Citation Nr: 21024142 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 08-06 809A DATE: April 22, 2021 ORDER Entitlement to a rating higher than 40 percent for a lumbar spine disability is denied. Entitlement to an effective date prior to April 25, 2005, for the award of a 100 percent evaluation for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to February 12, 2000, for the award of special monthly compensation (SMC) at the housebound rate is denied. Entitlement to an extraschedular evaluation is denied. FINDINGS OF FACT 1. For the entire rating period on appeal, symptoms of the lumbar spine disability more nearly result in forward flexion to 30 degrees, but do not meet or more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome (IVDS) with incapacitating episodes of at least six weeks during any 12-months period. 2. VA received the Veteran’s claim of entitlement to an increased evaluation for PTSD on April 25, 2005, and it was not factually ascertainable within the one-year period prior to the claim that PTSD had increased in severity. 3. The Veteran did not have a single service-connected disability rated as 100 percent or permanent and total disability prior to February 12, 2000. 4. An extraschedular rating based on the combined effect of multiple service-connected disabilities is no longer available for this claim, as it was pending before VA on or after January 8, 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to an effective date prior to April 25, 2005, for the award of a 100 percent evaluation for PTSD have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.159, 3.400. 3. The criteria for entitlement to an effective date prior to February 12, 2000, for the award of special monthly compensation (SMC) at the housebound rate have not been met. 38 U.S.C. §§ 1114, 5110; 38 C.F.R. §§ 3.350, 3.401. 4. The criteria for entitlement to an extraschedular evaluation based upon the combined effects of multiple service-connected disabilities have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to October 1969. This appeal stems from September 2006 and February 2012 rating decisions. In November 2014, the Board, in pertinent part, denied entitlement to a rating higher than 40 percent for loss of use of right foot and entitlement to a rating higher than 20 percent of lumbosacral strain. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2016, the Court granted a July 2016 Joint Motion for Partial Remand (JMPR), which vacated the relevant part of the November 2014 Board decision pursuant to the JMPR and remanded the issues to the Board for further appellate review consistent with its Order. In April 2017 and October 2018, the Board remanded these issues for further development per the JMPR. In October 2020, the Board remanded the issues of entitlement to a rating higher than 40 percent for a lumbar spine disability and entitlement to an extraschedular evaluation. Subsequent to the most recent Board remand, in a December 2020 rating decision, the RO increased the rating for the Veteran’s lumbar spine disability to 40 percent for the entire rating period on appeal. The issue of a rating higher than 40 percent has been returned to the Board for further appellate consideration. Increased Rating – Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbar Spine Disability – Rating Criteria 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 (musculoskeletal system) or § 4.73 (muscle injury); 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.”). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating 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. 38 C.F.R. § 4.71a. A 20 percent rating is provided 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Intervertebral disc syndrome can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). On February 7, 2021, amendments to the schedule for rating disabilities of the musculoskeletal system, including DC 5242 for degenerative arthritis and DC 5243 for IVDS, went into effect.  See 85 Fed. Reg. 76460 (November 30, 2020).  The amendment to DC 5242 clarifies that the rating criteria is to be applied for other than IVDS.  The amendment to DC 5243 for IVDS specifies that it is to be applied only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Id. Lumbar Spine Disability – Rating Analysis In July 2009, the Veteran was afforded a VA examination. At that time, he reported back pain at a level of 6-7/10. He described low back flare-ups occurring a couple of times per week with 10/10 pain for about 1/5 days. His pain was aggravated by standing and walking and alleviated with water and muscle relaxers. He was able to walk about 2 blocks without having to stop related to back pain. Flexion of the lumbar spine was to 60 degrees, with pain at that point. Extension was to 10 degrees with pain at that point. Right lateral flexion was to 20 degrees with pain at that point. Left lateral flexion was to 20 degrees with pain at that point. Right lateral rotation was to 15 degrees with pain at that point. Left lateral rotation was to 30 degrees with no pain. There was mild tenderness to palpation along the lumbar vertebrae. There was no further limitation of motion with repetitive activity, due to weakness, instability, lack of coordination, endurance, or fatigue of the spine. Repetitive motion was not able to be performed due to a fusion. VA examination in October 2011 revealed no evidence of radiating pain on movement. Muscle spasms were absent, although there was tenderness noted on exam. The spinal contour was preserved. There was no guarding, or weakness. Muscle tone and musculature were normal. There was no atrophy or ankylosis. Flexion was to 40 degrees, with pain at that end point. Extension was to 20 degrees, with pain at that point. Right lateral flexion was to 30 degrees with pain. Left lateral flexion was limited to 20 degrees, with pain. Right rotation was to 20 degrees with pain. Left rotation was limited to 20 degrees