Citation Nr: 21024747 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-00 266A DATE: April 26, 2021 ORDER A rating higher than 20 percent for lumbar degenerative arthritis is denied. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person is granted. FINDINGS OF FACT 1. The Veteran’s lumbar degenerative arthritis has not been manifested by flexion limited to 30 degrees or less or by ankylosis, and he has not required bedrest prescribed by a physician during the period under review. 2. The evidence is at least evenly balanced as to whether the Veteran requires assistance in accomplishing the activities of daily living and is unable to protect himself from the hazards and dangers of his daily environment without the assistance of another person on account of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for lumbar degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243. 2. The criteria for SMC based on the regular need for the aid and attendance of another person are met. 38 U.S.C. §§ 1114 (l), 5107(b); 38 C.F.R. §§ 3.102, 3.350 (b), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2007 to December 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office. This matter was previously before the Board in June 2018 and July 2020 at which times the case was remanded for additional development. The matter is once again before the Board. Increased Rating Rating Greater than 20 Percent for Lumbar Degenerative Disease A. Rating Criteria The rating schedule provides for the evaluation of all disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The evaluation of IVDS will be discussed below. Under the General Rating Formula, evaluations are assigned as follows: A 20 percent rating is assigned 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 assigned forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned where unfavorable ankylosis of the entire spine is demonstrated. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as “a condition in which the entire thoracolumbar spine is fixed in flexion or extension.” Id. Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be separately evaluated under an appropriate diagnostic code. Id. Note (1). B. Facts and Discussion The Veteran reported at a May 2013 VA examination that he has been suffering from on and off again back pain since his injury in service. X-rays revealed mild degenerative joint disease of the lumbar spine. Range of motion testing revealed forward flexion to 60 degrees with pain at 50 degrees, extension to 30 degrees with pain at 20 degrees, right and left lateral flexion to 30 degrees on each side, with pain at 20 degrees. Mild tenderness was noted with no muscle spasm or swelling. There was no increase in pain, weakness, loss of range of motion or lack of endurance with repetition. The examiner remarked that functionally, the Veteran could walk not more than a half mile and could not sit or stand more than a half hour. He had difficulty running and could kneel and squat. He was able to dress and undress and put on his socks and shoes. He also could drive and go to the gym. A February 2019 VA emergency department record shows that the Veteran presented with complaints of intermittent low back pain for one week. He said that he works out in the gym and he thinks that he hurt his back while playing basketball. He was diagnosed as having muscular strain. The Veteran was diagnosed at a June 2019 VA examination as having degenerative arthritis and intervertebral disc syndrome (IVDS). The report notes that he was scheduled for microdiscectomy the following day and was on disability. Range of motion findings were noted as being abnormal with forward flexion to 55 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees and right and left lateral rotation to 20 degrees, with pain. There was no additional functional loss noted with repeated use or flareups. There was no guarding or muscle spasm, but tenderness was noted in the midline of the lumbar spine. Straight leg raising was negative and there was no atrophy. There was no pain on weightbearing. While the Veteran was noted to have IVDS, but the examiner reported that he did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. VA outpatient records from November 2011 to June 2020 show the Veteran’s ongoing complaints of back pain. A January 2021 VA examination report reflects a diagnosis of degenerative arthritis of the lumbar spine. The Veteran reported daily flare ups lasting from a half hour to an hour. He said that after repeated use he could not lift any weight over 40 pounds and could not do any jerky movements. He also said that he could not bend too fast of pick things up off the floor. Range of motion findings revealed flexion to 60 degrees, extension to 25 degrees, right and left lateral flexion to 20 degrees and right and left lateral rotation to 30 degrees. Findings after repeated use and due to pain revealed flexion to 50 degrees, extension to 20 degrees, right and left lateral flexion to 10 degrees and right and left lateral rotation to 20 degrees. Passive range of motion was the same as active range of motion. There was no localized tenderness, guarding or muscle spasm, muscle atrophy or ankylosis. Strength was normal. There was no additional loss of function or range of motion after three repetitions. The Veteran was noted to not have IVDS. The Board finds that a higher than 20 percent rating under the General Rating Formula for diseases and injuries of the spine is not warranted for the Veteran’s lumbar spine disability because the evidence reflects that there has been no ankylosis of the entire thoracolumbar spine and the weight of evidence does not show flexion to 30 degrees or less. The examination reports outlined above show that forward flexion of the thoracolumbar spine has not been limited to 30 degrees or less, including after repetitive use testing. Rather, as noted, flexion ranged from 50 to 60 degrees during the appeal period including due to pain and after repeated use. In addition, the January 2021 VA examiner reported that active and passive range of motion were the same, and the June 2019 VA examiner reported that there was no pain on weight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, when considering additional functional loss during flare-ups or with repeated use over time, the criteria for a rating higher than 20 percent based on limited range of motion remain unsatisfied, as the Veteran’s forward flexion would still exceed 30 degrees. