Citation Nr: 21030678 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-21 218 DATE: May 19, 2021 ORDER Entitlement to a rating in excess of 40 percent for a lumbar spine disability from December 9, 2014, to include on an extraschedular basis, is denied. REMANDED Entitlement to special monthly compensation (SMC) based on aid and attendance is remanded. FINDING OF FACT During the rating period on appeal, the Veteran has not been shown to have ankylosis of the lumbar spine, or to experience incapacitating episodes with a total duration of 6 weeks or more in a 12-month period, or has presented such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for a lumbar spine disability from December 9, 2014, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237-5242, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 2003 to June 2006. These matters come before the Board of Veterans' Appeals (Board) from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The RO, in relevant part, continued a 20 percent non-initial rating assigned to the Veteran's service-connected lumbar spine disability. In his January 2016 substantive appeal (Form 9), the Veteran requested a Board hearing. He later withdrew that request in correspondence dated in February 2017. The issue of an increased rating for the Veteran's lumbar spine disability was previously before the Board in October 2018. The Board granted a 40 percent rating from August 10, 2017 but denied a rating in excess of 20 percent for the period prior to that date. The Veteran subsequently appealed his claim to the United States Court of Appeals for Veterans Claims (Court), which granted a joint motion for partial remand (JMPR) in May 2019. In the JMPR, the parties stipulated that the October 2018 Board decision was rendered in error. First, the Board incorrectly relied on an April 2015 VA examination that did not provide an estimated limitation of function during flare-ups of the Veteran's lumbar spine disability. Second, it did not consider the range of motion (ROM) test results and functional loss due to pain contained in an August 2017 VA examination. Finally, the Board did not consider whether the Veteran was entitled to special monthly compensation (SMC), when the issue was reasonably raised by statements from the Veteran's wife that he requires assistance in clothing himself, bathing, and standing. The increased rating of 40 percent from August 10, 2017 was a favorable finding undisturbed by the JMPR, but the Court's order vacated the Board's findings that a rating in excess of 20 percent was not warranted prior to that date and a rating in excess of 40 percent was not warranted from that date. These matters were again before the Board in October 2019 and were remanded for further evidentiary development. The Board also referred the issue to the Executive Director, Compensation Service for consideration of an extraschedular rating due to the Veteran's reports of increased instances of severe pain; objective evidence of a decreased ROM limiting his ability to function; and his service-connected urinary incontinence, stool incontinence, and bilateral lower extremity radiculopathy, each of which are secondary to his lumbar spine disability. In a January 2021 rating decision, the RO granted a 40 percent rating, but no higher, from December 9, 2014, the date the Veteran filed a claim for an increased rating. Thus, the remaining issues on appeal are whether he is entitled to a non-initial rating in excess of 40 percent for a lumbar spine disability from December 9, 2014, to include on an extraschedular basis, and whether SMC based on aid and attendance is warranted. Entitlement to a rating in excess of 40 percent for a lumbar spine disability from December 9, 2014, to include on an extraschedular basis Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). However, where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Throughout the rating period on appeal, or from December 9, 2014, the Veteran's service-connected lumbar spine disability has been rated under Diagnostic Code 5237-5242. Whether evaluated under the lumbosacral strain provisions of Diagnostic Code 5237 or the degenerative arthritis provision of Diagnostic Code 5242, the criteria are the same. 38 C.F.R. § 4.71a, Diagnostic Code 5237-5242. Under the rating criteria, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. The rating schedule also includes criteria for evaluating intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under Diagnostic Code 5243, a 40 percent rating is warranted if a veteran experiences incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a rating of 60 percent is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. For purposes of evaluation 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. There was no change in the rating criteria for Diagnostic Code 5237-5242. Diagnostic Code 5243 changed only to the extent that it is assigned only when there is a disc herniation with compression and/or irritation of the adjacent nerve root. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the veteran or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A VA examination was conducted in April 2015, in which the examiner indicated that the Veteran has degenerative arthritis of the thoracolumbar spine and IVDS. His initial ROM testing produced the following results: forward flexion from zero to 60 degrees, extension from zero to 15 degrees, left and right lateral flexion from zero to 30 degrees, and left and right lateral rotation from zero to 30 degrees. No ankylosis was found. The examiner indicated that pain significantly limited the Veteran's functional ability with repeated use over a period of time but did not describe the loss in terms of ROM or provide reasoning why he could not quantify the loss in terms of ROM. The Veteran also reported experiencing flare ups with pain causing additional functional loss, but the examination was not conducted during a flare-up and the examiner did not provide estimated ROM measurements during flare-ups. The examiner indicated that his IVDS caused episodes of bed rest with a total duration of at least one week but less than two weeks during the past 12 months. An addendum opinion was issued in December 2020 to provide retrospective ROM estimates for functional loss with repeated use over time and during flare-ups at the April 2015 examination. The examiner's estimated ROM measurements during flare ups and with repeated use over time are the same, and they are as