Citation Nr: 21011412 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-30 033 DATE: March 1, 2021 ORDER Entitlement to a disability rating of 40 percent for osteoarthritis of the lumbar spine from September 2, 2008 to September 20, 2012 is granted. Entitlement to a disability rating of 40 percent for osteoarthritis of the lumbar spine from February 1, 2013 to July 15, 2016 is granted. Entitlement to a disability rating in excess of 40 percent for osteoarthritis of the lumbar spine beginning July 15, 2016 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) beginning February 2, 2013, is granted. FINDINGS OF FACT 1. The Veteran’s back disability is productive of pain, flare ups, abnormal range of motion, and functional loss throughout the appeal period. 2. The Veteran does not experience unfavorable ankylosis of the entire thoracolumbar spine. 3. Beginning February 2, 2013, it is reasonably shown that the Veteran’s service-connected disabilities preclude her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 40 percent for osteoarthritis of the lumbar spine from September 2, 2008 to September 20, 2012 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2018). 2. The criteria for entitlement to a disability rating of 40 percent for osteoarthritis of the lumbar spine from February 1, 2013 to July 15, 2016 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2018). 3. The criteria for entitlement to a disability rating in excess of 40 percent for osteoarthritis of the lumbar spine beginning July 15, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2018). 4. The criteria for entitlement to a TDIU beginning February 2, 2013, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1984 to August 1994 and from October 2001 to May 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the issue of whether a March 2007 rating decision that denied service connection for a low back disability contained clear and unmistakable error (CUE), as well as higher staged ratings for the Veteran’s low back disability and entitlement to a TDIU. In a September 2020 rating decision, the RO granted entitlement to a TDIU, effective July 17, 2020. A request for a TDIU (whether expressly raised or implied by the record), however, is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once the issue of entitlement to a TDIU is raised, it is “part of the claim for benefits for the underlying disability.” Id. at 453-54. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the agency of original jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. As such, the Board will adjudicate whether a grant of a TDIU is warranted prior to July 17, 2020. Payne; Harper. Finally, in a June 2020 rating decision, the RO adjudicated the issue of whether there was CUE in the effective date for the Veteran’s low back disability. The June 2020 rating decision constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. See 38 C.F.R. § 3.2400(a)(1). The Board notes that an AMA appeal stream cannot be merged with the instant legacy appeal stream. As the issues of higher staged rating for the Veteran’s low back disability and entitlement to a TDIU remain under the legacy system, the Board will not address the issue of CUE in this decision. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to 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 rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint’s range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. 1. Entitlement to a disability rating of 40 percent for osteoarthritis of the lumbar spine from September 2, 2008 to September 20, 2012. 2. Entitlement to a disability rating of 40 percent for osteoarthritis of the lumbar spine from February 1, 2013 to July 15, 2016. 3. Entitlement to a disability rating in excess of 40 percent for osteoarthritis of the lumbar spine beginning July 15, 2016. The Veteran’s low back disability is rated under Diagnostic Code 5237 at 10 percent disabling for the period from September 2, 2008 to September 20, 2012. For the period from September 20, 2012 to February 1, 2013, the Veteran’s low back disability is rated at 100 percent. For the period from February 1, 2013 to July 15, 2016, the Veteran’s low back disability is rated at 10 percent and beginning July 15, 2016, the Veteran’s low back disability is rated at 40 percent. The Board notes that after undergoing surgery, the Veteran’s disability is temporarily rated at 100 percent, effective September 20, 2012 to February 1, 2013, based on convalescence. As the RO assigned a temporary total rating based on convalescence for the period, the Board will not address the time period when the Veteran is temporarily rated totally disabled. 38 C.F.R. § 4.30. 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 requires that the condition be manifested by 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 requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Higher ratings are warranted where there is ankylosis of the entire 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). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Effective February 7, 2021, the new regulation changed Diagnostic Code 5242 to include degenerative disc disease other than intervertebral disc syndrome. The new regulation also added Diagnostic Code 5244 for paraplegia and quadriplegia. The Board finds that a rating of 40 percent for the Veteran’s low back disability is warranted throughout the appeal. Throughout the appeal, the Veteran has asserted that her low back disability causes pain and loss of range of motion. She has stated that she experiences flare ups and takes medication to manage the pain. See Form 9, March 2010; see also VA Examination, March 2013, July 2016, and September 2020; Correspondence, June 2016 and May 2020. During the July 2010 VA examination, the Veteran complained of low back pain and numbness in her right leg. The examiner recorded forward flexion limited to 90 degrees. In March 2013, the Veteran reported flare ups and constant low back pain, and the examiner recorded forward flexion limited to 80 degrees with pain on movement. At the July 2016 VA examination, the Veteran reported severe back pain and numbness that radiates down her right left. She described her flare ups as back spasms if sitting, walking, or standing for too long. The examiner noted forward flexion limited to 30 degrees with pain on examination and muscles spasms, guarding, and localized tenderness. The examiner also noted intervertebral disc syndrome (IVDS) with episodes of bed rest over the past 12 months having total duration of less than one week. During the September 2020 VA examination, the examiner recorded forward flexion limited to 35 degrees with functional loss due to pain causing limited ability to bend and turn. The Veteran reported functional loss because she can no longer run or stand for long and she wakes up at night due to pain. The examiner noted that the Veteran does not have IVDS. The July 2010, March 2013, and July 2016 VA examinations are not compliant with the decisions in Correia and Sharp. However, a discussion of these examinations is helpful in the instant case as they contain the Veteran’s reports of flare ups and pain with movement as well as some range of motion measurements. The Board acknowledges that the Veteran’s limitation of motion noted on the examinations have been variable throughout the appeal. However, the Veteran has continued to report pain and functional loss and the Board finds the Veteran’s reports of the onset and continuation of symptoms of her low back disability to be competent and credible. See 38 C.F.R. § 3.159(a); see also Layno v. Brown, 6 Vet. App. 465 (1994) (noting that a veteran is competent to report on that of which he or she has personal knowledge). Thus, when considering the medical and lay evidence of record, the Board finds that the Veteran’s low back disability more nearly approximates the criteria for a 40 percent rating throughout the appeal. To receive a higher evaluation, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. The evidence does not show, nor does the Veteran contend, that she has had ankylosis of the thoracolumbar spine at any time during this stage of the appeal. The Board has also considered the diagnosis of IVDS during the July 2016 VA examination, but finds that an increased rating is not warranted under the criteria for IVDS as the Veteran has not reported incapacitating episodes which required bed rest prescribed by a physician. Therefore, a rating in excess of 40 percent for the Veteran’s back disability is not warranted. Moreover, in an April 2012 statement, the Veteran asserted that a 40 percent evaluation for her low back disability and a 20 percent evaluation for her right lower extremity radiculopathy would satisfy her appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that service connection is in effect for right lower extremity radiculopathy under Diagnostic Code 8520 at 20 percent, effective September 2, 2008, and at 40 percent disabling, effective March 2, 2013. Service connection is also in effect for left lower extremity radiculopathy under Diagnostic Code 8520 at 10 percent disabling, effective September 6, 2020. As the medical evidence does not show, nor does the Veteran contend, that the Veteran’s radiculopathy is worse than currently contemplated by the assigned ratings, the Board will not disturb these ratings. 4. Entitlement to a TDIU beginning February 2, 2013. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities 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 non-exertional) 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran asserts that the impact of her service-connected disabilities cause her to be unable to secure or follow a substantially gainful occupation prior to July 17, 2020. Given the above grant of 40 percent for the Veteran’s service-connected back disability beginning September 2, 2008, the Board notes that the Veteran’s service-connected disabilities meet the schedular criteria for an award of TDIU. As such, the issue before the Board is whether the Veteran is capable of gainful employment prior to July 17, 2020. 38 C.F.R. § 4.16.  On her most recent TDIU application, the Veteran reported that she last worked full-time on February 1, 2013, as a claim’s examiner. See VA Form 21-8940, May 2020. The Veteran’s education consists of four years of college with a degree in psychology. The Veteran has submitted several lay statements noting the functional impact caused by her service-connected disabilities and her inability to work. See Correspondence, July 2013, June 2016, and May 2020. Further, medical records note that the Veteran’s disabilities impact her ability to work as they have caused limitation of motion, an increase in pain, and decrease in quality of life and ability to work. See VA Examination, March 2013, July 2016, and September 2020. Given the evidence regarding the severity of the Veteran’s service-connected disabilities, the Veteran’s functional limitations due to her service-connected disabilities, in light of her individual work experience and training, and with the resolution of all reasonable doubt in her favor, the Board finds that the evidence shows she is entitled to an award of a TDIU rating beginning February 2, 2013. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.