Citation Nr: 21070429 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-25 160 DATE: November 23, 2021 ORDER Entitlement to a rating in excess of 40 percent for a lumbosacral spine disability is denied. Entitlement to an effective date prior to May 22, 2012, for a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The evidence does not show that a lumbar spine disability manifested with ankylosis of the thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome sufficient to warrant a higher rating. 2. The Veteran filed a claim for entitlement to individual unemployability in March 1999 and VA denied that claim in September 2000. That September 2000 rating decision is final. 3. VA received a claim of entitlement to individual unemployability on May 22, 2012. In May 2014, VA established entitlement to individual unemployability effective May 22, 2012, the date the claim was received by VA. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 40 percent for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. 2. The criteria for entitlement to an effective date prior to May 22, 2012, for a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1992 to September 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In January 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to a rating in excess of 40 percent for a lumbosacral spine disability. Disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (Diagnostic Code 5235), sacroiliac injury and weakness (Diagnostic Code 5236), lumbosacral or cervical strain (Diagnostic Code 5237), spinal stenosis (Diagnostic Code 5238), unfavorable or segmental instability (Diagnostic Code 5239), ankylosing spondylitis (Diagnostic Code 5240), spinal fusion (Diagnostic Code 5241), and degenerative arthritis of the spine (Diagnostic Code 5242). Degenerative arthritis of the spine can also be rated using Diagnostic Code 5003. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a 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. 38 C.F.R. § 4.71a. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). Unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either 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 method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome (IVDS) is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). The Veteran's chronic lumbosacral strain with lumbar spondylosis, osteochondrosis, and retrolisthesis L5-S1 has been rated 40 percent under Diagnostic Codes 5242-5237, effective September 6, 1995. The Veteran contends that the rating assigned for the service-connected back disability does not accurately compensate the severity of the disability, and that higher ratings are warranted. The Veteran's claim for an increased rating was received by VA on February 20, 2015. February 2015 spine X-rays found degenerative disc disease, retrolisthesis, levoscoliosis, spondylosis deformans, and spina bifida occulta. At a February 2015 VA examination, range of motion testing was, at worst, to 25 degrees of flexion, 5 degrees of extension, 5 degrees of bilateral flexion, and 5 degrees of bilateral lateral rotation. The Veteran did not have ankylosis, atrophy, or decreased reflexes. The Veteran was found to have IVDS but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran underwent VA examination in March 2017. However, the Board finds the March 2017 VA examination to be incomplete as the examiner did not provide an opinion as to functional loss of range of motion after repeated use over time and did not properly explain the failure to do so. In any event, that examination did not find ankylosis or intervertebral disc syndrome exacerbating episodes that support the assignment of any higher rating. An opinion is speculative when it is based on the absence of procurable information or an examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Direct observation of functional impairment is not a prerequisite to offering an opinion. Case law and VA guidelines anticipate that examiners will offer opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, the Board finds the March 2017 VA examination report to be incomplete for rating purposes and it will not be considered in adjudication of this claim. During an April 2018 Board hearing, the Veteran described current symptoms associated with the service-connected disability and how it impacted his life. The Veteran indicated a worsening of the back disability. At a May 2021 VA examination, range of motion testing was, at worst, to 30 degrees of flexion, 0 degrees of extension, 15 degrees of bilateral flexion, 15 degrees of right lateral rotation, and 30 degrees of left lateral rotation. The Veteran did not have ankylosis, atrophy, or decreased reflexes. The Veteran was found to have IVDS but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The record currently contains no other examinations that are valid for rating purposes. Initially, the Board notes that there has been no medical evidence of ankylosis of the thoracolumbar spine during the course of the appeal. Thus, a higher rating cannot be assigned on that basis. The Board also notes that the Veteran has been rated separately for neurological deficits associated with the thoracolumbar spine disability. Thus, any issues pertaining to neurologic deficits associated with the lumbar disability are not currently before the Board and will not be addressed in this decision. The Board finds that a higher rating is not warranted because the evidence of record does not show the Veteran has ever had ankylosis of the thoracolumbar spine. Pursuant to Diagnostic Code 5242, that level of impairment is consistent with a 40 percent rating. The Board has considered any additional functional loss due to pain or other factors but finds that the objective evidence does not show additional functional loss that would warrant elevation to any higher ratings. The Board has also considered whether a higher rating could be assigned under the intervertebral disc syndrome formula based on incapacitating episodes. However, to date, the Veteran has not been shown to have incapacitating episodes of intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician of any duration. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 40 percent for a lumbar spine disability during the course of this appeal. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher ratings and the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an effective date prior to May 22, 2012, for a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). Generally, the effective date for service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For reopened claims, the effective date shall be the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). A claim is considered abandoned when a claimant does not supply information requested by VA within one year of the request. 38 C.F.R. § 3.158. Where there is an abandoned claim, the Veteran must file a new claim and the effective date will not be earlier than the date of receipt of the new claim. 38 C.F.R. § 3.158(a). The Veteran filed a claim for entitlement to individual unemployability in March 1999. A September 2000 rating decision denied entitlement to individual unemployability because the evidence from VA medical findings, employer's report of work history and VA vocational rehabilitation reports positively supported a finding of employability. The Veteran was notified of the September 2000 decision and of his appellate rights but did not initiate an appeal of that issue. There is no indication that new and material evidence was received within the one year following that decision that was pertinent to that claim. 38 C.F.R. § 3.156(b). Thus, that decision became final. 38 U.S.C. §§ 7104, 7105. Therefore, in the absence of clear and unmistakable error, an effective date in March 1999 is not warranted. Rudd v. Nicholson, 20 Vet. App. 296 (2006). On May 22, 2012, the Veteran again alleged being unable to be gainfully employed as a result of the service-connected disabilities. In May 2014, VA established entitlement to individual unemployability effective May 22, 2012, the date the Veteran filed the claim. May 22, 2012 is also the date the Veteran first met schedular criteria for consideration of the assignment of TDIU. 38 C.F.R. § 4.16(a). Having reviewed the evidence of record, the Board finds that May 22, 2012, is the earliest effective date legally assignable for TDIU. The statutory framework does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. Sears v. Principi, 16 Vet. App. 244 (2002). For the Veteran to be awarded an effective date based on an earlier claim, he would have to show CUE in a prior denial of the claim. Flash v. Brown, 8 Vet. App. 332 (1995). However, the Veteran has not alleged CUE in any prior rating decision. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (breach of the duty to assist cannot form the basis for a CUE claim). A final decision can only be revised on the basis of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The Board does not have jurisdiction to adjudicate in the first instance assertions of CUE in AOJ decisions. Jarrell v. Nicholson, 20 Vet. App. 326 (2006) (assertion of CUE in an AOJ decision must first be presented to and decided by the AOJ before the Board has jurisdiction to decide the matter). However, the Veteran has not alleged any specific CUE that could be referred to the AOJ for adjudication. The Board is aware that the Veteran seeks an earlier effective date of February 2000. However, without having perfected an appeal as to allegations of clear and unmistakable error in the September 2000 rating decision denying entitlement to unemployability, the Veteran may not now vitiate the finality of that decision. Rudd v. Nicholson, 20 Vet. App. 296 (2006). The rating decision from September 2000 is final. The Veteran was notified of that decision and his appeal rights and did not initiate a timely appeal. No new and material evidence was received within one year of the September 2000 rating decision. The Veteran cannot be awarded an effective date based on that earlier claim, in the absence of CUE. The Veteran does not allege CUE. Therefore, an earlier effective date cannot be granted based on that rating decision or that claim. The assignment of an effective date for service connection based on an original claim or a claim to reopen is essentially governed by the date of receipt of the claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, the current effective date corresponds to the date VA received the Veteran's application to reopen the claim for TDIU, following a previous final denial. The Board has carefully reviewed the record in its entirety and can identify no communication, informal or formal, from the Veteran that may be a claim to reopen the previously denied claim of entitlement to TDIU at any time since the last final rating decision in September 2000, and prior to May 22, 2012. Servello v. Derwinski, 3 Vet. App. 196 (1992) (Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). Moreover, the Veteran has not identified any earlier claim after the September 2000 decision and the evidence does not show that unemployability was first factually ascertainable in the year prior to the date of receipt of the claim. 38 C.F.R. § 3.400(o). The Board is not authorized to rule in equity but is bound by the applicable statutes and regulations. Any claim in equity should be pursued with the Secretary of VA. 38 U.S.C. § 503. The Board also notes that the Veteran's combined service-connected disability rating is 70 percent as of May 22, 2012. Thus, the Veteran does not meet the schedular criteria for consideration of entitlement to TDIU under 38 C.F.R. § 4.16(a) until May 22, 2012. Prior to May 22, 2012, the combined service-connected disability rating was 60 percent. Accordingly, after reviewing the record, the Board finds that the preponderance of the evidence is against a finding that an effective date prior to May 22, 2012, for a TDIU rating is warranted. Therefore, as the preponderance of the evidence is against the assignment of any earlier effective date, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.