Citation Nr: 21074156 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-41 654 DATE: December 14, 2021 ORDER Entitlement to a 40 percent rating, but no higher, is granted for lumbar myositis from April 8, 2011 to September 30, 2012. Entitlement to a rating in excess of 40 percent for lumbar myositis is denied. REMANDED Entitlement to SMC based on housebound or aid and attendance is remanded. Entitlement to TDIU on an extraschedular basis prior to October 1, 2012 is remanded. FINDING OF FACT 1. A claim for an increased rating for a lumbar myositis was received on April 8, 2011. The Veteran is shown to have lumbar spine forward flexion limited to 30 degrees or less throughout the appeal period. The evidence does not show incapacitating episodes of intervertebral disc syndrome with physician prescribed bedrest of 6 weeks during a 12-month period or disc herniation with compression of the adjacent nerve root. CONCLUSIONS OF LAW 1. From April 8, 2011 to September 30, 2012, the criteria for a 40 percent rating, but no higher, for lumbar myositis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71(a), Diagnostic Code (DC) 5242. 2. The criteria for a rating in excess of 40 percent for lumbar myositis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71(a), Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty service in the National Guard from October 1981 to May 1982 and served on active duty in the Army from September 1983 to October 1989. This matter comes before the Board of Veterans' Appeals on appeal from a June 2015 rating decision of a VA Regional Office (RO). A November 2020 Board decision denied a rating in excess of 40 percent for myositis of the lumbar spine, denied entitlement to TDIU prior to October 1, 2012, and denied entitlement to SMC based on housebound status. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted a Joint Motion that vacated the part of the Board decision that denied an increased rating for lumbar spine, entitlement to a TDIU prior to October 1, 2012, and entitlement to SMC. The parties did not seek to disturb those portions of the Board's decision which granted entitlement to restoration of a 40 percent rating for lumbar myositis and a 20 percent rating for right ankle residuals, effective June 12, 2015. The parties also did not seek to disturb the grant of a separate 10 percent rating for right ankle instability or the grant of TDIU back to October 1, 2012. The parties did not seek to disturb the portion of the decision that denied a rating in excess of 20 percent for a right ankle injury. The Veteran has perfected a separate appeal for entitlement to increased ratings for right and left lower extremity radiculopathy. That appeal is being processed under the Appeals Modernization Act (AMA) and will be addressed in a separate decision. 1. Entitlement to an increased rating in excess of 40 percent for lumbar myositis The Veteran seeks an increased rating in excess of 40 percent for lumbar spine myositis. The Veteran's lumbar spine degenerative joint disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine 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 warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Formula for Rating Intervertebral Disc Syndrome based upon Incapacitating Episodes provides that a 40 percent rating is assignable with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assignable with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under diagnostic code 5243, 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, Note (1). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Effective February 7, 2021, degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome are to be rated under Diagnostic Code 5242. A rating under Diagnostic Code 5243 for intervertebral disc syndrome is only to be assigned when there is disc herniation with compression of the adjacent nerve root. See 85 Fed. Reg. 76464 (Nov. 30, 2020). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. A March 1990 rating decision granted service connection for lumbar paravertebral myositis, effective from October 1989. A claim for an increased rating was received in July 2006. An April 2007 rating decision granted a 20 percent rating from July 31, 2006. The Veteran did not submit a notice of disagreement with the April 2007 rating decision and did not submit a new and material evidence within a year of the rating decision. The next claim for an increased rating for his lumbar spine disability was received in April 2011. A July 2011 rating decision continued a 20 percent rating for lumbar spine myositis. Medical records submitted within a year of the July 2011 rating decision pertained to the Veteran's lumbar spine disability. A VA treatment record dated in December 2011 reflects that the Veteran was seen for consultation for lumbar spine pain. These treatment records were in the constructive possession of VA and constitute new and material evidence for section 3.156(b) purposes. See Voracek v. Nicholson, 421 F.3d 1299, 1304-05 (Fed. Cir 2009); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). The records are new and material, as they relate to his lumbar spine symptoms. Thus, as new and material evidence was submitted within one year, the July 2011 rating decision did not become final. Accordingly, the April 2011 claim filed by the Veteran remained pending, and the July 2011 rating decision did not become final. The March 2013 rating decision granted a 40 percent rating for the lumbar spine disability based on a finding of lumbar spine forward flexion to 30 degrees or less. The increased rating was granted based on the receipt of the increased rating claim of October 1, 2012. As the increased rating claim was pending from April 8, 2011, the Board finds that an increased 40 percent rating is warranted for lumbar myositis from April 8, 2011. The Board finds that the criteria for a rating in excess of 40 percent for lumbar myositis have