Citation Nr: 21041475 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 13-36 090 DATE: July 9, 2021 ORDER A rating for lower back disability in excess of 20 percent from November 17, 2010 to May 2, 2019, and in excess of 40 percent thereafter, is denied. An effective date for a total disability due to individual unemployability (TDIU) rating from November 30, 2013, but not earlier, is granted, subject to the laws and regulations governing the awards of monetary benefits. FINDINGS OF FACT 1. The evidence of record fails to show that the Veteran's degenerative disk disease (DDD) with intervertebral disc syndrome (IVDS) of the lumbar spine functionally limited his forward flexion to 30 degrees or less prior to May 3, 2019, or has at any time resulted in ankylosis of the entire thoracolumbar spine or otherwise resulted in any incapacitating episodes as defined for VA rating purposes at any time. 2. The evidence of record shows that the Veteran's claim for a TDIU rating was constructively received on December 20, 2013, while he had met the criteria for the award of a TDIU rating in November 2013. CONCLUSIONS OF LAW 1. The criteria for a back disability rating in excess of 20 percent prior to May 3, 2019, and in excess of 40 percent thereafter, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5242. 2. The criteria for effectuating the award of a TIDU rating as of November 2013, but not earlier, have been met. 38 U.S.C. §§ 1155, 5110, 5111; 38 C.F.R. §§ 3.31, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from February to June 1981 and from January 1982 to May 2001. In a June 2011 rating decision, the Regional Office (RO) granted a noninitial rating increase for his back disability from 10 to 20 percent effectuated from the date of claim received on November 17, 2010. The Veteran appealed the assigned rating. In August 2017, the Veteran testified at a Board's hearing, a transcript of which is of record. In February 2018, upon considering the Veteran's testimony that the severity levels of his back disability had worsened since the last VA examination, the Board remanded the claim for an updated evaluation. In a May 2019 rating decision, the RO granted an increase from 20 to 40 percent, effective June 21, 2018. In September 2020, the RO notified the Veteran of clear and unmistakable error in its May 2019 rating action and proposed the effective date of awarding 40 percent to be changed from June 21, 2018 to May 3, 2019, which accordingly had been changed in a November 2020 rating decision. In May 2020, the Board remanded the claim to obtain the Veteran's medical records from Social Security Administration (SSA). In December 2020, upon obtaining those records, the RO issued a supplemental statement of the case (SSOC) and returned the appeal to the Board. Of note, in a March 2020 rating decision, the RO decreased the rating for back disability from 40 to 20 percent, effective January 13, 2020. However, it appears that the March 2020 decision has been superseded by the December 2020 rating action, staging the ratings at 20 percent from November 17, 2010 to May 2, 2019, and at 40 percent thereafter. As such, the issue before the Board is whether the Veteran is entitled to a rating for his back disability in excess of 20 percent prior to May 3, 2019, and in excess of 40 percent thereafter. All spine disabilities are rated under the schedule for evaluating musculoskeletal disabilities and may be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation, provided all legal criteria for a rating under the particular formula is met. See 38 C.F.R. § 4.71a. Of note, while the Veteran's appeal has been pending, the schedule for rating musculoskeletal disabilities was amended, effective February 7, 2021. To the extent pertinent to the circumstances of this case, the revised regulations now specifically define IVDS, an existence of which is not in dispute here. However, any rating, to include at 40 percent or higher under the IDVS Formula is assigned only for IVDS with incapacitating episodes. See 38 C.F.R. § 4.71a, DC 5243. For the 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. 38 C.F.R. § 4.71a, DC 5243, Note 1. In his December 2019 correspondence, the Veteran provided his diary log of what he believes were "incapacitating episodes" requiring bed rest with a total duration of over 45 days during the preceding 12 months, while further pointing out that the rating schedule requires six weeks, or 42 days, of such episodes for a rating at 60 percent. The Board does not doubt the credibility of the Veteran's statements, the sincerity of his belief that he is entitled to a rating at 60 percent under the IVDS Formula, or the severity of his back disability. In fact, the record is replete with the objective evidence of chronic back pain and continuous treatment by a physician, prescriptions of pain medications, and regular use of a cane and intermittent use of a back brace. The record, however, is devoid of any evidence showing that the bed rest scrupulously documented by the Veteran was prescribed by a physician. This is the fundamental legal criterion for ratings under the IVDS Formula, which thus is not warranted here. As such, rating the Veteran's back disability based on the ranges of motions under the General Formula is the most appropriate