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Also, the examination reports show that the Veteran does not have ankylosis of the spine. Accordingly, the criteria for a rating of 40 percent or higher based on ankylosis are not met. See 38 C.F.R. § 4.71a, General Rating Formula. With respect to associated neurologic abnormalities, service connection has been established for radiculopathy of the left lower extremity which is separately evaluated. See February 2021 rating decision. No other associated neurologic abnormalities have been shown. Under DC 5243, IVDS may be evaluated under the General Rating Formula, as discussed above, or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). As noted, the June 2019 VA examiner reported that the Veteran had IVDS, but no incapacitating episodes over the last 12 months, and the January 2021 examiner found that the Veteran did not have IVDS. Accordingly, the criteria for a higher rating under the Formula for Rating IVDS have not been met. See id. The Board notes that revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board may consider these changes without remand to the AOJ for consideration in the first instance. See 38 C.F.R. § 20.904(d)(2). The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). Thus, the changes to the rating schedule that went into effect on February 7, 2021 do not apply prior to that date. See id.; 85 Fed. Reg. 76453. The Board finds that changes to DC’s 5242 and 5243, which clarify when these diagnostic codes apply, do not affect the outcome of this claim, as the Board has considered the evaluation of the Veteran’s lumbar spine disability under both the General Rating Formula and the Formula for Rating IVDS. See 85 Fed. Reg. at 76462. The Board finds no other changes relevant to the Veteran’s service-connected lumbar spine disability. As the preponderance of the evidence is against a rating higher than 20 percent for the Veteran’s low back disability for the period on appeal, the benefit-of-the-doubt rule does not apply and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). SMC SMC based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to require regular aid and attendance. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The following criteria are to be considered for determining whether a veteran is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352 (a). When this case was before the Board in June 2018, the Board added the ancillary issue of entitlement to service connection for SMC based on aid and attendance. This was in consideration of the Veteran’s service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), and evidence showing that he applied for and was accepted into VA’s Family Caregiver Program in August 2013 due to his mental health condition. In this regard, findings made by a VA social worker during the initial assessment for the program in June 2013 show that the Veteran needed supervision, protection, or assistance based on symptoms or residuals of neurological or other impairment or injury due to safety risks (wandering outside the home, danger of falling, suing electrical appliances, suicidal ideation, etc.) and self-regulation (being able to moderate moods, agitation or aggression, etc). This evaluation report also shows that the Veteran had a psychological trauma or a mental disorder that had been scored by a licensed mental health professional, with a Global Assessment of Functioning (GAF) score of 30 or less, continuously during the 90-day period immediately preceding the date on which VA initially received the caregiver application. VA records further show that the Veteran remains in the program and that his spouse is his caregiver. The most recent Caregiver Program Support Note is dated in March 2020. Also, there is a March 2018 VA contract PTSD examination report noting symptoms of “neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimum personal hygiene”. In November 2019, the Veteran was afforded a VA PTSD examination. The examination report notes that the Veteran lived with his wife and daughter and he was receiving outpatient psychiatric care. His care included seeing his psychiatrist every six months and his therapist every two weeks. On examination the Veteran was alert and oriented and he did not have a thought disorder. In addressing the aid and attendance issue, the examiner reported that the Veteran denied having difficulty with hygiene and he was able to dress and feed himself. The examiner also noted that he did not need assistance to protect him from hazards. VA issued an addendum opinion in April 2020 further discussing the aid and attendance issue. The examiner referred to pertinent medical records dated from June 2015 to December 2019, to include an April 2019 VA Caregiver Program note. He reported that this note shows that the Veteran was accepted into the program due to his mental health condition and that his forgetfulness was noted to impact his ability to cook and pay bills on time. The examiner also noted that the Veteran appeared to largely describe back pain as the reason for loss of functioning. After reviewing the pertinent evidence, the examiner noted that the evidence does not indicate that the Veteran is unable to dress or feed himself due to mental health issues. He also said that mental health issues “do not appear” to prevent the Veteran from attending to basic physiological needs or avoiding daily hazards. He stated that while the veteran has a history of significant symptoms of PTSD, depression, and panic, which were indicated as limiting his social and occupational functioning, there was no “clear evidence” that they cause him to require aid and attendance. He pointed out that in the recent evaluation in December 2019 the Veteran was described as able to manage hygiene, dress and feed himself, and he did not need protection from daily hazards. The examiner concluded by opining that the evidence indicates that the Veteran’s mental health condition does not render him so helpless as to need the regular aid and attendance of another person. In light of the above the evidence, the Board finds that the evidence is at least evenly balanced as to whether the Veteran is so helpless as to be in need of regular aid and attendance of another person due to the manifestations of his service-connected disabilities, which require care or assistance on a regular basis to perform daily activities and to protect him from the hazards or dangers inherent in his daily environment. The reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. Thus, entitlement to SMC based on the regular need for the aid and attendance of another person is granted. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shawkey, Anne M. 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.