Citation Nr: 21074574 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-15 952 DATE: December 15, 2021 ORDER Prior to July 24, 2019, an initial rating higher than 20 percent for degenerative disc disease (DDD) of the lumbar spine is denied. An earlier effective date of July 24, 2019, for the initial 40 percent rating for DDD of the lumbar spine, is granted. From February 18, 2020 to August 18, 2021, a 40 percent rating for DDD of the lumbar spine is granted. A total disability rating based on individual unemployability (TDIU) for the period January 21, 2011 to October 23, 2018 is denied. REMANDED A rating higher than 40 percent for DDD of the lumbar spine from July 24, 2019. FINDINGS OF FACT 1. From January 21, 2011 to July 24, 2019, the Veteran's DDD of the lumbar spine is manifested by, at most, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; intervertebral disc syndrome (IVDS) with incapacitating episodes requiring physician prescribed bed rest are not shown. 2. From July 24, 2019 to August 18, 2021, the Veteran's DDD of the lumbar spine is manifested by at least forward flexion of the thoracolumbar spine to 30 degrees or less. 3. For the period January 21, 2011 to October 23, 2018, the Veteran's service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 20 percent for DDD of the lumbar spine, for the period January 21, 2011 to July 24, 2019, are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237-5242. 2. The criteria for the initial 40 percent rating for DDD of the lumbar spine, from July 24, 2019 to August 18, 2021, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102; 4.40, 4.45, 4.59, 4.71a, DC 5242. 3. The criteria for a TDIU for the period January 21, 2011 to October 23, 2018, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to December 1965. The case is on appeal from an April 2018 rating decision. The Board notes that the Veteran appealed the initial 20 percent rating assigned in the April 2018 rating decision that implemented the Board's December 2017 decision granting service connection for DDD of the lumbar spine. See also January 2011 claim. In August 2019, the Veteran testified at a Board hearing. In December 2019, the Board remanded the initial higher rating claim for DDD of the lumbar spine and a TDIU for additional development. While on remand, the rating for the Veteran's DDD of the lumbar spine was increased to 40 percent, effective October 14, 2019; a 20 percent rating was assigned effective February 18, 2020; and a 40 percent rating was assigned, effective August 18, 2021. See September 2021 rating decision. As the staged ratings assigned did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In addition, a TDIU was awarded, effective October 23, 2018. As a TDIU is part and parcel of the initial higher rating claim for DDD of the lumbar spine, see Rice v. Shinseki, 22 Vet. App. 447 (2009), the issue of a TDIU prior to October 23, 2018 remains in appellate status in conjunction with the claim for an increased rating. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). During the pendency of this appeal, VA amended its rating criteria with regard to 38 C.F.R. § 4.71a Schedule of Ratings - Musculoskeletal System, effective February 7, 2021. 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. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For purposes of evaluation under this rating formula, an "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest as prescribed by a physician and treatment by a physician. Id. at 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. 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."). Analysis 1. An initial rating higher than 20 percent for DDD of the lumbar spine prior to October 14, 2019. 2. An initial rating higher than 20 percent for the period February 18, 2020 to August 18, 2021. The Veteran is seeking higher initial ratings for DDD of the lumbar spine. The appeal period now before the Board begins in January 2011, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a 20 percent rating prior to October 14, 2019 and for the period February 18, 2020 to August 18, 2021. Prior to October 14, 2019, the rating was assigned under hyphenated DC 5237-5242. 38 C.F.R. § 4.71a. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the specific basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Thereafter, the ratings were assigned under DC 5242. See September 2021 rating decision. Pursuant to the December 2019 Board remand, the Veteran was afforded a VA back examination in February 2020. The examiner reported daily moderate to severe flare-ups of back pain precipitated by activity lasting all day. In addition, significant back pain with all motion, at rest, and with any activity, in both weight bearing and non-weight bearing, was noted to render the Veteran unable to perform any type of work. Although forward flexion was to 60 degrees, considering the additional functional loss due to pain indicated, together with both the October 2019 & August 2021 VA examinations reflecting forward flexion to 30 degrees and the 40 percent rating currently assigned prior to February 18, 2020 and from August 18, 2021, the Board finds the criteria for the 40 percent rating for DDD of the lumbar spine have been met for the period February 18, 2020 to August 18, 2021. Further, with respect to a rating higher than 20 percent prior to October 2019, and although the February 2020 VA examiner opined that range of motion of the Veteran's lumbar spine remained about the same when compared to the June 2011 and August 2018 VA examinations, the June 2011 VA examiner reported forward flexion to 38 degrees, noting moderate back pain with moderate discogenic degenerative change and