Citation Nr: 21072879 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-32 993 DATE: December 6, 2021 ORDER Effective June 28, 2011, a 40 percent rating for a low back disability is granted. Entitlement to a total disability rating based on individual unemployability (TDIU), from the earlier effective date of October 6, 2011, is granted. REMANDED Entitlement to a rating in excess of 40 percent for a low back disability from February 10, 2014 is remanded. Entitlement to a TDIU prior to October 6, 2011, is remanded. FINDINGS OF FACT 1. Considering the Veteran's pain and corresponding functional impairment, including during flare-ups, throughout the appeal, his degenerative arthritis of the low back and intervertebral disc syndrome was productive of disability analogous to limitation of motion to 30 degrees or less of forward flexion. 2. Since October 6, 2011, the Veteran's service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. Throughout the appeal, the criteria for a 40 percent rating for a low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for entitlement to a TDIU, from the earlier effective date of October 6, 2011, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United Stated Air Force from February 1970 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously adjudicated by the Board in May 2018. The Board denied entitlement to a rating in excess of 20 percent for thoracic spine disability prior to February 10, 2014 and denied entitlement to a rating in excess of 40 percent for the disability from February 10, 2014. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to the April 2019 Joint Motion for Partial Remand (JMPR), the Court vacated the Board's denial of ratings in excess of 20 percent for a back disability prior to February 10, 2014 and in excess of 40 percent for a back disability from February 10, 2014 and remand the matters for compliance with the terms of the JMPR. The April 2019 JMPR specifically stated that the Board also awarded entitlement to a 20 percent rating through the appeal period for right lower extremity sciatica and this favorable finding would not be disturbed by the Court. In August 2021, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. In a February 2015 rating decision, the RO granted entitlement to a TDIU, effective September 17, 2014. However, once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). 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. 1. Effective June 28, 2011, a 40 percent rating for a low back disability The Veteran filed this claim with VA on June 28, 2011. The Veteran's back disability is currently rated as 20 percent disabling prior to February 10, 2014, and 40 percent disabling since that time, the date the VA treatment records showed Veteran's forward flexion of the spine is limited to 25 degrees, pursuant to Diagnostic Code 5242. See January 2018 Rating Decision. Under this Diagnostic Code, a 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, 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 when forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5242. In evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that a rating of 40 percent is warranted for the Veteran's back disability throughout the appeal. Pursuant to the Court's JMPR April 2019 JMPR, the Board did not properly address Veteran's inability to perform range of motion (ROM) testing in VA examinations from April 2011 and January 2013 due to pain preventing him from perform, and whether it reflects additional functional loss that wouldn't entitle Veteran to an increased rating. The Court also held that the Veteran's VA medical examinations prior to the May 2018 Board decision 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). Namely, the July 2010, August 2011, May 2012, and January 2013 VA back examinations were not compliant with Correia and Sharp. The July 2010 VA back examination reported range of motion that measured 50 degrees of forward flexion with pain at 50 degrees, signs of IVDS, but no incapacitating episodes. The April 2011 VA back examination reported flare-ups with limitation of motion to the joints of his back and tingling sensation in left lower extremity, range of motion measured 60 degrees of forwards flexion, repetitive range of motion testing was not completed because of pain, Veteran used a cane, and there were signs of IVDs, but no incapacitating episodes. The May 2012 VA back examination indicated Veteran was stiff in the morning and throughout much of the day, range of motion measured 40 degrees of forward flexion, and Veteran reported pain into his thighs and shin area, with numbness in his right toes. In the January 2013 VA back examination, the Veteran described symptoms of a burning sensation, stiffness, cramps, and spasms; forward flexion was measured at 70 degrees, however repetitive range of motion testing was not completed because of pain. The Veteran had IVDS of the thoracolumbar spine, but not incapacitating episodes. Because the VA examinations prior to February 10, 2014 note pain, weakness, and significant limit on functional ability of the back disability, and the examinations were not conducted during a flare-up, the Board finds that the Veteran's degenerative arthritis and IVDS more nearly approximates the criteria for a 40 percent rating when considering this report of pain, and limited functional ability with flare-ups. The Board concludes that considering the lay and medical evidence, including the VA examination reports prior to February 10, 2014, which shows that the Veteran had forward flexion to 40 degrees and that did not consider his limitation of motion during flare-ups, the condition warrants a 40 percent rating throughout the appeal. The evidence, however, shows that the Veteran does not have ankylosis of the entire thoracolumbar spine or the entire spine prior to February 10, 2014. 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 of 40 percent, and no more, is warranted prior to February 10, 2014. 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 prior to February 10, 2014. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), from the earlier effective date of October 6, 2011 Total disability ratings for compensation 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 service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran initially submitted a VA Form 21-8940 Application for Increased Compensation Based on Unemployability in October 2012, in which he stated his service connected psychiatric disability and back disability prevented him from securing or following any substantially gainful occupation. He had been hospitalized from February through April 2012 and continued to receive on going treatment. He stated he last worked full-time June 2005, when he became too disabled to work. He had been working as a recruiter full-time from January 2004 through June 2005. Veteran completed a four year college degree and had a CDL for Truck Driving. Veteran submitted another VA Form 21-8940 in February 2015. He again attributed his service-connected psychiatric and back disabilities in his inability to secure any substantially gainful occupation, and listed December 2004 as the last time he worked full-time and became too disabled to work. He also added he was terminated from his last job due to his disability. In his August 2021 Board Hearing, the Veteran testified that Veteran's current difficulties with completing activities of daily living have been recurrent since 2004, when he stopped worked permanently