Citation Nr: 21014657 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 08-28 252 DATE: March 15, 2021 ORDER Entitlement to a rating in excess of 10 percent for a low back disability is denied. Entitlement to a rating in excess of 10 percent for left elbow tendinitis is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 3, 2014, is denied. FINDINGS OF FACT 1. The Veteran’s back disability was not manifested by forward flexion less than 60 degrees; combined range of motion less 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. 2. The Veteran’s left elbow tendinitis is not manifested by flexion limited to 90 degrees or extension limited to 75 degrees. 3. Prior to June 3, 2014, the Veteran was not prevented from securing and following substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a rating in excess of 10 percent for left elbow tendinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5024, 5206, 5207, 5208. 3. The criteria for entitlement to a TDIU prior to June 3, 2014, have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marines from March 1988 to March 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2005, May 2008 and November 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO). In August 2011 and June 2017, the Veteran testified at hearings before the undersigned Veterans Law Judge (VLJ). These matters were remanded previously by the Board in October 2011, September 2016, January 2018 and August 2020 for additional development. In the January 2018 Board decision, the Board noted the Veteran was afforded VA examinations for his elbow in February 2017 and for his back in June 2014. These examinations were not adequate in light of the Court’s determination in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressing the adequacy of the VA examiner’s opinion concerning additional functional loss during flare-ups of musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board found these matters must be remanded for new VA examinations and opinions addressing the issue of limitation of motion during flare-ups of the elbow and back. As the previous examinations did not provide range of motions for active and passive motion, a remand was also required to ensure compliance with the holdings of Correia v. McDonald, 28 Vet. App. 158 (2016). Post-remand, the Veteran was afforded VA examinations in December 2019 for his elbow and back disabilities. However, in both examinations, the Veteran reported flare-ups, and the exams were not conducted during flare-ups. The VA examiner held that the exams were neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups and had no basis to offer additional losses of function or motion. In the August 2020 Board decision, the Board found that the December 2019 VA examiner did not substantially comply with the remand directives of the January 2018 Board decision. A remand was deemed necessary to obtain new VA examination for the Veteran’s elbow and back disabilities that comply with Sharp and Correia. The Veteran’s TDIU claim was also remanded, as it is inextricably intertwined with the above-discussed increased ratings claims. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 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.A. § 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. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran’s disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). 1. Entitlement to a rating in excess of 10 percent for a low back disability The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected lumbosacral strain. The Veteran’s back disability is rated under DC 5237. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is 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 assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated 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. See also Plate V, 38 C.F.R. § 4.71a. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The Veteran was provided a post-remand VA examination for his service-connected back disability in October 2020. The Veteran was diagnosed with degenerative arthritis of the spine, and he reported stiffness, pain and numbness down the right leg. Veteran takes ibuprofen and naproxen as pain medication while seeking physical therapy and chiropractor help. Veteran reported flare-ups with heavy lifting, and feels he has functional impairment as he is not able to do as much heavy lifting or working out at the gym like he would like to. The examination revealed that the Veteran had forward flexion to 90 degrees, the combined range of motion of the thoracolumbar spine was greater than 120 degrees but not greater than 235 degrees, and there was not objective evidence of localized tenderness. Upon repetitive-use testing, there was no additional loss of function noted after three repetitions. Pain did significantly limit functional ability with repeated use over a period of time, and flexion was estimated at being limited 80 degrees. The examination was not conducted during a flare-up; however, the VA examiner stated pain significantly limited functional ability during flare-ups, and listed range of motion during flare-ups as flexion limited to 80 degrees. The Veteran did not have guarding or muscle spasms of the back. No radiculopathy, ankylosis, or IVDS was noted, and Veteran was not found to have any other neurologic abnormalities or findings related to a back condition. There was objective evidence of pain when the spine is in a non-weight bearing position at rest and range of motion was noted as “same as active ROM.” In the December 2019 VA Back examination, forward flexion of the back was noted at 0 to 90 degrees. In the June 2014 VA Back examination, forward flexion was also noted at 90 degrees of greater and Veteran reported flare-ups a few times per month with limited range of motion and pain with prolonged sitting and driving. In the November 2007 VA examination, the Veteran’s back was noted at forward flexion limited to 80 degrees with flare-ups reported twice a month. In a March 2005 VA examination for the back, the Veteran’s forward flexion was also found to be limited to 80 degrees while Veteran reported fairly constant pain in the “1 to 2 out of 10 range” which increased to “6 to 8 out of 10” about “once or twice a week.” The preponderance of the evidence shows that the Veteran’s back disability does not warrant a rating in excess of 10 percent. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca v. Brown, 8 Vet. App. 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran’s pain causes functional impairment equivalent to the criteria for a rating in excess of 10 percent. For these reasons, the Board finds that the Veteran’s disability picture is most closely approximated by the 10 percent criteria. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. 2. Entitlement to a rating in excess of 10 percent for left elbow tendinitis The Veteran contends that he is entitled to a rating in excess of 10 percent for his left elbow tendinitis. The Veteran’s left elbow disability is rated as 10 percent disabling pursuant to DC 5024 for tenosynovitis. Diagnostic Code 5024 addressing tenosynovitis indicates that diseases under that code will be rated on limitation of motion of the affected parts. Accordingly, the Board will address whether a higher rating is warranted based on limitation of motion. Diagnostic Code 5206 provides compensation for limitation of flexion of the forearm. 38 C.F.R. § 4.71a. Limitation of forearm flexion of 110 degrees or more warrants a noncompensable rating for a major arm and a minor arm. Limitation of forearm flexion to 100 degrees warrants a 10 percent rating for a major arm or a minor arm. Limitation of forearm flexion to 90 degrees warrants a 20 percent rating for a major arm or a minor arm. Limitation of forearm flexion to 70 degrees warrants a 30 percent rating for a major arm and a 20 percent rating for a minor arm. Limitation of forearm flexion to 55 degrees warrants a 40 percent rating for a major arm and a 30 percent rating for a minor arm. Limitation of forearm flexion to 45 degrees warrants a 50 percent rating for a major arm and a 40 percent rating for a minor arm. Diagnostic Code 5207 provides compensation for limitation of extension of the forearm. 38 C.F.R. § 4.71. Limitation of forearm extension to 45 degrees warrants a 10 percent rating for a major arm or a minor arm. Limitation of forearm extension to 60 degrees warrants a 10 percent rating for a major arm or a minor arm. Limitation of forearm extension to 75 degrees warrants a 20 percent rating for a major arm or a minor arm. Limitation of forearm extension to 90 degrees warrants a 30 percent rating for a major arm and a 20 percent rating for a minor arm. Limitation of forearm extension to 100 degrees warrants a 40 percent rating for a major arm and a 30 percent rating for a minor arm. Limitation of forearm extension to 110 degrees warrants a 50 percent rating for a major arm and a 40 percent rating for a minor arm. Under DC 5208, a 20 percent rating contemplates a combination of flexion limited to 100 degrees and extension to 45 degrees in either forearm. The Veteran is right handed; therefore, his left elbow is on his minor arm. Full elbow extension and flexion is from 0 to 145 degrees, full pronation is to 80 degrees, and full supination is to 85 degrees. 38 C.F.R. § 4.71 Plate I. The revised VA regulations, effective February 7, 2021, clarify that DC 5024 includes tenosynovitis, tendinitis, tendinosis or tendinopathy. Under the revised regulations, the diseases listed under diagnostic codes 5013 through 5024 continue to be rated on limitation of motion of affected parts. The language, “arthritis, degenerative, except gout which will be rated under diagnostic code 5002,” was removed in the note following DC 5024. The Veteran’s left elbow tendinitis, pursuant to the revised VA regulations, will continued to be evaluated under DCs 5024, 5206, 5207, and 5208. The Veteran was afforded a VA examination for his elbow in October 2020. The Veteran reported swelling, numbness, popping, and stiffness of the left elbow, and reported flare-ups due to household chores, increasing tenderness and difficulty in changing clothes. The Veteran did not report functional loss. Range of motion testing reflected left elbow flexion was 0 to 145 degrees, while left elbow extension was 145 to 0 degrees. No pain was noted upon examination. There was no objective evidence of localized tenderness or pain on palpation, no pain with weight-bearing, and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The VA examiner estimated range of motion for the left elbow as 0 to 135 degrees flexion and 135 to 0 degrees extension upon repetitive use over time. The examination was not conducted during a flare-up; the VA examiner stated the exam is medically consistent with Veteran’s statements regarding flare-ups and estimated range of motion as 0 to 135 degrees flexion and 135 to 0 degrees extension; pain did significantly limit functional ability with flare-ups. The Board notes that the Veteran was examined for his left elbow in March 2005, where he reported seeking physical therapy for his left elbow which improved his condition and the elbow was “pain-free unless [he] moves it wrong.” In the November 2007 VA elbow examination, the Veteran’s left elbow flexion was noted at 145 degrees, and he reported flare-ups after lifting or carrying 6-8 times over the previous 2-3 months. In the June 2014 VA examination, the Veteran reported left elbow flare-ups in the form of dull aches the morning after repetitive use. Flexion was noted at 145 degrees or greater while there was no limitation of extension; ROM measurements after repetitive use testing remained the same. February 2017 VA examination results showed left elbow flexion to be limited to 145 degrees, while extension as 145 to 0 degrees; the Veteran’s reported flare-ups as intermittent