no flare-ups. In addition, an October 2011 letter reflects moderately reduced forward flexion of the lumbar spine. See October 2011 Third Party Correspondence. Physical therapy was noted to have resulted in improved range of motion, along with ability to walk farther without pain. Additionally, the August 2018 VA examination reflects forward flexion to 75 degrees and pain on motion did not result in functional loss. Although flare-ups with prolonged standing and sitting in a car were reported, functional ability with flare-ups was not significantly limited. In addition, interference with prolonged standing was noted to be the only impact of the DDD of the lumbar spine on the Veteran's ability to work. Further, no ankylosis was reported. The Board notes that in March 2021, the Veteran stated that he worked around the house, did yard work, and traveled on short trips. See March 2021 VA mental disorders examination. Significantly, the August 2021 VA examiner stated that based on the nature, pathogenesis, and chronicity of lumbar DDD, range of motion of the lumbar spine was at least mildly, if not moderately, limited in June 2011. As the August 2020 opinion is accompanied by a complete rationale and is consistent with the more contemporaneous evidence, the Board affords it the most probative value. The Board notes that the 20 percent rating assigned for DDD of the lumbar spine prior to October 14, 2019 contemplates moderate symptoms. Although the evidence does not support a 40 percent rating prior to 2019, and although the date of the October 14, 2019 VA examination initially showing forward flexion of the Veteran's lumbar spine to 30 degrees, as well as the date the RO found that an increase in the disability to the 40 percent level occurred, in view of the July 24, 2019 imaging noted to reflect multilevel disc degeneration, bridging osteophytes, significant disc height loss, and facet arthrosis, and diagnoses of lumbar disc degeneration and spondylosis, the Board finds that an increase in the disability was factually ascertainable on July 24, 2019, the date of the imaging. This is so particularly when resolving doubt in the Veteran's favor. See 38 U.S.C. § 5107(b). As reasonable doubt was already resolved in the Veteran's favor in granting the earlier date of July 24, 2019 for the increase to 40 percent for DDD of the lumbar spine, an even earlier date for the increase is clearly not warranted. Prior to July 24, 2019, the record is absent evidence of IVDS with incapacitating episodes requiring physician prescribed bed rest. See June 2011 & August 2018 VA examinations. Thus, a higher rating based on incapacitating episodes is not warranted prior to July 24, 2019. The Board notes that the Veteran's associated radiculopathy of the lower extremities is separately rated and the ratings for those disabilities are not the subject of this appeal. In addition, the Board notes that the Veteran indicated previous training as an Emergency Medical Technician, see April 2020 VA 21-8940, and he is competent to report his symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Board considered his statements and the clinical findings of record. The Board attributes greater probative value to the clinical findings which do not reflect forward flexion of the thoracolumbar spine to 30 degrees or less, even in consideration functional loss during flare-ups, Deluca, and other factors; favorable ankylosis of the entire thoracolumbar spine; or IVDS with incapacitating episodes requiring physician prescribed bed rest, during the appeal period prior to July 24, 2019. In sum, the Board finds the evidence supports an initial 40 percent rating for DDD of the lumbar spine from July 24, 2019, and for the period February 18, 2020 to August 18, 2021. Thus, an initial 40 percent rating is warranted for DDD of the lumbar spine, effective July 24, 2019 and for the period February 18, 2020 to August 18, 2021. The preponderance of the evidence is against an initial rating higher than 20 percent for DDD of the lumbar spine earlier than July 24, 2019; thus, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Therefore, an initial rating higher than 20 percent for DDD of the lumbar spine earlier than July 24, 2019 is not warranted. Although the Board is remanding the issue of a rating higher than 40 percent for DDD of the lumbar spine from July 24, 2019, remand is not necessary for the issue of a rating higher than 20 percent prior to July 24, 2019 as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 3. A TDIU for the period prior to October 23, 2018. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more 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). 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 nonexertional) 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). Analysis The Veteran contends he is unable to work due to his service-connected DDD of the lumbar spine prior to October 23, 2018. As addressed above, the September 2021 rating decision granted a TDIU from October 23, 2018, the date his disabilities met the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). The RO's grant of a TDIU did not span the entire period on appeal for the lumbar spine condition. See Harper, 30 Vet. App. at 356. Thus, the Board will review the evidence to determine if the Veteran was prevented from securing and following a substantially gainful occupation due to his service-connected disabilities prior to October 23, 2018. See January 2011 claim. Prior to October 23, 2018, his service-connected lumbar spine condition was rated at 20 percent, hearing loss was rated at 20 percent, and tinnitus was rated at 10 percent. Therefore, his TDIU claim is considered on an extraschedular