Citation Nr: 21021914 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-45 908 DATE: April 14, 2021 ORDER Entitlement to a 40 percent disability rating is granted for the service-connected back disability from October 13, 2009, to March 6, 2015. Entitlement to a rating in excess of 40 percent for the back disability during the entire period on appeal (October 13, 2009, to the present) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from October 13, 2009, to August 11, 2014, is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s back disability was manifested by a limitation of motion approximate to forward flexion being limited to 30 degrees or less from October 13, 2009, to March 6, 2015. 2. The preponderance of the evidence shows that the Veteran’s back disability has not been manifested by unfavorable ankylosis of the spine or required bed rest prescribed by a physician from October 13, 2009, to the present. 3. The preponderance of the evidence shows that the Veteran's then service-connected disabilities—a back disability, left and right knee disabilities, tinnitus, and bilateral hearing loss—precluded him from obtaining or maintaining substantially gainful employment from October 13, 2009, to August 11, 2014. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for the Veteran’s back disability from October 13, 2009, to March 6, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Codes 5242, 5243. 2. The criteria for a rating in excess of 40 percent for the back disability from October 13, 2009, to the present have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Codes 5242, 5243. 3. The criteria for entitlement to TDIU from October 13, 2009, to August 11, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1966 to July 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, that denied a rating in excess of 10 percent for the back disability. A December 2011 rating decision granted a temporary 100 percent rating from December 15, 2010, to February 1, 2011, for back surgery necessitating convalescence. A November 2015 rating decision granted an increased, 40 percent rating for the back disability from March 6, 2015. An April 2016 rating decision granted a temporary 100 percent rating from December 10, 2015, to February 1, 2016, for back surgery necessitating convalescence. The Veteran testified at a hearing before the undersigned in December 2018. A transcript of that hearing has been associated with the electronic claims file. In an April 2018 decision, the Board found entitlement to TDIU was raised by the Veteran in his November 2009 claim seeking an increased for the back disability under Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded both matters to the Agency of Original Jurisdiction (AOJ) for additional development. A September 2020 rating decision granted entitlement to TDIU from August 11, 2014. The Board also remanded entitlement to service connection for left and right knee disabilities, but a September 2020 rating decision granted service connection for those disabilities, and those issues are no longer before the Board. The Board notes a December 2014 rating decision granted service connection for radiculopathy of the left and right lower extremities from August 11, 2014. However, the Veteran did not appeal the effective date of service connection or ratings assigned for the radiculopathy, and those issues are therefore not on appeal before the Board. The AOJ initially granted service connection for the radiculopathy secondary to service-connected diabetes mellitus but it has since been associated with the back disability. Entitlement to a rating in excess of 10 percent for the back disability prior to March 6, 2015, and in excess of 40 percent from that date. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable 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. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran’s service-connected back disability has been evaluated under Diagnostic Code 5242 (degenerative arthritis of the spine), which assigns ratings based upon the General Rating Formula for Rating Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. Under the General Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: 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 of more of 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 is not greater than 120 degrees; or when there are muscle spasms 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 30 degrees or less; or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the General Rating Formula provides that associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. Intervertebral Disc Syndrome (IVDS) may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, depending on which method results in the higher evaluation when all disabilities are combined. Under the Formula for Rating IVDS Based on Incapacitating Episodes, Diagnostic Code 5243 provides a 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months; a 20 percent rating for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 rating for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months; and a 60 percent rating for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 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 [or 4.73] criteria.”). Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. § 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). The Veteran filed a claim seeking a rating in excess of 10 for his back disability in November 2009. A November 2015 rating decision granted an increased, 40 percent rating for the back disability, but only from March 6, 2015. Notably, at the December 2018 Board hearing, the Veteran noted his contention was that the 40 percent rating should be assigned from when the increased rating claim was filed because it had been at least that severe during the entire period on appeal. Initially, the Board notes the effective date of an increased rating is generally the date the claim for increase was received. However, if the increase occurred within one year prior to the claim, the increase is effective from the date the increase was factually ascertainable. See 38 C.F.R. § 3.400. As to entitlement to a rating in excess of 10 percent for the Veteran’s back disability prior to March 6, 2015, the Board finds that the