Citation Nr: 21067701 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-66 005 DATE: November 5, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim for service connection for heat stroke is granted. Entitlement to a rating of 40 percent for a low back disability is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Service connection for heat stroke, to include any residuals is remanded. Entitlement to a rating in excess of 40 percent for a low back disability is remanded. Entitlement to a rating in excess of 10 percent for a left hip disability is remanded. FINDINGS OF FACT 1. New and material evidence has been received to reopen the matter of service connection for heat stroke. 2. The Veteran's low back disability is productive of pain, flare ups, abnormal range of motion, and functional loss throughout the appeal period. 3. It is reasonably shown that the aggregate impact of the Veteran's service-connected physical disabilities precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for service connection for heat stroke have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to a rating of 40 percent for a low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242-5237. 3. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1982 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in September 2021. 1. New and material evidence having been received, the appeal to reopen the claim for service connection for heat stroke. The Veteran previously submitted a claim of entitlement to service connection for heat stroke, which was denied in a June 2015 Board decision on the basis that the Veteran's condition neither occurred in nor was caused by service. The June 2015 Board decision became final because the Veteran did not appeal his claim to the Court of Appeals for Veterans Claims within the specified period. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In connection with the Veteran's claim to reopen, he testified at a September 2021 Board hearing and discussed his residual symptoms, including psychiatric impairment. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. Entitlement to a rating of 40 percent for a low back disability. The Veteran asserts entitlement to a higher rating for his low back disability on the basis that he has much greater functional impairment than shown on the April 2016 VA examination. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38U.S.C. §1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski,1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to 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 rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West,13 Vet. App. 376, 382 (2000); Johnston v. Brown,10 Vet. App. 80, 85 (1997). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. The Veteran's low back disability is rated under Diagnostic Code 5237 at 20 percent disabling, effective December 9, 2015. Under the general rating formula for diseases and injuries of the spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine 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 of the height; a 20 percent rating requires that the condition be manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. A 40 percent rating requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Higher ratings are warranted where there is ankylosis of the entire spine. 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 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 regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9 (b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Effective February 7, 2021, the new regulation changed Diagnostic Code 5242 to include degenerative disc disease other than intervertebral disc syndrome. The new regulation also added Diagnostic Code 5244 for paraplegia and quadriplegia. The Board finds that a rating of 40 percent for the Veteran's low back disability is warranted throughout the appeal. During the September 2021 hearing, the Veteran testified that his low back pain is getting worse. The Veteran stated that his activities have to be further limited as he can experience severe pain if he "moves the wrong way." He stated that he has regular flare ups and was completely incapacitated with back pain for five weeks in August 2007. He stated that he has problems climbing stairs and that it is impossible for him to work due to the totality of his orthopedic pain. The Veteran also reported neurological symptoms in his right and left lower extremities. Additionally, the Veteran asserted that when his forward flexion was tested during the April 2016 examination, he was having a good day and was taking pain medication. At the April 2016 VA examination, the Veteran reported flare ups and functional loss as decreased range of motion. The examiner recorded initial range of motion of forward flexion at 0 to 50 degrees with pain noted on examination that causes functional loss. The examiner noted that the Veteran is not able to perform repetitive use testing with at least three repetitions due to painful movement. Pain, weakness, and lack of endurance was noted to cause functional loss with flare ups and the Veteran has muscle spasm, guarding, and localized tenderness that results in abnormal gait or abnormal spinal contour. After considering the Veteran's increased functional loss during flare ups and with repeated use over time, as well as his use of pain medication and reports of being incapacitated during a flare up, the Board finds that the Veteran's low back disability has more nearly approximated forward flexion of the thoracolumbar spine to no more than 30 degrees throughout the appeal period. Affording the Veteran the benefit of the doubt, the Board finds that a rating of 40 percent for his low back disability is warranted. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran asserts that the impact of his service-connected disabilities causes him to be unable to secure or follow a substantially gainful occupation. Given the award of 40 percent for the Veteran's service-connected low back disability in this decision, the Board notes that the Veteran's service-connected disabilities combine to meet the schedular criteria for an award of TDIU. As such, the issue before the Board is whether the Veteran is capable of gainful employment. 38 C.F.R. § 4.16. On his TDIU application, the Veteran reported that he last worked full-time on March 8, 2008 as a police officer. See VA Form 21-8940, December 2015. His education consists of four years of college and training at the Regional Police Institute. During the September 2021 hearing, the Veteran testified it is impossible for him to work due to the totality of his orthopedic pain in his back, ankles, feet, and hip. Turning to the medical evidence, VA examinations for the Veteran's ankle, back and hip have noted that his condition impacts his ability to work, concluding that the Veteran is best suited for sedentary work not requiring prolonged standing or sitting. The VA back examination further concluded that the Veteran is capable of part-time sedentary work with workplace adaptation and allowance for sick time for flare ups. See VA Examinations, November 2014 and April 2016. Given the evidence regarding the severity of the Veteran's service-connected disabilities, the Veteran's functional limitations due to his service-connected disabilities, in light of his individual work experience and training, and with the resolution of all reasonable doubt in his favor, the Board finds that the evidence shows he is entitled to an award of a TDIU rating, effective December 9, 2015. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). REASONS FOR REMAND 1. Service connection for heat stroke, to include any residuals is remanded. During the September 2021 hearing, the Veteran testified that he experienced heat stroke while training with his unit in July 1982 and again during training in Germany. The Veteran stated that every summer since the in-service episodes, he has experienced problems with dizziness, confusion, difficulty speaking, signing his name, and problems with memory. The Veteran testified that he lives alone and tries to conceal his symptoms when around others because he is embarrassed. In light of the Veteran's testimony discussing his symptoms, including psychological symptoms, of his in-service episodes, the Board finds remand necessary to obtain a new VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to a rating in excess of 40 percent for a low back disability is remanded. Recently, the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare." Chavis v. McDonough, 34 Vet. App. 1 (2021). Given the Veteran's testimony about the severity of his flare ups and the finding in Chavis, the Board finds remand necessary to obtain an opinion that addresses whether the medical and lay evidence of record demonstrates that the Veteran's flare ups amount to the functional equivalence of ankylosis. Further, as previously noted, the Veteran testified to neurological symptoms of his right and left lower extremities. Therefore, a VA examination is needed to address the Veteran's symptoms and whether they are associated with his service-connected low back disability. 3. Entitlement to a rating in excess of 10 percent for a left hip disability is remanded. During the September 2021 hearing, the Veteran testified that his left hip disability is worse than contemplated. As the most recent VA examination is from April 2016, the Board finds that a remand is necessary to afford the Veteran a new VA examination to determine the current severity of his service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent, and severity of his heat stroke, associated psychological problems, and severity of his left hip and low back disability. The Veteran should also be advised that he may submit medical evidence addressing his conditions, including whether he has any psychiatric problems due to his heat stroke. The Veteran should be provided an appropriate amount of time to submit this lay and/or medical evidence. 2. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to address the nature, onset, and etiology of his claimed heat stroke episode residuals. The examiner must identify and/or diagnose any residuals, including psychiatric impairment, related to the Veteran's in-service heat stroke episodes. If residuals are identified, the examiner must opine for each residual as to whether it is at least as likely as not that the heat stroke episode residual is related to or had its onset in service. The examiner must acknowledge and discuss the Veteran's competent report of having symptoms since service, including his reports of psychiatric impairment. 3. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his left hip and low back disabilities. All necessary tests should be performed. All findings should be reported in detail. The examiner should identify all left hip and low back pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight -bearing and, with range of motion measurements of the opposite joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare up. If not, the examiner should ask the Veteran to describe the flare ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examination report should include discussion of the Veteran's documented medical history and assertions relating to any symptoms of this condition. The examiner must provide an opinion as to whether the evidence of record, including the Veteran's statements, demonstrates that the Veteran's flare ups of his low back disability are functionally equivalent to ankylosis. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.