episodes of increased left elbow pain. In the December 2019 VA elbow examination, the Veteran’s left elbow flexion was noted at 0 to 135 degrees, and extension at 145 to 0 degrees; the Veteran reported flare-ups as stabbing and aching pain with household chores such as mopping, vacuuming and preparing food, occurring a few times a week and lasting a few hours. Based on the evidence reviewed above, a rating higher than 10 percent is not warranted for the Veteran’s left elbow tendinitis. The objective evidence does not show that his left elbow flexion is limited to 90 degrees or that his left elbow extension is limited to 75 degrees, even considering any functional limitations due to such factors as pain. Thus, even considering the objective evidence of limitation of left elbow range of motion and functional loss, the criteria for a 20 percent rating is not warranted under any of the pertinent DCs. Mitchell v. Shinseki, 25 Vet. App. 32, 38, 43 (2011) (stating, “pain itself does not rise to the level of functional loss;” “pain must affect some aspect of the normal working movements of the body...in order to constitute functional loss;” and “painful motion alone is not [the equivalent of] limited motion” (internal quotation marks omitted)). Additionally, the Veteran has not demonstrated flexion to 100 degrees and extension to 45 degrees, therefore DC 5208 is not applicable. The Board finds the October 2020 VA examination report to be highly probative. The examiner tested active and passive motion, both weight bearing and non weight bearing. The results of the VA examinations are fairly consistent and do not come close to the criteria necessary for a 20 percent disability rating due to limited range of motion. Based on the Veteran’s current symptoms, no more than a 10 percent rating based on pain is necessary. The objective evidence does not indicate that a higher rating is warranted based on the Veteran’s left elbow tendinitis symptomatology. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran’s service-connected left elbow tendinitis. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 3, 2014 The Veteran’s TDIU claim was remanded in the August 2020 Board decision. The Board noted that the Veteran’s psychiatric disability has been rated as 100 percent disabling, effective July 16, 2004, and that VA has awarded the Veteran special monthly compensation (SMC) at the housebound rate, effective June 3, 2014, because as of June 3, 2014, service connection was in effect for service-connected disabilities independently ratable as at least 60 percent disabling since June 3, 2014. As this appeal has been pending since November 3, 2003, and in light of VA’s “well-established” duty to maximize a claimant’s benefits, the TDIU was remanded. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). The Board also observed that in the Veteran’s May 2012 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), the only one of record, he reported that he was unable to work since 2003 due solely to his service-connected psychiatric disability, which as noted above is rated as 100 percent disabling. On remand, Veteran was given the opportunity to submit an updated VA Form 21-8940. TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 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). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), referral to the Director, Compensation Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16 (b). Prior to June 3, 2014, the Veteran was rated 100 percent for his psychiatric disability, 10 percent for pes planus, 10 percent for left elbow tendinitis, 10 percent for lumbosacral strain, 10 percent for right calf varicocele, 10 percent for nasal fracture, 10 percent for right lower extremity sciatica, 10 percent for left lower extremity sciatica, and 0 percent for bronchitis. The Veteran’s medical records indicate that he last worked in September 2003, when he was working as a shelf stocker in a grocery store. See April 2005 C&P Examination Note (VAMC Boston); see also August 2004 Social Work Initial Evaluation Note (VAMC Brockton). Additionally, the Veteran stated in his May 2012 VA Form 21-8940, the only one of record, that he last worked in 2003 when he became too disabled to work and his service-connected psychiatric disability was the sole disability which prevented him from securing or following any substantially gainful occupation. The Veteran stated he “started having auditory and visual hallucinations at work… [he] thought other workers were putting thoughts in [his] head and being argumentative.” Veteran reported two years of college education and completed pilot training in 1999. Here, the Veteran did not submit an updated VA Form 21-8940 subsequent to the August 2020 Board remand. Additionally, the evidence of record indicates that Veteran was granted SMC at the housebound under 38 U.S.C. 1114(s), on the account of his service-connected psychiatric disability rated 100 percent and additional service-connected disabilities since June 3, 2014. There is no evidence of record that shows that Veteran has been unable to secure or follow substantially gainful occupation before June 3, 2014, due to any of his service-connected disabilities other than his psychiatric disability. The Veteran’s schizoaffective disorder, bipolar type, has been rated 100 percent disabling since July 16, 2004. In short, the evidence of record does not show that prior to June 3, 2014, the Veteran was unable to secure and follow a substantially gainful occupation consistent with his history, education, skill, and training due to his service-connected disabilities outside of his service-connected 100 percent disabling psychiatric claim. See Ray, 31 Vet. App. at 73. (Continued on the next page)   In light of the foregoing, the preponderance of the evidence is against the claim, and the appeal is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, 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.