evidence is at least in equipoise as to whether the back disability was manifested by a limitation of motion approximate to forward flexion being limited to 30 degrees or less from October 13, 2009, to March 6, 2015. Accordingly, the Board finds the low back disability meets the criteria for a 40 percent rating from October 13, 2009, to March 6, 2015. In this regard, an October 13, 2009, VA treatment record notes the Veteran complained of a recent increase in back pain. A separate October 2009 VA treatment record notes the Veteran’s spine had a limited range of motion due to pain, but measurements were not provided. A December 2009 VA treatment record notes the Veteran walked with a mild antalgic gait. He complained of increasing pain during the evaluation of his back and lower extremities. The treatment provider noted his ability to complete certain activities of daily living were impaired by increasing back pain. He displayed pain-related decreased strength, balance, coordination, and endurance skills. A January 2010 VA spine examination report indicates the forward flexion was to 70 degrees. Notably, the examiner described the severity of the back disability was moderate, but also indicated there was no evidence of an adverse impact on the Veteran’s activities of daily living. An April 2010 VA treatment record the Veteran reported he couldn’t exercise and often had to lie down because of his back pain. A November 2010 private treatment record notes the Veteran complained of increasing pain in his right lower extremity and low back. He spent most days lying down and described the pain as intolerable. A March 2011 VA treatment record notes the Veteran was unable to sit or stand for long periods or lift more than eight pounds of weight due to his back disability. A September 2011 VA treatment record notes the Veteran complained of back pain that he rated as 10/10. An October 2011 VA treatment record notes the Veteran reported daily low back pain that worsened throughout the day. He reported it had improved in November 2011. He complained of a constant stabbing pain in December 2011. The treatment provider noted a decreased functional mobility. An August 2014 VA treatment record notes the Veteran reported he regularly spent significant portions of the day in bed due to his back pain. A December 2014 VA treatment record notes the Veteran reported he could not stand longer than five to 10 minutes without needing a rest because of the back pain. The Veteran was provided a VA back examination in March 2015. On range-of-motion testing, forward flexion was to 25 degrees. There is no indication the back disability increased in severity just prior to the examination or reason to suggest the limitation of flexion to that extent began the day of the examination. The Board acknowledges the January 2010 examiner indicated the forward flexion of the Veteran’s spine was only limited to 70 degrees and that there is not specific evidence of forward flexion being limited to 30 degrees during this period. However, the Board finds the January 2010 examination report has little probative value because the examiner provided contradictory findings. In addition, VA treatment records from just prior and just after the examination provide a more severe disability picture, and the examiner did not address this evidence. For instance, his VA treatment provider noted his ability to complete certain activities of daily living were impaired by increasing back pain in December 2009. He also displayed pain-related decreased strength, balance, coordination, and endurance skills. The Veteran described the pain as intolerable in November 2010 and reported on multiple occasions that he regularly spent large portions of the day in bed due to the severity of the back pain. In December 2014, he reported he could not stand for longer than five or ten minutes without needing a rest. The Board finds that when considering this evidence and noted functional loss during this period, it is at least as likely as not that the Veteran back disability was manifested by a limitation of motion approximate to forward flexion being limited to 30 degrees or less from October 13, 2009, to March 6, 2015. Accordingly, the evidence is at least in equipoise as to whether a 40 percent rating is warranted for the Veteran's back disability from October 13, 2009, the date the increase became factually ascertainable. As to a rating in excess of 40 percent for the back disability from October 13, 2009, to the present, the Board finds the most probative evidence of record shows that the Veteran’s service-connected back disability has not been manifested by favorable ankylosis of the entire thoracolumbar spine; unfavorable ankylosis; or required bed rest prescribed by a physician. In this regard, the available evidence, including January 2010, March 2015, March 2016, June 2018, and March 2020 VA examination reports, does not suggest a functional impairment commensurate with ankylosis. The Board acknowledges the March 2015 VA examiner diagnosed IVDS, but the evidence, including the March 2015 examination report, does not show the Veteran has been prescribed bed rest due to the back disability. Accordingly, the Board finds that the Veteran is not entitled to a higher disability rating based upon incapacitating episodes at any time throughout the period on appeal. The remaining question for the Board becomes whether the Veteran has any neurologic abnormalities associated with his service-connected back disability other than the service-connected radiculopathy of the lower extremities. The examination reports and treatment records do not indicate neurological abnormalities other than the radiculopathy have been associated with the back disability. The Board acknowledges the March 2020 VA examiner noted the Veteran reported he sporadically experienced urinary incontinence. However, the Veteran was provided VA urinary tract and rectum examinations in July 2020, and the examiner noted the Veteran denied having any urinary or bowel conditions. Therefore, separate ratings for any such disabilities are not warranted at this time. Accordingly, the Board finds that the most probative evidence of records shows that the criteria for a disability rating in excess of 40 percent for the Veteran’s back disability are not