Citation Nr: 21074797 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-17 500 DATE: December 16, 2021 ORDER Entitlement to a 40 percent rating prior to November 16, 2016, for a low back disability is granted. Entitlement to an effective date, earlier than July 12, 2010, for the award of service connection for a low back disability, is denied. REMANDED Entitlement to a rating in excess of 40 percent from November 16, 2016 for a low back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The probative evidence of record demonstrates that the Veteran's low back disability symptoms have been productive of forward flexion of the thoracolumbar spine 30 degrees or less for the entire period on appeal. 2. There is no formal or informal claim of service connection for a low back disability prior to July 12, 2010. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent prior to November 16, 2016 for a low back disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for an effective date, earlier than July 12, 2010 for the grant of service connection have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to August 1981. The appeal originates from a March 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that following the January 2017 statement of the case (SOC), new VA medical records were associated with the case file. However, the relevant evidence is duplicative of information that was in the record at the time the March 2017 SOC was issued. Specifically, the VA medical reports continue to demonstrate ongoing low back pain and the March 2018 VA back examination reported the same manifestations of the Veteran's low back symptoms as determined in the November 2016 VA back examination. Therefore, remand for review in the first instance is not necessary. See 38 C.F.R. §§ 19.31, 19.37(a) Likewise, as the issue of TDIU is being remanded, the Veteran will not be prejudiced since the RO will have an opportunity to review any relevant evidence pertaining to this claim while on remand. Increased Rating 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. 1. Entitlement to a rating in excess of 10 percent from July 12, 2010; in excess of 20 percent from October 15, 2012; and in excess of 40 percent thereafter, for a low back disability. For the period on appeal, the Veteran has been assigned staged ratings for his low back disability under DC 5237. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings). DC 5237 applies the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine; and 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 Board notes that on February 7, 2021, a change in the rating criteria for the musculoskeletal system went into effect. However, the change in the criteria did not adjust the General Rating Formula and does not influence the Veteran's evaluation. Furthermore, as the Veteran does not have intervertebral disc syndrome, the change to DC 5243 for intervertebral disc syndrome has no significance to the Veteran's evaluation. A review of the evidence shows the Veteran was afforded a VA back examination in December 2010. The examination revealed that the Veteran had flare-ups with precipitating factors including prolonged standing, bending, twisting, and weather changes. No ankylosis was noted. The examiner determined that the Veteran's forward flexion was 80 degrees. However, the examiner failed to consider any additional loss of functionality described in terms of range of motion during flare-ups. In this regard, the Board notes that the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. In this case, the December 2010 examiner disregarded considering range of motion loss during flare-ups, in the face of evidence that the Veteran suffered from flare-ups, and the examiner failed to elicit information from the Veteran. As such, the examiner ignored an essential matter for appropriately evaluating the severity of the Veteran's back disability. Therefore, the examiner did not comply with the mandates of Sharp. As such, the December 2010 VA back opinion is not adequate for rating purposes and has no probative value in determining the appropriate level of the Veteran's disability. The Veteran was provided another VA back examination in October 2012. The examiner acknowledged that the Veteran had flare-ups with daily back pain, exacerbated with walking 100 feet, prolonged sitting, bending, standing, overexertion, and lifting over 20 pounds. The examiner indicated that the Veteran's forward flexion range of motion was 60 degrees. However, upon consideration of where painful motion begins the forward flexion range of motion was determined to be 30 degrees. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Here, upon consideration of where painful motion began, it was clearly found that the Veteran had additional loss of range of motion, manifesting as forward flexion at 30 degrees. Likewise, in his November 2016 VA examination the Veteran was found to have range of motion limited to 30 degrees for forward flexion. Based on these findings, the Board finds that the Veteran met the criteria for a 40 percent rating for the period prior to November 16, 2016. A higher rating is not warranted as the record does not show any evidence of ankylosis. Although the December 2010 examiner did not consider range of motion loss during flare-ups, he nonetheless found that the Veteran's back did not exhibit ankylosis. Similarly, while the October 2012 examiner did not address ankylosis, the description of the Veteran's low back condition, even with flare-ups, was not consistent with a locking up of the lumbar joint found with ankylosis. Furthermore, the examiner in his November 2016 VA examination found no evidence of ankylosis and treatment records are silent as to the same. As such, the evidence does not support a rating higher than 40 percent at any time prior to November 16, 2016. Based on the foregoing, the probative VA back examinations support a rating of 40 percent, but no higher, for the period prior to November 16, 2016 for the Veteran's low back disability. Because the December 2010 VA back examination was inadequate, it cannot appropriately be used to support the initial rating for the Veteran's low back disability, as it lacks probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Affording the Veteran all benefit of the doubt, the evidence sufficiently demonstrates that the symptomology, including consideration of pain, was productive of a 40 percent rating from the initiation of the claim for service connection for a low back disability. Accordingly, entitlement to an initial rating of 40 percent for a low back disability is granted. 