Citation Nr: 21070168 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-37 423 DATE: November 23, 2021 ORDER Entitlement an initial evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine is denied. Entitlement to special monthly compensation (SMC) based on housebound status is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's degenerative joint disease of the lumbar spine has manifested as no more than forward flexion greater than 30 degrees but not greater than 60 degrees. 2. The Veteran does not have a single service-connected disability rated totally disabling, to include consideration of total disability based on individual unemployability (TDIU). CONCLUSIONS OF LAW 1. The criteria for an increased evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1 - 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to SMC based on statutory housebound status are not met. 38 U.S.C. § 1114, 5107; 38 C.F.R. § 3.102, 3.350, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1989 to December 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by an Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In August 2018, the Board denied entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the parties agreed to a joint motion for remand (JMR), and the Court remanded the matter to the Board. Specifically, the matter was remanded because the Board erred in relying on an inadequate examination, and in failing to consider whether entitlement to SMC was raised by the record. In a September 2020 decision, the Board in turn remanded the issue of entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the lumbar spine for additional development. Entitlement to SMC based on the need for regular aid and attendance was denied, but entitlement to SMC based on housebound criteria was remanded as it was inextricably intertwined with the claim for an increased evaluation for the Veteran's service-connected lumbar spine disability. The AOJ issued a rating decision in July 2021 which increased the Veteran's initial evaluation for degenerative arthritis of the lumbar spine to 20 percent. As the grant of the 20 percent evaluation does not constitute a full grant of the benefits sought, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Duty to Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 - 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. The intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.7. Lumbar Spine The Board notes that the rating criteria for musculoskeletal disorders were revised on February 7, 2021. The amended regulations became effective on February 7, 2021 and claims that were pending on this date must be considered under the former and revised criteria with the most favorable version applied to the claim. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). However, the general rating criteria for diseases and injuries of the spine and the formula for rating intervertebral disc syndrome based on incapacitating episodes remain substantively unchanged under the new rating criteria. The changes focused on better defining degenerative conditions and intervertebral disc disease. Under the former rating criteria, Diagnostic Code 5242 evaluated Degenerative arthritis of the Spine (see also diagnostic code 5003). 38 C.F.R. § 4.71a, Code 5242 (2020). Under the new criteria, Code 5242 applies to Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either diagnostic code 5003 or 5010). See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (Effective February 7, 2021). The Veteran's lumbar spine disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 pertains to degenerative arthritis of the spine and directs that evaluations of the lumbar spine are to be rated under the General Rating Formula for Diseases and injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in a higher rating. Pursuant to the general rating criteria for diseases and injuries of the spine, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A higher evaluation of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. The highest evaluation of 100 percent is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Pursuant to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. VA regulations define normal range of motion of the lumbar spine as flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Private medical records submitted in May 2006 show the Veteran was treated for upper thoracic pain and spasm and restricted range of motion of the thoracic spine. VA treatment records from July 2006 to July 2007 reflect the Veteran sought treatment for complaints of low back pain. The Veteran underwent a VA spine examination in November 2009. The VA examiner noted a February 2006 x-ray report which showed minimal degenerative joint disease of the thoracic spin. Subjective complaints included daily pain described as moderate. Flare-ups occur four days a week without apparent cause; the functional impact of flare-ups was not discussed. The Veteran was not receiving any actual treatment, and did not experience any incapacitating episodes. The VA examiner noted the Veteran's gait was normal, and there was no tenderness right/left paralumbar perithoracic muscles, no tenderness right/left posterior superior iliac spine region nor right and left buttock. No muscle spasms were present. The Veteran did not complain of pain midline percussion of spine. Pelvis was level. Deep tendon reflexes were 1 to 2 out of 4. Seated straight leg raising was negative. Muscle strength was 5 out of 5. Sensory