Citation Nr: 21076555 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 20-10 302 DATE: December 27, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis and degenerative disc disease with partial lumbarization of vertebral S1 body ("back disability") during the period prior to March 23, 2021, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT During the period prior to March 23, 2021, the Veteran's service-connected back disability did not cause, and was not manifested by: limitation of forward flexion of the thoracolumbar spine to 60 degrees or less; limitation of the combined range of motion of the thoracolumbar spine to not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or IVDS with incapacitating episodes having a total duration of at least 2 weeks during any 12-month portion of the period on appeal. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the Veteran's back disability during the period prior to March 23, 2021, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1965 to December 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Veterans Benefits Administration regional office (RO). The issue of entitlement to an increased initial disability rating for the Veteran's service-connected back disability was previously remanded by the Board for additional development in June 2020 and January 2021. The issue of entitlement to TDIU was also remanded by the Board for additional development in January 2021. The Board also notes that the Veteran has indicated, by and through his representative, that he does not wish to pursue an appeal for an increased rating of his service-connected back disability during the period from March 23, 2021. This was the express statement of his attorney representative in an October 2021 written submission. As this is effectively a withdrawal of that issue, the Board finds that the scope of the Veteran's appeal for an increased rating of his back disability is limited to the period prior to March 23, 2021. See Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). Additional evidence was received subsequent to the most recent supplemental statement of the case issued in May 2021. This evidence consists of VA medical records through July 2021. This evidence reflects ongoing treatment for the low back disabilities. However, as the Veteran is not appealing the rating during that time period, this new evidence is not pertinent to the claim decided herein, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). Entitlement to an initial disability rating in excess of 10 percent for the back disability during the period prior to March 23, 2021 The Veteran claims entitlement to an increased initial disability rating in excess of 10 percent disabling during the period prior to March 23, 2021, for his service-connected back disability. The Veteran's back disability is currently rated 10 percent disabling during the period prior to March 23, 2021, and 40 percent disabling from March 23, 2021, under 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5242. A. Applicable Law 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. VA's schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a). Prior to February 7, 2021, the old rating criteria solely applies. From February 7, 2021, the most favorable rating criteria of the two applies. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revisions to the General Rating Formula for Diseases and Injuries of the Spine do not include changes to Code 5242, contemplating degenerative arthritis, except for its inclusion of degenerative disc disease (DDD) other than intervertebral disc syndrome (IVDS). Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Code 5242). The rating schedule provides for the evaluation of all disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine. In pertinent part, pursuant to 38 C.F.R. § 4.71a, Code 5242, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or 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 rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less; or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3) provides that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) requires that each range of motion measurement be rounded to the nearest five degrees. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disabilities of the thoracolumbar and cervical spine segments must be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016), that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). The revised schedule, in effect as of February 7, 2021, contemplating IVDS under Code 5243, provides that such criteria shall be used only when there is disc herniation with compression and/or irritation of the adjacent nerve root; in all other cases, Code 5242 should be used for all other disc diagnoses. IVDS shall be evaluated, preoperatively or postoperatively, either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a , Code 5243). For evaluation of IVDS under Code 5243, IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrants a 10 percent rating. IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating. IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months warrants a 40 percent rating. And IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months warrants a 60 percent rating. Id. For purposes of ratings under Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. B. Discussion The Veteran claims that his service-connected back disability significantly worsened during the pendency of this claim, that in late 2020, he awoke "with unbearable pain leaving him bedridden for approximately 2 days," and that he "had to give up working because [his] back (lower) gave [him] lots of pain from sitting for long period [sic]" and also