Citation Nr: 21071027 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-07 374 DATE: November 29, 2021 ORDER From August 5, 2012 to January 5, 2016, a 20 percent rating for a back disability is granted. Entitlement to a rating in excess of 40 percent for a back disability from January 5, 2016 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 4, 2016, is remanded. FINDINGS OF FACT 1. From August 5, 2012 to January 5, 2016, and considering the Veteran's pain and corresponding functional impairment, including during flare-ups, the Veteran's degenerative disc disease of the lumbar spine is productive of approximately forward flexion greater than 30 degrees but not greater than 60 degrees. 2. Since January 5, 2016, the Veteran's degenerative disc disease of the lumbar spine has not manifested in unfavorable ankylosis of the thoracolumbar spine. CONCLUSIONS OF LAW 1. From August 5, 2012 to January 5, 2016, a 20 percent rating for a back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.30, 4.40, 4.45, 4.59 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a rating in excess of 40 percent for a back disability from January 5, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.30, 4.40, 4.45, 4.59 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 2004 to June 2004, August 2009 to August 2012 and in the United States Navy from February 2005 to March 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2012 and June 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded previously for further development in March 2019 and February 2021 Board decisions. In light of the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations, the Board found a new VA examination should be provided addressing the Veteran's back disability and for a VA examiner to provide a retrospective opinion as to specific range of motion findings. See February 2021 BVA Decision. In the March 2019 Board decision, the Board found that while Veteran is assigned separate 100 percent evaluations for his service-connected PTSD and hepatitis C and was granted SMC pursuant to 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) effective from January 4, 2016, the presence of a schedular 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). As such, the claim for TDIU prior to January 4, 2016 was established, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In the February 2021 BVA decision, the Board held that as Veteran's TDIU claim is premised on a combination of more than one disability, the schedular disabilities does render the TDIU moot, effective January 4, 2016. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. From August 5, 2012 to January 5, 2016, a 20 percent rating for a back disability The Veteran is seeking a rating in excess of 10 percent for his back disability prior to August 25, 2020, pursuant to Diagnostic Code 5242. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is 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 assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero 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 combined range of motion of the thoracolumbar spine is 240 degrees. 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. See also Plate V, 38 C.F.R. § 4.71a. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The Veteran has been service-connected for his back disability since August 5, 2012. See April 2013 Rating Decision. The Board finds that a 20 percent rating, but not higher, is warranted from August 5, 2012 to January 5, 2016. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask her to describe the additional functional loss, if any, she suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Here, the Board finds that none of the VA examinations for the Veteran's back disability complied with addressing the impact of flare-ups on range of motion of the Veteran's back prior to January 5, 2016, pursuant to Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and with Sharp. Therefore, these examinations are deemed inadequate. Prior to January 5, 2016, the Veteran as provided a VA examination for his back in November 2012. The Veteran was diagnosed with degenerative disc disease with radiculopathy, and he reported flare-ups of the back. The Veteran stated he experienced sharp and achy low back pain and took NSAIDS for palliation with poor response and was also prescribed gabapentin. Veteran did not report flare-ups. The range of motion testing showed Veteran's forward flexion was noted at 0 to 80 degrees, with pain noted that contributed to functional loss. There was no objective evidence of tenderness or pain on palpation of the joints or associated soft tissue of the back. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time. The examination was not conducted during a flare-up. Additionally, no guarding muscle spasms, muscle atrophy or ankylosis was noted; Veteran had IVDS but did not have any incapacitating episodes over the prior 12 months. Based on the medical records and evidence provided in Veteran's claims file, the inadequacy of the VA examination provided because it is not compliant with the examination requirements pursuant to Correia and Sharp, and the lay testimony of taking pain medication, deterioration of back pain and continuing increase of functional loss with repeated use over time, the Board finds that the Veteran's back disability more nearly approximates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.. Additionally, the evidence shows the Veteran reported pain medication he took and physical therapy treatment he attended to treat his back. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Thus, resolving all doubt in favor of the Veteran, the Board finds that a rating of 20 percent for his back disability is warranted from August 5, 2012, the date of the claim, to January 5, 2016, the date of the VA examination where the Veteran's disability approximated a 40 percent rating. A rating in excess of 20 percent from August 5, 2012 to January 5, 2016 is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. At no point has the evidence approximated the criteria corresponding to a higher rating. See Hart, supra. 2. Entitlement to a rating in excess of 40 percent for a back disability from January 5, 2016 For the period since January 5, 2016, the Veteran has been rated at 40 percent disabling for his back disability and contends that the disability warrants a rating higher than currently assigned. The Veteran's VA medical examinations prior to the February 2021 Board remand were found to be inadequate for adjudication purposes as they did not comply with addressing the impact of flare-ups on range of motion of the back and testing of pain on both active and passive motion in weight-bearing and non-weight bearing, pursuant to Mitchell v. Shinseki, 25 Vet. App. 32 (2011), Sharp v. Shulkin, 29 Vet. App. 26 (2017), and Correia v. McDonald, 28 Vet. App. 158 (2016). In the January 2015 VA back examination, the Veteran's forward flexion was noted at 0 to 30 degrees, with range of motion contributing to functional loss. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. Veteran was not examined immediately after repetitive use over time. As the Veteran did not report flare-ups, the examination was not conducted during a flare-up. No ankylosis was found. Veteran did not have IVDS or use any assistive devices. In the September 2019 VA back examination, Veteran reported flare-ups with pain occurring with prolonged sitting, standing, walking, bending and lifting. Range of motion testing measured forward flexion at 0 to 60 degrees, with pain across the lower lumbar region on palpation. Veteran was able to perform repetitive use testing without additional loss of function or range of motion. Veteran was not examined immediately after repetitive user over time; however, the examiner estimated forward flexion was limited to 50 degrees. The exam was not conducted during a flare-up, however the examiner held pain limited functional ability with flare-ups and estimated forward flexion was limited to 50 degrees during flare-ups. Veteran did not have muscle spasms, IVDS or ankylosis; guarding did result in abnormal gait. The Veteran was afforded a post-remand VA examination for his back disability in May 2021, in which he reported continuous lower back pain with flare-ups that resulted in constant pain increasing with prolonged sitting, standing, walking bending and lifting. Active range of motion testing noted forward flexion was limited to 60 degrees while passive range of motion testing also resulted in forward flexion limited to 60 degrees, with evidence of pain on weight-bearing. There was objective evidence of pain across the lower lumbar region on palpation. Veteran was able to perform repetitive use testing without additional loss of function or range of motion; Veteran was not examined immediately after repeated use over time. The Veteran was not examined during a flare-up; however, the examiner noted pain caused significantly limited functional ability and estimated forward flexion was limited to 50 degrees during flare-ups. No muscle spasms, IVDS or ankylosis was noted upon examination. Veteran was noted to use shoe inserts, but no other assistive devices were used. Because the VA examinations note the Veteran's reports of flare-ups, estimate range of motion to be limited to 30 degrees of forward flexion, and acknowledge Veteran's use of pain medication and significant limit on function ability due to his back disability, the Board finds that the Veteran's back disability more nearly approximates the criteria for a 40 percent rating when considering Veteran's reports of pain and limited functional ability with flare-ups since January 5, 2016. The evidence also shows that the Veteran does not have ankylosis of the entire thoracolumbar spine or the entire spine. Moreover, the preponderance of the evidence shows that his back disability is not productive of functional equivalent of ankylosis during flare-ups. See Chavis v. McDonough, 34 Vet. App. 1 (2021). As such, a rating in excess of 40 percent is not warranted from January 5, 2016. Moreover, the Veteran does not contend, and the evidence does not show that his back disability has been manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. As such, the preponderance of the evidence is against a rating in excess of 40 percent. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 4, 2016 The Veteran seeks a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to January 4, 2016. The Veteran reported his service-connected disabilities affected his full-time employment in July 2012 and he last worked full-time on January 1, 2011. See October 2019 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). Veteran also listed he has been working as a driver, part-time, since 2013 while earning approximately $850.00 a month. Veteran has a high school education, no other education or training, and stated that he maintains a minimal work schedule while working for his uncle in a protected and sheltered work environment. See Id. The Veteran's service-connected disabilities current satisfy the schedular criteria set forth in 38 C.F.R. § 4.16 (a), effective August 5, 2012, from which Veteran has a combined 80 percent evaluation. In the Veteran's Social Security medical treatment records, Veteran's documented employment history shows Veteran last worked as a driver for a State transportation department from May 2014 to September 15, 2014; during this period, he was working 8 hours per day and 5 days a week. Veteran indicated he stopped working in September 2014 because of his several service-connected conditions. See SSA Medical Treatment Records. Veteran also reported in his December 2015 VA PTSD disability benefits questionnaire that he was working with the Department of Defense until 2014 and began receiving social security benefits subsequently in 2015. See December 2015 VA Examination. In an October 2019 Buddy Statement, the Veteran's uncle stated that Veteran has worked for him since 2013 as a driver and Veteran's back, legs, shoulders and PTSD disabilities affect his ability to work and he works on more of ad hoc basis, working when he pleases, not being relied upon on a daily basis and receiving special accommodations. See October 2019 Buddy Statement. Given the conflicting information regarding the Veteran's employment history, clarity is needed regarding the Veteran's work history and employment status prior to January 4, 2016. The Agency of Original Jurisdiction (AOJ) should contact the Veteran and request that he provide an updated VA Form 21-8940 to clarify his employment history prior to January 4, 2016 before adjudication of this issue. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the impact of his service-connected disabilities on his ability to work prior to January 4, 2016. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Give the Veteran an opportunity to clarify his work history and submit an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). The Veteran should be invited to provide a detailed work history prior to January4, 2016, to include the number of hours worked per week, the dates of his employment, the time lost from illness, the highest gross earnings per month, and the reason that the employment ended. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.