with pain. Repetitive motion was possible and did not result in any additional limitation of motion. The joint was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The inspection of the spine revealed a normal head position with symmetry of appearance. There was symmetry of spinal motion with normal curves of the spine. VA examination in Apri 2013 resulted in assessments of degenerative disc disease (DDD) of the lumbar spine, spinal stenosis with foraminal stenosis and lumbar IVDS with sciatica. At the time, the Veteran reported flare-ups, described as impacting his functional ability due to pain on movement. Flexion was limited to 40 degrees, with objective evidence of painful motion at that end point. Extension was limited to 20 degrees, also with pain at that end point. Right and left lateral flexion were each limited to 20 degrees with pain at the end points. Right and left lateral rotation were each limited to 20 degrees with pain at the end points. Repetitive use testing did not indicate any additional limitation of motion. In terms of functional impairment, there was weakened movement, excess fatigability, pain on movement and interference with sitting standing and/or weight-bearing. There was localized tenderness to palpation of the back, described as moderate. The Veteran had had no incapacitating episodes of IVDS in the past 12 months. The lumbar spine condition resulted in functional limitation due to chronic pain, stiffness, weakness, and reduced range of motion. In July 2017, the Veteran received a new VA examination. At this time, the Veteran reported that leaning forward or backward set off pain in his low back. He also described weather sensitivity and stiffness. He denied flare-ups at this time. Flexion was to 30 degrees. Extension was to 10 degrees. Right lateral flexion was to 15 degrees. Left lateral flexion was to 20 degrees. Right lateral rotation was to 15 degrees. Left lateral rotation was to 25 degrees. There was evidence of pain with weight-bearing. There was also evidence of tenderness and pain to palpation. The Veteran was able to perform repetitive use testing and there was no additional loss of function or limitation of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period. There was no guarding or muscle spasm. Muscle strength was 5/5 and there was no atrophy. While the Veteran notably had IVDS, he had not any episodes of acute signs and symptoms due thereto that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. There had been no vertebral fracture. The examiner remarked that there was evidence of pain on weight and non-weight bearing and that range of motion testing was done both actively and passively. In August 2020, the Veteran underwent another VA examination. In terms of flare-ups, the Veteran reported that they occurred with moisture in the atmosphere, and when there is an extreme range of motion required, especially forward flexion. He reported flare-ups daily, but also described flares occurring 2 times per month that limited his ability to leave his home. The flare-ups were precipitated by flexion, and relieved by rest, back exercises, massage, and CBD pills. The Veteran reported that he was unable to bend forward enough to pick up an item from the floor. Range of motion was full in flexion, extension, bilateral lateral rotation, and bilateral lateral flexion, with pain noted on exam on rest/non-movement. There was evidence of pain wight weightbearing, and of localized tenderness or pain on palpation. There was no guarding or muscle spasm. Repetitive use testing was not performed “due to pain.” In October 2020, the Board remanded this claim for further examination, having found that the September 2020 was insufficient to address the claims. In doing so, the Board noted that the examination report was inconsistent in that it showed full range of motion, including during flare-ups and following repetitive use, while the examiner also stated that there would be significant limitations on functional ability with repeated use or flare-ups. The Board also found it suspect that the Veteran’s range of motion had improved to full. In November 2020, the Veteran received his last VA examination. At the time, the Veteran reported flare-ups manifested by increased pain with a moderate amount of sitting, standing, walking bending and any lifting. The Veteran also described constant pain. In terms of functional loss, the Veteran described that it resulted in constant pain, increased with activity, and any lifting. Range of motion studies were done both passively and actively. Flexion was to 30 degrees. Extension was to 15 degrees. Right lateral flexion was to 20 degrees. Left lateral flexion was to 20 degrees. Left lateral rotation was to 20 degrees. Pain was noted at each end point. There was evidence of pain with weight-bearing. Examination showed pain across with lower lumbar area on palpation. The Veteran was able to perform repetitive use and there was no additional loss of function or range of motion thereafter. Although the Veteran was not examined immediately after repetitive use over time, the Veteran’s statements regarding functional loss with repetitive use over time were consistent with the examination. Likewise, while the exam was not conducted during a flare-up, the Veteran’s reports thereof were consistent with the exam. Along these lines, the examiner noted that during flare-ups, flexion would be limited to 20 degrees. Extension would be limited to 15 degrees. Right lateral flexion would be limited to 20 degrees. Left lateral flexion would be limited to 20 degrees. Right lateral rotation would be limited to 20 degrees. Left lateral rotation would be limited to 20 degrees. There was no muscle spasm, but there was guarding resulting in an abnormal gait or spine contour. There was no ankylosis. In a December 2020 addendum, the examiner confirmed that the Veteran did not have ankylosis of the lumbar spine. On review, the Board