Citation Nr: 21068458
Decision Date: 11/10/21	Archive Date: 11/10/21

DOCKET NO. 16-24 229
DATE: November 10, 2021

ORDER

Entitlement to an initial rating of 60 percent for service-connected eczema is granted.

Entitlement to an initial rating in excess of 20 percent for service-connected lumbar spine disability, status post fusion at L3-S1 is denied.

Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.30 from February 12, 2019 to April 12, 2019 is granted.

Entitlement to special monthly compensation under 38 U.S.C. § 1114, subsection (s), (SMC(s)) for statutory housebound, from February 12, 2019 to April 12, 2019 is granted.

Entitlement to an earlier effective date for a total disability due to individual unemployability from October 11, 2010 is granted.

FINDINGS OF FACT

1. The Veteran's eczema with acne requires constant or near-constant systemic therapy, specifically corticosteroids administered through injection.

2. For the entire period on appeal, the Veteran's service-connected low back disability has manifested by pain, forward flexion of the thoracolumbar spine limited no less than 45 degrees, a combined range of motion of the thoracolumbar spine of no less than 125 degrees, without evidence of the following: unfavorable ankylosis of the entire thoracolumbar spine or the entire spine; IVDS with incapacitating episodes more than two weeks during the past twelve months; or disc herniation with compression and/or irritation of the adjacent nerve root.

3. The Veteran underwent lumbar laminectomy February 12, 2019, which necessitated 60 days of convalescence.

4. From February 12, 2019 to April 12, 2019, the Veteran had a single disability rated as 100 percent disabling, and additional service-connected disability or disabilities independently rated as 60 percent disabling.

5. From October 11, 2010, the Veteran meets the schedular requirements and service-connected disabilities precluded the Veteran from securing and following gainful employment.

CONCLUSIONS OF LAW

1. The criteria for a 60 percent evaluation for eczema with acne have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806.

2. For the entire period on appeal, the criteria for an increased evaluation in excess of 20 percent for the Veteran's service-connected low back disability, to include degenerative disc disease (DDD) and degenerative joint disease (DJD) with intervertebral disc syndrome (IVDS), have not been met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5243.

3. The criteria to establish SMC based on a total rating plus 60 percent from August 15, 2020, are met. 38 U.S.C. § 1114(s), 1502, 5107, 5110; 38 C.F.R. § 3.350.

4. The criteria for a temporary total rating under the provisions of 38 C.F.R. § 4.30 for a period of 30 days based upon convalescence following an August 11, 2009 service-connected lumbar spine laminectomy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.30.

5. A TDIU from October 11, 2010 is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 2006 to October 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2013 (skin and back) and April 2017 (TDIU) rating decisions of the Veterans Benefits Administration Regional Office (RO).

1. Entitlement to an increased initial rating of 60 percent for service-connected eczema is granted.

In June 2019, the Board remanded this appeal for further development, including scheduling the Veteran for VA examinations to evaluate his service-connected skin and low back disabilities. To the extent that the directed VA examination reports were procured in January 2020 and February 2020, the Board finds that substantial compliance with its remand directives pertaining to the Veteran's skin and low back claims has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

In a July 2020 rating decision, the RO increased the Veteran's disability rating for his service-connected skin disability, from 10 percent to 60 percent, effective May 21, 2019. However, because this award amounts to less than the maximum benefit available for the Veteran's service-connected skin disability, and because the Veteran has not indicated that he is satisfied with a 60 percent disability rating, the Veteran's increased rating claim for his service-connected skin disability remains on appeal. The Veteran's representative argues in their August 2021 brief that the most recent VA examination shows a disability level that was present much earlier. See August 2021 Brief. The Board agrees.

The Veteran's eczema is evaluated as 10 percent disabling effective October 11, 2010 and 60 percent, effective May 21, 2019 under Diagnostic Code 7806. The Veteran is also service connected for an acne disability that is evaluated at 0 percent effective October 11, 2010 under Diagnostic Code 7828. 

The Board notes the Veteran's notice of disagreement indicated he disagreed with the initial evaluation assigned for eczema and he asserted that he received systemic therapy with immunosuppressive drugs for a duration of six weeks or more. See July 2013 Notice of Disagreement. 

Laws and Regulations

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. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). 

As explained below, a uniform 60 percent evaluation is appropriate for the entire period on appeal. Two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. 38 C.F.R. § 4.118(b). 