in this case. Under the General Formula, whether with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent is assigned 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 is assigned for favorable ankylosis of the entire thoracolumbar spine, or for forward flexion of the thoracolumbar spine of no greater than 30 degrees. A 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A total rating is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis of the lumbar spine essentially is a complete loss of motion in the lower spine fixated in other than a neutral position (zero degrees which is always favorable). See 38 C.F.R. § 4.71a, DC 5242, Note 5. As such, a rating any higher than 20 percent under the General Formula may be assigned only for either favorable ankylosis or forward flexion limitation to 30 degrees or less, for which a 40 percent rating is assigned. A rating in excess of 40 percent under the General Formula may be assigned only when the evidence of records shows unfavorable ankylosis. While application of the General Formula to the circumstances of a particular case may appear mechanical, the Board ensures that all its decisions are equitable and just. 38 C.F.R. § 4.6. To that effect, when the ratings of musculoskeletal disabilities are based on the ROM limitations, the Board considers any additional functional loss due to such factors as weakened movement, excess fatigability, incoordination, and pain on movement, which could occur during flare-ups or after repeated use and thus would not be reflected on ROM testing. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1 (2011); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Of note, however, it is clear that these regulatory provisions are prefatory and intended for understanding the full picture of the Veteran's disability, after which a rating is determined based on the § 4.71a criteria. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). For example, 38 C.F.R. § 4.45 specifically provides for consideration of pain on movement, but ultimately directs evaluations of lumbar spine manifestations based on disturbances of lumbar spine function under subpart 4.71a. As such, the mere presence of the above factors without an ascertainable functional loss in the ROM does not warrant a higher rating. Id. Rather, the factors are expressed, insofar as practicable, in terms equivalent to any additional degree of loss in the ROM and then factored into the evaluations. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Particularly in rating back disabilities, this may include a consideration of whether the overall ROM loss is functionally analogous or equivalent to ankylosis. Of note, however, given very specific regulatory definition of ankylosis, in essence, with no residual joint movement, so long as there is a residual motion function of at least 5 degrees in at least one plane, to include forward flexion, backward extension, lateral flexions or extensions, it cannot be said that the back is ankylosed. Further, under no circumstances the same or overlapping symptom manifestations may be compensated twice under multiple diagnostic codes, a practice known as "pyramiding." 38 C.F.R. § 4.14. Under this rule, for example, the symptoms of pain due to spine disability clearly contemplated by the schedule may not be rated separately. Of note here, the rating schedule read as a whole does not provide for ratings of pain, however excruciating, any higher than 20 percent and only when coupled with the evidence of actual functional impairment. Further, degenerative arthritis, to include DDD presented in this case, may be rated separately but only when evaluation based on the limitation of motion yields a noncompensable rating; otherwise, a rating is assigned on the basis of any limitation of motion in particular spine segment. See 38 C.F.R. § 4.71a, DC 5003. Nonetheless, when the disability picture on review more closely approximates the criteria for the higher of two ratings, the higher rating percentage will be assigned. 38 C.F.R. § 4.7. In cases, where the evidence of record shows the distinct severity levels during the distinct periods of time, the Board considers whether, as based on the facts of each case, assigning the different rating percentages for different periods is warranted, a practice known as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). As reflected in his February 2012 correspondence, the Veteran states that his back feels as if he did not have the surgical repairs he had undergone in October 2011, when he took "forced" retirement and has not worked since. At that time, he also reported having pain radiating down his legs, while indicating that prolonged sitting aggravated his back pain and he was no longer able to drive to work. The Veteran then reported that he was told by Dr. H. that the coverings of his nerves in his back were deteriorating. As reflected in the Veteran's substantive appeal (VA Form 9 received in December 2013), he states that he is in chronic pain due to his back disability and had to retire from his job because he was no longer able to perform his duties entailing a lot of standing and walking. He has received steroid injections that helped for a short while but then was prescribed a cane because his left leg goes numb and buckles without