Citation Nr: 21030555 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 05-11 108 DATE: May 19, 2021 ORDER Entitlement to a 30 percent disability rating (but no higher) for limitation of motion of the cervical spine is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran's service-connected diabetes mellitus and associated peripheral neuropathy is granted from December 30, 2002 through the present. Entitlement to special monthly compensation (SMC) based on 38 U.S.C. § 1114(s)(1) is granted effective December 30, 2003 (but not earlier). FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's disability picture for the cervical spine more nearly approximated a limitation of forward flexion of the cervical spine to 15 degrees or less including favorable ankylosis of the entire cervical spine considering all limitations due to flare-ups of pain, weakness, incoordination, and fatigability for the entire period at issue. 2. The preponderance of the evidence is against a finding that the Veteran's cervical spine disability manifested with unfavorable ankylosis. 3. The preponderance of the evidence is against a finding that the Veteran's cervical spine disability manifested with incapacitating episodes requiring a prescription for bedrest. 4. The preponderance of the evidence is against a finding that the Veteran's disability picture for the cervical spine includes compensable neurological manifestations. 5. For the entire period on appeal (including after December 10, 2015), the evidence shows that the Veteran's service-connected diabetes mellitus and associated peripheral neuropathy precluded him from securing and following substantially gainful employment. 6. Beginning December 30, 2003, the Veteran's diabetes mellitus and peripheral neuropathy are rated as total based on TDIU, and additional service-connected disabilities are independently rated at 60 percent or more. 7. The preponderance of the evidence is against a finding that the Veteran was permanently housebound due to his service-connected disabilities prior to December 30, 2003. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 30 percent disability rating (but no higher) for limitation of motion of the cervical spine have been met. 38 U.S.C. §§ 1101, 1110, 1113; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2019); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). 2. The criteria for entitlement to TDIU due to the Veteran's service-connected diabetes mellitus and associated peripheral neuropathy have been met from December 30, 2002 through the present. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. The criteria for SMC based on 38 U.S.C. § 1114(s)(1) have been met effective December 30, 2003 (but not earlier). 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from October 1964 to October 1968. This appeal comes to the Board from a September 2004 rating decision. The Board remanded the appeal in September 2012 for additional development. In an October 2020 decision, the Board adjudicated claims for increased ratings for diabetes mellitus, neuropathies, thrombophlebitis of the left leg, headaches, and TDIU. The Board denied service connection for chronic fatigue, weakness, and face and eye pain with loss of balance. The Board granted service connection for insomnia. The Board remanded claims for an increased rating for a cervical spine disability and service connection for hypertension, a psychiatric disorder, and ulcerative colitis. VA granted the service connection claims in January 2021 and March 2021 rating decisions. Therefore, the Board finds only the claim for an increased rating for the cervical spine and ancillary benefits including TDIU and SMC remain on appeal. Following the additional development by VA after the Board's remand, the Veteran and his representative have not raised any remaining issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Effective September 26, 2003 through the present, the spine is rated under 38 C.F.R. § 4.71a, DCs 5235-5243 according to a General Rating Formula for Disease and Injuries of the Spine (General Formula) unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes (IVDS Formula). For purposes of evaluations under the IVDS formula, 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. While rating criteria for musculoskeletal disabilities has changed effective February 7, 2021, the Board finds the pertinent criteria for the purpose of this decision is substantially similar to the older criteria. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). In pertinent part, higher schedular disability ratings than the current 20 percent rating are assigned for the cervical spine according to the formulas as follows: Under the General Formula, a 30 percent rating contemplates forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. There is no equivalent rating under the IVDS Formula. Under the General Formula, a 40 percent rating contemplates unfavorable ankylosis of the entire cervical spine. Alternatively, under the IVDS Formula, a 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Under the IVDS Formula, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There is no equivalent rating under the General Formula. Under the General Formula, a 100 percent rating contemplates unfavorable ankylosis of the entire spine. There is no equivalent rating under the IVDS Formula. Note (1) to DCs 5235-5243 indicates that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. See, e.g., 38 C.F.R. § 4.124a. While the Veteran reported neurological symptoms, VA examinations have determined they are caused by (1) service-connected peripheral neuropathy and (2) radiculopathy from a lower back disability, which is not service connected. See, e.g., June 2016 VA back examination; January 2016 Diabetes Mellitus VA Examination; December 2015 Diabetic Sensory-Motor Neuropathy VA examination. The Veteran's treatment records also note some symptoms associated with a history of carpal tunnel syndrome, which is not a service-connected disability. See July 1995 treatment records from Barberton Citizens Hospital. The Veteran has not maintained on appeal to the Board that he is entitled to a higher disability rating based specifically on neurological symptoms associated with the cervical spine on appeal. He indicated on his September 2004 Notice of Disagreement that that the claimed symptoms may be the result of diabetic neuropathy. While there are some impressions of cervical radiculopathy in the record, neither the VA examinations of the cervical spine nor the follow-up testing from the Veteran's treatment providers revealed compelling evidence of compensable neurological symptoms associated with the cervical spine during the period at issue. See January 2007 Cervical Spine MRI from the Cleveland VA Medical Center; March 2000 treatment records from Akron General Medical Center. Accordingly, VA assigned disability ratings for each extremity in February 2017 and October 2020 rating decisions to contemplate the neurological symptoms as diabetic neuropathy. The Board finds the preponderance of the evidence is against a finding that the Veteran's disability picture for the cervical spine includes additional compensable neurological manifestations. The Board considered whether the evidence supports assigning higher ratings or additional compensable ratings based on symptoms not contemplated by the General Formula. However, none of the VA examiners or treatment providers have indicated the Veteran experiences episodes of incapacitation due to IVDS requiring a prescription for bedrest. While the examiners did indicate that the Veteran at times became incapacitated, the medical opinion evidence and the Veteran's statements indicate the incapacitation is due the Veteran's headaches associated with the cervical spine disability. See, e.g., December 2020 cervical spine VA examination. In the October 2020 rating decision, VA granted the Veteran an initial maximum schedular disability rating of 50 percent for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124, DC 8100. The Board finds the rating under DC 8100 contemplates the Veteran's limitations from the cervical spine disability apart from the ratings for limitation of motion. Therefore, the Board's attention turns to whether the evidence supports assigning a higher rating based on limitation of motion. A review of the Veteran's VA examinations of the cervical spine and findings in the treatment records reveals variable range of motion in the cervical spine on examination. A July 2004 cervical spine VA examination revealed the Veteran was capable of forward flexion of the cervical spine to 35 degrees. A November 2007 VA cervical spine examination revealed the Veteran's forward flexion of the cervical spine was limited to a range of 0-25 degrees, which is the basis for the current rating of 20 percent. A January 2016 VA cervical spine examination revealed the Veteran was capable of forward flexion of the cervical spine to 30 degrees. A December 2020 VA cervical spine examination revealed that the Veteran was capable of forward flexion of the cervical spine to 45 degrees. The examiners found no evidence of actual ankylosis. The Board finds the evidence shows the variability of flexion is a result of variability due to flare-ups rather than medical improvement. The December 2020 VA cervical spine examiner noted pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. The examiner noted that the examination was not conducted during a flare-up but noted pain and weakness caused functional loss during a flare-up. The examiner was not able to describe the loss in terms of range of motion, and the examiner indicated in a January 2021 addendum opinion that he was unable to test functional loss due to flare-ups because it caused the Veteran increased pain. However, the examiner opined severe flare-ups occurred five times per month, lasted two to four days, and resulted in the Veteran not being able to participate in any activity at all. The examinations prior to December 2020 do not contain a detailed assessment of flare-ups. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds further attempts at testing limitations due to flare-ups would be harmful to the Veteran as the VA examiner indicated. Affording the Veteran the benefit of the doubt in regard to flare-ups, the Board finds the disability picture more nearly approximated forward flexion of the cervical spine to 15 degrees or less including favorable ankylosis of the entire cervical spine considering all limitations due to flare-ups of pain, weakness, incoordination, and fatigability for the entire period at issue. This finding takes into account's the Veteran's competent and credible lay statements and the examiners' findings regarding increased activity limitations during flare-ups. While there is no compelling evidence in the record of actual ankylosis, the Board's finding contemplates functional ankylosis considering recent precedential decisions from the Court of Appeals for Veterans Claims (CAVC). See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021). However, while the Veteran's disability picture more nearly approximates favorable ankylosis of the cervical spine during flare-ups, the Board finds no compelling evidence or contention indicating the limitation of motion more nearly approximated unfavorable ankylosis. Accordingly, entitlement to a 30 percent disability rating (but no higher) for limitation of motion is granted. In regard to TDIU and SMC, the Board granted the Veteran entitlement to TDIU in its October 2020 decision with an effective date back to December 30, 2002. The Board specifically found that TDIU was warranted based on limitations due to service-connected headaches, cervical myositis, and diabetes with peripheral neuropathy for the entire period at issue. However, while the TDIU award is effective December 30, 2002, the effective date for service connection for headaches is December 30, 2003. Additionally, the cervical spine disability was rated as noncompensable prior to December 30, 2003. Therefore, the TDIU award prior to that date is based primarily on limitations due to diabetes mellitus and associated peripheral neuropathy, and the Board finds no compelling evidence of medical improvement of the conditions thereafter. With this decision, the Board clarifies TDIU is warranted based on diabetes mellitus and associated peripheral neuropathy alone for the entire period on appeal. Previously, VA did not continue TDIU beyond December 10, 2015 on the basis that TDIU is moot because the Veteran has a combined disability rating of 100 percent. See March 2021 rating decision and Codesheet; February 2017 rating decision. The Board also indicated in its October 2020 decision that TDIU was moot beginning January 19, 2016. However, upon further review of the record considering additional benefit awards by VA, the Board finds that TDIU is not moot under the facts of this case. A grant of a 100 percent disability evaluation does not always render the issue of entitlement to TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). For example, SMC may be warranted under 38 U.S.C. § 1114(s)(1) if TDIU is warranted based solely on a single disability, and additional disabilities are independently rated at 60 percent or more. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114(s)). In this case, as of December 30, 2002, the Veteran's diabetes mellitus (20 percent) and related peripheral neuropathy of both upper extremities (40 percent for each) stem from the same diabetes mellitus etiology and are considered a single disability that is total for TDIU purposes under 38 C.F.R. § 4.16(a)(2). Beginning December 30, 2003, the Veteran's additional service-connected disabilities included headaches and major depressive disorder, independently rated at 60 percent or more. Prior to that date, the service-connected disabilities other than diabetes and associated peripheral neuropathy did not cross the 60 percent rating threshold. SMC under based on 38 U.S.C. § 1114(s)(1) is warranted effective December 30, 2003, but not earlier. In considering whether an even earlier effective date for SMC is warranted, the Board is aware that, under 38 U.S.C. § 1114(s)(2), SMC may be awarded at the same rate if the Veteran is considered "permanently housebound." See Payne v. Wilkie, Aug 9, 2019, 31 Vet. App. 373 (2019). The evidence in the record prior to December 30, 2003 does not support a permanent housebound finding, however. A review of the pertinent treatment records shows the Veteran was able to leave his home on many occasions to attend appointments. Underscoring this point, in a December 2008 letter, the Veteran also indicated he was nearing the point of being housebound. There is accordingly no basis for an earlier effective date for SMC on account of permanent housebound status under 38 U.S.C. § 1114(s)(2). Based on the above, the Board finds the Veteran is entitled to TDIU for the entire period at issue (including after December 10, 2015) and SMC at the 38 U.S.C. § 1114(s)(1) effective December 30, 2003 (but no earlier). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy, 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.