not been met. The Veteran was afforded a VA examination in June 2011. The examination noted forward flexion to 50 degrees. With respect to incapacitating episodes, the examination reflects that the Veteran reported that he received Toradol injections in January 2011, and rest was recommended. The Veteran did not describe the length of the recommended rest. The Veteran was afforded a VA examination in March 2013. The examination noted lumbar spine forward flexion to 35 degrees. The examination indicated that the Veteran did not have IVDS of the thoracolumbar spine. There were no findings of ankylosis. The Veteran was afforded a VA examination in May 2015. He had forward flexion to 55 degrees. With repetitive use testing, his forward flexion was limited to 40 degrees. The VA examiner noted that the Veteran had incapacitating episodes of intervertebral disc syndrome having a duration of at least 2 weeks but less than 4 weeks in a 12-month period. The examination noted that ankylosis was not present. The Veteran was afforded a VA examination in April 2019. The examination showed forward flexion of the lumbar spine to 50 degrees. The examination noted that ankylosis was not present. The Veteran had a VA examination in December 2019. The examination showed forward flexion to 75 degrees. The examination noted that ankylosis was not present. On review, the Board finds that a rating in excess of 40 percent is not warranted for lumbar myositis. The Veteran has exhibited forward flexion of the lumbar spine to 35 degrees or greater during the appeal period. The record does not show findings of ankylosis of the lumbar spine. The criteria for the next higher 50 percent rating under the General Rating Formula have not been met, as the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine. A rating in excess of 40 percent is also not warranted based upon incapacitating episodes, as the evidence does not show that the Veteran has had incapacitating episodes of intervertebral disc syndrome having a total duration of 6 weeks during a 12-month period. See 38 C.F.R. § 4.71 (a), DC 5243. While the Veteran reported that he was incapacitated and required rest after receiving a Toradol injection, the evidence does not indicate that he had physician prescribed bedrest for 6 weeks during any 12-month period. The evidence also does not show findings of disc herniation with compression of the adjacent nerve root. Accordingly, a rating in excess of 40 percent is not warranted under the criteria for incapacitating episodes of intervertebral disc syndrome prior or under the amended criteria that have been in effect since February 7, 2021. The Board notes that the Veteran has separate ratings for radiculopathy of the lower extremities. The ratings for right and left lower extremity radiculopathy are the subject of an appeal under the AMA system and will be addressed in another Board decision. The evidence does not show findings of any other neurological abnormalities which warrant separate ratings. REASONS FOR REMAND 1. Entitlement to an earlier effective date prior to October 1, 2012 for TDIU on an extraschedular basis is remanded. The Veteran seeks an earlier effective date for entitlement to a TDIU. He contends that he last worked full-time in May 2010. A claim for an increased rating for a lumbar spine disability was received in April 2011. The claim for TDIU is part of the Veteran's claim for a higher rating lumbar myositis, as the March 2013 VA examination showed that the Veteran reported that he stopped working due to back pain. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Prior to October 1, 2012, the Veteran did not meet the schedular requirements for a TDIU. However, the evidence suggests the Veteran's service-connected disabilities interfered with his ability to follow substantially gainful employment. The Board does not have the authority to assign extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16 (b). Rather, the Board may only consider whether referral for extraschedular TDIU to the Director, Compensation Service is appropriate. Accordingly, as the evidence of record indicates that the Veteran's service-connected lumbar spine disability interfered with his ability to follow substantially gainful employment prior to October 1, 2012, the Board finds the Veteran's claim must be referred to the Director of Compensation Services for extraschedular consideration. 2. Entitlement to SMC based on aid and attendance is remanded. The Joint Motion found that the Board erred in the November 2020 rating decision by not considering whether the Veteran is entitled to SMC based on aid and attendance. In written argument submitted in October 2021, the Veteran's representative contends that SMC is warranted at the housebound rate or due to the need for aid and attendance. The Veteran's representative contends that the Veteran is unable to care for himself without the aid and attendance of his spouse. In an August 2020 statement in support of the claim, the Veteran indicated that he is unable to care for himself without the assistance of his wife. He stated that he requires assistance with bathing and dressing due to his low back disability. The Board finds that a medical opinion is necessary to determine whether the Veteran's service-connected disabilities result in the need for aid and attendance. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine whether the Veteran needs the regular aid and attendance of another person due to his service-connected disabilities. The examiner must consider the Veteran's August 2020 statement regarding his need for assistance with bathing. 2. The AOJ must refer the matter of entitlement to a TDIU to the Director, Compensation Service for a determination as to whether the Veteran is entitled to an assignment of a TDIU prior to October 1, 2012 under the provisions of 38 C.F.R. § 4.16(b). J. Nichols Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.