warning. With that, the Veteran believes that his nerve damage resulting from bulging disks in his lower spine and pressing against the nerves should be service connected. Finally, in January 2020, the Veteran submitted a Disability Benefits Questionnaire (DBQ) from his private medical provider, reflecting a diagnosis of chronic pain syndrome secondary to his back disability, which the Veteran believes warrants a separate rating. Upon considering the Veteran's contentions in context of all evidence of record viewed as a whole and in light of all pertinent laws, the Board has found that the rating percentages for his back disability any higher than those currently assigned under the General Formula are not warranted. In sum, the facts of this case are not in dispute. Rather, the gravamen of this appeal is the outcome of the application of pertinent laws to the Veteran's factual circumstances. At the outset, the Board notes that the Veteran has been granted service connection for bilateral lower extremity radiculopathy secondary to his back disability, which is not on review in this appeal. Of further note, when spinal disabilities are evaluated under the IVDS Formula which specifically considers associated neurologic abnormalities such as disk herniation with compression and/or irritation of the adjacent nerve root, rating radiculopathy under a separate diagnostic code would violate the rule against pyramiding. The current combined ratings for the Veteran's radiculopathy alone, to include a bilateral factor, yield a rounded rating at 60 percent. See 38 C.F.R. §§ 4.25, 4.26. As such, any compensable rating under the General Formula combined with a separate rating for radiculopathy is more advantageous to the Veteran rather than assigning 60 percent under the IVDS Formula which precludes any additional separate ratings for radiculopathy. This means that, if the Board were to rate the Veteran's back disability under the IVDS Formula, such a rating would yield a lower overall percentage. This is why rating the Veteran's back disability based on the ranges of motions under the General Formula is not only most appropriate in accordance with the law but also in fact is most advantageous to the Veteran. In November 2010, the Veteran submitted 2008-2009 records from Dr. J.G., MD, indicating that the nature of the Veteran's back disability was progressive and its overall severity level had worsened, which is not in dispute here. In June 2011, VA provided an evaluation of the spine. The examination report reflects that forward flexion at that time was limited to 45 degrees, to include considerations given to objective evidence of fatigue, weakness, stiffness, and constant pain. The examiner observed objective evidence of pain on active range of motion as well as following repetitive motion. This limitation of 45 degrees falls squarely within the range of greater than 30 but no greater than 60 degrees, as set forth by the rating criteria for a rating at 20 percent. Accordingly, the rating for the Veteran's back disability had been increased from 10 to 20 percent, but not higher, effective November 17, 2010, when the Veteran's claim was received. In February 2012, the Veteran submitted his medical records from Harton Regional Medical Center, where he had undergone a second back surgery in October 2011. The surgery notes reflect that imaging studies revealed evidence of recurrent disk herniation associated with multilevel severe degenerative pathology, to include radiculopathy, which is consistent with the IVDS diagnosis. The pain was noted to increase with any type of activities, while medications or rest provided minimal relief. Further, a March 2012 VA examination report reflects the objective evidence of pain functionally limiting forward flexion to 55 degrees, which would continue to support the assigned 20 percent rating. A July 2015 VA examination report reflects a forward flexion limitation to 60 degrees, with no additional loss upon repetitive use, or due to such factors as pain, weakness, fatigability, or incoordination. A range of motion in forward flexion to 60 degrees further shows an improvement but being no greater than 60 degrees continues to meet the criteria for a rating at 20 percent. An April 2018 examination report reflects forward flexion limited to 35 degrees, with objective evidence of pain in all planes, including extension as well as lateral flexion and rotation. In January 2020, given this measurement near the threshold of no greater than 30 degrees required for the next higher rating at 40 percent, the RO obtained a clarification from the examiner who confirmed that, based on the review of the entire claims file and an in-person examination, the Veteran's limitation of forward flexion was measured with a use of goniometer and has shown a limitation to 35 degrees, with considerations given to all pertinent factors as required by law, to include pain on both active and passive motion with and without weight bearing, weakness, fatigability, incoordination, upon repetitive use, use of assistive devices, abnormal gait or spine contours, and any additional limitations during flare-ups. Of note, the Veteran himself has not reported or alleged any flare-ups. Rather, he indicated that he experiences chronic pain, intermittently wears a