basis. See 38 C.F.R. § 4.16(b). The Board finds that the Veteran's service-connected lumbar spine condition did not prevent him from securing or maintaining all substantially gainful employment during the appeal period prior to October 23, 2018. Although the Veteran's service-connected lumbar spine condition and other service-connected disabilities caused occupational impairment, they did not prevent the Veteran from securing and following substantially gainful employment for the period January 21, 2011 to October 23, 2018. In the April 2020 TDIU application, the Veteran indicated that, after retirement, he worked as a substitute teacher and crossing guard for a school system until approximately 2000 when he quit those jobs secondary to inability to sit and stand without back and bilateral lower extremity pain. See also September 2020 VA Forms 21-4192 (Request for Employment Information in Connection with the TDIU claim) (indicating that the Veteran last worked on an as-needed-basis as a substitute teacher on August 1, 2003 and as a seasonal safety patrol aide on June 24, 2005). The June 2011 VA examination report notes that the Veteran retired in 1993 based on his age or duration of work. See also July 2014 VA treatment records (noting retirement from the Department of Defense); January 2021 SSA Profile and Benefit Data. Significantly, no effects on the Veteran's occupation due to the lumbar spine disability were reported. The Board notes that although the Veteran stated he was unable to perform yardwork and pushing and pulling chores, in March 2021, the Veteran stated that he worked around the house, did yard work, and traveled on short trips, adding that he stopped working at the school when his sons exited that school system. See March 2021 VA mental disorders examination. In addition, the June 2011 VA audio examination reflects the effects of hearing loss on the Veteran's occupational functioning was difficulty understanding conversation without hearing aids. Further, the August 2018 VA examination indicates that interference with prolonged sitting was the only impact of the Veteran's lumbar spine condition on his ability to work. The Board notes that prior to August 2018, the Veteran was not service connected for his lower extremity radiculopathy, and thus, the Board cannot consider this aspect of the Veteran's disabilities, as he was not service connected for lower extremity radiculopathy until August 10, 2018. The Board acknowledges the Veteran's lumbar spine condition, hearing loss, and tinnitus caused functional impairment that would make employment difficult. However, the evidence of record suggests he was not prevented from working in all substantially gainful employment solely due to his service-connected disabilities prior to the currently assigned October 23, 2018 effective date for a TDIU. The Board notes that July 2014 VA treatment records reflect the Veteran earned a two-year college degree in business. In addition, his April 2020 TDIU application reflects he completed additional training as an Emergency Medical Technician. Accordingly, the Board finds the Veteran was not prevented from working in all substantially gainful employment solely due to his service-connected disabilities at any time for the period January 21, 2011 to October 23, 2018. In sum, when considering the collective impact of the Veteran's service-connected lumbar spine condition, hearing loss, and tinnitus, along with the Veteran's individual circumstances, to include his education, training, and work history, the Board finds that the Veteran's service-connected lumbar spine condition did not prevent him from securing or maintaining all substantially gainful employment for the appeal period prior to October 23, 2018. As such, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, a TDIU for the period January 21, 2011 to October 23, 2018, is not warranted. Although the Board is remanding the issue of a rating higher than 40 percent for DDD of the lumbar spine for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND A rating higher than 40 percent for DDD of the lumbar spine from July 24, 2019. The August 2021 VA back examination reflects flare-ups of DDD of the lumbar spine resulted in 15 degrees of forward flexion and required bedrest and increased medication, noting significant disc degeneration and disc bulges at every level. See also October 2019 VA examination (diagnosing IVDS). As such, remand is warranted for an addendum opinion with respect to the duration of incapacitating episodes requiring physician prescribed bed rest. As noted above, 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). Under the revised regulations, effective February 7, 2021, 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. Claims pending prior to the effective date, as in this case, will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. As such, the rating for the lumbar spine condition should be considered under the old and new rating criteria. The matter is REMANDED for the following action: Return the claims file to the VA examiner who conducted the August 2021 VA back examination. If the August 2021 examiner is not available, the claims file should be provided to an appropriate medical professional to render the requested opinion. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file must be made available to and reviewed by the clinician. (Continued on the next page) The clinician should opine as to the duration of incapacitating episodes in the past 12 months resulting from the Veteran's lumbar spine DDD. See August 2021 VA examination. Rationale for all opinions expressed should be provided. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.