prevents him from standing or walking for prolonged periods. See VA Form 9, Appeal to Board of Veterans' Appeals, received March 9, 2020; letter received January 11, 2021; VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received April 7, 2021. He contends that an increased initial rating of 40 percent disabling is therefore warranted for the period spanning from the date of his claim (May 25, 2016) to March 22, 2021. The Veteran does not claim entitlement to a rating in excess of 40 percent disabling during any portion of the period on appeal, including the period from March 23, 2021. And as the Veteran has already been assigned a 40 percent disability rating during the period from March 23, 2021, this appeal is limited to one for an increased rating prior to that date. Thus, considering the pertinent laws and regulations, as discussed above, the question for the Board is whether, during the period prior to March 23, 2021, the Veteran's service-connected back disability caused or was manifested by: limitation of forward flexion of the thoracolumbar spine to not greater than 60 degrees; limitation of the combined range of motion of the thoracolumbar spine to not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or IVDS with incapacitating episodes having a total duration of at least 2 weeks during any 12-month portion of the period on appeal. For the following reasons, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's service-connected back disability caused or was manifested by such limitations or symptoms during the period prior to March 23, 2021. The Veteran's VA and private treatment records show that he has reported pain in his lower back and been evaluated and treated therefore throughout the period on appeal. But of particular note, his private treatment records also show that the range of motion (ROM) of his back was full in May 2016 but decreased to an unspecified extent in October 2020. The Veteran's VA treatment records show that it was also decreased to an unspecified extent in or about May, June, and July 2017. The Veteran was afforded VA back examinations in September 2016, July 2020, and April 2021. The September 2016 VA back conditions examination indicates that the Veteran reported that his back disability flares up and causes tightness in his back and pain rated at a 5-6/10 after continuous, prolonged standing or walking or excessive bending. He reported that these flare ups occur 4-6 times per month and last about 1-2 days if he rests in bed and stays off of his feet. He reported, however, that during these flares, he does not stay in bed the whole time. The examiner measured the ROM of the Veteran's thoracolumbar spine and indicated that forward flexion was limited to 90 degrees and that the combined ROM of the thoracolumbar spine was 215 degrees. The examiner indicated that the Veteran's ROM was not further limited after repetitive-use testing, but the examiner indicated that they did not observe the Veteran after repeated use over time or during a flare up so they could not speculate as to his ROM at those times. During the July 2020 VA back conditions examination, the Veteran reported "pain and lockup" of the lumbar spine and difficulty stooping forward while washing dishes. The examiner measured the Veteran's thoracolumbar spine ROM, indicated that it was not further limited upon repetitive-use testing, and provided estimates of the ROM after repeated use over time and during flare ups. The worst (i.e., most severely limited) ROM measurements or estimates provided by the examiner were the estimates of the ROM after repeated use over time, which included a limitation of forward flexion to 80 degrees and a limitation of the combined ROM of the thoracolumbar spine to 130 degrees. While the September 2016 VA back conditions examination report shows that the examiner did not estimate the Veteran's thoracolumbar ROM after repeated use over time or during a flare up, the July 2020 VA back conditions examination report clearly lists an estimated ROM after repeated use and during flares, and it indicates that the ROM was not estimated to be such, after repeated use or during flares, that forward flexion of the thoracolumbar spine was limited to 60 degrees or less or the combined range of motion of the thoracolumbar spine was limited to 120 degrees or less. As the Veteran indicates a progressively worsening condition over time, the July 2020 examination would have indicated any greater limitation of motion during flare-ups or with repeated use over time. As the limitation of motion remained at the 10 percent level, there is no indication to remand for a retrospective opinion. See Chotta v. Peake, 22 Vet. App. 80 (2008). The VA back examination reports, private, and VA treatment records, confirm that during the period prior to March 23, 2021, the Veteran's back disability was not manifested by limitation of forward flexion of the thoracolumbar spine to 60 degrees or less; limitation of the combined range of motion of the thoracolumbar spine to 120 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Relatedly, this evidence shows that the condition did not manifest with IVDS with incapacitating episodes having a total duration of at least 2 weeks during any 12-month portion of the period on appeal. The Veteran wrote in January 2021 that his back condition became so severe that he awoke a few months prior to unbearable pain leaving him bedridden for approximately 2 days and sought treatment by a private provider. The Board observes that this private provider's medical records are in the file, including treatment in October 2020 for an episode of acute back pain. The medical records do not indicate prescribed bed rest. Hence, the Veteran's statement that he was "bedridden" does not allow for assignment of a higher rating based on incapacitating episodes. Furthermore, the evidence of record does not show any functional limitations caused by the back pain that are akin in severity to the functional limitations contemplated by the foregoing manifestations and criteria for a rating in excess of 10 percent disabling. See Mitchell, 25 Vet. App. 32, 37. The effective date for the 40 percent rating was assigned mechanically based on the date of the March 2021 VA examination. Generally, an effective date for an increased rating should not be assigned mechanically based on the date of an examination. