Citation Nr: 21024860 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-41 265 DATE: April 26, 2021 ORDER Entitlement to an initial rating of 40 percent, but no higher, for lumbar strain with degenerative disc disease (DDD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to August 10, 2016 and from November 1, 2016, is granted. FINDINGS OF FACT 1. The Veteran’s lumbar strain with DDD was more closely manifested by forward flexion to 30 degrees or less. 2. Prior to August 10, 2016 and from November 1, 2016, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent, but no higher, for lumbar strain with DDD have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. Prior to August 10, 2016 and from November 1, 2016, the criteria for entitlement to TDIU are 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 for training (ACDUTRA) from July 1982 to December 1982 and on active duty from December 1987 to February 1990. The Veteran died in April 2018. His surviving spouse has been substituted as the Appellant for purposes of processing the claim to completion. See June 2018 correspondence. The Veteran appealed April 2015 and September 2016 rating decisions by the Agency of Original Jurisdiction (AOJ). The Appellant appealed the July 2019 Board of Veterans’ Appeals (Board) decision to the Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded these issues to the Board for further proceedings consistent with the JMPR. The case has returned to the Board for further appellate proceedings. In December 2020, the Board remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the issue of service-connection for erectile dysfunction (ED) was also remanded by the Court and December 2020 Board decision. A February 2021 rating decision granted service-connection for ED and special monthly compensation (SMC) based on loss of use of a creative organ for the entire period on appeal. The Appellant has not expressed further disagreement on the issue. Therefore, the issue regarding ED is no longer on appeal. Increased Rating When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. If the Veteran has Intervertebral Disc Syndrome (IVDS), the Veteran may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ultimately, the Veteran’s disability rating will depend on which diagnostic code results in the higher evaluation. Here, the Veteran had IVDS. See August 2016 VA examination report. Therefore, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is applicable. The pertinent criteria under the General Rating Formula for Diseases and Injuries of the Spine are as follows: Unfavorable ankylosis of the entire spine - 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine - 30 percent disabling. 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 - 20 percent disabling. Importantly, VA is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5242, Note (1). Here, the Veteran did not have objective neurologic abnormalities that rose to compensable levels outside of radiculopathy. The July 2019 Board decision denied an increased rating in excess of 10 percent regarding the Veteran’s left and right lower extremity radiculopathy. The June 2020 Court JMPR did not disturb this finding and dismissed the issues. Accordingly, those issues will not be address by the Board. 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion 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. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5243, Note (2). Under the IVDS Formula a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of evaluations under Diagnostic Code 5243, 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. Although the Veteran has had IVDS, the Veteran did not have any episodes that required bed rest prescribed by a physician in the past 12 months. See August 2016 VA examination report. Although the Veteran’s November 2016 statement noted he would call the doctor and would be prescribed bedrest, the Veteran did not provide the specific frequency or detail any recent occurrences. Nevertheless, medical evidence did not indicate recent episodes of IVDS with prescribed bed rest. Therefore, it would not be advantageous to rate the Veteran under Diagnostic Code 5243. The Board notes that pursuant to Note (1) of the General Formula, VA is to evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (1). Determining whether separate ratings should be awarded for objective neurological complications is part and parcel of an increased rating claim for a lumbar spine disability. The Board also notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Since the Veteran died prior to the effective date of the new regulations, the new regulations do not apply in this case. May 2015 VA treatment records noted constant back pain and pain worse when walking. September 2015 VA treatment records noted the Veteran’s back pain worsened over time, that he cannot twist or bend his back, and that all movements caused some mild back pain. The August 2016 VA examination report noted back pain, stiffness, and tightness, flare-ups with increased pain and deceased ROM, and forward flexion to 90 degrees. The Veteran’s November 2016 statement noted frequent incapacitating episodes that “gotten so bad he cannot leave the bed. He had to crawl on his hands and knees to the bathroom because he could not get up.” The Board finds that the Veteran