Citation Nr: 21014281 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-43 939 DATE: March 11, 2021 ORDER Entitlement to an increased rating in excess of 40 percent for lumbar spine degenerative disc disease (DDD), excluding the period during which a temporary total rating pursuant to 38 C.F.R. § 4.30 has been assigned, is denied. REMANDED Entitlement to a higher rate of special monthly compensation (SMC) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s low back disability has not been manifested by ankylosis of any kind or required physician prescribed bed rest. CONCLUSION OF LAW The criteria for an increased rating in excess of 40 percent for lumbar spine DDD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1987 to February 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal for additional development in October 2018. The Veteran’s Social Security Administration (SSA) records and the requested spine examination were obtained in June 2019. As such, the directives have been substantially complied with and the appeal is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran was previously represented by a private attorney. However, in March 2016 prior to certification of the appeal to the Board and the October 2018 Board remand the Veteran’s attorney withdrew as the representative. 38 C.F.R. § 20.6. To date the Veteran has not appointed a new representative, and therefore will be treated as pro se. 1. Entitlement to an increased rating lumbar spine DDD 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The Veteran’s lumbar DDD is rated under Diagnostic Code 5242. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Under the General Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. 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. Id. at Note 2. 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 lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of 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. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id. Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An “incapacitating episode” for purposes of totaling the cumulative time is defined as “period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. During the period on appeal, the Veteran has reported that he experiences severe back pain, limitation of motion, limitations on walking and completing activities of daily living, and that his disability results in him being bedridden. The Veteran is competent to report such symptoms and there is no evidence that his statements are not credible. Jandreau, 492 F.3d 1372. As such, the statements are entitlement to probative weight as to the severity of his disability during the period on appeal. The Veteran was provided with VA spine examinations in March 2015 and June 2019. During the March 2015 examination the Veteran reported severe constant back pain. The Veteran was noted to have forward flexion to 10 degrees and motion to 5 degrees in other planes. There was no further loss of motion after repetitive testing. The examiner stated that there was no evidence of ankylosis of the lumbar or entire spine, and further noted there was no diagnosis of IVDS. During the June 2019 examination the Veteran again reported severe lower back pain that radiated into his lower extremities, but denied flare-ups of the disability. Sharp v. Shulkin, 29 Vet. App. 26, 34–36 (2017). The examiner noted that the Veteran was capable of forward flexion to 35 degrees and motion to 30 degrees in all other planes. No further loss of motion was present on repetitive testing. There was objective evidence of pain on forward flexion, but no pain on weightbearing or non-weightbearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examiner stated that testing for pain on passive motion was not conducted as it was not possible to do so in a safe manner. Id. The examiner noted there was no evidence of ankylosis of the lumbar or entire spine and that the Veteran did not have a diagnosis of IVDS. There is no evidence that the above examiners were either not competent or credible. Further, both assessments were based on the Veteran’s own reports of his symptoms and each examiner’s own objective examination of the Veteran’s lumbar spine. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran’s disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Treatment records reflect consistent reports of low back pain and limitation of motion. However, the records do not reflect any physician prescribed bedrest, that fixation of the lumbar or entire spine, or any symptoms associated with unfavorable ankylosis of the lumbar or entire spine. Based on the foregoing, the preponderance of the evidence is against a finding that an increased rating in excess of 40 percent is warranted. None of the evidence, whether lay or medical, indicates that the Veteran’s lumbar or entire spine is fixed in place in any way. While the March 2015 examiner noted that the Veteran has significant limitation of motion at the time of that examination, the examiner still stated that the disability was not manifested by ankylosis of any kind. As such, an increased rating for the Veteran’s lumbar spine disability is not warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242. In evaluating the Veteran’s current level of disability for the period on appeal, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. However, even when considering the Veteran’s reports of severe pain and after conducting repetitive testing to elicit any further limitation of motion due to factors such as pain, both VA examiners stated that the Veteran’s lumbar or entire spine was not ankylosed for VA purposes. Further, none of the treatment records associated with the file indicate that the Veteran’s lumbar or entire spine was fixed in position. As such, even when considering additional functional loss due to factors such as pain, the Veteran’s low back disability does not more nearly approximate the level of severity contemplated by higher ratings for the spine, all of which contemplate a disability level where either the lumbar or entire spine cannot be moved at all. 38 C.F.R. §§ 4.40, 4.45. Additionally, the Veteran’s complaints of pain on motion are fully contemplated by his current ratings. 