The Board notes these disabilities both affect the skin of the face, scalp, and neck, while he Veteran's acne also affects the remainder of his torso. The higher evaluation is assignable under DC 7806. Consistent with section 4.118(b), the manifestations of eczema warrant a higher evaluation under Diagnostic Code 7806 than available under Diagnostic Code 7828. 

Effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118.

Under the new criteria set forth in the General Rating Formula for the Skin, a 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period.

A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period.

A 60 percent rating is warranted for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, General Rating Formula for the Skin.

For the purposes of this section, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Because the Veteran's claim was filed prior to August 13, 2018, the Board must determine whether the Veteran's use of topical treatment is a "systemic therapy." Systemic therapy is one that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating the Veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug. Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id.

Analysis

The Veteran was examined initially in December 2009 and he reported a history of eczema and acne. See November 2009 Examination. The Veteran's eczema was noted to affect his cheeks, jaw, chin, forehead, nostrils, and upper lip with constant itching, crusting, but no exudation or ulcer formation. The Veteran was treated with hydrocortisone topical corticosteroid 365 days a year with application to the affected areas once a day. The Veteran's eczema had characteristic symptoms of exfoliation, crusting, and abnormal texture less than six square inches. 

With respect to the Veteran's service-connected acne, he was prescribed tetracycline injections, a systemic antibiotic, twice a day, for a duration of 6 months at the time of the examination. He was also prescribed a topical immunosuppressive for application to affected areas of cheeks nose, upper chest, entire back, and upper part of bilateral shoulders. The examiner note 22 percent of the Veteran's total body area was affected by skin lesions.

A February 2016 examination showed the Veteran had waxing and waning symptoms affecting the scalp, ears, and face that resulted in fissures and redness. See February 2016 Examination. The Veteran reported treatment with ciclopirox, mupirocin ointment, and clobetasol topical. Ultimately, the Veteran provided a February statement that he used corticosteroids or immunosuppressive drugs for six weeks or more. See February 2016 Statement.

At a February 2020 VA examination, the examiner reported that the Veteran required constant/near-constant injections of biologic immunosuppressive medication for treatment of eczema, seborrheic dermatitis, and psoriasis. See February 2020 Examination. 

How a topical treatment works is a factual question that may, but not necessarily, require a medical opinion for its resolution. The Board may make such a factual finding based on other evidence, such as medical dictionaries. Nielson v. Shinseki, 23 Vet. App. 56, 59 (2009) (citing United States v. Rodgers, 466 U.S. 475, 479, 104 S. Ct. 1942, 80 L. Ed. 2d 492 (1984)). But the Board is limited in its ability to make its own independent medical determinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Burton; 30 Vet. App. at 292.

For the period prior to the February 2020 examination showing constant systemic treatment with biologic injections, the Board finds based on the factual circumstances of this case that the Veterans use of topical medications, which required daily treatment that covered his entire head, constituted systemic treatment. Resolving reasonable doubt in the Veteran's favor, the Board finds his skin disability of eczema has resulted in severe symptoms over the appellate period, but is subject to waxing and waning patterns, has required constant or near-constant therapy including topical corticosteroids and immunosuppressive drugs that affect the Veteran entire head and most of the upper body is systemic in nature. 

This is in addition to the evidence from VA examinations indicating significant systemic treatment involving injections of antibiotics and biologics throughout the appellate period. Given the severity of the Veteran's skin disability, the consistency of the Veteran's contentions, and the record of evidence showing constant/near-constant systemic therapy with injections consistent with 38 C.F.R. § 4.118 (a), an initial evaluation of 60 percent evaluation is warranted for the entire period on appeal. 

2. Entitlement to an increased initial rating in excess of 20 percent for service-connected lumbar spine disability, status post fusion at L3-S1 is denied. 

The Veteran has been awarded a 20 percent evaluation under Diagnostic Code 5243 for his service-connected low back disability, effective October 11, 2010.

The Veteran contends that the severity of his service-connected low back disability warrants an increased evaluation in excess of 20 percent; however, for the reasons set forth below, the Board finds that a preponderance of the evidence of record weighs against a finding that any increased evaluations pertaining to the Veteran's service-connected low back disability are warranted in this case.

Laws and Regulations

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40. 

It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. See id. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 

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. See 38 C.F.R. §§ 3.321(a), 4.1, 4.21.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. See 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. See 38 C.F.R. § 4.3.

Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor that actually limited motion, such as deformity, atrophy, adhesions, or any of the other factors cited above. See Schafrath, 1 Vet. App. at 592. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See id. Where the veteran is diagnosed with any form of arthritis, painful motion is an important factor of disability, and facial expressions such as wincing exhibited in the presence of pressure on or manipulation of the affected joints, should be carefully noted and related to the affected joints. See 38 C.F.R. § 4.59. 

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See id. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See id. 

Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. See id. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. See id.

When adjudicating disabilities evaluated based upon limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment. See DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). In applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. See id. Such inquiry should not be limited to muscles or nerves, and, if feasible, these determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. See id. 

Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis; thus, a rating based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). However, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). 

In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and credibility, a factual determination regarding the probative value of the evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the Veteran's claim in order for it to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996).

Disabilities of the lumbar spine or low back are evaluated under the criteria set forth in Diagnostic Codes 5235 through 5243. See 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that evaluations of degenerative arthritis of the lumbar spine shall be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). See id.

The General Rating Formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, evaluations of the spine apply as follows: (1) a 100 percent evaluation is warranted where there is evidence of unfavorable ankylosis of the entire spine.

A 50 percent evaluation is warranted where there is evidence of unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation is warranted forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 20 percent evaluation is warranted where there is evidence of 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.

If applicable, spinal disabilities manifesting IVDS based on incapacitating episodes (preoperatively or postoperatively) may be rated under either the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula), whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25. 

The IVDS Rating Formula provides as follows: (1) a 60 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; (2) a 40 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; (3) a 20 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and (4) a 10 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. See 38 C.F.R. § 4.71a

For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires treatment by a physician and bed rest prescribed by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. See id., Note 2.

The Board notes that the criteria for the evaluation of musculoskeletal disabilities in the VA Rating Schedule have been amended effective February 7, 2021 (the 2021 Regulations); therefore, claims filed on or after February 7, 2021, must be evaluated under the 2021 Regulations. See 85 Fed. Reg. 76453-76469 (November 30, 2020); 85 Fed. Reg. 85523-85524 (December 29, 2020).

In this case, although the Veteran's low back claims were filed prior to February 7, 2021, to the extent that the periods on appeal relating to such claims extend beyond February 7, 2021, such claims must be evaluated under both the prior regulations and the 2021 Regulations, and the set of criteria most favorable to the Veteran must be applied. See Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003).

Amended Diagnostic Code 5243 governs Intervertebral Disc Syndrome (IVDS) and provides applies only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign Diagnostic Code 5242 for all other disc diagnoses. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2021). 

Here, the Veteran's lumbar spine disability has not been manifested by disc herniation with compression or irritation of the adjacent nerve root. In this case, the Board finds that the application of either set of criteria does not modify the Board's analysis of the Veteran's claim in any appreciable manner, as under either set of regulations, the General Formula, which has not been amended by the 2021 Regulations still applies to the Veteran's lumbar spine claim. Thus, the Board finds that the application of the criteria set forth in Diagnostic Code 5243 under either the prior or the 2021 Regulations does not modify the Board's analysis of the Veteran's claim in any appreciable manner. See 38 C.F.R. § 4.71a. As stated above, the Veteran's low back disability, has been evaluated under Diagnostic Code 5243 as 20 percent disabling from October 11, 2010 and the Veteran contends that the severity of his service-connected low back disability warrants an increased evaluation in excess of 20 percent. 

However, after careful consideration of the evidence of record, the Board finds that an increased evaluation in excess of 20 percent for the Veteran's service-connected low back disability is not warranted in this case, as a preponderance of the evidence of record demonstrates that for the entire period on appeal, the Veteran's service-connected low back disability has manifested pain, forward flexion of the thoracolumbar spine limited at most to 45 degrees, and a combined range of motion of the thoracolumbar spine of 125 degrees, without evidence of the following: forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; unfavorable ankylosis of the entire thoracolumbar spine; unfavorable ankylosis of the entire spine; or IVDS resulting in incapacitating episodes during the past 12 months having a total duration of at least four weeks but less than six weeks.

Analysis

Service Treatment Records show the Veteran underwent Medical Evaluation Board Proceedings in December 2009 for lumbar spine L5-S1 laminectomy and fusion with radiculopathy. See December 2009 Medical Record. Service connection is established for bilateral lower extremity radiculopathy. 