light tough and scratch test to thighs, legs and ankles was normal. Range of motion of the thoracic lumbar spine was tested only twice due to complaints of pain, which was slight. Forward flexion was to 90/95 degrees, extension was 20/22 degrees, bilateral lateral flexion was 35 degrees, and bilateral lateral rotation was 30 degrees. The VA examiner diagnosed the Veteran with lumbar spine minimal spurring and minimal degenerative joint disease thoracic spine. VA treatment records continue to reflect treatment for back pain through July 2011. The Veteran underwent a VA orthopedic examination in September 2011. The Veteran reported he experiences back pain when doing chores such as cutting grass. He stated that after doing such activities, he has to lay down for a few hours. He reported he averages three pain pills per day plus alternating heat and ice. The VA examiner noted that the Veteran reported that his back was not too uncomfortable. Physical examination revealed full range of motion that was normal, with forward flexion to 90 degrees, three times; left to right lateral flexion from 0 to 30 degrees and left to right lateral rotation 0 to 30 degrees, all done three times without pain. The VA examiner noted that extension was limited, and the Veteran was only able to extend to 20 degrees, on all three attempts, "stopping allegedly because of pain." No weakness, incoordination or lack of endurance was noted. No neurological deficit in his lower extremities, muscle power of the lower limbs is fine. No palpable muscle spasm was noted, but percussion reveals a complaint of discomfort in the lower lumbar spine and in both sacroiliac areas. The Veteran's wife submitted a letter in June 2014 in support of the Veteran's claim for his back disability. She stated that she has had to help him get out of bed, dress him, and help him with stretching to start his day. She stated that he takes pain medication 3 to 4 times per day. The Veteran's VA provider, Dr. MS, submitted a letter in August 2014 stating that the Veteran suffers from chronic back pain due to degenerative disease. The Veteran was treated with medications, which he still takes, physical therapy in the past and has seen a neurologist and rheumatologist for his back. A September 2015 MRI report revealed mild degenerative disc changes, disc bulging and facet arthrosis at L4-5 and L5-S1. The Veteran underwent a VA back examination in March 2017. The VA examiner noted the Veteran's diagnosis of degenerative arthritis of the spine. Subjective complaints included low back pain radiating to groin and lower extremities. Pain in back is described as constant, and as a 7 out of 10 in intensity. The Veteran stated he cannot pick up any object more than 20 pounds and has difficulty bending over to pick up any objects from the floor. He has tenderness of the lumbar spine and left paraspinal muscles at the level of the lumbar spine L2-L4. He did not report experiencing flare-ups. Functional loss or functional impairment was described as an inability to lift any object more than 20 pounds, difficulty bending over to pick up objects from the floor, inability to sit for more than one hour and needing to change positions because of back pain. Range of motion was forward flexion to 75 degrees, extension to 25 degrees, bilateral lateral flexion to 30 degrees and bilateral lateral rotation to 30 degrees. Pain was exhibited in forward flexion. Range of motion contributes to functional loss in that the Veteran stated he cannot lift any object more than 20 pounds. He has difficulty bending over to pick up any object from the floor. There is no evidence of pain with weight bearing. Objective evidence of pain on palpation of the joints or associated soft tissue was present in the lumbar spine and mild tenderness was present in the left paraspinal muscles. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. No guarding or muscle spasm of the thoracolumbar spine was present. Muscle strength was normal, no muscle atrophy was present. Sensory examination results were normal. Deep tendon reflexes of the bilateral knees and ankles were noted to be hypoactive. No ankylosis of the spine was present. The VA examiner documented that the Veteran did not have IVDS. The Veteran reported that he uses a back brace to help decrease his low back pain. Arthritis was documented by imaging studies conducted in 2009. The VA examiner noted evidence of pain on passive range of motion testing and on non-weight bearing. Private medical records from physical therapy he attended for his neck, dated January 2019, show the Veteran was reporting low back discomfort than neck discomfort. He reported moderate central low back pain symptoms radiating anterolaterally to anterior hips and groin. A letter dated March 2019 from his chiropractor notes the Veteran has degenerative changes in his lumbar spine at L4/L5 and L5/S1 and that it is common to have radiating pains to other areas of the body. VA treatment records through October 2019 continue to reflect treatment for complaints of low back pain. In January 2020, the Veteran underwent a VA back examination. The VA examiner noted the Veteran's diagnoses of minimal degenerative arthritis of the lumbar spine and IVDS with bilateral lumbar radiculopathy. The Veteran denied any back surgeries and reported experiencing sharp pain and spasm. He has used Capsacin, Lidocaine, patches, braces and minor stretches for relief. Flare-ups were reported as occurring 4 to 5 times daily; the back flare-ups are moderate