Citation Nr: 21015086 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-29 057 DATE: March 16, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent prior to March 9, 2018, for the service-connected lumbar spine disability is denied. Entitlement to a 40 percent evaluation from March 9, 2018, and no higher, for service-connected lumbar spine disability is granted. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is dismissed as moot. FINDINGS OF FACT 1. Prior to March 9, 2018, the Veteran’s lumbar spine disability was productive of localized tenderness not resulting in abnormal gait or spinal contour, flexion limited to 80 degrees, and the combined range of motion of the thoracolumbar spine of 195 degrees. There was no evidence of the requisite incapacitating episodes of intervertebral disc syndrome; 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. 2. From March 9, 2018, the lumbar spine disability was productive of pain on examination resulting in functional loss and with repeated use of over time, and pain limiting functional ability during flare-ups. There was no evidence of the requisite incapacitating episodes of intervertebral disc syndrome, unfavorable ankylosis of the thoracolumbar spine, or unfavorable ankylosis of the entire spine. 3. From July 15, 2011, the Veteran’s combined evaluation for compensation was 100 percent disabling; he did not meet the criteria for Special Monthly Compensation under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350 (i) as he did not have a service-connected disability rated 100 percent disabling and additional service-connected disabilities independently ratable at 60 percent or more during this period. CONCLUSIONS OF LAW 1. Prior to March 9, 2018, the criteria for an evaluation in excess of 10 percent for the service-connected lumbar spine disability have not been met. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2020). 2. From March 9, 2018, the criteria for a 40 percent evaluation, and no higher, for the service-connected lumbar spine disability have been met. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2020). 3. The criteria for entitlement to a TDIU is dismissed as moot. 38 U.S.C. § 7105 (2012); Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2013 and July 2014 rating decisions. The Veteran presented testimony before the Board in December 2017. The matters were recently before the Board in February 2018 and remanded for further development. In July 2020, the RO awarded an increased 40 percent for the lumbar spine effective March 9, 2018, and 20 percent from September 19, 2019. As less than the maximum benefit available was awarded, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Pursuant to Board remand directives, in September 2020, the RO issued a statement of the case addressing the claims of entitlement to an evaluation in excess of 30 percent for post-traumatic stress disorder, in excess of 10 percent for right lower extremity radiculopathy, and in excess of 10 percent for left lower extremity radiculopathy. The Veteran did not perfect an appeal of the issues by filing a timely substantive appeal. Thus, the issues are not subjective to appellate review by the Board. 38 C.F.R. § 20.202(b). In October 2020, the RO granted service connection for cervical strain and right and left upper extremity radiculopathy associated with the cervical spine disability. Consequently, there no longer remains claims in controversy. Increased Rating for Lumbar Spine Disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Court has held 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). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The service-connected lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243. 38 C.F.R. § 4.71a. He has been assigned ratings as follows: 10 percent from July 15, 2011, to March 8, 2018; 40 percent from March 9, 2018, to September 18, 2019; and 20 percent from September 19, 2019. 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. 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. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees and the combined range of motion of the cervical spine is 340 degrees. The normal ranges of motions 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 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also 38 C.F.R. § 4.71a, Plate V (2016). Furthermore, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (4). Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland’s Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is “immobility and consolidation of a joint due to disease, injury, or surgical procedure.”); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Note (5) in Diagnostic Codes 5235-5242 additionally explains that unfavorable ankylosis is defined, in pertinent part, as “a condition in which the entire thoracolumbar spine is fixed in flexion or extension.” Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 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. 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). 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. At the outset, the Board finds that the criteria in effect prior to February 7, 2021, is more favorable to the Veteran. Notably, consideration was given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Under the new Diagnostic Code 5243, IVDS is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. This has not been shown in the objective medical evidence throughout the appeal period. Diagnostic Code 5242 degenerative arthritis was revised to “degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome.” The criteria for the rating percentages under the General Rating Formula for Diseases and Injuries of the Spine did not change. Thus, the Board will proceed with adjudicating the Veteran’s claim under the old rating criteria. As an initial matter, the Board finds the evidence of record, to include VA examinations in 2013, 2018, and 2020, is against a finding that the Veteran was ever prescribed bed rest for IVDS by a physician for a duration that meets the criteria for a higher rating under Diagnostic Code 5242. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of sciatic nerve of the left and right lower extremity and radiculopathy of the femoral nerve of the right lower extremity. They are not currently before the Board. Moreover, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability such as bowel or bladder problems. The Veteran did not submit any evidence to refute that already of record. For the reasons discussed below, the Board finds that the Veteran’s symptomatology and disability picture for his service-connected lumbar spine disability is appropriately compensated by the currently assigned 10 percent rating prior to March 9, 2018, and that an evaluation in excess of that currently assigned is not warranted. The Board does find that from March 9, 2018, the Veteran’s lumbar spine is appropriately compensated by a 40 percent rating and that an evaluation in excess of 40 percent is not warranted at any time during the remainder of the appeal. 