Citation Nr: 21071883 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-36 105A DATE: December 1, 2021 ORDER A 40 percent rating for lumbar spine laminectomy discogenic disease (lumbar spine disability) as of February 12, 2021 is granted. A 20 percent rating for left lower extremity radiculopathy as of February 12, 2021, is granted. A 20 percent rating for right lower extremity radiculopathy as of February 12, 2021, is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) as of February 12, 2021 is granted. Dependents' Educational Assistance (DEA) is established from February 12, 2021. FINDINGS OF FACT 1. Prior to February 12, 2021, there is no evidence of record which could be reasonably construed to show that the Veteran's lumbar spine was limited in flexion to 30 degrees or less; ankylosis or incapacitating episodes were not shown at any time. 2. Resolving any reasonable doubt in favor of the Veteran, as of February 12, 2012, his lumbar spine more closely approximated flexion limed to 30 degrees or less; ankylosis or incapacitating episodes were not shown at any time. 3. As of February 12, 2021, the Veteran had bilateral lower extremity radiculopathy related to his lumbar spine disability. 4. As of February 12, 2012, the Veteran's service connected disabilities combined to render him unable to secure or maintain gainful employment. 5. As of February 12, 2012, the Veteran had a total service connected disability. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for a lumbar spine disability as of February 12, 2021 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for a 20 percent rating for left lower extremity radiculopathy as of February 12, 2021 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 3. The criteria for a 20 percent rating for right lower extremity radiculopathy as of February 12, 2021 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 4. The criteria for a TDIU as of February 12, 2021 are met. 38 U.S.C. §§ 1155, 5110(a); 38 C.F.R. §§ 3.400(o), 4.16. 5. The criteria for DEA as of February 12, 2021 are met. 38 U.S.C. §§ 3501, 3510, 3512; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to September 1977 and from August 1981 to November 1985. In February 2021, the Veteran testified before the undersigned Veterans' Law Judge. A copy of the transcript is associated with the record. An August 2021 rating decision increased the Veteran's lumbar spine disability rating as of his August 2021 VA examination. The rating decision also granted the Veteran's claim for a TDIU and separate ratings for bilateral lower extremity radiculopathy and DEA as of his August 2021 VA examination. However, as this does not constitute full grants, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Lumbar Spine Disability The Veteran's lumbar spine disability is assigned a 20 percent rating prior to August 3, 2021, and a 40 percent rating thereafter pursuant to DCs 5242 and 5243 (previously identified as 5293 for Intervertebral Disc Syndrome (IVDS)). The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. In this matter, the Board finds that as the record does not show that the Veteran had any incapacitating episodes regarding his lumbar spine disability (which is a requisite for higher ratings under the IVDS criteria), his lumbar spine is more favorably and appropriately rated under DC 5242, which was not subject to revision. DC 5242 provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine is assigned a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine is assigned a 50 percent rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is assigned a 40 percent rating. 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. 38 C.F.R. § 4.71a, Plate V. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. See Mitchell, supra. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Note (1) of the General Rating Formula provides that VA should evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. As to the Veteran, there are no records which show that his lumbar spine disability met the criteria for a rating higher than 20 percent prior to his February 12, 2021, hearing. VA examinations and private medical records establish that the Veteran's at worst documented range of motion was flexion to 50 degrees and extension to 10 degrees. See VA examinations in April 2015, November 2016, and August 2017. He consistently denied flare ups. Private medical records show that the Veteran had normal range of motion of his back in September and October 2015. As such, prior to the Veteran's February 2021 hearing, there is no evidence in file upon which the Board could grant a rating higher than 20 percent. In so finding, the Board has considered the Veteran's statements regarding his lumbar spine pain. Though the Veteran is competent and credible in reporting his observable pain symptoms, whether a disability meets the schedular criteria for the assignment of an evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for a higher rating, the medical findings show that he does not meet the schedular requirements for such, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. However, as of the Veteran's February 12, 2021, hearing, the Board finds that his lumbar spine disability more closely approximates a limitation of flexion to 30 degrees, warranting a 40 percent rating. The Veteran testified that his back had increased in severity since his 2017 VA examination, that he was suffering from decreased range of motion, and that he had flare-ups that lasted a week. The August 2021 VA examination confirmed the Veteran's statements, showing his flexion was to 15 degrees during a flare-up. As such, the Board finds that the Veteran's credible statements regarding his limitation of motion is supported by the objective evidence of record and that a 40 percent rating for his lumbar spine disability as of the February 12, 2021, hearing is warranted. Bilateral Lower Extremity Radiculopathy The Veteran was service connected for his bilateral lower extremity radiculopathy as of his August 2021 VA examination. However, the Veteran testified in his February 2021 hearing that he experienced radicular symptoms during his flare-ups. Prior to this, the Veteran had denied radiculopathy in his VA examinations. See VA examinations in April 2015, November 2016, and August 2017. The August 2021 VA examination confirmed the finding of radiculopathy at that time. Thus, the Board finds that the rating for his left and right lower extremity radiculopathy is warranted as of his February 12, 2021, hearing. The Board is aware of the Veteran's October 2015 statement in which he reported that he had radicular pain down into his legs. However, the subsequent November 2016 and August 2017 VA examinations had no findings of lower extremity radiculopathy. Additionally, the private medical records of September and October 2015 which documented the Veteran had full range of motion of his back also did not document any complaint of radiculopathy. As such, the Board does not find that an award for bilateral lower extremity radiculopathy is warranted as of the Veteran's October 2015 statement. TDIU Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred if application is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Here, the issue before the Board is not a determination of whether the Veteran's service connected disabilities preclude him from securing or maintaining substantially gainful employment or if he meets the criteria for such a benefit. The August 2021 rating decision granted the Veteran's TDIU based on his service connected disabilities and ascertained that he met the criteria for a TDIU. The August 2021 rating decision specifically stated that the Veteran became eligible for a TDIU due to his combined disability rating. As the Board, discussed above, found the criteria for the Veteran's increased ratings had been met as of his February 2021 hearing, the Veteran's TDIU also applies as of this date. The Veteran specifically testified that his lumbar spine and lower leg radiculopathy symptoms made it difficult to perform his job functions. He testified that he did not return to work due to those symptoms. As such, and as the Veteran has met the criteria for a TDIU as of February 12, 2021, the Board finds that a TDIU is warranted as of that date. DEA The child, spouse or surviving spouse of a veteran will be eligible to DEA if the following conditions are met: (1) the Veteran was discharged from service under conditions other than dishonorable or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510, 3512; 38 C.F.R. § 3.807. The Veteran's DD 214 Form showed that he was honorably discharged from his service. As with the TDIU discussed above, the Veteran is eligible for DEA benefits as of the effective date of his TDIU. Accordingly, the Veteran is eligible to DEA effective February 12, 2021. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.