Citation Nr: 21069362 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-29 111 DATE: November 18, 2021 ORDER Effective July 24, 2019, a 40 percent rating for degenerative disc disease (DDD) of the thoracolumbar spine, with herniated disc L5-S1 and intervertebral disc syndrome (IVDS), is granted. Effective July 24, 2019, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 10 percent prior to July 24, 2019 and in excess of 40 percent thereafter for DDD of the thoracolumbar spine, with herniated disc L5-S1 and IVDS, is remanded. Entitlement to a TDIU prior to July 24, 2019 is remanded. FINDINGS OF FACT 1. Since July 24, 2019, the Veteran's lumbar spine disability has been manifested by forward flexion of the lumbar spine to 30 degrees or less. 2. The evidence shows that the Veteran's service-connected disabilities precluded him from following substantially gainful employment as of at least July 24, 2019. CONCLUSIONS OF LAW 1. Since July 24, 2019, the criteria for a rating of 40 percent for the service-connected lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. Effective July 24, 2019, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1977 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2019, the Veteran testified before the undersigned at a Travel Board hearing; a transcript of the hearing is associated with the record. The matter was then before the Board in January 2020, at which time the issue was remanded for additional development, which has been completed. Following development ordered by the Board, the AOJ issued a supplemental statement of the case (SSOC) in February 2021. However, the Veteran subsequently filed a claim for a TDIU, and in connection with that claim, underwent another lumbar spine examination in June 2021. The AOJ did not then issue a SSOC following that examination prior to transferring the case back to the Board. Thus, while the Board herein is awarding the currently assigned 40 percent rating for the lumbar spine disability back to July 24, 2019, whether higher ratings are warranted either prior or subsequent to that date, are addressed in the Remand section below Finally, in August 2021, the AOJ granted entitlement to a TDIU, effective April 7, 2021. The Board notes that a request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Once the issue of entitlement to a TDIU is raised, it is "part of the claim for benefits for the underlying disability." Id. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the Agency of Original Jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved remains on appeal. Here, while the appeal for a higher initial rating for the Veteran's lumbar spine disability was pending, the issue of entitlement to a TDIU was raised based, at least in part, on that disability; therefore, the appeal period for the claim for a TDIU dates back to June 30, 2014, the effective date of the award of service connection for a lumbar spine disability. Although a TDIU was awarded effective April 7, 2021, it was not granted for the entire appeal period. Accordingly, the Board has jurisdiction over the issue of entitlement to a TDIU as of June 30, 2014, and prior to April 7, 2021. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. 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 is warranted for 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 is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The Board notes that the Veteran is already in receipt of service connection for radiculopathy of the bilateral lower and bilateral upper extremities. No other neurological abnormalities have been identified. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. The Court of Appeals for Veterans Claims (Court) has recently held that the requirement of ankylosis in the General Rating Formula for Injuries and Disease of the Spine can be met with evidence of the functional equivalent of ankylosis, i.e., functional immobility of the joint, during a flare-up. See Chavis v. McDonough, 34 Vet. App. 1 (2021). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). By way of history, a December 2014 rating decision granted service connection for the Veteran's lumbar spine disability and assigned a 10 percent rating effective June 30, 2014, the date of the Veteran's initial claim for service connection. The Veteran filed a timely appeal. In a February 2021 rating decision, the AOJ increased the rating for the Veteran's lumbar spine disability to 40 percent disabling, effective February 20, 2021. As the Veteran has not been awarded the highest possible rating, his claim remains in appellate status. A.B. v. Brown, 6 Vet. App. 35 (1993). For the reasons that follow, the Board concludes that the 40 percent rating that is presently in effect as of April 7, 2021, should be made effective as of July 24, 2019. Whether higher ratings are warranted both prior to July 24, 2019, and after is addressed in the Remand section below. In this regard, in a July 24 2019 letter, Dr. M.K. noted that she had examined the Veteran's spine due to the Veteran's complaints of persistent low back pain. Dr. M.K. found limited lumbar flexion and extension associated with pain and ordered X-rays, which showed moderate prominent narrowing of the L5-S1 disc with sclerosis, vacuum disc, and osteophyte formation, as well as degenerative changes. At his August 2019 Board hearing, the Veteran testified that his back disability had gotten worse. He said that he had to take medication for the pain and often had to rest after periods of exerting his back. The Veteran underwent another VA back conditions examination in February 2021. He told the examiner that he had lower back pain with radiating pain down both sides and numbness in his right toes and foot. He said he experienced flare-ups that manifested in radiating low back pain. He said he had great difficulty with bending, squatting, kneeling, showering, dressing, driving, or prolonged sitting or standing. Initial range of motion testing revealed forward flexion limited to 30 degrees, with 0 degrees of extension, and 5 degrees each of right and left lateral flexion and right and left lateral rotation. There was evidence of pain with weight bearing, and evidence of pain on very light touch. The Veteran was not being examined immediately after repetitive use over time or during a flare-up; however, the examiner was able to estimate additional loss of range of motion after repetitive use over time or during a flare-up. Specifically, the examiner estimated that the Veteran would have forward flexion further limited to 15 degrees in both scenarios. Based on the report of the February 2021 examination, a February 2021 rating decision increased the Veteran's rating to 40 percent disabling. In light of the above, the Board finds that the evidence is sufficient to at the very least award a 40 percent rating effective July 24, 2019, the date of Dr. M.K.'s letter noting that the Veteran had limited range of motion of his lumbar spine. Although specific range of motion measurements were not offered at that time, because Dr. M.K. noted limited range of motion, and the Veteran subsequently testified at his August 2019 Board hearing that he experienced worsening in his back, but did not undergo a VA examination until February 2021, the Board will resolve all doubt in the Veteran's favor and find that the 40 percent rating that was assigned effective February 20, 2021, should be assigned as of July 24, 2019. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (where the Court noted that "an effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the Veteran's disability first manifested.") In conclusion, the Board finds that a 40 percent rating for the Veteran's lumbar spine disability is warranted effective July 24, 2019. Entitlement to a TDIU Prior to April 7, 2021 As noted in the Introduction, the AOJ granted entitlement to a TDIU effective April 7, 2021. The question is whether a TDIU is warranted prior to that date. It is the established policy of 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. See 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. A total disability rating for compensation purposes may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). In this decision, the Board has increased the rating for the Veteran's lumbar spine disability to 40 percent disabling, effective July 24, 2019. The Board notes that the Veteran's right upper extremity radiculopathy and cervical spine degenerative arthritis result from a common etiology. Therefore, as of July 24, 2019, the Veteran meets the schedular rating for a TDIU. Thus, the question is whether the Veteran was entitled to a TDIU as of that date. For the reasons that follow, the Board finds that he is. In a letter dated July 24, 2019, Dr. M.K. indicated that she had treated the Veteran since 2008. She outlined his medical history and indicated that his cervical spine disability and related disorders resulted in a significant decrease in quality of life and early retirement. She noted that he had persistent back pain and associated radiculopathy that had progressively worsened. At a February 2021 VA peripheral nerves examination, the Veteran stated that he was unable to work due to his bilateral upper and lower extremity radiculopathy because of numbness, tingling, and pain in all four extremities. At a February 2021 VA examination to assess his service-connected chronic pain syndrome, the Veteran said that due to the widespread chronic pain in his body, he struggled with prolonged standing and sitting and had pain throughout his body. He told a February 2021 VA lumbar spine examiner that due to his lumbar spine and radiculopathy, he had great difficulty with bending, squatting, kneeling, showering, dressing, driving, or prolonged sitting or standing. He said that his cervical spine disability prevented him from reading, driving, or twisting his head. In a February 2021 TDIU statement, an examiner indicated that the Veteran had great difficulty with or was unable to bend, squat, kneel, shower, dress, drive or sit or stand for a prolonged period of time. As a result, he was unable to exert up to 10 pounds of force. The Board concludes, after resolving all doubt in the Veteran's favor, that the Veteran's service-connected disabilities have rendered him unable to secure and follow gainful employment since at least July 24, 2019, the date on which he became schedularly eligible for the award of a TDIU. The Veteran's primary work experience has been as an Investigations Coordinator, which required long periods of sitting or standing, which the evidence shows he cannot do. Accordingly, entitlement to a TDIU is warranted as of, at least, July 24, 2019. Whether a TDIU is warranted prior to that date is addressed in the Remand section below. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent prior to July 24, 2019 and in excess of 40 percent thereafter for DDD of the thoracolumbar spine, with herniated disc L5-S1 and IVDS, is remanded. Entitlement to a TDIU prior to July 24, 2019 is remanded. As noted in the Introduction, additional, relevant evidence was added to the claims file following the issuance of the last SSOC in February 2021, and no SSOC was issued before the case was transferred to the Board. Therefore, a remand is necessary to have the AOJ review the additional evidence in connection with the appeal to ensure due process. See 38 C.F.R. § 19.37(a). In addition, the evidence of record suggests that the Veteran's service-connected disabilities may have precluded the Veteran from following gainful employment prior to July 24, 2019. Indeed, the Veteran indicated that he stopped working in March 2012. His notice of resignation letter dated May 10, 2012 is of record, and therein the Veteran indicated that he could no longer work due to his cervical spine problems. Reports submitted in connection with the Veteran's state retirement indicate that in February 2012, the Veteran's physician stated that the Veteran was permanently incapable of any kind of work and totally and permanently disabled from gainful employment. In a May 2016 statement, the Veteran stated that he did not feel capable of engaging in any gainful employment because of his worsening cervical degenerative changes and cervical radiculopathy affecting the motor skills in his hands and fingers as well as muscle spasms in his neck and back. As such, on remand, the issue of entitlement to a TDIU should be referred for extraschedular consideration for any time period the Veteran is deemed ineligible for a schedular award prior to July 24, 2019. See 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Readjudicate the issue of entitlement to a rating in excess of 10 percent prior to July 24, 2019 and in excess of 40 percent thereafter for DDD of the thoracolumbar spine, with herniated disc L5-S1 and IVDS with consideration of all additional evidence received since the February 2021 SSOC. Then readjudicate the issue of entitlement to a TDIU prior to July 24, 2019. In doing so, for any time during the appeal period where the Veteran does not meet the schedular requirements for a TDIU, refer the matter to the Director of Compensation Service for extraschedular consideration. If the benefits sought are denied, in whole or in part, provide the Veteran and his attorney with a SSOC. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.