38 C.F.R. § 4.7. In this regard, prior to March 9, 2018, there was no evidence of 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. Notably, upon VA examination in 2013, forward flexion was to 80 degrees. Extension was 40 degrees (normal endpoint was 35). Right lateral flexion was to 35 degrees (normal endpoint is 30 degrees.) Left lateral flexion was to 20 degrees. Right lateral rotation was to 5 degrees and left lateral rotation was to 15 degrees. There was evidence of pain on range of motion at the endpoints of testing, except for left lateral rotation where there was no objective evidence of painful motion. But there was no additional functional loss, to include on repetitive testing. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. Though the examiner noted some functional loss due to pain on movement, there was no evidence of lack of endurance, fatigue, weakness or incoordination of the lumbar spine. Moreover, flexion was still possible to 80 degrees before pain began and the Veteran had extension and right lateral flexion beyond the normal endpoint. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was full and there was no evidence of atrophy. Id. While there may have been day-to-day fluctuations in the manifestations of the Veteran’s service-connected lumbar spine disability, to include varying degrees of pain noted in the VA outpatient treatment records, the evidence shows no distinct periods of time prior to March 9, 2018, when the Veteran’s service-connected disability varied to such an extent that an evaluation in excess of 10 percent would be warranted. Fenderson, supra; Hart, supra. The Board does find that as of March 9, 2018, that the Veteran’s disability worsened in severity. Notably, upon VA examinations in 2018 and 2020, the findings of limited motion, pain on examination productive of functional loss in all ranges of motion and with repeated use of over time, and pain limiting functional ability with flare-ups are more properly rated as 40 percent rating disabling. 38 C.F.R. § 4.40, 4.45, and 4.59; see also Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Given findings of limited motion, the Board has considered the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59, and the holdings in DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) to determine whether a higher rating is warranted. However, as 40 percent is the highest rating available for limitation of motion of the thoracolumbar spine, there is no basis to assign a higher rating based on painful motion. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that the DeLuca provisions are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion). See DeLuca, 8 Vet. App. at 202. As noted above a disability rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine; whereas a 100 percent disability rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Ankylosis of the spine has not been shown by the evidence of record at any time during the appeal period. The most probative evidence, the VA examination reports dated in 2018 and 2020, shows motion in the spine and specifically notes ankylosis is not present. Thus, an increased evaluation beyond 40 percent for the Veteran’s service-connected lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran is evaluated at the highest rating available based on limitation of motion. While the Veteran’s functional ability during flare-ups is the basis for the 40 percent rating from March 9, 2018, it does not need to be evaluated thereafter as the Veteran is evaluated at the highest rating available based on limitation of motion and for a higher rating, he would need to have ankylosis, which he does not. See Johnston, supra. In sum, a rating in excess of 10 percent, to include “staged” ratings, prior to March 9, 2018, is not warranted as the evidence does not show symptomatology consistent with the requisite incapacitating episodes of intervertebral disc syndrome; 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. While a 40 percent rating is warranted from March 9, 2018, a higher rating is not warranted as the evidence does not show symptomatology consistent with the requisite incapacitating episodes of intervertebral disc syndrome, unfavorable ankylosis of the thoracolumbar spine, or unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a; Fenderson, supra: Hart, supra. Thus, the appeal is granted in part and denied in part. 38 U.S.C. § 5107(b). Entitlement to a TDIU due to service-connected disabilities A 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 disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). A request for TDIU is not a separate claim for benefits, but it is instead an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part of the claim for an increased rating is whether a TDIU as a result of that disability is warranted. Id. at 455. The Veteran is in receipt of a combined schedular 100 percent disability rating for his service-connected disabilities as of July 15, 2011. Generally, the grant of a 100-percent scheduler rating (individual or combined) renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. However, if a claimant has a schedular total rating and could also be entitled to a TDIU for purposes of meeting the requirements for Special Monthly Compensation (SMC) pursuant to 38 U.S.C. § 1114 (s), the fact of the 100-percent disability rating does not render moot the issue of a TDIU. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). Under 38 U.S.C. § 1114 (s), SMC is warranted for housebound status if a veteran has a single service-connected disability rated as total and additional service-connected disabilities that are independently rated at more than 60 percent combined. 38 U.S.C. § 1114 (s). A TDIU rating based on a single disability, but not multiple disabilities, is permitted to satisfy the statutory requirement of a total rating under 38 U.S.C. § 1114 (s). See Bradley, 22 Vet. App. at 293. While 38 C.F.R. § 4.16 (a) provides for treatment of multiple disabilities as “one disability” in certain circumstances (such as disabilities resulting from a common etiology or injury), the decision to treat multiple disabilities as one is specifically limited to TDIU ratings and 38 C.F.R. § 4.16 (a). That is, a TDIU rating based on multiple service-connected disabilities does not satisfy the criteria for one total disability in considering entitlement to housebound benefits under 38 U.S.C. § 1114 (s). See Youngblood v. Wilkie, 31 Vet. App. 412 (2019. From July 15, 2011, the Veteran has had a combined 100 percent schedular rating, but he does not, however, also have a single service-connected disability rated as total during this period. Therefore, this situation is distinguishable from that outlined in Bradley. Because the Veteran was already in receipt of a combined schedular evaluation of 100 percent from July 15, 2011, and the rule of Bradley (Continued on next page)   does not apply in this case during this period, the issue of entitlement to TDIU is considered moot. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.