follows: forward flexion from zero to 30 degrees, extension from zero to 5 degrees, left and right lateral flexion from zero to 15 degrees, and left and right lateral rotation from zero to 15 degrees. Another VA examination was conducted in August 2017. The examiner indicated diagnoses of degenerative arthritis of the spine and IVDS, as well as herniated discs at L3-L4 and L5-S1. During the examination, the Veteran stated that he experiences flare-ups about every two months, during which his back "goes out" and will put him "out of commission for 2 weeks." He also stated that during flare-ups he is unable to get out of bed or up off the floor on his own. His initial ROM measurements were as follows: forward flexion from zero to 20 degrees, extension from zero to 15 degrees, right lateral flexion from zero to 20 degrees, left lateral flexion from zero to 10 degrees, right lateral rotation from zero to 15 degrees, and left lateral rotation from zero to 20 degrees. Further functional loss caused by pain, fatigue, and lack of endurance was observed after three repetitions, with forward flexion, extension, right and left lateral flexion, and right lateral rotation from zero to 10 degrees, and left lateral flexion from zero to 15 degrees. The examiner estimated all ROMs to be from zero to 10 degrees after repeated use over time, limited by pain, fatigue, and lack of endurance. During flare-ups, each ROM was estimated to be only from zero to 5 degrees. The examiner noted that the Veteran exhibited objective evidence of pain with passive ROM, weight-bearing, and non-weight-bearing, but no ankylosis was found. The examiner indicated that the Veteran's IVDS causes episodes of bed rest having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. After reviewing all of the relevant evidence of record, the Board finds that a rating in excess of 40 percent for the period from December 9, 2014 is not warranted for the Veteran's lumbar spine disability. During the rating period on appeal, he has not had ankylosis or the functional equivalent of ankylosis. The Board notes that the Veteran's back disability has worsened in terms of ROM, but 40 percent is the maximum schedular rating for a spine disability, other than IVDS, absent evidence of ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5237-5242. The evidence is also insufficient to show that his IVDS has caused incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In reaching this conclusion, the Board has considered all relevant evidence favorable to the Veteran, including the letters submitted by two non-VA doctors, O.L., M.D., F.A.C.S., and M.F., M.D.; the Veteran's wife, A.C.; and the Veteran's coworkers, A.C. and E.D; in addition to the Veteran's own statements. In a July 2015 letter, Dr. L. stated that the Veteran's back pain is frequently so bad that he must be confined to bed for seven to ten days. Dr. L. submitted another letter in July 2016, again stating that the Veteran's symptoms have worsened and opining that a higher rating is warranted. Neither letter indicates that he had ankylosis during the rating period on appeal or that his IVDS caused incapacitating episodes with a total duration of at least six weeks during the past twelve months. Although the July 2015 letter states that his back pain frequently confines him to bed for days at a time, it does not indicate that he was prescribed bed rest for a total of at least six weeks over the past twelve months. There is also no indication in the Veteran's VA and private treatment records of prescribed bed rest totaling at least six weeks over a 12-month period. Dr. F. submitted a letter in February 2016 stating that the Veteran experienced back pain and a lack of ROM while visiting Florida in November and December 2015. Dr. F. indicated that he prescribed the Veteran ten days of bed rest. This amount of prescribed bed rest would not enable a higher rating here. In February 2020, Dr. F. submitted another letter clarifying the 2016 letter. He indicated that his statement that the Veteran had a lack of ROM meant that there was zero movement of the spine, or unfavorable ankylosis of the entire thoracolumbar spine. However, Dr. F.'s opinion is unsupported by the medical evidence of record. Neither the Veteran nor Dr. F. has submitted treatment records indicating that ROM testing was performed, and there are no other indications of ankylosis in the claims file. The April 2015 and August 2017 VA examinations, as well as the December 2020 addendum opinion, state that even during flare-ups and repeated use over time, the Veteran was able to move his thoracolumbar spine at least 5 degrees for each ROM tested. Additionally, the December 2020 medical opinion regarding entitlement to SMC states that the Veteran's treatment records show that he is able to dress himself and get himself in and out of a car, which suggests a range of motion of the lumbar spine that is inconsistent with ankylosis of the lumbar spine or its functional equivalent. The Veteran also submitted statements from his wife and two coworkers. Although these statements describe their observations of the Veteran's back disability symptoms, they are insufficient to warrant a higher rating because they do not indicate that he had ankylosis or experienced incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. The April 2015 statement from the Veteran's coworker, A.C., relates that he had already used five of his six weeks of time off due to symptoms of his back disability. However, the VA and private treatment records contained in the claims file do not reflect physician-prescribed bed rest totaling at least six weeks during a 12-month period during the rating period on appeal. Thus, a rating in excess of 40 percent is not warranted from December 9, 2014 for the Veteran's thoracolumbar spine disability under the applicable schedular criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5237-5242, Diagnostic Code 5423. To accord justice in the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service is authorized to approve an extraschedular evaluation. 