Citation Nr: 21030425 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 10-21 824 DATE: May 18, 2021 ORDER Prior to April 26, 2009, a rating in excess of 20 percent for lumbosacral strain is denied. A 40 percent rating, but no higher, is granted for lumbosacral strain from April 26, 2009 to April 26, 2010. Entitlement to a TDIU from January 1, 2012 is granted. Entitlement to special monthly compensation (SMC) based on housebound status is denied. REMANDED Entitlement to a TDIU prior to January 1, 2012 is remanded. FINDINGS OF FACT 1. During the period prior to April 26, 2009, lumbosacral strain was manifested with flexion to 50 degrees, at worst, with consideration of functional loss and without unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes having a total duration of at least four weeks during any 12-month period. 2. From April 26, 2009 to April 26, 2010, the Veteran had incapacitating episodes of intervertebral disc syndrome of 4 to 6 weeks. 3. The Veteran meets the schedular criteria for TDIU from January 1, 2012. He is unable to obtain or maintain gainful employment due to his service-connected disabilities. 4. The Veteran does not have a single service-connected disability evaluated as 100 percent disabling, to include based on a TDIU, with additional service-connected disability or disabilities independently ratable at 60 percent. CONCLUSIONS OF LAW 1. Prior to April 26, 2009, the criteria for a rating in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 2. From April 26, 2009 to April 26, 2010, the criteria for a 40 percent rating for lumbosacral strain, but no higher, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 3. The criteria for entitlement to a TDIU have been met from January 1, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. 4. The criteria for SMC at the housebound rate are not met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1964 to December 1967. The issue of entitlement to an increased rating for a lumbar spine disability was previously remanded for additional development in June 2017, October 2018, and October 2020. The issues of entitlement to an earlier effective date for TDIU and entitlement to SMC were remanded in October 2018 and October 2020. 1. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities ("Rating Schedule"), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. See 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, 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. See 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. See 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. See 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits as well as the entire history of his disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 2. Rating for lumbosacral strain prior to April 26, 2010 The Veteran's lumbar spine degenerative joint disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 or more of the 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 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. Alternatively, intervertebral disc syndrome (IVDS) can be rated based on incapacitating episodes under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula) or the General Rating Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Pursuant to the IVDS Formula, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5242. An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula, Note (1). The rating schedule for evaluating musculoskeletal disabilities was amended effective February 7, 2021. However, as the period on appeal is dated prior to April 26, 2010 in this case, the amended regulations are not applicable to this appeal. A private treatment record dated in February 2008 reflects that the Veteran required three days of bedrest. In September 2009 correspondence, the Veteran reported that a physician prescribed bedrest for several weeks in 2009. The Veteran had a VA examination in April 2009. The Veteran reported spinal flare-ups. The duration of the flare-ups was "hours." Precipitating factors included standing for more than one hour. Lying down reduced the pain. His flare-ups resulted in reduced concentration, reduced mobility, and reduced flexibility. The Veteran reported monthly incapacitating episodes, essentially resulting in bedrest for one to three days. He reported flare-ups of back pain, which were described as severe. Examination showed flexion to 60 degrees and extension to 0 degrees. There was objective evidence of pain on active range of motion. In correspondence dated in December 2009, the Veteran indicated that a private physician, Dr. Morgan, prescribed bedrest for his back disability for several weeks in December 2009. In correspondence dated in February 2010, the Veteran reported that he retired when the pain from his various back injuries became so substantial that it interfered with his real estate business. A record from a private physician, dated on April 26, 2010, noted that the Veteran was limited to walking 100 feet without pain and had been advised to use a cane. The record indicated that the Veteran had incapacitating episodes over the past 12 months for a duration of at least 4 weeks that required medical bed rest. In August 2018, a retrospective medical opinion was requested to address the Veteran's range of motion prior to April 26, 2010. An August 2018 examiner determined that an opinion could not be provided, as a retrospective medical opinion would require mere speculation. In October 2018, the case was remanded for another retrospective medical opinion regarding the severity of the Veteran's lumbar spine disability prior to April 26, 2010. In November 2018, a VA examiner asserted that any opinion regarding the historical severity of the Veteran's range of motion on both active and passive motion and weight bearing and non-weight bearing related to the period prior to April 26, 2010 could not be provided. The examiner reasoned that the medical documentation did not identify the type of motion or weight-bearing or non-weight-bearing status. Therefore, with the information available, it would require mere speculation to comment. In January 2021, a VA examiner reviewed the claims file and opined that, prior to April 26, 2010, the Veteran had lumbar spine flexion to 60 degrees with additional limitation of motion of 5 to 10 degrees. Thus, the retrospective medical opinion indicates that the Veteran's range of motion of the lumbar spine was limited to 50 degrees at worst prior to April 26, 2010. The evidence shows that, prior to April 26, 2010, the range of motion of the lumbar spine was limited to 50 degrees, even with consideration of functional loss and flare-ups. The evidence prior to April 26, 2009 does not show incapacitating episodes of intervertebral disc syndrome for four weeks during a 12-month period. Rather, the documentation during that period shows three days of bedrest. A rating greater than 20 percent is not warranted prior to April 26, 2009, based either on range of motion or incapacitating episodes. The April 2010 correspondence from the Veteran's private physician indicates that there were incapacitating episodes of intervertebral disc syndrome requiring bedrest for at least 4 weeks in the year preceding the letter. Accordingly, the criteria for a 40 percent rating are met from April 26, 2009 to April 26, 2010. A rating higher than 40 percent is not warranted, as the Veteran did not have unfavorable ankylosis of the lumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months. 