2. Entitlement to an earlier effective date for a low back disability. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). The effective date of an increased rating is either the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Prior to the amendment, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. At the outset, the Board notes that in an October 2012 rating decision, the Veteran was assigned an increased rating to 20 percent, effective October 15, 2012, for his low back disability. In a March 2013 Notice of Disagreement (NOD), the Veteran challenged the assigned rating and the effective date. In this regard, the Board notes that the Veteran's claim for an earlier effective date for his assigned 20 percent rating is inextricably intertwined with his increased rating claim and has already been decided above. Therefore, this claim is moot. To the extent that the Veteran is challenging the effective date for the award of service connection for a low back disability, the claim for an earlier effective date is denied. As noted above, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). Here, the Veteran filed his claim for service connection on July 12, 2010 and there is no evidence of a formal or informal claim prior to this date. Therefore, the Veteran has been assigned the earliest date available for the award of service connection. Likewise, the Veteran has been awarded an earlier effective date in the decision herein for his assigned 40 percent rating. Therefore, the preponderance of evidence is against the claim, and the Veteran's claim for an effective date, earlier than July 12, 2010, is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent from November 16, 2016, for a low back disability, is remanded. In his August 2021 appellate brief, the Veteran contended that his disabilities have continued to worsen. The Board notes that the Veteran was last afforded a VA back examination in March 2018, nearly four years ago. Given that the Veteran contends that his low back disability has worsened, he is entitled to a new VA examination to assess the current level of his disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, remand is warranted for further development. 2. Entitlement to a TDIU is remanded. With regard to entitlement to TDIU, the Board notes that the issue of a TDIU is inextricably intertwined with the issue being remanded and adjudication of TDIU must be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board further notes that the Veteran has not met the schedular criteria for a TDIU at any time during the appeal period. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Nevertheless, the law provides that where these percentage requirements are not met, entitlement to a total rating based on individual unemployability on an extraschedular basis may be considered when the claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). Since, the Board cannot decide extraschedular TDIU claims in the first instance, the Board must specifically adjudicate whether to refer the case for consideration of extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); see also Barringer v. Peake, 22 Vet. App. 242 (2008). Given that the Veteran has been awarded an increased rating and has contended that his back has worsened, the Board finds that referral is appropriate. Accordingly, remand is warranted to refer the case to the Director, Compensation and Pension Service for extraschedular consideration. The matters are REMANDED for the following action: 1. The AOJ should obtain any outstanding VA treatment records and associate them with the claims file. 2. Following the development above, schedule the Veteran for a new VA back examination to determine the current severity and manifestations of his low back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. The examiner should report all signs and symptoms necessary for evaluating the Veteran's low back disability under the rating criteria. The examiner should also provide the range of motion in degrees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. 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 so in the report. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. If it is determined that the Veteran does not have flare-ups, an explanation for that determination must be provided, and specifically, why such a determination is consistent with the Veteran's reports. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to his disability. 38 C.F.R. § 4.40, 4.45, 4.59. In this regard, the examiner must indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. This testing should be done regardless of whether the Veteran is tested during a flare-up or not. 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. The examiner must consider whether the evidence of record, to include the Veteran's lay statements, shows the functional equivalent to favorable or unfavorable ankylosis. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Then, refer the TDIU claim to the Director, Compensation and Pension Service for a determination as to whether the assignment of a TDIU on an extraschedular basis is warranted. The results of this referral must be included in the claims file. 4. After completing the requested actions and any additional action deemed warranted, readjudicate the Veteran's claims. K. R. Laffitte Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, Associate 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.