Citation Nr: A21019042 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 200519-85220 DATE: November 30, 2021 ORDER A rating in excess of 20 percent for degenerative arthritis of the thoracolumbar spine is denied. An effective date of January 28, 2014, for a 10 percent rating for radiculopathy of the right lower extremity (RLE) is granted, subject to the criteria governing the award of monetary benefits. An effective date of January 28, 2014, for a 10 percent rating for radiculopathy of the left lower extremity (LLE) is granted, subject to the criteria governing the award of monetary benefits. REMANDED A total disability rating based on individual unemployability due to service-connected disabilities (TDIU). FINDINGS OF FACT 1. The Veteran served on active duty from June 1974 to May 1975. 2. A low back disability has been manifested by subjective complaints of back pain; objective findings included forward flexion to, at worst, 40 degrees, but no ankylosis, incapacitating episodes of intervertebral disc syndrome (IVDS) of two or more weeks duration, or forward flexion limited to 30 degrees or less. There was no evidence of disc herniation with compression and/or irritation of the adjacent nerve route. 3. Mild incomplete paralysis of the RLE and LLE was shown as of January 28, 2014. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative arthritis of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 5242 (2021). 2. The criteria for an effective date of January 28, 2014, for a 10 percent rating for radiculopathy of the RLE have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2021). 3. The criteria for an effective date of January 28, 2014, for a 10 percent rating for radiculopathy of the LLE have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The AMA automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1). The rating decision on appeal was issued in September 2019 and constitutes an initial decision; therefore, the AMA applies. In May 2020 the Veteran timely appealed the AMA rating decision to the Board by submitting a VA Form 10182 and selecting the Direct Review lane. Increased Rating for a Low Back Disability Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5237-5243. IVDS is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Veteran has been rated under DC 5242 and the Board will consider all relevant diagnostic codes. The Veteran's back disability has been rated under DC 5242 for degenerative arthritis of the spine. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Although the regulations for IVDS have been amended, the amended regulations clarify that DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. No other changes were made to the rating criteria for the spine. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the amended version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the pre-amended regulation is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the claim under the pre-amended criteria prior to February 7, 2021 and both the pre-amended and amended rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this case there are no medical records dating from February 7, 2021, so the amended criteria are not applicable. A rating in excess of 20 percent will be warranted when the objective medical evidence shows the following: forward flexion of the thoracolumbar spine 30 degrees or less (40 percent); favorable ankylosis of the entire thoracolumbar spine (40 percent); incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent). Turning to the medical evidence, a January 2014 private disability benefits questionnaire (DBQ) noted that the Veteran reported flare-ups with increasing physical activity, prolonged sitting or cold weather. Range of motion testing revealed forward flexion to 40 degrees with pain setting in at 15 degrees. Extension was to 10 degrees with pain beginning at 5 degrees. Right and left lateral flexion were each to 15 degrees with pain setting in at 5 degrees. Right and left lateral rotation were each to 10 degrees with pain setting in at 5 degrees. Repetitive use testing was performed and range of motion did not change after three repetitions. It was noted that the Veteran had functional impairment in terms of less movement than normal and pain on movement. There was muscle spasm but it did not result in abnormal gait, abnormal spinal contour, or guarding. Strength testing was normal. There was no atrophy and reflexes were normal. He had IVDS of the spine which resulted in less than one week of incapacitating episodes during the past week. It was noted that he occasionally used a cane to ambulate. An October 2014 VA examiner related the Veteran's report that he had flare-ups of back pain in cold and damp weather. Flare-ups last eight hours to one week and improved with medication. During a flare-up, flexion was to 40 degrees, extension to 20 degrees, and right and left lateral rotation/flexion to zero degrees. Range of motion testing revealed flexion to 80 degrees with painful motion beginning at 50 degrees, extension to 25 degrees with pain beginning at 15 degrees, right lateral flexion to 25 degrees with pain at 25 degrees, left lateral flexion to 30 degrees with pain beginning at 30 degrees, and right and left lateral rotation to 30 degrees. Pain on the right was at 30 degrees and there was no objective evidence of pain on the left. Repetitive use testing was accomplished. After three repetitions, flexion was to 50 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The examiner opined that functional loss/impairment after repetitive use testing was due to less movement than normal, pain on movement, instability of station, disturbance of locomotion, and lack of endurance. There was no ankylosis. The examiner found was muscle spasm and guarding but neither resulted in abnormal gait or abnormal spinal contour. Muscle strength testing was full/near full. There was no atrophy. Reflexes were normal at the ankles and 1+ at the knees. The examiner noted that there was IVDS and that the Veteran had incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12-month period. It was indicated that he regularly used a cane. A January 2016 VA treatment record noted that flexion was to 100 degrees and extension was to 10-15 degrees. A March 2019 VA examination report noted the Veteran's complaint of low back pain with numbness down the legs. He reported flare-ups of back pain which consisted of back pain with bending and twisting movement. Range of motion testing revealed flexion to 60 degrees, extension to 20 degrees, and right and left lateral rotation/extension to 20 degrees. Pain was noted on examination (in all excursions of motion) and the examiner stated that it contributed to functional loss. There was pain with weightbearing. Repetitive use testing was not performed due to pain. During the initial range of motion testing, the Veteran became unsteady due to pain, and the pain got worse with extension and rotation. After repetitive use over time and during a flare-up, the examiner stated that flexion was to 60 degrees, extension was to 20 degrees, and right and left lateral rotation/extension to 20 degrees. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing and reflexes were normal. There was no ankylosis. The examiner noted that the Veteran occasionally used a back brace and regularly used a cane. It was also noted that he did not have IVDS. There is no medical evidence showing more severe limitation of motion or a greater duration of incapacitating episodes due to IVDS. Based on the above, a rating in excess of 20 percent is not warranted. In this regard, there is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less, ankylosis, or incapacitating episodes of IVDS having a duration of at least 4 weeks but less than 6 weeks during the past 12 months, or the functional equivalent, even with repetitive testing. While the Veteran was unable to perform repetitive use testing in March 2019, the examiner provided range of motion estimates for periods of flare-ups and after repetitive use over time, and at no time was flexion limited to 30 degrees or less. Moreover, while the Veteran argued that a higher rating was warranted based on incapacitating episodes, as noted above, the medical evidence does not support such a higher rating and there is no other supportive evidence in the record apart from the Veteran's assertions that a higher rating is warranted on this basis. On review, the amendments did not change the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes. Further, the Board notes that the amended rating criteria allow for the assignment of DC 5243 only when there is disc herniation with compression and/or irritation of the adjacent nerve route. This is not shown, and the Veteran's disability remains appropriately evaluated under the general rating formula as discussed above. Therefore, the medical evidence does not support a higher rating on any basis. The Board has considered the Veteran's lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's thoracolumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Earlier Effective Dates For Ratings for Radiculopathy The effective date of an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application." 38 U.S.C. § 5110(a). The effective date for increased rating shall be the earliest date of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date for increased ratings shall be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An effective date for an increased rating may be assigned later than the date of receipt of the claim, if the evidence shows that the increase in disability actually occurred after the claim was filed, but never earlier than the date of receipt of the claim for increase. In general, "date of receipt" means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1(r). A claim is a "formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit." 38 C.F.R. § 3.1(p). In the September 2019 rating decision on appeal, the RO granted service connection for degenerative arthritis of the thoracolumbar spine and assigned a 20 percent rating effective January 28, 2014, and granted service connection for right and left lower extremity radiculopathy and assigned a noncompensable rating effective January 28, 2014, and a 10 percent rating effective March 28, 2019. The Veteran's radiculopathy is rated pursuant to DC 8520. In order to support a 10 percent rating under this diagnostic code, the evidence would need to show mild incomplete paralysis. Turning to the medical evidence, the January 2014 private DBQ stated that there were signs and symptoms of radiculopathy. There was no constant pain, there was mild intermittent pain, mild paresthesias/dysesthesias, and mild numbness (all bilaterally). The clinician indicated that the Veteran had bilateral mild radiculopathy. The October 2014 VA examiner noted that sensory examination of the lower extremities was normal and straight leg raise testing was negative. There were signs and symptoms of radiculopathy. The examiner noted no constant pain, mild intermittent pain bilaterally, mild on the right and moderate on the left dysesthesias/paresthesias, and mild bilateral numbness. The nerve root affected was the sciatic nerve. The examiner opined that there was mild radiculopathy on the left and no radiculopathy on the right. The March 2019 VA examiner stated that sensory examination was normal for upper thighs, knees, lower legs/ankles, but decreased for ankles. There were signs/symptoms of radiculopathy. There was no constant pain, mild bilateral intermittent pain, mild bilateral paresthesias/dysesthesias, and mild bilateral numbness. The examiner opined that the bilateral radiculopathy was mild. This evidence generally indicates that the Veteran was having mild bilateral lower extremity radicular symptoms throughout the entire appeal period, and as such, an effective date of January 28, 2014, is warranted for the 10 percent ratings. The appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND The Veteran raised a TDIU claim in the May 19, 2020, notice of disagreement (VA Form 10182). He noted that the combined rating was 60 percent and he was not working. In a written statement received on May 21, 2020, he indicated that he last worked as a corrections officer and had to quit a prior job working at a mental hospital due to his back. As the claim for an increased rating for a back disability is currently before the Board, an inferred claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised and has not been adjudicated by the AOJ. Moreover, the record already contained the SSA disability benefits records showing that the Veteran was not working and was receiving benefits for his back disability at the time of the September 2019 rating decision on appeal. Accordingly, a duty to assist error occurred and the TDIU claim should be developed and considered by the AOJ. The matter is REMANDED for the following actions: 1. Send the Veteran a letter satisfying the duty to notify and duty to assist provisions with respect to the claim of entitlement to a TDIU. 2. Send the Veteran a VA Form 21-8940 and request that he complete it and submit it. 3. Develop and adjudicate the issue of entitlement to a TDIU. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.