Citation Nr: 21076562 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-37 700 DATE: December 27, 2021 ORDER From August 6, 2014, a 20 percent rating for degenerative disc disease (DDD) and degenerative arthritis of the lumbar spine is granted, subject to controlling regulations governing the payment of monetary awards, is granted. REMANDED A rating higher than 20 percent for DDD and degenerative arthritis of the lumbar spine is remanded. A rating higher than 20 percent for sciatic radiculopathy of the left lower extremity is remanded. A rating higher than 10 percent for sciatic radiculopathy of the right lower extremity, prior to December 30, 2019, and 20 percent thereinafter, is remanded A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), prior to March 3, 2021, is remanded. FINDING OF FACT From August 6, 2014, the Veteran's DDD and degenerative arthritis of the lumbar spine has manifested by, at least, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. CONCLUSION OF LAW The criteria for a 20 percent rating for DDD and degenerative arthritis of the lumbar spine, from August 6, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active-duty service from February 1966 to January 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board dismissed claims for earlier effective dates for service connection for radiculopathy of the left and right lower extremity and as to whether new and material evidence had been received to reopen service connection for a left knee disability. The issues of service connection for a psychiatric disorder, as well as higher ratings for DDD and degenerative arthritis of the lumbar spine and sciatic radiculopathy of the right and left lower extremity, were remanded for additional development. While on remand, service connection was granted for a psychiatric disorder and radiculopathy of the femoral nerve of the right lower extremity secondary to service-connected DDD and degenerative arthritis of the lumbar spine. See August 2020 rating decision. This represents a full grant of the benefits sought with respect to those issues. The issue with respect to the rating of femoral radiculopathy of the right lower extremity was addressed by the Regional Office (RO) in a July 2021 higher-level review (HLR) rating decision and is not before the Board in this Legacy appeal. In an August 2020 rating decision, the ratings for DDD and degenerative arthritis of the lumbar spine and sciatic radiculopathy of the right lower extremity were increased to 20 percent, effective December 30, 2019. Id. As the staged ratings do not resolve the appeal, the issues remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In October 2021, the Veteran's representative waived RO consideration of additional evidence associated with the claims file since the issuance of the August 2020 Supplemental Statement of the Case (SSOC). In an August 2021 HLR rating decision, a TDIU and basic eligibility to Chapter 35 DEA benefits as an ancillary issue based on the TDIU determination, as well as Special Monthly Compensation (SMC) at the housebound rate were granted, effective from March 3, 2021. In the decision below, a 20 percent rating is granted for DDD and degenerative arthritis of the lumbar spine. The issues of an even higher rating for DDD and degenerative arthritis of the lumbar spine, along with the higher rating claims for sciatic radiculopathy of the right and left lower extremity, and a TDIU, being remanded, are addressed in the remand section. 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. Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). 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. 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. 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202, 206-8 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). A rating higher than 10 percent for DDD and degenerative arthritis of the lumbar spine. The Veteran's August 6, 2014 increased rating claim indicates that his lumbar spine symptoms are worse than reflected in the 10 percent rating currently assigned under hyphenated DC 5243-5242. 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. Pursuant to the June 2019 Board remand, the Veteran reported for a VA examination in December 2019. See January 2010 C&P Exam. The examination reflects diagnoses of intervertebral disc syndrome (IVDS), lumbosacral DDD, and degenerative arthritis of the lumbar spine, noting a progression of the lumbar spine disability, with flare ups on walking lasting about 30 minutes. In view of the evidence associated with the claims file since the June 2019 Board remand, to include the December 2019 examination noting worsening symptoms over the years, along with records in March 2018 noting very limited, painful lumbar spine flexion and extension, see August 2019 VA treatment records, together with the March 2015 VA examination reflecting increased symptoms of IVDS and degenerative arthritis of the lumbar spine and functional impairment due to flare-ups with walking and standing, as well as objective evidence of localized tenderness and of pain with weight bearing, noted to limit occupational tasks such as lifting, pulling, and carrying, and sitting, and the Veteran's competent lay statements, the Board finds the evidence supports a 20 percent rating from August 6, 2014, the date of the claim for increase. The Board addresses the issue of whether a rating higher than 20 percent for lumbar spine DDD and degenerative arthritis is warranted in the remand. This intermediary grant of benefits does not prejudice the Veteran. REASONS FOR REMAND 1. A rating higher than 20 percent for DDD and degenerative arthritis of the lumbar spine. 