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased ratingas well as for an initial rating or for staged ratingsis predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); accord Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014); see also Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); VAOPGCPREC 12-98. Based upon the evidence in this case, the exact onset date for the Veteran's 40 percent level of disability cannot be determined with any certainty. The earliest that that it can be factually ascertained that he met the criteria for the 40 percent rating is March 23, 2021, the date he was examined by VA. The next earlier examination, from July 2020, did not demonstrate a 40 percent disability level. Hence, the increase likely occurred at some point between the July 2020 VA examination and the March 2021 VA examination. The latter examination did not indicate when the increased in severity might have occurred with any specificity. Neither do the intervening medical records. While he was seen in October 2020 for an acute worsening of back pain, it would be speculative on the Board's part to infer that the increase to the 40 percent disability level occurred at that time. Rather, based upon the evidence in this case, the earliest that that it can be factually ascertained that he met the criteria for the percent rating is March 23, 2021, the date he was examined by VA. The Veteran is separately service-connected for radiculopathy of the right and left lower extremities, secondary to the service-connected lumbar spine disabilities. The issue of the appropriate ratings to assign for those disabilities is not before the Board at this time. Chavis v. McDonough, 34 Vet. App. 1, 16 (2021). Otherwise, the VA examinations, VA medical records, and private medical records show that there has been no other neurologic impairment associated with the lumbar spine disability. Thus, the preponderance of the evidence demonstrates that during the period prior to March 23, 2021, the Veteran's service-connected back disability was not manifested by a higher disability level. As such, this appeal for an increased initial rating of the Veteran's back disability during the period prior to March 23, 2021, is denied. In denying this claim, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board herein remands the TDIU claim for additional development. The instant increased rating claim is not intertwined with that development. The development on the TDIU issue is solely for evidence pertaining to the Veteran's work history. That evidence will not reasonably bear on the severity of the low back disability. Hence, remand of the increased rating claim is not needed. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran claims that he worked for General Motors (GM) from 1967 to 1995, when he retired, and that he drove for Lyft from October 2020 to November 2020 before he "had to give up working" because his back, feet, and ankle conditions prevented prolonged sitting, standing, and walking. The Veteran has indicated that he has a 12th grade/high school education, but he has not stated what his job title was when he was working with GM and it is unclear what his prior work experience consists of. In March 2021 and April 2021, VA sent the Veteran a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, but the Veteran has not returned the form, and VA has not sent one directly to GM or Lyft. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). Here, the Board finds that further development is needed regarding the Veteran's work history. This includes (1) asking the Veteran to provide additional information about his work history, including the names of his previous employers and his occupations, dates of employment, and the amount of his earnings in each position; and (2) sending GM and Lyft a VA Form 21-4192 and requesting each company or their designees to complete and return the form. Ultimately, the duty to assist is not always a one-way street, so the Veteran must cooperate in the development of his claim and cannot passively wait for it in those circumstances where he should have information that is essential in obtaining the putative evidence. Hence, it is in his best interest to assist in the development of the claim. Otherwise, the claim must be decided based upon the evidence of record. The matters are REMANDED for the following action: (Continued on the next page) Attempt to verify additional details about the Veteran's work history, including, but not necessarily limited to, by: (a) asking the Veteran to provide additional information about his work history, including the names of his previous employers and his occupations, dates of employment, and the amount of his earnings in each position; (b) returning VA Forms 21-4192 for each employer; and (c) sending GM, Lyft, and any other previous employers since 1967 a VA Form 21-4192 and requesting each company or their designees to complete and return the form. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banks, 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.