due to his issues with his back and dealing with anxiety and depression. The pain he deals with now with his back disability is similar to which he was dealing with in 2004 when he was terminated from his job due to his inability to continue working full-time functionally. The Board finds that the Veteran has been unable to work in a gainful capacity and satisfied the schedular criteria for a TDIU earlier than the initially assigned effective date of September 17, 2014. See 38 C.F.R. § 4.16. Specifically, service connection has been in effect for major depressive disorder, rated 30 percent disabling since January 13, 2011 and 70 percent disabling since July 17, 2013; obstructive sleep apnea, rated 50 percent disabling since October 22, 2014; degenerative arthritis of the thoracic spine, rated 40 percent disabling since August 3, 1991; bowel incontinence, rated 30 percent disabling since June 28, 2018; right lower extremity sciatica, rated 20 percent disabling since June 14, 2011; urinary incontinence, rated 20 percent disabling since June 28, 2018; left lower extremity sciatica, rated 20 percent disabling since June 28, 2018; left lower extremity and right lower extremity radiculopathy, both rated 20 percent since June 28, 2018; tinnitus, rated 10 percent since April 30, 2010. The Veteran has had a combined rating of 70 percent since October 6, 2011. The Veteran contends that his service-connected psychiatric and back disabilities warrant an earlier effective date for TDIU entitlement. After resolving any doubt in the Veteran's favor, the Board finds that the Veteran has not worked full-time, and Veteran's service-connected disabilities have rendered him incapable of obtaining or maintaining substantially gainful occupation. See Geib, 733 F.3d 1350. As such, the Board finds that entitlement to a TDIU is warranted effective earlier than September 17, 2014. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for a low back disability from February 10, 2014 is remanded. February 2014 and May 2014 VA treatment notes document that the Veteran's range of motion of the spine when he bent forward was approximately 25 degrees. Similarly, an August 2014 VA treatment note shows forward flexion of the thoracolumbar spine to be around 30 degrees. In a February 2015 VA back examination, the Veteran's range of motion was measured to be to 30 degrees of forward flexion with pain. The Veteran could perform repetitive use testing and there was no additional limitation of function or range of motion loss. Pain was noted during the examination, but the examiner explained that pain did not result in functional loss. The Veteran did not report flare-ups, but the examiner noted that fatigability and lack of endurance limit functional ability with repeated use over a period of time. The examiner did not find evidence of IVDS of the thoracolumbar spine and ankylosis of the spine was absent. The examiner noted the Veteran did not have any bowel or bladder impairment. The Veteran was also afforded a VA back examination in July 2018 in which he reported taking pain medication to treat his back, reported deterioration of the back disability, constant aching and sharp pain, difficulty performing household duties and an inability to sit, stand, or walk for long periods. Range of motion was measured at 20 degrees of forward flexion, pain noted on rest and weight bearing. Upon repetitive use testing, forward flexion was noted at 15 degrees. No ankylosis was noted. Veteran was noted to have IVDS, with reported bed rest from August 2017 to April 2018 at a VA hospital. Veteran also reported using a walker regularly and a cane occasionally for his back condition. In addition to the Court's April 2019 JMPR, the Veteran submitted additional lay statements in which he reported worsening of his back conditions and requested another VA examination to address the full extent of his back disability, discounting any ameliorative effects of medication in evaluating the severity of the Veteran's service-connected back disability. See May 2019 Third Party Correspondence. As the Veteran has reported flare-ups in his back, the Board holds that the VA examinations of the thoracolumbar spine since February 10, 2014 were not adequate in light of the Court's determination in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressing the adequacy of the VA examiner's opinion concerning additional functional loss during flare-ups of musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Sharp outlines a VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups. The Board found these matters must be remanded for a new VA examination and opinion addressing the issue of limitation of motion during flare-ups of the back. The VA examiners in the Veteran's most recent back examinations did not comply with the decisions in Sharp and Correia and did not adequately evaluate the Veteran's functional loss of the back with respect to reported flare-ups and use of pain medication. The examinations were not conducted during flare-ups and the examiners had no basis to offer additional losses of function or motion. Thus, a remand is necessary to obtain a new VA examination for the Veteran's back disability that complies with Sharp and Correia, and also considers whether the Veteran's back disability is productive of the functional equivalent of ankylosis during flare-ups, pursuant to Chavis. 2. Entitlement to a TDIU prior to October 6, 2011 is remanded. As Veteran has stated through his VA Form 21-8940, he has not been substantially and gainfully employed since June 2005, primarily due to his service-connected psychiatric and back disabilities. He has also held that these conditions have rendered him unemployable. He added that he was terminated from his last job due to his disability. Pursuant to Ray, entitlement to an extraschedular TDIU must be referred to the Director, Compensation Service for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. See Snider v. McDonough, Vet. App., No. 19-6707, 2021 U.S. App. Vet. Claims LEXIS 2050 (Nov. 19, 2021). As the Veteran does not meet the schedular requirements for TDIU prior to October 6, 2011, and the Veteran has asserted and the evidence suggests that he was unable to work prior to that date because of his service-connected disabilities, whether to grant TDIU must first be assessed by the Director, Compensation Service. 38 C.F.R. § 4.16(b). 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, and/or were contemporaneously informed of his back disability, the nature, extent and severity of his back symptoms and the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Then, arrange for the Veteran to undergo a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to evaluate the current nature and severity of his service-connected back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. (a.) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved must be tested for pain on both active and passive motion and in weight-bearing and non-weight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (c) The examiner should describe all functional limitations present (i) after repetition over time and, separately, (ii) during flare-ups. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After giving the Veteran an opportunity to submit evidence in support of his claim for TDIU prior to October 6, 2011, refer the claim for a TDIU to the Director, Compensation Service, for the time period on appeal prior to October 6, 2011. 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.