Citation Nr: 21024932 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 09-11 380A DATE: April 27, 2021 ORDER A higher rating of 60 percent for a degenerative spine disorder from November 17, 2008 is granted. REMANDED Service connection for a disability manifested by shortness of breath is remanded. A total disability evaluation based on individual unemployability prior to August 14, 2008 is remanded. FINDING OF FACT From November 17, 2008, the Veteran’s back disability has been characterized by intervertebral disc syndrome with incapacitating episodes lasting at least 6 weeks during the past 12 months. CONCLUSION OF LAW The criteria for a higher rating of 60 percent for a degenerative spine disorder from November 17, 2008 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from June 1977 to June 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2007 and August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in November 2014, August 2016, and December 2017. In January 2020, the Board issued a decision denying a rating higher than 40 percent for a back disability beginning from January 6, 2009, service connection for a disability manifested by shortness of breath, and a TDIU prior to August 14, 2008. In a December 2020 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a joint motion for partial remand (JMPR), vacated the Board’s January 2020 decision, and remanded the case for further action consistent with the terms of the joint motion. As noted above, this matter was returned to the Board pursuant to a December 2020 JMPR. “A joint motion for remand, when drafted properly, identifies … clear instructions to the Board as to what it is required to address, and what actions it is required to take, on remand. This increases both administrative and judicial efficiency.” Carter v. Shinseki, 26 Vet. App. 534, 541 (2014), vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Increased Rating Back Disorder Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In a March 2021 brief, the Veteran contends that his back disability should be assigned a 60 percent rating effective November 17, 2008. For the following reasons, the Board agrees. The Veteran’s back disability is currently rated 40 percent under diagnostic code (DC) 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 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. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always considered favorable ankylosis. Id. 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; 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). The Veteran also has a diagnosis of intervertebral disc syndrome (IVDS) starting on November 17, 2008. A 40 percent rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) 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. In this case, the Board finds that a 60 percent rating is warranted from November 17, 2008. A February 2009 VA examination notes that Veteran experienced incapacitating episodes of back pain in November 2008 and that the Veteran has been out of work since then. At an April 2013 examination, the examiner found the Veteran to have IVDS, but no incapacitating episodes within the past 12 months. In a January 2015 examination, the examiner noted that the Veteran had incapacitating episodes of IVDS prior to his 2013 VA examination. In a May 2009 statement from the Veteran, he states that he was discharged from the hospital for treatment of his back in November 2008 and was told that he would be incapacitated and unable to work until February 2009. This is supported by the February 2009 examination that noted that Veteran had been out of work since November 2008. The period from November 2008 to February 2009 is longer than 6 weeks. As such, the Veteran meets the criteria for a 60 percent rating based on incapacitating episodes of IVDS. Accordingly, the Board awards a 60 percent rating for the Veteran’s back disability effective November 17, 2008, the start of his incapacitating episode. Accordingly, a higher rating of 60 percent is granted for the Veteran’s back disability effective November 17, 2008. As the Veteran’s March 2021 brief explicitly state that the Veteran is seeking a 60 percent rating for his back disability effective November 17, 2008, the Board finds this to be a full grant of the issue on appeal. REASONS FOR REMAND Shortness of Breath Remand is required for a medical examination. The Veteran had active service in Saudi Arabia from January 1991 to March 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). The Veteran reports experiencing shortness of breath. At this point, the Veteran has not been fully evaluated to determine whether or not there is a diagnosis for his shortness of breath. Accordingly, on remand, the Veteran should be scheduled for an examination to determine the nature and etiology of his condition. TDIU Finally, because a decision on the remanded issue of service connection for a disability manifested by shortness of breath could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his condition. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran’s objective indications of a disability. “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran’s objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed condition was incurred in, or is otherwise related to, his active service? A complete rationale must be provided for all opinions expressed. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of an earlier effective date for TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, 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.