met from October 13, 2019, to the present, and that aspect of the appeal must be denied. Entitlement to TDIU from October 13, 2009, to August 11, 2014. As noted in the introduction, the Board found entitlement to TDIU was raised by the Veteran as part of his November 2009 claim seeking an increased for the back disability, and a September 2020 rating decision granted entitlement to TDIU from August 11, 2014. Accordingly, the Board must consider whether his then service-connected disabilities—the back disability, left and right knee disabilities, tinnitus, and bilateral hearing loss—precluded him from obtaining or maintaining substantially gainful employment from October 13, 2009, to August 11, 2014. A TDIU may be assigned when the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result a single service-connected disability ratable 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. §§ 3.340, 3.341, 4.16(a). When these percentage standards are not met, TDIU can nonetheless be granted when a veteran is unemployable due to her or his service-connected disabilities; such cases are referred to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). From October 13, 2009, to August 11, 2014, the Veteran’s service-connected disabilities were degenerative arthritis of the spine, (now) rated 40 percent disabling; left and right knee disabilities, each rated 10 percent disabling; tinnitus, rated 10 percent disabling; and bilateral hearing loss, rated 0 percent disabling. Accordingly, the combined rating during this period was 60 degrees. Granting the Veteran the benefit of the doubt, the Board finds the disabilities resulted from a common etiology. Notably, the February 2011 rating decision indicates the Veteran’s hearing loss and tinnitus were related to the Veteran’s service as a radar crewman with an artillery unit in the Republic of Vietnam. The September 2010 VA examiner who provided the positive etiology opinion noted the Veteran reported he was exposed to combat noise while serving in Vietnam. In addition, his service treatment records show that he began complaining of back pain while serving in the Republic of Vietnam. An August 1969 VA examiner noted the Veteran developed low back pain while serving there. Accordingly, the Board finds the back and audiological disabilities resulted from the Veteran’s service as a radar crewman with an artillery unit in the Republic of Vietnam. The knee disabilities were granted secondary to the back disability, and therefore also of a common etiology. The disabilities are there therefore considered one disability for the purposes of meeting the schedular requirements of 38 C.F.R. § 4.16(a). The remaining question is whether the Veteran was unable to obtain or maintain substantially gainful employment from October 13, 2009, to August 11, 2014, due to his service-connected disabilities. Based on a review of the record, the Board finds the evidence for and against finding that the Veteran’s service-connected disabilities prevented him from securing substantially gainful employment from October 13, 2009, to August 11, 2014, is at least of equal weight. The Board acknowledges the January 2010 VA examiner opined there was no evidence that the back disability adversely impacted the Veteran’s activities of daily living. However, the Board has found the January 2010 VA examination report is of little probative value for the reasons already provided. The other medical evidence summarized above, on the other hand, shows that the Veteran’s service-connected disabilities impacted his ability to work in various ways during this period. For instance, a VA treatment provider noted the increasing back pain impaired his ability to complete certain activities of daily living in December 2009. He displayed pain-related decreased strength, balance, coordination, and endurance skills. A private November 2010 treatment record notes the Veteran’s back pain and radiculopathy “significantly affected” his ability to function. A microdiscectomy was performed in December 2010. The records also show that the Veteran regularly had to lie down due to the back pain during the entire period under consideration. For instance, the November 2010 private treatment record notes he spent most of the day in bed due to the intolerable back pain. An August 2014 VA treatment record notes the Veteran reported he regularly spent significant portions of the day in bed due to his back pain. The VA treatment records also show the Veteran regularly complained of bilateral knee pain and received cortisone injections in both knees. The March 2015 VA examiner opined the Veteran’s back and knee disabilities impacted his ability to work. The examiner noted the conditions prevented prolonged sitting, standing, bending, and walking. At the December 2018 Board hearing, the Veteran reported he stopped working as a fire sprinkler fitter in 1998 after 25 years because of a kidney condition. He contended however that the service-connected disabilities alone prevented him from obtaining or maintaining substantially gainful occupation from when he filed the November 2009 increase. The ultimate determination of whether the Veteran is capable of maintaining substantially gainful employment is a factual question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board finds this evidence shows it is at least in equipoise as to whether the Veteran’s service-connected disabilities prevented him from securing or following substantially gainful employment during the period on appeal. The pain and functional limitations would have interfered with his ability to continue working as a sprinkler fitter or his ability to complete any other occupational tasks, including sitting or standing for lengthy periods of time. His employment background and level of education would also make it difficult to secure gainful employment. He performed the same job as a sprinkler fitter for over 20 years, and it does not appear that he has undergone any additional training since then. The Board must therefore resolve all reasonable doubt in favor of the Veteran. Accordingly, the Board finds entitlement to TDIU is warranted from October 13, 2009, to August 11, 2014. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Skowronski, William 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.