Citation Nr: 21062258 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 09-13 763 DATE: October 6, 2021 ORDER A rating of 40 percent, and no higher, for the service-connected lumbar spine intervertebral disc syndrome (IVDS) for the appeal period prior to October 8, 2019 is granted. A rating in excess of 40 percent for the service-connected lumbar spine IVDS from October 8, 2019 to the present is denied. A total disability rating based on individual unemployability (TDIU) effective February 1, 2013, but no earlier, is granted. FINDINGS OF FACT 1. The Veteran's service-connected IVDS has been manifested by incapacitating episodes approximately 35 days per year throughout the appeal period prior to October 8, 2019. 2. At no time has the Veteran's service-connected IVDS been manifested by incapacitating episodes having a total duration of at least six weeks during a one year period; and at no time as the Veteran's spine been manifested by ankylosis. 3. The evidence of record supports a finding that the Veteran's service-connected lumbar spine disabilities have rendered him unable to secure and follow substantially gainful employment since February 1, 2013, but no earlier. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, and no higher, for lumbar spine IVDS, for the appeal period prior to October 8, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for a rating in excess of 40 percent for lumbar spine IVDS from October 8, 2019 to the present are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243. 3. The criteria for a TDIU are met effective February 1, 2013, but no earlier. 38 U.S.C. §§ 5110(a), 5107(b); 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1956 to February 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, PA. This decision confirmed and continued the 20 percent rating assigned to the Veteran's lumbar spine IVDS after his November 2007 claim for increase. In October 2009, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ). A transcript of the October 2009 hearing is associated with the Veteran's claims file. The VLJ who conducted the October 2009 hearing is no longer employed at the Board. The Veteran was offered an opportunity for a new hearing and initially declined, but later requested a new hearing. The Veteran later testified before the undersigned VLJ in July 2021. A transcript of that hearing is also associated with the Veteran's claims file. Following the October 2009 hearing, the Board remanded the Veteran's claim in September 2010 in order to obtain treatment records and an updated VA examination. The Board again remanded the IVDS claim in June 2014, at this time also remanding the TDIU claim for development, as it had been found to be a part of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Following this development, the RO issued another rating decision in November 2017. At this time, the RO awarded separate ratings for the Veteran's left and right lower extremity radiculopathy associated with his IVDS, effective July 6, 2015, and also denied a TDIU. The Veteran appealed the effective date given for the radiculopathy ratings, but did not challenge the ratings assigned. In a December 2019 decision, the Board awarded an effective date of November 23, 2007 for the radiculopathy ratings. This represents a full grant of the appeal of the effective dates assigned. Thus, neither the matters related to the ratings or the effective dates for the service-connected lower extremity radiculopathy are before the Board at this time. In May 2018, the Board issued a decision that denied a rating in excess of 20 percent for the lumbar spine IVDS and denied a TDIU. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In February 2019, the Court signed an Order granting the parties' Joint Motion for Remand (joint motion). The Board's May 2018 decision was vacated, and the issues related to the IVDS rating and TDIU entitlement were remanded to the Board for action in accordance with the joint motion. The case was subsequently remanded by the Board in August 2019 for further development. Following that remand development, the RO issued a rating decision in May 2020 awarding a 40 percent rating for the lumbar spine IVDS, effective October 8, 2019. Most recently, in August 2020, the Board issued a decision and awarded the Veteran a TDIU effective October 8, 2019, and remanded the issues of whether a rating in excess of 20 percent is warranted for IVDS prior to October 8, 2019; whether a rating in excess of 40 percent is warranted for IVDS from October 8, 2019 to the present; and whether a TDIU is warranted prior to October 8, 2019. These issues are now once again before the Board. Increased Rating As discussed above, the question before the Board is whether the Veteran's service-connected IVDS warrants a rating in excess of 20 percent prior to October 8, 2019, or a rating in excess of 40 percent thereafter. The Veteran was originally awarded service connection for his lumbar spine disability in May 1962. He filed this increased rating claim in November 2007. The Veteran's lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, DC 5243, for IVDS. DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the Veteran's claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this case, the new rating criteria do not involve changes to the specific rating criteria within either the general rating formula or the Formula for Rating IVDS based on incapacitating episodes. However, under the old criteria, Note 6 of the general rating formula directs evaluation of DC 5242 to also see DC 5003. The new rating criteria direct ratings under DC 5242 to see either DC 5003 or 5010. DC 5003 provides that degenerative arthritis established by x-ray findings be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. DC 5010 provides that arthritis, due to trauma, substantiated by X-ray findings, be rated as arthritis, degenerative. 