this regard, the March 2017 VA examination report revealed the Veteran had favorable ankylosis of the entire thoracolumbar spine. He did not have IVDS and did not have any other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). Thus, the Board finds that a 40 percent rating, but no higher for the entire period on appeal is warranted. However, a rating in excess of 40 percent is not warranted at any time during the period on appeal. Significantly, the record does not demonstrate the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. The Board notes that the December 2018 VA examination report indicated the Veteran had IVDS; however, the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. However, the Board finds that the Veteran’s IVDS symptoms do not meet or more nearly approximate the criteria for a rating in excess of 40 percent. In this regard, under the rating criteria for IVDS, the next higher 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the formula for rating IVDS based on incapacitating episodes defines an incapacitating episode as “a period of acute signs and symptoms due to [IVDS] that requires bed rest prescribed by a physician and treatment by a physician.” Significantly, the October 2017 VA examination report indicated the veteran did not have IVDS and the December 2018 VA examination diagnosed the Veteran with IVDS, but revealed the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. In light of the above, the Board finds that the criteria for a 40 percent rating, but no higher have been met for the entire period on appeal, but the criteria for a rating in excess of 40 percent have not been met at any time the appeal period. In this regard, record does not support that the Veteran has unfavorable ankylosis. See March 2017 and December 2018 VA examination reports. Further, the December 2018 VA examination report indicated the Veteran had IVDS, he did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s low back disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the VA examination reports great probative value. As such, these records support the 40 percent rating, but no higher for the entire period on appeal now assigned. Consideration has been given to assigning staged ratings. However, at no time during the periods in question has the disability warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). 4. TDIU beginning October 9, 2019- mooted As noted above, in a March 2020 rating decision the Veteran was granted a 100 percent rating for major depressive disorder, effective October 9, 2019 and in the March 2020 rating decision the AOJ also granted the Veteran entitlement to SMC based on the housebound criteria being met, effective October 9, 2019. Thus, the Board finds that the grant of a total rating for his major depressive disorder, which results in the Veteran having a “total” (100 percent) rating for the period beginning October 9, 2019, and the grant of SMC for the period beginning October, 2019, renders the TDIU claim moot for period on appeal beginning October 9, 2019. See Green v. West, 11 Vet. App. 472, 276 (1998). The Board is cognizant of the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Bradley v. Peake, 22 Vet. App. 280 (2008), in which the Court held that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114(s) by having an additional disability of 60 percent or more (housebound rate). See Bradley v. Peake, 22 Vet. App. 280 (2008), 38 U.S.C. § 1114(s). Thus, Bradley made it such that even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. However, having reviewed Bradley, the Board concludes that the facts of that case are sufficiently distinguishable such that the holding in Bradley is inapplicable, and the Veteran’s TDIU claim is in fact moot beginning October 9, 2019. Specifically, in the instant matter, the Veteran is in receipt of a 100 percent schedular rating for major depressive disorder and has also been awarded SMC, beginning October 9, 2019. As such, Bradley is inapplicable, and the grant of a total schedular rating for major depressive disorder and SMC renders the Veteran’s TDIU claim moot for the period beginning October 9, 2019. The claim for TDIU for the remaining period, prior to October 9, 2019 is addressed in the remand below. REASONS FOR REMAND 1. TDIU prior to October 9, 2019 is remanded. The Veteran filed a January 2010 claim for increased rating for back disability. See January 2010 Correspondence. The Board took jurisdiction of the claim for TDIU as part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As explained above, in a March 2020 rating decision, the AOJ granted service connection for major depressive disorder and assigned a 100 percent rating, effective October 19, 2019. Further, the AOJ granted special monthly compensation (SMC) based on the housebound criteria being met, effective October 9, 2019. Thus, the Board finds that the grant of a total rating for his major depressive disorder, which results in the Veteran having a “total” (100 percent) rating for the period beginning October 9, 2019, and the grant of SMC for the period beginning October 9, 2019, renders the TDIU claim moot for period on appeal beginning October 9, 2019. See Green v. West, 11 Vet. App. 472, 276 (1998). As such, the claim for TDIU has been recharacterized as entitlement to TDIU prior to October 9, 2019, accordingly. Turning to the merits of the claim for TDIU, prior to October 9, 2019, in his August 2018 VA Form 21-8940, the Veteran reported that he is prevented from securing and maintaining gainful employment due to his back disability. He reported that he last worked in December 1983 as a steel cutter. A June 2012 private physician’s assistant’s corresponded indicated the Veteran has been disabled since 1988. During the applicable appeal period, prior to October 9, 2019 the Veteran has been in receipt of service connection for right lower extremity radiculopathy, rated 20 percent disabling from June 10, 2013; lower extremity radiculopathy, rated 20 percent disabling from June 10, 2013; paravertebral muscle spasm, low back, rated 40 percent disabling; and tinea versicolor, rated noncompensable from October 28, 2011 and rated 10 percent, from March 24, 2014. However, the Board notes that the Veteran has not met the schedular criteria for TDIU for the entire period on appeal. Thus, remand for referral for extraschedular consideration is warranted. The matter is REMANDED for the following action: 1. After completing any necessary development for the claim of entitlement to TDIU prior to October 9, 2019, if the Veteran does not meet the schedular criteria for TDIU, for the entire appeal period prior to October 9, 2019 under 38 C.F.R. § 4.16(a), refer the claim to the Director, Compensation Service for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16(b). (CONTINUED ON NEXT PAGE) 2. Thereafter, readjudicate the Veteran’s claim for TDIU prior to October 9, 2019, to include on an extraschedular basis. If any determination is unfavorable, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.