Citation Nr: 21012927 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-38 044 DATE: March 8, 2021 ISSUE Entitlement to a disability rating in excess of 10 percent prior to December 14, 2014, and in excess of 20 percent thereafter, for service-connected degenerative disc disease (DDD). REMANDED Entitlement to a disability rating in excess of 10 percent prior to December 14, 2014, and in excess of 20 percent thereafter, for service-connected degenerative disc disease (DDD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from August 1990 to December 1990, from January 2004 to December 2004, from March 2005 to May 2009, and from July 2009 to May 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, in a rating decision from September 2009, the Veteran was granted entitlement to service connection for focal degenerative desiccation of L4-5 with disc bulging with a 10 percent disability rating. The Veteran filed a claim for an increased rating for that service connected DDD, however a rating decision from January 2011 denied that claim. The Veteran then filed a timely Notice of Disagreement (NOD) in January 2011. The Veteran was issued a statement of the case in July 2013, and the Veteran’s claim was eventually certified to the Board in October 2014. The Veteran then appeared before the undersigned Veterans Law Judge in a Travel Board hearing in June 2016 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. The Veteran’s claim was then remanded in April 2018, and again more recently in May 2020 for VA examinations. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Following that examination, a rating decision from December 2020 increased the Veteran’s disability rating for his service connected DDD to 20 percent, effective December 14, 2014. They also granted an additional 20 percent rating for left lower extremity radiculopathy, associated with the Veteran’s service connected DDD, effective September 4, 2020. The Board notes that the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded for the entire period on appeal, the claim is still in controversy and on appeal. Id. As an aside, the Board is reminded that in the previous May 2020 Board Decision, the issue of entitlement to total disability based on individual unemployability (TDIU) was noted to be not currently on appeal, as the Veteran had testified in June 2016 that he is currently working in a delivery warehouse for hospital supplies. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447. That issue is still not currently on appeal. The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to a disability rating in excess of 10 percent prior to December 14, 2014, and in excess of 20 percent thereafter, for service-connected degenerative disc disease (DDD) is remanded. In the interest of judicial economy, the Board finds that it is appropriate to discuss the current claim by addressing two separate but intertwined elements: the claim for entitlement to an increased rating for service-connected DDD, and the effective dates assigned for the staged ratings periods related to the Veteran’s service-connected DDD. a) The Disability Rating The Veteran has claimed that his service-connected degenerative disc disease is worse than currently rated. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The Veteran testified before the undersigned Veterans Law Judge in July 2016 that his DDD had worsened since his most recent VA examination. He also testified during the hearing that he experienced flare ups, which amounted to “muscle spasms,” which happen in the “mornings on the way to work or as I’m getting out of bed.” The Veteran additionally testified that the flare ups occasionally cause pain to radiate to his legs “for a little bit then it just goes away.” He also stated that the radiating pain sometimes spasms up his spine, causing “pain where it just its unpredictable.” He then stated that these flare ups have resulted in functional loss, causing difficulty in his ability to lift and move heavy boxes while at work. Finally, the Veteran testified that on occasion his back causes incapacitation, and he has days whereby he will “put in leave days just to stay home and... just [kind of] rest it and that way I don’t have to put anymore strain on it.” He stated that these periods of incapacitation occur “two to three times” per month. The Board notes that the Veteran is competent to report his symptoms, including his claims of flare-ups, incapacitating episodes, and how his back pain impacts his ability to work. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As noted above, this issue was most recently before the Board in May 2020. In that Decision, the Board found that a VA examination from November 2019 was inadequate, as the Veteran’s lay statements and testimony were not considered regarding flare ups, incapacitating episodes, and experiencing functional loss due to his DDD. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As a result, the matter was remanded for an adequate VA examination. See further, Sharp v. Shulkin, 29 Vet. App. 26 (2017) (whereby the Court 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). That examination occurred in December 2020. The Veteran was seen in person, and the claims file was reviewed. The examiner confirmed the Veteran’s diagnosis. During the exam, the Veteran complained of “dull to sharp pains to the lower back, stiffness, occasional muscle spasms, popping, limited range of motion, difficulty finding comfort.” The examiner noted that flare ups occur “with activity … twice a month,” with severity rated at “6/10 sharp stiff pain,” that last “a couple of hours, until able to rest or take pressure off back.” The Veteran’s range of motion (ROM) was at its worse during flare ups, which the examiner estimated with measurements of forward flexion to 65 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. The Veteran exhibited both guarding and muscle spasms which resulted in abnormal gait or abnormal spine contour. The Veteran does not experience ankylosis. He has full muscle strength. The examiner noted that the Veteran experienced “moderate” radiculopathy of the left leg related to the sciatic nerve. Importantly, the examiner denied that the Veteran has intervertebral disc syndrome (IVDS) but noted that he does occasionally use a brace. Importantly, while the VA examiner’s report provides an adequate description of flare ups as reported by the Veteran, the Veteran’s claims of possible IVDS may have not been fully considered. As a reminder, the Veteran has provided lay statements and competent testimony that on occasion his back causes incapacitation, and he has days whereby he will “put in leave days just to stay home and... just [kind of] rest it and that way I don’t have to put anymore strain on it.” He further testified that these periods of incapacitation occur “two to three times” per month. Again, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected degenerative disc disease. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). In addition, the Board notes that the Schedule for Ratings Disabilities has recently changed as it relates to the musculoskeletal system, and that those changes may impact the Veteran. As is relevant to the Veteran’s claim, IVDS under Diagnostic Code 5243 now includes the following: “Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses.” The disability ratings for incapacitating episodes, as well as the General Rating Formula for Disease and Injuries of the Spine have not changed. See further, Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257, 5262). The Board notes that these changes were implemented February 7, 2021. Therefore, following an adequate VA examination to assess the current severity of the Veteran’s service-connected DDD, to include possible IVDS, the RO is to apply the old ratings criteria for any ratings prior to February 7, 2021, but apply either the new or the old ratings criteria for any ratings following February 7, 2021, whichever is more favorable to the Veteran. b) The effective dates for the staged ratings As mentioned above, the Board also notes that the Veteran’s claim has an intertwined element related to the effective date assigned for the grant of the Veteran’s disability ratings. As a reminder, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Chronologically, the Veteran was given a VA examination on September 4, 2014 to assess the current severity of the Veteran’s service connected DDD. Following that examination, the RO denied the Veteran’s claim of entitlement to an increased rating. In May 2020, the Board remanded this matter for an adequate VA examination. The Veteran was then given a VA examination on December 14, 2020. From this examination, the RO increased the Veteran’s disability rating for his service connected DDD to 20 percent, however the effective date assigned was December 14, 2014. The RO also assigned a 20 percent rating for left lower extremity radiculopathy, effective September 4, 2020. Generally, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If it is factually ascertainable that the disability increased within one year preceding the date of claim for the increased rating, the effective date of increased compensation will be the date the disability increased within that year. 38 C.F.R. § 3.400 (o)(2). Thus, it appears that the effective date assigned for the award of a 20 percent disability rating for service connected DDD, as well as the award of a separate 20 percent rating for left lower extremity radiculopathy, should be December 14, 2020. This is the date of the Veteran’s VA examination, where it was first factually ascertainable that an increase in disability had occurred. The current assigned rating for DDD instead appears to go to the year of an earlier VA examination, while the current assigned rating for radiculopathy of the left lower extremity appears to go to the month and day of that same earlier VA examination. Having said that, the grant of the disability rating has taken place, and it is for that reason that the Board has framed the above Issue with a staged rating date of December 14, 2014, as opposed to December 14, 2020. See AB v. Brown, 6 Vet. App. 35 (1993) (As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal). See further, Fenderson, Id. Therefore, on remand, the RO must reassess the effective dates for both 20 percent disability awards for service connected DDD and service-connected left lower extremity radiculopathy, to consider whether or not a clear and unmistakable error (CUE) has taken place in the assignment of those effective dates. As a reminder, CUE occurs when: (1) either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied, and (2) the outcome would have been manifestly different if the error had not been made. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). A determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Subsequently developed evidence may not be considered in determining whether an error took place in a prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999); King v. Shinseki, 26 Vet. App. 433, 441 (2014). Furthermore, CUE consists of “errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.” See Russell v. Principi, 3 Vet. App. at 313. Clear and unmistakable error is not the mere misinterpretation of facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Examples of situations that are not CUE are: (1) a new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA’s duty to assist a claimant with the development of facts relevant to his or her claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403. The matters are REMANDED for the following action: 1. The RO must evaluate the effective dates for the grant of the 20 percent disability rating for service-connected degenerative disc disease, as well as the effective date for the grant of the 20 percent disability rating for service-connected left lower extremity radiculopathy, to consider whether or not a clear and unmistakable error (CUE) has occurred in the assignment of the current staged rating dates. If the RO identifies that a CUE has occurred, the Veteran must be provided adequate notice of such error and afforded an opportunity to respond. 2. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 3. After, and only after Steps 1-2 have been completed, the RO should schedule an appropriate VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate physician to determine the current severity of the Veteran’s service-connected degenerative disc disease (DDD). The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. (a.) Conduct all indicated diagnostic tests that are deemed necessary for an accurate assessment of the Veteran’s DDD. The examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for the joint(s) in question and any paired joint(s). See Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The examiner should detail range of motion measurements, to include the degree at which the Veteran experiences pain, any additional impact caused by motion such as weakness and fatigability, incoordination, or swelling. 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 is to note a full and complete history of the Veteran’s symptoms, to include symptoms associated with any flare-ups. Provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare up, the examiner is directed to ascertain information as to the frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner is asked to specifically evaluate the Veteran for potential intervertebral disc syndrome (IVDS). The examiner is also reminded that the Veteran has provided lay statements and competent testimony that approximately two to three days per month, he experiences incapacitation due to his DDD, and he has days whereby he will “put in leave days just to stay home and... just [kind of] rest it and that way I don’t have to put anymore strain on it.” The examiner is also reminded that, effective February 7, 2021, the diagnostic criteria for IVDS requires “disc herniation with compression and/or irritation of the adjacent nerve root.” 4. After completing the development noted above, readjudicate the issue on appeal. The RO is reminded that the Schedule for Ratings Disabilities has changed as it relates to musculoskeletal disabilities, and that these changes were implemented February 7, 2021. Therefore, following an adequate VA examination to assess the current severity of the Veteran’s service-connected DDD, to include possible IVDS, the RO is to apply the old ratings criteria for any ratings prior to February 7, 2021, but apply either the new or the old ratings criteria for any ratings following February 7, 2021, whichever is more favorable to the Veteran. Then, if any benefit sought on appeal remains denied, issue an SSOC to the Veteran and his Representative. After the Veteran and his representative has had an adequate opportunity to respond, return the appeal to the Board for appellate review. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.