38 C.F.R. § 4.59. No additional higher or alternative ratings under different Diagnostic Codes can be applied. First, the Veteran does not have a diagnosis of IVDS, and therefore a rating based on the Incapacitating Episodes Formula is not warranted. Copeland v. McDonald, 27 Vet. App. 333, 336–37 (2015) (“the Court reiterates that when a condition is specifically listed in the Schedule, it may not be rated by analogy”). Further, even if a diagnosis were present there is no evidence of physician prescribed bedrest. While the Veteran has asserted that he is bedridden for portions of the day, there is no evidence that such rest was prescribed by a physician as required for higher ratings based on incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. As such, a rating in excess of 40 percent based on incapacitating episodes is not warranted. Id. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, service connection for the Veteran’s left and right lower extremity radiculopathy has already been granted, and therefore are already contemplated by their assigned ratings. No other neurologic abnormalities have been noted as being associated with the Veteran’s low back disability. While the Veteran’s spouse reported in a January 2014 statement that the Veteran loses control of his bowels on a regular basis, she is not competent to associate any observed incontinence with the Veteran’s low back disability, as to do so requires medical training and knowledge beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372. Both of the VA examiners stated that the Veteran did not have a bowel impairment associated with his low back disability, nor is such an impairment associated with the low back disability in the Veteran’s treatment records. As such, additional separate ratings are not warranted. 38 C.F.R. § 4.71a, General Formula, Note 1. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran nor the record has raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (2017). The preponderance of the evidence is against an increased rating in excess of 40 percent for the Veteran’s lumbar DDD. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to a higher rate of SMC. A Veteran is entitled to SMC at the rate provided in 38 U.S.C. § 1114(o) when, as the result of service-connected disabilities, the Veteran has suffered disability which entitles him or her to two or more of the rates provide in one or more subsections (l) through (n). 38 U.S.C. § 1114(o). Thus, the statute allows for a single subsection, and the rate provided therein, to be used several times in order to attain the two or more rates necessary to meet the criteria for the rate provided in 38 U.S.C. § 1114(o). For example, an individual may qualify for the rate provided in 38 U.S.C. § 1114(l) in five different ways: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blind in both eyes; (4) permanently bedridden; or, (5) need of regular aid and attendance. Thus, a Veteran who had both the loss of use of both feet and was blind in both eyes would qualify twice for the rate provided in subsection (l) under wholly separate theories, and therefore be eligible for the SMC rate provided in subsection (o). 38 C.F.R. § 3.350(b). However, in qualifying for different rates no disability may be counted more than once. 38 U.S.C. § 1114(o). In this case, the Veteran asserts that he requires the aid and attendance of another due to his service-connected disabilities. While the Veteran submitted an aid and attendance examination in February 2014 and VA obtained a separate examination in April 2014, the February 2014 opinion considered all of the Veteran’s disabilities including the loss of use of the feet and the April 2014 opinion focused on the Veteran’s low back disability specifically. In order to obtain a higher level of SMC based on the need for aid and attendance, the need for aid and attendance would need to be based on service-connected disabilities other than his loss of use of the feet. 38 U.S.C. § 1114(o). As such, the Board finds that a remand is warranted for a new opinion that excludes the loss of use of the feet when evaluating the Veteran’s need for aid and attendance. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine whether the Veteran requires the regular aid and attendance of another. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s service-connected disabilities, excluding his loss of use of the feet due to radiculopathy, render him so helpless as to need the regular aid and attendance of another? In evaluating whether the Veteran’s service-connected disabilities other than the loss of use of the feet result in the need for aid and attendance, the examiner should address the following factors: (1) inability to dress or undress or keep ordinarily clean and presentable; (2) inability to feed himself; (3) inability to attend to the wants of nature; (4) incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment; (5) or being bedridden. If it is determined that the Veteran’s need for aid and attendance is due to his loss of use of both feet or due to the combined effects of all his disabilities, the examiner should state as much. “Bedridden” is the condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.