VA examination findings from November 2009 show the Veteran had undergone L5-S1 laminectomy and reported limitations in walking and weakness of the spine and the left leg. See November 2009 Examination. The Veteran denied any incapacitating episodes. Examination revealed radiating pain on movement with muscle spasm along the lumbar sacral spine, guarding and muscle spasm did not result in abnormal contour or gait. 

Physical examination of the thoracolumbar spine revealed range of motion on repetitive testing of 45 degrees forward flexion; 15 degrees of extension; 15 degrees right lateral flexion; 15 degrees left lateral flexion; and 15 degrees lateral rotation (right and left), with objective evidence of painful motion. The examiner noted pain, fatigue, weakness, lack of endurance additionally limited the spine function.

The VA examination findings from February 2, 2016 document complaint of low back pain with bilateral radiating pain. See February 2016 Examination. Physical examination of the thoracolumbar spine revealed range of motion as 65 degrees forward flexion; 25 degrees right lateral flexion; 15 degrees left lateral flexion; and 20 degrees lateral rotation (right and left), with objective evidence of painful motion. It is noted that the Veteran declined to do extension motion as this precipitates severe pain/spasm. The examiner noted that there was tenderness to soft palpation midline lower spine. The examiner noted the Veteran was able to perform repetitive use testing with three repetitions without additional loss of function or range of motion. 

The February 2016 examiner found objective evidence of pain and lack of endurance immediately following repetitive use over time but no change in range of motion. The examiner noted reports of flareups that resulted in increased left and right lower extremity radiculopathy that interfered with sleep and use of a cane for ambulation. Although you reported having muscle spasms, the examiner noted no muscle spasms at time of examination. There was no guarding and the localized tenderness did not result in abnormal gait or spinal contour. There was no evidence of muscle atrophy or ankylosis of the spine. The examiner noted that you have intervertebral disc syndrome (IVDS) that did not have any incapacitating episodes the previous 12 months. 

Medical records from Dr. J.G. regarding February 12, 2019 spine surgery show L3-L4 anterior lumbar interbody fusion and L4-L5 anterior lumbar interbody fusion. A May 2019 follow-up X-ray showed normal placement of the surgical hardware and the Veteran reported radiating neuropathic pain but also the ability to walk distances without much pain. See May 2019 Medical Record.

The Veteran was most recently examined in January 2020 and he was noted to have undergone additional lumbar spine fusion at L3-L4, L4-L5, in addition to the already fused L5-S1 that was originally service connected. Physical examination of the thoracolumbar spine revealed range of motion as 45 degrees forward flexion; 5 degrees of extension; 30 degrees of right and left lateral flexion; and 30 degrees of left and right lateral rotation, with objective evidence of painful motion. The examiner noted that there was tenderness to palpation of the lumbar spine. 

The January 2020 examiner noted that you were able to perform repetitive use testing with three repetitions with additional loss of flexion as listed above. The examiner noted you reported no flare-ups, but that you had limitation in forward flexion, prolonged walking, sitting, bending, and lifting loads over 20 pounds. There was guarding and muscle spasm, but it did not result in abnormal gait or spinal contour. There was no evidence of muscle atrophy or ankylosis of the spine. The examiner noted that you have intervertebral disc syndrome (IVDS) that did not have any incapacitating episodes the previous 12 months. The examiner noted no evidence of pain in non-weight bearing position of the lumbar spine and indicated there was pain on passive and active range of motion testing between 45 degrees and 60 degrees of flexion. See January 2020 Examination. 

After careful review, and in consideration of the foregoing evidence, the Board hereby finds that for the entire period on appeal, the severity of the Veteran's service-connected low back disability does not warrant an increased evaluation in excess of 20 percent under Diagnostic Code 5243. 

The evidence of record does not suggest, and the Veteran does not contend, that his low back disability manifests forward flexion of the thoracolumbar spine 30 degrees or less or favorable or unfavorable ankylosis of the entire thoracolumbar spine. 

Rather, as outlined above, examinations of the Veteran's thoracolumbar spine have consistently reflected that the Veteran has flexion of at least 45 degrees, even when factoring in pain, flare-ups, and the results of repetitive testing. Nor has the Veteran ever been noted to require bed rest prescribed by a physician for at least two weeks during the past 12 months due to incapacitating episodes of IVDS, excluding convalescence from surgical intervention which is addressed below.

When evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosisi.e., functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has not demonstrated functional loss that approximates ankylosis in light of the examination findings showing significant range of motion despite his multilevel disc fusions.

The Board has also considered whether the Veteran's service-connected low back disability warrants a higher disability rating due to functional loss caused by pain, weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Mitchell, 25 Vet. App. at 37; DeLuca, 8 Vet. App. at 205-07. However, the current evaluations for the Veteran's service-connected low back disability under Diagnostic Code 5243 contemplates the impact of any complaints of pain, fatigue, swelling, weakness, or lack of endurance, and none of the VA examination reports found limitation of forward flexion limited to less than 30 degrees. Thus, even considering the effect of pain, flareups, and repetitive motion, the Veteran's low back functional limitation has never been found to manifest forward flexion limited to 30 degrees or favorable or unfavorable ankylosis. Accordingly, the consideration of other functional limitation factors does not warrant evaluations in excess of the 20 percent evaluation currently assigned under Diagnostic Code 5243. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. at 205-07.

The Veteran has not specifically raised any other issues, nor have any other issues been reasonably raised by the evidence of record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017).

The preponderance of the evidence of record weighs against the award of an evaluation in excess of 20 percent for the Veteran's service-connected low back disability under Diagnostic Code 5243, the benefit of the doubt doctrine is not applicable, and the appeal is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

3. Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.30 from February 12, 2019 to April 12, 2019 is granted. 

As noted above, the Veteran underwent lumbar laminectomy on February 12, 2019 and reported at a follow up visit with he still that he felt radiating neuropathic pain but that he had the ability to walk distances without much pain. See May 2019 Medical Record. X-ray noted good placement of the surgical hardware and the Veteran was directed to begin physical therapy. 

A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a) (1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. 

Total ratings will be assigned if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. 

The Board assigns this evaluation for a period of 60 days of convalescence following his surgery based on the February 12, 2019 surgery because involves a multilevel fusion of the lumbar spine and involved a previously fused lumbar spine region of L5-S1. 

In the absence of any competent evidence to the contrary, the Board concludes that a temporary total rating under the provisions of 38 C.F.R. § 4.30 for the service-connected lumbar spine degenerative joint disease based upon convalescence following the February 12, 2019 surgical procedure for a period of 60 days.

4. Entitlement to special monthly compensation under 38 U.S.C. § 1114, subsection (s), (SMC(s)) for statutory housebound, from February 12, 2019 to April 12, 2019 is granted. 

The Board has also considered entitlement to SMC on a statutory housebound basis of having a single service-connected disability rated as 100 percent disabling, plus additional service-connected disability or disabilities independently ratable at 60 percent. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991).

Entitled to special monthly compensation under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i) on account of lumbar spine disability rated 100 percent and additional service-connected disabilities of eczema, left knee patellofemoral pain syndrome, migraine headache, peripheral nerve sensory deficit right lower extremity, peripheral nerve sensory deficit right lower extremity, sleep apnea, independently ratable at 60 percent or more from February 12, 2019 to April 12, 2019.

5. Entitlement to an earlier effective date for a total disability due to individual unemployability from October 11, 2010 is granted.

In a rating decision dated April 2017, the Regional Office (RO) granted TDIU with an effective date of May 24, 2016. However, pursuant to Harper, the issue of TDIU prior to May 24, 2016 is still pending in conjunction with the claims for increased initial ratings for skin and lumbar spine disabilities. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). 

The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

TDIU will be awarded when VA determines that a veteran cannot secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(a) (2020); Cantrell v. Shulkin, 28 Vet. App. 382, 390 (2017).  

Marginal employment is not considered substantially gainful, meaning that veterans who are engaged in marginal employment may be awarded TDIU even though they are working. 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016).

Section 4.16(a) specifies that "marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person." 38 C.F.R. § 4.16(a). 

The regulation further provides that "[m]arginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold." Id. The issue here is the meaning of "employment in a protected environment" in § 4.16(a).

The Veteran has met the schedular criteria for consideration for TDIU under 38 C.F.R. § 4.16(a) since he reports he last worked in January 2011. Specifically, the Veteran was entitled to a 90 percent combined disability rating.

In his August 2016 TDIU application, the Veteran reported that he last worked full- time in January 2011, that he ceased working due to lumbar spine disability and radiculopathy, and that he became too disabled to work on November 11, 2009, or still while he was on active duty. See August 2016 VA Form 21-8940.

