Citation Nr: 21014822 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 19-00 454 DATE: March 15, 2021 ORDER Entitlement to a rating in excess of 40 percent for lumbosacral strain with degenerative disk disease and foraminal narrowing is denied. Entitlement to a total disability rating for compensation based on unemployability of the individual (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s lumbosacral strain with degenerative disk disease and foraminal narrowing is not manifest by unfavorable ankylosis of the entire thoracolumbar spine. 2. The Veteran filed his claim for a TDIU in September 2014 and was subsequently granted a total schedular rating and special monthly compensation based on housebound criteria effective August 2, 2010. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbosacral strain with degenerative disk disease and foraminal narrowing have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a. 2. The appeal of entitlement to a total disability rating for compensation based on unemployability of the individual is moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to September 1981. In April 2020, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans’ Appeals (Board) videoconference hearing. A transcript of the proceeding is of record. Both issues adjudicated herein were addressed at this hearing. Additionally, three service connection issues were addressed, but these same or similar issues were also addressed during an April 2018 hearing before a different Veteran’s Law Judge (right leg, respiratory, and cervical spine disabilities). Since two Veteran Law Judges have heard testimony related to these issues, a three-judge panel will address them in a separate decision. The Veteran will be given the opportunity to have a hearing before the third Veteran’s Law Judge, prior to such a decision being rendered. A more detailed letter has been or will be sent to the Veteran explaining his options regarding a hearing. The Veteran must respond to this letter if he would like an additional hearing. Additionally, two additional issues (entitlement to service connection for a stomach disability and a bladder disability), were previously remanded by the Board. In September 2020, the Veteran requested an additional hearing for these issues, which has yet to be held. Therefore, the Board will not address these issues at this time. 1. Entitlement to a rating in excess of 40 percent for lumbosacral strain with degenerative disk disease and foraminal narrowing During his April 2020 hearing, the Veteran attempted to withdraw his appeal of this increased rating claim. The regulation governing withdrawal of appeals to the Board was recently changed. Notably, the following sentence was removed: “Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.” See 38 C.F.R. §§ 19.55 (2020), 20.204(b)(1) (2018). In its current form, the relevant regulation neither explicitly states a Veteran can withdraw an appeal during a hearing before the Board, nor does it explicitly state the withdrawal must be in writing. See 38 C.F.R. §§ 19.55. In light of this ambiguity, the Board has not granted the Veteran’s request to withdrawal his appeal and will adjudicate the claim on its merits. i. Applicable Law The Veteran’s lumbosacral strain with degenerative disk disease and foraminal narrowing (hereinafter spine disability) is rated under 38 C.F.R. § 4.71a. This regulation has been amended effective February 8, 2021; however, the changes do not influence the evaluation of the Veteran’s claim. 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. 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. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or 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. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. [Include any other relevant Note(s).] When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). ii. Evidence and Analysis The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s spine disability. A review of the evidence of record reveals clinicians have consistently found the Veteran does not have ankylosis of the spine, let alone unfavorable ankylosis of the entire thoracolumbar spine or entire spine. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss, particularly due to pain. However, even considering the Veteran’s lay reports of pain and objective functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The Veteran was able to move his spine in flexion and extension during VA examinations with no additional limitation found after repetitive use, and the Veteran denied having flare-ups. See January 2015 and March 2019 VA examination reports. The Veteran’s treatment records do no indicate limitation of motion consistent with ankylosis, i.e., fixed in flexion or extension. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. The Board notes that an opinion from Dr. F.A.G. addresses this issue. Dr. F.A.G. opined that a 60 percent rating is warranted based on incapacitating episodes. See October 23, 2018 letter, received November 3, 2020. However, there is no evidence that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating, i.e., at least six weeks in a twelve-month span. Furthermore, Dr. F.A.G. did not identify such prescribed bed rest. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For the foregoing reasons, the preponderance of the evidence is against finding a rating in excess of 40 percent is warranted. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Regarding neurological impairment, in conjunction with a 2010 claim that pre-existed this 2014 increased rating claim, the Veteran was granted service connected for right lower extremity radiculopathy (sciatic nerve and femoral nerve) and has not appealed the ratings assigned. See October 2019 rating decision. The preponderance of the lay and medical evidence of record is against finding that the Veteran has any other neurological abnormality associated with his spine disability, as the Veteran does not contend, and the medical evidence does not reveal, any other such abnormality exists. See, e.g., January 2015 and March 2019 VA examination reports. 2. Entitlement to a total disability rating for compensation based on unemployability of the individual The Veteran is in receipt of a 100 percent schedular disability rating for service-connected disability and special monthly compensation (SMC) at the housebound rate. Therefore, the Veteran’s claim for a TDIU is rendered moot. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994) (citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990)). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability rating does not always render the issue of entitlement to a TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. at 280 (analyzing 38 U.S.C. § 1114(s)). In an April 2020 rating decision, the Agency of Original Jurisdiction assigned a total schedular (100 percent) disability rating and awarded SMC under 38 U.S.C. § 1114(s) based on housebound criteria, effective from August 2, 2010. The Veteran filed his claim for a TDIU in September 2014. Accordingly, the grant of a 100 percent schedular rating and SMC at the housebound rate renders the issue of entitlement to TDIU moot, as both were granted for the entire appeal period. Cf. Bradley, 22 Vet. App. at 293; see also Buie, 24 Vet. App. at 242. As there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, i.e. there is no specific determination with which to disagree, the appeal of the claim for entitlement to a TDIU is moot and must be dismissed. See 38 U.S.C. § 7105; 38 C.F.R. § 20.104. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gregory T. Shannon, 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.