38 C.F.R. § 4.71a. The only change made to DC 5003 in the new regulation is to clarify it as pertaining to degenerative arthritis, other than post-traumatic. The new DC 5010 indicates post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint, and, if there are two or more joints affected, each rating shall be combined in accordance with § 4.25. The only other change to the regulations pertaining to rating the spine involved DC 5244, traumatic paralysis, which is not applicable in this case. Under the general rating formula, a 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, 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 in height. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. In addition, under the formula for rating IVDS based on incapacitating episodes a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks in the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating 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. The current version of DC 5243 for IVDS instructs adjudicators to assign that DC only when there is disc herniation with compression and/or irritation of the adjacent nerve root, and to assign DC 5242 for all other disc diagnoses. The former version provides no such instruction. In this case, clinical records show the Veteran being treated for back pain throughout the appeal period. For example, March 2007 VA clinical notes show the Veteran being assessed as having chronic intermittent back pain. February 2008 clinical notes show the Veteran's physician recognizing his longstanding pain, but noting that there was no pain on the date of this examination and also noting that the Veteran was not on pain medication at this time. The Veteran was then afforded a VA examination in March 2008. The Veteran reported to this examiner that, starting in 2007, he began experiencing more intense back pain with flare-ups. There was no explicit report of physician prescribed bed rest at any time. However, the Veteran did describe the flare-ups of pain as sharp burning or a hot sensation in his lumbar spine area. He indicated these flare-ups come on with any activity, to include sitting, standing, and driving. He reported these flare-ups are relieved by over the counter (OTC) medication, rest, and hot showers. The Veteran reported having to take 35 days of leave from work in a year due to the flare-ups. Physical examination on the day of this examination revealed normal range of motion with all measurements, although mild pulling was noted at 90 degrees of forward flexion and slight pulling noted at 30 degrees of right lateral flexion. Repetitive range of motion testing did not change the range of motion or cause pain or weakness. There was no incoordination or easy fatigability, and no limiting factors, muscle atrophy, weakness, paralysis, or contractures. The examiner noted the diagnosis as degenerative disk disease of L3-L4, L4-L5 and L5-S1, encroachment at L5-S1, and residual flare-up pain. The diagnosis was made based upon the findings in a May 2006 MRI report, a copy of which is in the claims file. The RO then issued the August 2008 rating decision on appeal, which continued the 20 percent rating assigned for the lumbar spine IVDS. The Veteran's September 2008 NOD shows his report of an increase in the severity and frequency of intermittent flare-ups of pain. January 2009 clinical records show the Veteran was last treated in February 2008, but returned for follow up due to his chronic back pain, but which the clinician noted is "not that bothersome to the patient." The Veteran did report having back pain on the day of this examination and again reported managing the pain with OTC medication. At the time of the October 2009 hearing, the Veteran reported now being constantly on medication, taking OTC pain relief three to four times per day. He reported no longer being able to go on vacation, because he is only able to drive about an hour at a time and cannot ride in an airplane. He indicated that he gets flare-ups of his back pain about 25 times during a month, sometimes manifesting as short spasms and sometimes as long as five days. Given the multi-day duration of some of these flare-ups, the Board recognizes the Veteran was reporting having more than 25 flare-ups per month. The Veteran's representative at the time indicated that they recognized the limitation of motion shown at the time of the VA examination would not warrant an increase in the Veteran's rating, but that it was the severity of the symptoms during the many flare-ups the Veteran has that warrant an increase. Following the hearing, in September 2010, the Board remanded this matter in order for additional medical records to be obtained and in order for the Veteran to be afforded an updated VA examination. The Veteran was then afforded a VA examination in October 2010. He continued to report nearly constant pain in his back and at this time he indicated he takes OTC pain medication four times per day. The Veteran reported he sometimes uses a cane and also that he has to now wear shoes that do not lace, because he cannot reach his feet to tie his shoes. The Veteran indicated that his work requires a lot of bending and stooping, which exacerbates the pain and he indicated that bedrest helps resolve it. The examiner confirmed, outside of radiculopathy symptoms, there were no other neurological manifestations of the back disability, to include no fecal or urinary incontinence. At this time, the