38 C.F.R. § 3.321 (b)(1). In other words, by regulation, an extraschedular rating may be considered when a case presents "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321 (b)(1). Per § 3.321(b)(1), before a finding may be made that entitlement to submission of the Veteran's claim to the Under Secretary for Benefits or the Director, Compensation Service for extraschedular consideration is warranted, there must be a showing of marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Based on the Veteran's reports of increased pain, evidence of a decreased range of motion that limits his ability to function, and his service-connected disabilities secondary to his lumbar spine disability, his claim was referred to the Executive Director, Compensation Service for extraschedular consideration. She issued an advisory opinion in February 2021 stating that an extraschedular rating is not warranted because the evidence does not show an impairment in earning capacity due to marked interference with employment or frequent periods of hospitalization. Although the statements from the Veteran, his wife, and his co-workers describe challenges in the workplace and periods of missed work, they are insufficient to show that application of the regular schedular criteria would be inappropriate. The August 2017 examiner opined that the Veteran's spine disability does impact his ability to work, but the impacts she describes do not constitute an impairment in earning capacity. She stated that his disability requires the use of an ergonomic chair and workstation with padding, requires him to frequently get up and rearrange his back, and presents issues when driving to work. In light of the overall evidence of record and the opinion of the Executive Director, Compensation Service, the Board finds that the schedular criteria accurately reflects the severity of his service-connected lumbar spine disability and that the application of the regular schedular standards has not been rendered impractical due to marked interference with employment or frequent periods of hospitalization. In summary, for the reasons and bases expressed above, the Board has concluded that a rating in excess of 40 percent, including on an extraschedular basis, is not warranted from December 9, 2014. REASONS FOR REMAND Entitlement to special monthly compensation (SMC) based on aid and attendance is remanded. In the May 2019 JMPR, the Veteran and VA stipulated that the October 2018 Board decision erred by not considering whether he is entitled to special monthly compensation (SMC). The statement submitted by the Veteran's wife that he needs assistance with clothing, bathing, and standing reasonably raised the issue of entitlement to SMC based on aid and attendance. The Board's October 2019 remand instructions directed the RO to schedule a VA examination and obtain a medical opinion as to whether the Veteran is entitled to SMC based on the need for aid and attendance. A medical opinion was rendered in December 2020, wherein the examiner opined that the Veteran's disabilities do not require regular aid and assistance because the evidence does not show that he is unable to complete activities of daily living (ADLs) independently. The Board finds that the December 2020 medical opinion is inadequate for the purposes of adjudicating this issue. The remand instructed the RO to schedule the Veteran for an examination to determine his eligibility for SMC, but the medical opinion indicates that no in-person examination was conducted. However, the claims file contains correspondence from the Veteran showing that he was contacted to schedule an examination but did not feel that another examination was necessary. Therefore, although the remand instructions indicate that a VA examination was necessary, noncompliance with that requirement is due to the Veteran's actions and does not constitute error on behalf of VA. However, the Board finds that the medical opinion is inadequate for the purpose of adjudicating this claim because there is no discussion of the statements submitted by the Veteran's wife and coworkers. Specifically, his wife stated that he requires assistance with clothing, bathing, and standing. Additionally, both of the Veteran's coworkers stated that his incontinence has caused him to soil himself while at work, suggesting an impaired ability to keep himself ordinarily clean and presentable and/or an impaired ability to attend to the wants of nature. Thus, a remand is necessary for the examiner to discuss whether those statements are indicative of a need for regular aid and attendance. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records, from June 2020 to the present. 2. After completion of #1, obtain an addendum opinion from the December 2020 examiner or, if she is unavailable then another similarly qualified examiner may respond instead. The claims folder, including a copy of this remand, must be made available to the examiner for review, and such review should be noted in the examination report. A VA examination is only necessary if deemed so by the examiner. The examiner should provide an opinion as to whether the Veteran is entitled to special monthly compensation (SMC) based on the need for aid and attendance. The opinion must include a discussion of the statements submitted by the Veteran's spouse, A.C., and coworkers, A.C. and E.D.. The examiner is requested to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran is so helpless or so nearly helpless as a result of his service-connected disabilities alone as to render him bedridden or require regular aid and attendance of another person at any time during the appeal period. To the extent possible, the examiner is asked to distinguish the symptoms and effects caused by the Veteran's service-connected disabilities from those caused by non-service-connected disabilities. The examiner should specifically comment on whether the Veteran's service-connected disabilities, standing alone and without consideration of any non-service-connected disabilities, render him unable to dress and/or undress himself, or to keep himself ordinarily clean and presentable; or require the frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; or render him unable to feed himself because of the loss of coordination of the upper extremities or extreme weakness; or render him unable to attend to the wants of nature; or cause incapacity, physical or mental, that requires care or assistance on a regular basis to protect him from the dangers incident to his daily environment; or render him bedridden. The examiner must provide a comprehensive rationale for her proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. Additionally, the examiner is advised that the Veteran's spouse and coworkers are competent to report their firsthand accounts of issues that they have witnessed. (Continued on the next page) If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.