Citation Nr: 21032076 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 07-05 678 DATE: May 25, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities effective May 6, 2007 is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for osteoporosis lumbar spine disability is remanded. FINDING OF FACT Since May 6, 2007, the Veteran's service-connected disabilities have precluded him from obtaining and maintaining substantial and gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW Effective May 6, 2007, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.326, 3.340, 3.655, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1978 to June 1999. The Board notes, these matters have previously been remanded in December 2014, April 2018, and July 2020. TDIU from May 6, 2007 The Veteran asserts that his service-connected disabilities have rendered him unemployable. See March 2009 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran lists May 5, 2007 as the last time he worked full-time. Id. The Board notes that the Veteran is in receipt of a combined rating of 100 percent since May 27, 2008 and receives special monthly compensation under 38 U.S.C. §1114(s) since May 27, 2008. Therefore, there remains no time during the period from May 27, 2008 where the schedular rating is "less than total" and the Veteran is not already in receipt of SMC under 38 U.S.C. § 1114(s). As such, the issue of entitlement to a TDIU, from May 27, 2008, is moot and need not be addressed. The issue on appeal has therefore been narrowed to entitlement to a TDIU, prior to May 27, 2008. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system or of a common etiology or single accident are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Here, as the Veteran's service-connected disability satisfy the criteria set forth in 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran lists May 5, 2007 as the last time he worked full-time. See March 2009 VA Form 21-8940. The Veteran was previously employed as a secretary and completed four years of college. The Board notes the combined severity of the Veteran's service-connected disabilities would severely impact the Veteran's ability to perform work described on the Veteran's Application for Increased Compensation Based on Unemployability. Id. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for osteoporosis lumbar spine is remanded. The Veteran's lumbar spine disability is currently rated at 10 percent based on limited range of motion and pain. See May 2006 Rating Decision. The Veteran's back disability is rated as 10 percent disabling from, under former Diagnostic Code 5013. Changes to Regulations during the Pendency of the Appeal The regulations pertaining to the spine were revised on several occasions subsequent to the effective date of the grant of service connection. Therefore, the Veteran is entitled to consideration of both the prior "old" criteria and the revised rating criteria in determining the rating to be assigned. On remand, the RO should consider the prior and the revised regulations and apply the one most favorable to the Veteran within the confines of appropriate effective dates, for the entire period on appeal, beginning February 2002 to current. VAOPGCPREC 7-2003 (November 19, 2003). Prior to September 23, 2002 regulations, a 10 percent rating is warranted for lumbosacral strain with characteristic pain on motion. A 20 percent rating is appropriate for lumbosacral strain with muscle spasm on extreme forward bending with unilateral loss of lateral spine motion in a standing position. A 40 percent rating is appropriate for severe lumbosacral strain, with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295. Alternatively, a 10 percent rating is warranted for slight limitation of lumbar spine motion, a 20 percent evaluation is warranted for moderate limitation of lumbar spine motion, and a 40 percent rating is appropriate for severe limitation of lumbar spine motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292. In the May 2006 rating decision, the RO granted a 10 percent disability rating for the Veteran's service-connected back disability considering the relevant criteria and determining the new regulation provided a more favorable evaluation but not a 20 percent disability rating. See May 2006 Rating Decision. Effective September 23, 2002, VA revised the criteria for evaluating spinal disorders under Diagnostic Code 5293, intervertebral disc syndrome. 67 Fed. Reg. 54, 345-54, 349 (2002). VA again revised the criteria for evaluating spine disorders, effective September 26, 2003. See 68 Fed. Reg. 51,454-51,458 (2003). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Former Diagnostic Code 5295 provided that 20 percent evaluation required muscle spasm on extreme forward bending and loss of lateral spine motion; a maximum rating of 40 percent was warranted when the disability was productive of severe disability manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space or some of the above with abnormal mobility on forced motion. Under former Diagnostic Code 5293, a 10 percent rating is warranted for mild intervertebral disc syndrome. A 20 percent evaluation is required moderate intervertebral disc syndrome, with recurring attacks. A 40 percent evaluation contemplated severe intervertebral disc syndrome, characterized by recurrent attacks with intermittent relief. Finally, a maximum evaluation of 60 percent evaluation required pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. Alternatively, a 10 percent rating is warranted for slight limitation of lumbar spine motion, a 20 percent evaluation is warranted for moderate limitation of lumbar spine motion, and