3. Effective date for TDIU The Veteran contends that an effective date earlier than May 26, 2015 is warranted for TDIU. He contends that his service-connected disabilities have rendered him unemployable since January 2010. A September 2016 rating decision granted entitlement to TDIU from May 26, 2015. The rating decision found that a VA examination on May 26, 2015 showed that the Veteran's disabilities rendered him unemployable. The Veteran filed formal claims for TDIU in June 2016 and July 2016. He contends that he became too disabled to work on January 1, 2010. He indicated that he last worked full-time on January 1, 2007. He indicated that he had a college education. The Veteran reported work experience teaching real estate courses and rehabbing real estate. He reported that he was no longer able to teach real estate because he could not stand for long periods of time. He noted that pain and loss of strength left him unable to lift and carry heavy objects (sheetrock, lumbar, paint buckets, power tools, etc.) that were an integral part of his business. He stated that he tried working on inspections; however, his back pain made driving long distances unbearable. He reported that he attempted to work for a financial services subcontractor from 2012 to 2014, and his duties involved interviewing business owners who had applied for credit card services. This involved a lot of driving and sitting in front of a computer, which became too difficult due to his back pain. He stated that this was a part-time job and was marginal work, as he was only paid $35 per visit and less than $200 a month. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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 purposes of TDIU, disabilities of common etiology will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Court of Appeals for Veterans Claims (Court) recently held that if the Board basis its denial of TDIU in part on the conclusion that a veteran is capable of performing sedentary work, then it must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139, 150-51 (2018). If the schedular criteria are not met, a TDIU may still be granted on an extraschedular basis. See 38 C.F.R. § 4.16 (b). Rating boards are required to submit to the Director of Compensation and Pension Service, for extraschedular consideration, all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a); see 38 C.F.R. § 4.16 (b). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. The Veteran's service-connected disabilities include: degenerative disease of the lumbar spine (20 percent from November 26, 2008, 40 percent from April 26, 2009, and 60 percent from January 1, 2012); cervical radiculopathy of the right upper extremity (40 percent from May 26, 2015); cervical radiculopathy of the left upper extremity (20 percent from May 26, 2015 and 30 percent from June 2, 2016); degenerative arthritis of the cervical spine (20 percent from August 12, 2009); bilateral tinnitus (10 percent from November 26, 2008); left ear hearing loss (0 percent from November 26, 2008 to August 31, 2012); and bilateral hearing loss (0 percent from August 31, 2012). The Veteran has met the schedular criteria since January 1, 2012. The question for the Board is whether the evidence shows that the Veteran was unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities prior to May 26, 2015. In February 2009, a private physician, Dr. J.P., opined that the Veteran's disabilities prevented him from performing any meaningful work. In February 2010 correspondence, the Veteran reported that he retired from his work as a real estate broker due to his back disability. A June 2010 VA treatment record indicated that the Veteran reported doing some work as a real estate broker. He was retired but did some consulting. In a July 2016 statement, the Veteran reported that he was a financial services subcontractor from 2012 to 2014 and was paid $200 per month. He indicated that that the position was marginal and part-time. He stated that he left the job because it was too difficult sitting in front of a computer and having to drive a lot. The evidence shows that the Veteran was employed full-time until January 1, 2010. His employment after that date was characterized as part-time consulting and real-estate development work and financial services. The Veteran's part-time consulting and home rehabilitation work since January 1, 2010 is deemed marginal employment based on the income reported by the Veteran in his July 2016 statement. The Veteran met the schedular criteria for TDIU from January 1, 2012, and the evidence shows that his service-connected disabilities prevented him from obtaining and maintaining gainful employment, as his physical disabilities limited him from both physical work as well as work that involved sitting for long periods of time in front of a computer. Given the Veteran's education and background, entitlement to TDIU on a schedular basis is warranted from January 1, 2012. 4. Entitlement to special monthly compensation based on housebound SMC at the housebound rate is payable where 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). The evidence shows that a TDIU is warranted based on the Veteran's service-connected lumbar and cervical spine disabilities and radiculopathy of the upper and lower extremities. For SMC purposes, a TDIU satisfies the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley at 293. In this case, the TDIU has been granted based on the Veteran's service-connected disabilities of degenerative disease of the lumbar spine and cervical spine, radiculopathy of the right and left sciatic and femoral nerves, and cervical radiculopathy. Therefore, the Veteran does not have a single service-connected disability evaluated as 100 percent disabling, to include based on a TDIU, with additional service-connected disability or disabilities independently ratable at 60 percent. He has not asserted that he is permanently housebound by reason of his service-connected disabilities. Consequently, SMC at the housebound rate is not warranted. REASONS FOR REMAND 1. Entitlement to a TDIU prior to January 1, 2012 is remanded. The Veteran did not meet the schedular criteria for TDIU prior to January 1, 2012. The evidence indicates that he last worked full-time in January 2010. The Board is precluded from granting TDIU on an extraschedular basis in the first instance. Thus, the Board will refer the Veteran's claim of entitlement to a TDIU prior to January 1, 2012 to the Director of Compensation Service. The matters are REMANDED for the following action: 1. Refer the matter of entitlement to a TDIU to the Director, Compensation Service for a determination as to whether the Veteran is entitled to a TDIU prior to January 1, 2012 under 38 C.F.R. § 4.16 (b). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.