Citation Nr: 21040367 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 08-26 060 DATE: July 3, 2021 ORDER Entitlement to a disability rating of 40 percent, but no higher, for degenerative disc disease, L5-S1, with degenerative changes (lumbar disc disease) prior to May 6, 2011 is granted. Entitlement to a disability rating in excess of 40 percent for lumbar disc disease from May 6, 2011 is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted, subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. Prior to May 6, 2011, the Veteran's lumbar disc disease manifested with limitation of flexion of the thoracolumbar spine greater to 20 degrees or less; unfavorable ankylosis of the entire lumbar spine or entire spine was not approximated. 2. From May 6, 2011, the Veteran's lumbar disc disease did not manifest with unfavorable ankylosis of the entire thoracolumbar spine or entire spine; or prescribed bed rest totaling six weeks or more in a 12-month period. 3. The Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to May 6, 2011, the criteria for a disability rating of 40 percent, but no higher, for lumbar disc disease were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. From May 6, 2011, the criteria for a disability rating in excess of 40 percent for lumbar disc disease were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. 3. The criteria for entitlement to a TDIU were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1959 to January 1964. The Veteran and his spouse testified at a May 2011 hearing before the undersigned, which was held at the St. Petersburg Regional Office (RO). A transcript of the hearing is associated with the claims file. The Veteran passed away in September 2011. The appellant is the Veteran's properly substituted surviving spouse. The appeal was previously remanded by the Board of Veterans' Appeals (Board) in August 2011. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In March 2021, during the pendency of this appeal, the RO increased the disability rating for the Veteran's back disability to 40 percent, effective May 6, 2011. As the maximum disability rating possible for the Veteran's back disability was not assigned for the entire period on appeal, the Board will consider whether higher ratings are warranted throughout the appeal period. See AB v. Brown, 6 Vet. App. 35 (1993). In August 2011, the Board found that the Veteran had raised the issue of entitlement to a TDIU due to his reports related to his service-connected back disability. As the Board finds that a derivative claim of entitlement to a TDIU has been raised, the Board finds that this claim is part and parcel of his claims for higher ratings and, therefore, also at issue in this appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings, Generally Disability evaluations (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 daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating in excess of 20 percent prior to May 6, 2011; and in excess of 40 percent, thereafter, for the Veteran's back disability In June 2006, the Veteran filed for an increased rating for his service-connected back disability. The Veteran's back disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, for a lumbosacral strain. Diagnostic Code 5237 provides a lumbar spine disability is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 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. 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: difficulty walking because of a limited line of vision; 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 neurologic 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. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. Id. at Note 1. 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 (1995); 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In March 2006, the Veteran was seen by R.H., M.D. for back pain that was reported to be becoming progressively worse. He reported it is especially worse with standing or walking. He reported numbness, tingling, and paresthesias in the toes when the pain is at its worst. The Veteran was afforded a VA examination, in connection with his claim, in September 2006. The Veteran reported increasing pain in his lower back and that he had been teaching computer science classes but had to quit in March 2006 due to radiating back pain. The Veteran reported some relief due to steroid injections he had been receiving; however, his pain worsened during the drive to the examination. The Veteran denied prescribed bed rest for his lower back in the prior 12 months. The examiner noted weakness of the Veteran's lower extremities when trying to walk on his toes. On examination, he had range of motion of 0 to 65 degrees of forward flexion with objective evidence of pain at 55 degree. The examiner stated that the Veteran did not report flare-ups of his back pain. The examiner stated that functional impairment caused by his back condition included: decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength, and pain. In May 2011, the Veteran and his spouse provided testimony about the Veteran's lumbar spine disability. He stated that in March and April 2011 he was bedridden due to the severity of his pain. His wife stated that she would not leave the house for more than two hours at a time in order to help him with daily activities. She also indicated that he'd been primarily in bed or in the recliner since October 2010. In April 2012, the appellant submitted treatment records for the Veteran's back from physical therapy treatment in May 2011. The clinician noted that the Veteran had forward flexion to 25 degrees. The Board will resolve reasonable doubt in favor of the Veteran and finds that a disability rating of 40 percent, but no higher, is warranted prior to May 6, 2011. The Board finds the evidence provided by the Veteran's May 2011 physical therapist to be more probative regarding the Veteran's functional limitations throughout the period on appeal. While the VA examination in September 2006 revealed forward flexion to 55 degrees, the examiner did not provide an opinion regarding additional limitation due to flare-ups. The examiner stated that the Veteran did not have flare-ups of his back condition; however, the examiner did not reconcile this statement with the evidence of record, including his March 2006 treatment that documented the Veteran's reports that his condition is worse after periods of standing and walking. April 2007 VA treatment records also indicate occasional flare-ups of the Veteran's back pain. As the 2006 examiner's findings do not contemplate the severity and frequency of the Veteran's limitations during a flare-up, the Board finds the limitations reported by May 2011 physical therapist to be probative regarding the Veteran's limitations prior to May 2011. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Based on the above, the Board finds that the Veteran's lumbar spine disability symptoms did not just suddenly get worse on the date of the May 6, 2011 private examination and the evidence is approximately evenly balanced as to whether he more nearly approximated the criteria for a 40 percent rating prior to that date. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 40 percent rating, but no higher, is warranted prior to May 6, 2011. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. As 40 percent is the highest schedular rating for limitation of motion, the Board does not have to consider whether the Veteran is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In Johnston, the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Id. at 84-85 (although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). For the same reasons, the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016) is not for application. The Board also finds that the evidence does not support a rating in excess of 40 percent throughout the period on appeal. All of the evidence of record, including the Veteran's testimony during his Board hearing in 2011, as well as, the 2011 physical therapy evaluation indicate that the Veteran had some residual ability to move his spine and that it was not fixed in an unfavorable position. The Veteran's private treatment records associated with the claims file also do not report unfavorable ankylosis of the lumbar spine during the appeal period. As the Veteran's spine (at minimum) was not permanently fixed in a non-favorable position, his condition did not more nearly approximate unfavorable ankylosis of the lumbar spine and a higher 50 percent rating was not warranted under the General Formula throughout the appeal period. See 38 C.F.R. § 4.3; 4.71a, Diagnostic Code 5237. Additionally, the evidence does not support that the Veteran required bed rest for at least 6 weeks during a 12-month period either before or after May 6, 2011. The Board finds probative that the examiner denied any period of prescribed bed rest during the Veteran's 2006 VA examination. Further, none of the Veteran's treatment records associated with the claims file report that bed rest was prescribed by any physician (or treatment provider) during the period. While the Veteran and his wife reported during his 2011 Board hearing that the Veteran had been bedridden since October 2010, particularly in March and April 2011, the evidence does not indicate that bed rest was prescribed by a physician for his lumbar spine disability during this period. As the evidence of record does not demonstrate a prescription for bedrest due to the Veteran's lumbar spine disability on or after October 2010, the Board finds that a higher rating based upon the IVDS Formula is not warranted throughout the appeal period. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note 1. In conclusion, the Board finds that a rating in excess of 40 percent based upon the Veteran's lumbar spine disability is not warranted throughout the appeal period. See 38 C.F.R. § 4.3; 4.71a, DC 5237. Entitlement to a TDIU The Veteran sought a TDIU, claiming that he had been unable to work as a result of his service-connected disabilities. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 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(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 38 C.F.R. § §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Prior to the Veteran's death, he was service connected for degenerative disc disease, rated as 40 percent disabling; posttraumatic stress disorder, rated as 30 percent disabling; diabetes mellitus, rated 10 percent disabling; peripheral neuropathy, right lower extremity, rated 10 percent disabling; and peripheral neuropathy, left lower extremity, rated 10 percent disabling. The Veteran had a combined disability rating of at least 70 percent and at least one disability rated 40 percent disabling. Therefore, he met the percentage requirements set forth in section 4.16(a) for consideration of TDIU. Thus, the next question for consideration is whether his service-connected disabilities prevented him from securing and following substantially gainful employment. The "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). For the following reasons, a TDIU is warranted. The evidence of record indicates that the Veteran stopped working as a substitute teacher in 2010. See September 2010 Psychiatric Examination. In his 2011 Board hearing, the Veteran reported that he could not handle the walking and stairs required to do this job any longer. See Hearing Testimony, p. 9. Regarding education, the evidence indicates that the Veteran had a bachelor's degree in industrial engineering. While the evidence indicates that the Veteran was granted Social Security Disability due to his nonservice-connected cancer, the Board finds that the Veteran was unable to engage in substantial gainful activity due to his service-connected disabilities prior to his death. The Board finds probative the Veteran's reports from his April 2011 hearing that he had primarily laid in bed or in his recliner for the past two months due to symptoms of low back pain and that he was afraid of going into public spaces for fear of being bumped by someone, which would result in significant lower back pain. The Board also finds probative the reports of the Veteran's spouse that she wouldn't leave her home for more than two hours at a time in order to be able to help the Veteran attend to activities of daily living. She reported helping him dress and that the Veteran performed no chores at home. The Board also finds probative the findings of the September 2010 VA psychiatric examiner that the Veteran's PTSD resulted in symptoms such as irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response which would limit his ability to work with others. It was noted that the Veteran had recently assaulted a manager at a tire store in response to symptoms of his PTSD. Taken together, the Board finds that the functional limitations caused by the Veteran's lumbar spine disability, his peripheral neuropathy, and his PTSD rendered him unable to secure or follow substantially gainful employment in light of his education and employment history. Therefore, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16 (a). The Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an notice of disagreement is then of record as to the downstream issue of an effective date for the assignment of that rating.") Duties to Notify and Assist The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As noted above, the Board finds that, at the very least, substantial compliance with the August 2011 Board remand directives was obtained. Stegall, 11 Vet. App. 268 (1998); Dyment, 13 Vet. App. 141, 146-47 (1999). To the extent that the Board requested that any identified outstanding treatment records be obtained on remand, the Board notes that requests for updated medical authorizations were not responded to by the appellant in January 2021. As such, to the extent that VA has been made aware of any outstanding records and has been given proper authorizations to obtain those records, the Board finds that the duty to assist has been met. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Stegall. Additionally, to the extent that the Board requested that the Veteran undergo an examination to determine the current severity of his service-connected lumbar spine disability, the Veteran passed away before such an examination could be conducted. The Board also finds that the AOJ substantially complied with the remand directives. (Continued on the next page) Finally, the appellant has not raised any 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.") Based upon the foregoing, the duties to notify and assist the appellant have been met, and no further action is necessary to assist the appellant in substantiating these claims. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.