a 40 percent rating is appropriate for severe limitation of lumbar spine motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292. Under an amendment to the rating schedule effective on September 23, 2002, the rating formula for evaluating intervertebral disc syndrome was changed. Under Diagnostic Code 5293, as amended, intervertebral disc syndrome is evaluated either on the total duration of incapacitating episodes over the past twelve months, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluation of all other disabilities, whichever method results in the higher evaluation. The revised criteria provide that a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year. A 40 percent rating requires that the disability be productive of incapacitating episodes having a total duration of at least four but less than six weeks per year. Finally, a maximum 60 percent rating is available when the condition is manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. For purposes of evaluations under revised Diagnostic Code 5293 (now 5243, see below), an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Effective September 26, 2003, VA again revised the criteria for rating spinal disorders. These revisions consist of a new rating formula encompassing such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. These changes are listed under Diagnostic Codes 5235-5243, with Diagnostic Code 5243 now embodying the recently revised provisions of the former Diagnostic Code 5293 (for intervertebral disc syndrome). Effective September 26, 2003, the regulations for rating disabilities of the spine were revised, and the diagnostic codes were reclassified. 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 contour. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5242. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2). During the pendency of the appeal, the criteria for rating the musculoskeletal system changed, with the new regulation becoming effective February 7, 2021. Effective February 7, 2021, the new regulation changed Diagnostic Code 5242 to include degenerative disc disease other than intervertebral disc syndrome. The new regulation also added Diagnostic Code 5244 for paraplegia and quadriplegia. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Veteran's claim must be decided under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Basis for Remand As noted, service connection has been established from February 13, 2002 for the Veteran's back disability. The Board finds generally contradictory findings from the Veteran's previous VA examinations. The VA examinations were not adequate in light of the Court's determination in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressing the adequacy of the VA examiner's opinion concerning additional functional loss during flare-ups of musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board found these matters must be remanded for new VA examinations and opinions addressing the issue of limitation of motion during flare-ups of the elbow and back. As the previous examinations did not provide range of motions for active and passive motion, a remand was also required to ensure compliance with the holdings of Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, at the September 2020 VA examination, the Veteran reported flare-ups of the back that occur 3-4 times a week. He reported back flare-ups that vary from mild and at other times are severe. His back flare-ups last 8 to 24 hours and sometimes require medication. However, the range of motion during flare-ups that the VA examiner provided contradict the Veteran's description of his flare-ups. None of the Veteran's previous examinations adequately explain his flare-ups. See November 2004 VA Examination; Additionally, the Veteran reports decreased sensation on his right side; however, the VA examiners stated that his right lower leg sensation was not related or due to the Veteran's multilevel degenerative disc disease and arthritis of the lumbar spine, status post compression fracture of the lumbar vertebra at L1 and resolved status post osteopenia of the lumbar spine. However, the Veteran is service connected for peripheral neuropathy, femoral nerve, right lower extremity associated with osteoporosis, lumbar spine and peripheral neuropathy, femoral nerve, left lower extremity associated with osteoporosis, lumbar spine. The Board finds that clarity is needed. Additionally, the Board finds that a retrospective opinion with regard to flare-ups throughout the appeal is required. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his service-connected back impairment. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected back disability. Additionally, the examiner should provide a retrospective opinion as to all measurements required to evaluate the degree of disability for the back disability for the periods on appeal, as well as a retrospective opinion addressing the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups. The VA examiner should describe the additional loss in degrees, if possible. The examiner must review the entire record and consider all pertinent medical and lay evidence. All pertinent symptomatology and findings must be reported in detail. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The examiner should identify all low back pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's back disability and radiculopathy alone. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should address the reports of neurologic abnormalities associated with his back disability. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.M. Jordan, 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.