was entitled to a 40 percent rating for the entire period on appeal. Although medical evidence suggests the Veteran was able to move his back, he ultimately had pain on all movement. Additionally, during flare-ups, the Veteran had increased pain and decreased ROM. The Veteran noted that incapacitating episodes resulted in the Veteran being unable to leave his bed and forced him to crawl. Therefore, the Board finds the Veteran’s symptoms more closely approximated that of a 40 percent rating for the entire period on appeal. However, a higher rating was not warranted. The VA examination reports and other medical treatment records during the period on appeal do not note the existence of ankylosis. The Appellant and her representative do not contend that the Veteran had ankylosis or was completely unable to move his back at all, even during “incapacitating” episodes. Overall, the medical evidence suggests the Veteran was still able to move and bend his back to a certain extent, even during flare-ups. During certain episodes, the Veteran experienced increased pain and decreased ROM. However, such does not constitute ankylosis of the spine or no ROM. A higher than 40 percent rating for the Veteran’s back condition would require a finding of ankylosis or at least evidence of complete limitation of motion in parts of the spine. However, this is not demonstrated by the medical evidence of record. Therefore, a higher than 40 percent rating is not warranted. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board notes the Veteran was awarded a 100 percent temporary total rating from August 10, 2016 and then continued a 60 percent rating from November 1, 2016. The Veteran was also awarded SMC during this period. The Board will address TDIU for the periods outside from when the Veteran was already granted a total rating with SMC. The Veteran’s August 2015 VA Form 21-8940 noted a high school education, employment in construction, and last working in 2006. The Veteran also indicated he left his last job due to his service-connected onychomycosis and bipolar disorder. Id. An April 2017 VA examination report regarding mental health noted the Veteran worked part time as a farm hand. However, the record does not indicate any full-time employment that guaranteed the Veteran more than marginal compensation during the period on appeal. Therefore, the Board finds any part-time employment the Veteran had during the period on appeal did not amount to substantially gainful employment. The Veteran met the threshold requirement for entitlement to TDIU on a schedular basis for the entire period on appeal. The Veteran’s onychomycosis was rated at least at 60 percent for the entire period on appeal. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran was unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. An April 2015 VA examination report regarding mental disorders noted legal assault charges and symptoms that interfered with the Veteran’s ability to function in an occupational environment when under stress. May 2015 VA treatment records, regarding treatment for the Veteran’s skin condition, noted he was unable to work due to severe pain in his hands. January 2016 vocational rehabilitation records noted pain in the nail bed. The Veteran stated in May 2016 correspondence that he had anger issues, was a danger of hurting himself or others, had delusions and hallucinations, inappropriate behavior, memory loss, panic attacks, periods of violence, problems communicating, and problems getting along with people. October 2016 treatment records noted pain and improving hand ROM regarding the Veteran’s fungal nail infection. January 2017 VA treatment records noted a barrier to learning was the Veteran’s painful fingers. The Veteran’s June 2017 notice of disagreement (NOD) noted the Veteran was inpatient and had severe social impairment. February 2018 VA treatment records noted pain related to the extraction of fingernails. Overall, the Veteran had social and mental health symptoms associated with his psychiatric disorder and physical symptoms, mainly the use of his hands, associated with his onychomycosis. The Veteran only worked in physical labor related positions. Due to his hands and fingers hurting from his onychomycosis, the Veteran would have been unable to sustain a physical labor job. Additionally, the Veteran’s symptoms associated with his psychiatric disorder, to include anger issues, memory issues, and panic attacks, would render the Veteran unable to find a different position in a customer service or office setting position. This is supported by medical evidence of record. The Veteran did not have experience, training, or education in another field. The Board finds the Veteran credible as to his functional limitations attributable to his service-connected disabilities. (Continued on the next page)   Therefore, the Board finds that the Veteran’s service-connected disabilities, in combination, at least as likely as not prevented him from obtaining and maintaining gainful employment for the entire period on appeal. Accordingly, resolving all doubt in the Veteran’s favor, the criteria for TDIU have been met, prior to August 10, 2016 and from November 1, 2016, and the claim is granted to that extent. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate 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.