examiner confirmed the Veteran can walk for about one block before he has to stop or sit down to rest, and that he can stand or sit for about 45 minutes to an hour before he has to change position secondary to pain. Physical examination revealed extension to 25 degrees, flexion to 45 degrees, right lateral bending to 20 degrees, left lateral bending to 25 degrees, and right and left rotation to 30 degrees. Repetitive testing did not yield weakness, excessive fatigability, incoordination, or additional loss of motion. The examiner did confirm that the Veteran has pain with all ranges of motion, but that the pain does not cause additional limitation of motion. December 2010 VA clinical notes show the Veteran was prescribed a TENS unit for the management of his back pain. December 2013 VA records show the Veteran was undergoing physical therapy to manage his back disability. The Veteran was then again afforded a VA examination in July 2015. He again reported ongoing, steady back pain that he manages with OTC medication. He confirmed that at this time he was not in physical therapy or other treatment. The Veteran again reported flare ups, which would lead to him being "down for a couple days on [his] back." The flare-ups were again reported to sometimes last several days. The Veteran confirmed that he does not seek additional treatment for the flare-up, because he knows rest will allow the pain to subside to the baseline amount of pain, which he identified as a six on a scale of one to ten. At the time of this examination, forward flexion was limited to 60 degrees; extension and right and left lateral flexion were all limited to 20 degrees; right lateral rotation was limited to 15 degrees; and left lateral rotation to 30 degrees. Pain was noted as present with all ranges of motion, but not with weight bearing and not causing additional loss of motion or function. The examiner did recognize localized tenderness in the left lumbar area and left SI joint, but noted that it did not result in abnormal gait; however, guarding was indicated as leading to abnormal gait. The examiner also noted that the Veteran was able to perform repetitive use testing and there was no additional loss of motion or function after that testing. This examiner also indicated there were no neurological findings related to the back disability outside of the radiculopathy. The February 2019 joint motion found the July 2015 VA examination report to be deficient in that it failed to provide both active and passive range of motion findings. The Board, therefore, remanded the matter for a new examination in August 2019. The Veteran was then afforded another VA examination in October 2019. The ongoing pain with flare ups caused by things like bending over to put shoes on continued to be reported. The Veteran reported that the flare-ups lasted up to seven days. Also, due to his back pain, the Veteran cannot lift anything heavy. At this time, range of motion had dramatically decreased compared to prior examinations. Forward flexion was limited to 10 degrees, extension to 7 degrees, right lateral flexion to 7 degrees, left lateral flexion to 6 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. Pain was present with all areas of movement. The examiner recognized the Veteran's pain upon movement caused functional loss in terms of walking, climbing, or bending movement. The examiner did confirm there was no evidence of pain with weight bearing, but found there was objective evidence of pain when the back is used in non-weight bearing. The examiner also confirmed that passive range of motion testing was the same as active range of motion testing. The Veteran was able to perform repetitive testing and his range of motion was additionally limited afterward. Forward flexion was limited to 7 degrees, extension to 5 degrees, right and left lateral flexion to 5 degrees, right lateral rotation to 12 degrees and left lateral rotation to 8 degrees. The examiner confirmed it was the pain that caused this further limitation of motion. The examiner also predicted further limited motion during flare up, to include forward flexion to 5 degrees, extension and right and left lateral flexion to 3 degrees, right lateral rotation to 7 degrees and left lateral rotation to 8 degrees. While the range of motion was severely limited, the examiner confirmed there was no ankylosis. This examiner confirmed that the Veteran's IVDS is manifested by episodes of bed rest having a total duration of at least one week, but less than two weeks, during the past twelve months. Regular use of a cane was noted, with occasional use of a walker. The RO assigned the 40 percent rating effective the date of this VA examination. In August 2020, the Board remanded this matter for a retrospective opinion as to the impact the Veteran's flare-ups would have on his range of motion for the time period prior to October 2010. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In September 2020, a VA examiner reviewed the record and offered an opinion. In particular, the examiner reviewed the Veteran's 2009 hearing testimony and estimated that the Veteran's IVDS flare-ups were of such a severity that they required two days per month of complete bed rest. The examiner indicated functional loss is essentially incapacitation during periods of bed rest. As to the question of whether the flare-ups impact the Veteran's range of motion, the examiner indicated that a flare-up is defined as incapacitating such that the flare-up would cause near complete loss of motion at those times. This examiner also recognized the findings in the 2008 VA examination report, which suggest normal range of motion. The September 2020 examiner indicated that a review of the record since 2006 leads to a conclusion that it is highly unlikely that this Veteran actually had completely normal range of motion at that time. The examiner suggested that the findings in the 2010 VA examination report are more likely to be accurate as to the measurement of the range of motion outside of a period of flare-up. In an October 2020 addendum, this examiner noted that it is not possible to provide retrospective specific range of motion estimations as the record does not provide enough information to do that, such that any such opinion would be speculative. The Veteran also provided hearing testimony in July 2021 related to the period prior to October 8, 2019. This hearing testimony is consistent with the other evidence of record as it describes the ongoing chronic back pain with flare-ups causing him to take leave from work and ultimately leave his job in 2013. The Veteran testified that this condition has been at a consistent level of severity throughout the period on appeal, rather than only since the October 2019 VA examination. Based upon the foregoing, the Board finds that a 40 percent rating is warranted for the Veteran's IVDS throughout the appeal period prior to October 8, 2019, which dates to the Veteran's November 23, 2007 increased rating claim. The September 2020 VA examiner indeed found the level of severity throughout the appeal period to be one that required bed rest during the flare-ups of IVDS. The Board recognizes the examiner estimated this to occur approximately two times per month; however, the March 2008 VA examiner noted the Veteran's own report at that time that he had to take 35 days per year off due to the flare-ups. Thus, reading the record in the light most favorable to the Veteran, the Board finds that his IVDS, throughout the appeal period, has been manifested by flare-ups with symptoms including incapacitating episodes approximately 35 days per year. Symptoms such as this with this frequency warrant a 40 percent rating under DC 5243. The evidence has not established that the Veteran's IVDS has been manifested by more frequent episodes of flare-ups causing incapacitating episodes. Further, there is no evidence that the Veteran's lumbar spine is manifested by ankylosis. Thus, a rating in excess of 40 percent under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS Based on Incapacitating Episodes, is not warranted at any time. The Board, therefore, finds that a 40 percent rating, and no higher, is warranted effective November 23, 2007. To the extent the claim for a rating in excess of 40 percent is denied, the Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim in this regard, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). TDIU Prior to October 8, 2019 As noted in the introduction, above, the Veteran was awarded a TDIU effective October 8, 2019. The question remaining before the Board is whether a TDIU is warranted prior to that date. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service connection for his lumbar spine IVDS and associated left and right lower extremity radiculopathy. By way of the decision above, the Veteran will have a combined rating of 60 percent. Because the radiculopathy is associated with the lumbar spine IVDS, this is considered a single disability for the purpose of the TDIU. The Veteran now satisfies the criteria for consideration of TDIU on a schedular basis effective November 23, 2007. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the analysis for increased rating claims, which are based on average levels of impairment, the analysis for a TDIU claim is based upon the individual. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). The Veteran contends that his service-connected lumbar spine disability caused him to be unable to obtain and sustain substantially gainful employment. The evidence of record shows that the Veteran worked at the United States Postal Service (USPS) for many years until January 31, 2013. Various submissions show the Veteran did use the Family Medical Leave Act (FMLA) to take leave many times during his last years of working due to his back pain. The Veteran has reported that he became too disabled to work by January 31, 2013, and left his job. Prior to that date, it appears he held a full time job with USPS. As was noted by the Board in its prior decision, the Veteran reported on his July 2015 VA Form 21-8940 that he completed four years of high school, as well as electrician training from 1973 to 1976. After service he worked in steel mills and then as a maintenance mechanic at the USPS from 1986 to 2013. A July 2015 VA examiner suggested that the Veteran would most likely be capable of maintaining employment that is not physically demanding. The examiner gave the example of a job that does not require repetitive bending, squatting, or lifting, and allows him to change position and/or change activities during the work shift. In other words, the VA examiner confirmed the Veteran to be essentially unable to work in a physical job. Given the Veteran's educational and work history, the Board finds it unlikely that the Veteran would be able to secure employment outside of the mechanical/electrical field, as the majority of his education and experience was in the area of electronics and mechanics. Thus, resolving all doubt in favor of the Veteran, the Board finds that a TDIU is warranted effective February 1, 2013, the day after the Veteran's last day of employment with USPS. Prior to February 1, 2013, the Veteran was gainfully employed by USPS; thus, a TDIU prior to February 1, 2013 is not warranted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.