to severe especially in the mornings. The flare-ups last 10 to 15 minutes and are precipitated by bending, reaching, twisting, and sitting too long. Flare-ups are alleviated by massage from wife, patches and laying down. Functional loss and/or impairment was described as needing to sit down or lay down for 10 to 15 minutes after flare-ups. Range of motion of the lumbar spine was forward flexion to 80 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 25 degrees, and bilateral lateral rotation to 25 degrees. Range of motion contributed to a functional loss as difficulty bending forward to lift, sharp stabbing pains in back with bending and lifting. Pain was noted on examination on forward flexion but did not result in or cause functional loss. Evidence of pain on weight bearing and mild to moderate tenderness in the low back paraspinous muscle low back were present. Repetitive use testing did not result in additional loss of function or range of motion. Pain was noted to limited functional ability with repeated use over a period of time and with flare-ups, but the measured range of motion remained 80 degrees, even with flare-up. The examiner stated the testing took place during a flare-up. No guarding or muscle spasm was present. Additional factors contributing to disability were described as tingling in legs mostly on left side and stiffness. The VA examiner noted that range of motion seemed to improve with repetitive testing. Muscle strength was normal and no atrophy was present. Deep tendon reflexes were normal. Sensory exam was normal. No ankylosis of the spine was present. The VA examiner noted that the Veteran had IVDS of the thoracolumbar spine, but that he had not had any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. There was no evidence of pain on passive range of motion testing of the back or on non-weight bearing testing of the back. A February 2021 MRI report revealed the Veteran has multilevel degenerative changes lumbar spine, most prominent at L5-S1. There is a grade 1 anterolisthesis secondary to bilateral L5 pars defects. Degenerative changes and anterolisthesis results in significant left neural foraminal stenosis and compression left L5 nerve root. Another VA examination was afforded the Veteran in July 2021. The Veteran reported difficulty with bending due to pain. He reported daily, day long moderate to severe flare-ups of low back pain. Activity longer than 30 minutes, such as bending over, walking, sitting, and standing, were cited as causes. Medication such as pain patches and pills helped alleviate symptoms. Initial range of motion in flexion was measured as 60 degrees; such reduced with repeated motion (55 degrees), use over time (50 degrees), and on flare-up (45 degrees). Pain was the main limiting factor. There was no loss of strength or impairment of reflexes. The examiner stated there was no ankylosis of the low back, and IVDS was not present. The Board has carefully considered all evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran's lumbar spine disability does not more nearly approximate the rating criteria of a higher disability level. The Veteran did not have flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Motion is, at worst, limited to forward flexion to 45 degrees warranting the currently assigned 20 percent rating, even upon consideration of the functional impact of pain with use and on falre-up. The evidence of record does not show that the Veteran's overall disability picture warrants the assignment of a 40 percent disability evaluation under the General Rating Formula for Diseases and Injuries of the Spine, nor a 40 percent disability under the Formula for Rating IVDS Based on Incapacitating Episodes as he did not experience any incapacitating episodes. Therefore, the Board finds that an evaluation in excess of 20 percent for the Veteran's degenerative joint disease of the lumbar spine is not warranted. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher rating. 38 C.F.R. §§ 4.7, 4.21. SMC Housebound Statutory SMC is payable pursuant to 38 U.S.C. § 1114(s) 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. 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. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. In the present case, the award of TDIU was based on the combined effect of his service-connected conditions; asthma, cervical spondylosis, degenerative joint disease lumbar spine, inclusion cyst left ear, perforation right tympanic membrane, status post right wrist injury, hemorrhoids, bilateral testicular cysts, occipital neuralgia headaches, and radiculopathy of the bilateral upper and lower extremities. In a December 2019 VA opinion, the VA examiner stated that the conditions that would significantly impact the Veteran's ability to work are asthma, cervical, and, predominantly, the lumbar condition. While the VA examiner noted that the Veteran's lumbar spine disability seemed to be the greatest factor limiting the Veteran's ability to work, it is the combination of all his service-connected disabilities which VA determined rendered him unemployable. Hence, for SMC purposes, the award of the TDIU does not satisfy the requirement of a "service-connected disability rated as total." Accordingly, the Board finds that the Veteran does not have a single disability that may be considered to have been rated as totally disabling, and the award of statutory SMC at the housebound rate must be denied under 38 U.S.C. § 1114(s). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.