2. A rating higher than 20 percent for sciatic radiculopathy of the left lower extremity. 3. A rating higher than 10 percent for sciatic radiculopathy of the right lower extremity prior to December 30, 2019 and 20 percent thereafter. Pursuant to the Board's June 2019 remand, the Veteran reported for a VA examination in December 2019. See January 2010 examination. The examiner referred the Veteran to his private doctor for follow-up with respect to his back disability and associated radiculopathy of the lower extremities. In addition, VA treatment records associated with the file in August 2021 reflect physical therapy for orthopedic issues, as well as an increase in pain medication for lower extremity radiculopathy, noting the Veteran was unable to get into the car due to pain. As there is an indication that the Veteran's conditions are worse, another VA examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). On remand, an attempt should be made to obtain any outstanding non-VA treatment records, to include physical therapy records, as well as VA treatment records since the issuance of the August 2020 Supplemental Statement of the Case (SSOC), and the records should be associated with the Veteran's claims file. As noted above, effective February 7, 2021, VA revised the criteria for rating certain musculoskeletal disabilities, including DCs 5242 and 5243. 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. On remand, the examiner should report all signs and symptoms necessary for rating the Veteran's disability under these criteria, including the revised versions of DCs 5242 and 5243. 4. A TDIU Pursuant to the Board's June 2019 remand, the Social Security Administration (SSA) records, upon which an August 2000 disability award was based, were requested. Although a March 2021 response from the SSA reflects records pertaining to the Veteran are unavailable, the March 2015 VA examiner noted that the Veteran could not stand or sit for prolonged periods and was unable to do physical work. In an August 2021 rating decision, a TDIU was granted, effective from March 3, 2021, the date of receipt of a March 2021 TDIU application form (VA Form 21-8940). The Veteran's representative contends that a TDIU prior to March 2021 remains on appeal; he has indicated that the Veteran is seeking benefits effective from the date of the August 2014 increased rating claim for the lumbar spine disability based on considerations outlined in Rice v. Shinseki, 22 Vet. App. 447 (2009) and Harper v. Wilkie, 30 Vet. App. 356 (2018). See March 2021 Third Party Correspondence. Although the Veteran's TDIU claim stems from the March 2021 TDIU application, there is potentially an earlier claim date, inasmuch as a Rice TDIU claim was part and parcel of his appeal for an increased rating for his service-connected DDD and degenerative arthritis of the lumbar spine. Consequently, the Board finds that a Rice TDIU claim had been reasonably raised and pending at the time of the March 2015 rating decision on appeal. See also Harper, 30 Vet. App. at 356 (when TDIU is part of an underlying claim for an increased rating, then a subsequent grant of TDIU that is not effective for the entire appeal period does not remove the TDIU issue from the appeal, and the Board should consider whether any earlier effective date is warranted). Because a remand of the higher rating claim for DDD and degenerative arthritis of the lumbar spine may impact the issue of a TDIU prior to March 3, 2021, the issues are inextricably intertwined. A remand of the TDIU is therefore required. The matters are REMANDED for the following actions: 1. Attempt to obtain any outstanding non-VA treatment records the Veteran identifies, including physical therapy records. In addition, obtain VA treatment records since August 2020. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) with an appropriate clinician to assess the severity of the service-connected DDD and degenerative arthritis of the lumbar spine and sciatic radiculopathy of the left and right lower extremity. This examiner must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, as is practicable for the joint, with the range of the opposite undamaged joint. The examiner should discuss the sciatic radiculopathy of the right and left lower extremity as slight, moderate, moderately severe, or severe. If there are flare-ups, but if the examination is not conducted during a flare-up or after repetitive use over time, the functional impact of a flare-up and functional impact after repetitive use over time, should be reported in degrees (of range of motion). If the examiner cannot render an opinion in degrees, the examiner must provide specific reasons for this inability. "Resort to mere speculation" does not constitute specific reasons for this inability. (Continued on the next page) The examiner must provide complete and clear rationales for the conclusions reached. The clinician should provide explanations that consider the record and pertinent medical principles. 3. After completion of the above and any other development deemed necessary, readjudicate the appeal, to include a TDIU prior to March 3, 2021, in accordance with Rice, 22 Vet. App. at 447. B. J. KOMINS Acting 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.