Here, the Veteran cannot receive both military pay and VA compensation at the same time as per 38 U.S.C. § 5304 and an effective date for TDIU may not be established during active duty. The Board does not find the Veteran was unemployable from November 11, 2009. 

Next the Board analyzes whether he was unemployable from his separation date. The evidence shows the Veteran was determined to be disabled by the Social Security Administration under their guidelines in October 2011. See October 2011 SSA Decision. SSA found the Veteran was not engaged in substantially gainful activity during his last year on active duty due to his assignment to a medical separation unit and his limited duty. He reported earnings of approximately $7800 in the fourth quarter of 2010 and while separating from active duty, and was employed by his father-in-law as a driver. The Veteran reports on his TDIU application he was allowed over 30 days of leave during his 90 days of employment due to the accommodations of his sheltered work environment. 

The Court recently addressed sheltered work environments in Arline v. McDonough, No. 18-0765, 2021 U.S. App. Vet. Claims LEXIS 1211, at *52 (Vet. App. July 1, 2021). The Court noted that Chief Judge Bartley's dissenting opinion provided helpful guidance for assessing the meaning of "employment in a protected environment."  

The three factors identified by Judge Bartley focused on: (1) the type and extent of the accommodations the employee received at the job; (2) employer behavior but not necessarily intent; (3) economic factors such as the amount of income from the job. Given the type and extent of accommodations, i.e., the significant leave allowance for a truck driver the Board finds the Veteran was afforded significant accommodations. In light of the Veteran's continued employment despite these absences, the Board finds the employer was intent on providing employment that was sheltered work and relatively marginal marginal income. 

Although the Veteran is currently entitled to TDIU, the Veteran's claim for TDIU was raised during the increased rating claims remanded in the decision herein. Accordingly, the increased rating claims encompass the claim for TDIU, and the appellate period dates back to his date of separation from active. 

While the Veteran indicated an unemployability date of November 11, 2009, the Board finds the evidence shows that he has been unable to secure or follow a substantially gainful occupation since his date of separation, October 11, 2010. The Veteran is granted TDIU, beginning October 11, 2010.

SMC Statutory Housebound

The Board has also considered statutory housebound criteria, for that benefit, TDIU may also be considered based on a single disability. Buie v. Shinseki, 24 Vet. App. 242, 251 (2011). 

As noted above, the Veteran is service connected for lumbar spine and radiculopathy disabilities and he asserted that these disabilities warranted a TDIU. See August 2016 VA Form 21-8940.

The Veteran has service connected disabilities effective October 11, 2010 of: sleep apnea evaluated at 50 percent; migraine headache at 10 percent; adjustment disorder currently rated at 10 percent disabling; lumbar spine disability currently rated at 20 percent disabling; left lower extremity radiculopathy, rated at 10 percent disabling; right lower extremity radiculopathy, rated at 10 percent disabling; right knee disability evaluated at 10 percent; and left knee disability evaluated at 10 percent. Throughout the period on appeal, the Veteran's combined disability rating has been 80 percent, with a single disability of sleep apnea evaluated at 50 percent.

Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). 

Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. 

Although a TDIU may satisfy the "rated as total" element of section 1114 (s), a TDIU based on multiple underlying disabilities cannot satisfy the section 1114 (s) requirement of "a service-connected disability" because that requirement must be met by a single disability. 

The aggregation of disabilities from a common etiology may be treated as a single disability for TDIU under 38 C.F.R. § 4.16(a), but this principle does not apply to SMC. Youngblood v. Wilkie, 31 Vet. App. 412, 416-17 (2019). Instead, the 100 percent disability rating must be founded on a single disability, not a group of disabilities deemed to be one. Id. The Board finds this evidence indicates the Veteran is not unemployable solely as a result of his lumbar spine disability, or another single service-connected disability. While VA examinations and SSA records show limited motion of the lumbar spine, the Veteran was noted to be able to ambulate, and he reports his lumbar spine, radiculopathy, and psychiatric disabilities impacted his ability to work. 

Here, the Veteran's own statements indicate his lumbar spine, bilateral lower extremity radiculopathy, and adjustment disorder disabilities impacted his ability to work and ultimately rendered him unemployable. As a result, entitlement to SMC based on "statutory housebound" criteria is not established. 38 U.S.C. § 1114(s); Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); 38 C.F.R. § 3.350. 

 

 

M. Mills

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Trickey

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.