finds that a rating higher than 40 percent is not warranted. Notably, there is no diagnosis of unfavorable ankylosis of the entire thoracolumbar spine to warrant the next-higher 50 percent rating under the General Rating Formula. Moreover, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. See id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). A rating greater than 40 percent based on the DeLuca factors is not for consideration here. Finally, the objective medical evidence does not show that the Veteran has had any incapacitating episodes of IVDS that required bed rest prescribed by a physician; therefore, a higher rating under the IVDS formula is not warranted. Additionally, there is no evidence of disc herniation, and as such, the threshold requirement for application of DC 5243 under the 2021 amended rating criteria is not satisfied. In sum, the Board awards a 40 percent rating, but not higher, for the entire rating period on appeal. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of each lower extremity and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. In addition, the Veteran did not raise disagreement with the assigned rating for lumbar radiculopathy. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating higher than 40 percent for the Veteran’s lumbar spine disability. 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. Earlier Effective Date In the case of claims for an increased disability rating, the effective date assigned is generally the date of receipt of the claim, or the date the entitlement arose, whichever is later. However, if the claim is filed within one year of the date that evidence shows an increase in the disability has occurred, the earliest date as of which an increase is factually ascertainable will be used. 38 C.F.R. §§ 3.400(o)(1) and (2); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). Except as provided in § 3.400(o)(2), awards of aid and attendance or housebound benefits will be effective the date of receipt of claim or date entitlement arose, whichever is later. However, when an award of pension or compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional pension or compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award’s retroactive period for which entitlement to the additional benefit is established. 38 C.F.R. § 3.401(a)(1). PTSD The Veteran seeks an effective date earlier than April 25, 2005, for the award of a 100 percent evaluation for the service-connected PTSD disability. On April 25, 2005, VA received the Veteran’s claim for increase. The RO has utilized this date as the effective date of the award of a 100 percent disability for PTSD. Entitlement to an effective date prior to April 25, 2005, for the award of a 100 percent evaluation for PTSD is denied. Here, the question is whether the Veteran is entitled to a 100 percent disability evaluation within the first year preceding the April 25, 2005, claim. Here, the appears no pertinent evidence within this period relating to the severity or presence of PTSD. Entitlement to a disability evaluation of 100 percent prior to April 25, 2005, is denied. As stated above, there is no evidence of record during the one-year period prior to the claim indicating that the PTSD increased in severity. Thus, while it is possible that the PTSD could have increased in severity prior to the one-year period, unless the increase is factually ascertainable in this period, an earlier effective date cannot be granted. Accordingly, the claim is denied. SMC SMC is payable at the housebound rate if the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(2). The Veteran was awarded SMC at the housebound rate effective February 12, 2000, based on the receipt of a total disability evaluation based upon individual unemployability (TDIU) for a single service-connected disability, i.e. PTSD, with additional disabilities independently rated at 60 percent. Effective April 25, 2005, the TDIU was mooted by the award of a 100 percent schedular evaluation for PTSD; however, this had no effect on the SMC award because the Veteran still had additional disabilities independently rated at 60 percent. The Veteran is not shown to be permanently housebound nor does he argue as such. As indicated, the Veteran does not have a single disability rated as 100 percent prior to February 12, 2000. Accordingly, there is no legal basis for assigning an earlier effective date for the award of SMC at the housebound rate and the claim is denied. Extraschedular Consideration (Continued on the next page)   In October 2020, the Board remanded this claim for referral to the Director, Compensation Service, for extraschedular consideration. The RO, however, did not refer the matter to the Director because an extraschedular evaluation may not be based upon the combined effect of more than one service-connected disability.” See 38 C.F.R. § 3.321(b)(1). Significantly however, a precedent case law has amended VA adjudication regulation regarding extraschedular consideration. In this regard, on December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321 (b)(1), effective January 8, 2018, to clarify that an extraschedular rating is not available based on the combined effect of multiple service-connected disabilities. See 82 Fed. Reg. 57830. The provisions of this final rule shall apply to all applications for benefits that are received by VA, or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit (Federal Circuit) on or after January 8, 2018. As the Veteran’s case on appeal here is pending before VA on or after January 8, 2018, this final rule is applicable to this case. Accordingly, the Board finds that an extraschedular rating based on the collective impact of the service-connected disabilities is not for consideration, as an extraschedular rating based on multiple service-connected disabilities is no longer a viable theory of entitlement in this appeal. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.