back brace, and regularly uses a cane. However, pain was taken into account by the examiner in assessing repetitive motion. Upon further considering all medical evidence of record, to include the Veteran's treatment records received from VA, SSA, and multiple private medical providers, the Board has not found, nor has the Veteran pointed out, any evidence showing or suggesting that his lumbar spine flexion has been limited to 30 degrees or less at any time prior to a May 3, 2019 VA examination. Likewise, the evidence of record fails to show that the Veteran's back was ankylosed at any time during this period. Ultimately, under the General Formula, a rating any higher than 20 percent may be assigned only for favorable ankylosis or when forward flexion is functionally limited to 30 degrees or less. As such, absent any evidence satisfying that legal criteria, a rating in excess of 20 percent prior to May 3, 2019, is not warranted. A May 3, 2019 VA examination report reflects a forward flexion limitation to 10 degrees. A December 2019 private DBQ reflects a forward flexion limitation to 15 degrees. A January 2020 VA examination report reflects forward flexion limited from 25 to 35 degrees, due to abnormal gait and spine contour. The Board does note that this range of motions is in unfavorable position. However, given the residual movement of 10 degrees, it cannot be said that the Veteran's back is ankylosed, that is, has been fixed in an unfavorable position with a complete loss of movement. As such, this evidence shows that rating the Veteran's back disability at 40 percent, but not higher, from May 3, 2019, is warranted. Absent any evidence of unfavorable ankylosis, which is the fundamental legal rating criterion for rating spine disabilities in excess 40 percent, a rating in excess of 40 percent for the Veteran's back disability from May 3, 2019, is not warranted. In reaching this conclusion, the Board has carefully considered the Veteran's statements of experiencing chronic pain along with the December 2019 private DBQ reflecting diagnoses of chronic pain syndrome which, however, may not be rated separately here. As discussed, given that the rating schedule for evaluating musculoskeletal disabilities unequivocally contemplates pain as a symptom as well as any functional impairment resulting from pain that is factored into the ratings based on limitation of motion triggers the rule against pyramiding which bars compensating essentially same symptom manifestations twice under the multiple separate diagnostic codes. Further given the evidence of several back surgeries during the rating period on appeal, the Board has considered the regulatory provisions for the convalescent ratings, but ultimately has concluded that the rating criteria, which require at least one month of convalescence, or severe postoperative residuals, or immobilization by cast, have not been met. See 38 C.F.R. § 4.30. For example, the October 2011 surgery notes reflect that the Veteran had undergone an ambulatory surgery and, fortunately, without any complications or prolonged convalescence. Likewise, the regulatory provisions of 38 C.F.R. § 4.29 for the periods of hospital treatment in excess of 21 days are not applicable to the circumstances of this case. Otherwise, the overall impact of the Veteran's disabilities, to include the functional impairment resulting from his back disability, is comprehensively covered by a TDIU rating. In a May 2020 rating decision, the Board awarded a TDIU rating. In effectuating the Board's award, the RO assigned an effective date of April 27, 2020, noting that this is the date the Veteran's claim for a TIDU rating has been received. However, in its May 2020 order, the Board has unequivocally found and now affirms that the TDIU rating issue has been reasonably raised by the Veteran's substantive appeal received on December 20, 2013. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As a threshold matter, the Board must first consider its jurisdiction over the issue of a TDIU rating. Regardless of whether expressly raised by the Veteran or implied by the record, once entitlement to a TDIU rating is at issue, it becomes part and parcel of the increased rating claim for the underlying disability. Id. The grant of a TDIU for only a portion of the rating period, as here, does not bifurcate the appeal from the underlying disability appeal because it serves only as a partial grant which the Veteran does not need to appeal separately. See Harper v. Wilkie, 30 Vet. App. 356, 360-62 (2018). Unless, the RO grants a TDIU for the entire period on appeal, the claim remains unresolved and thus still is on appeal. Id. As such, the Board retains jurisdiction over the TIDU rating issue, to include the earlier effective date of the award, which the Veteran is seeking here. The Board further must consider its jurisdiction over a TIDU rating under the provisions of 38 C.F.R. § 4.16, which limits the Board's jurisdiction only to a schedular TDIU rating consideration under the provisions of 38 C.F.R. § 4.16(a). Such a rating may be assigned only in cases of one disability ratable at 60 percent or more, or, if there are two or more disabilities, at least one is ratable at 40 percent or more, with any additional disability yielding the combined rating of at least 70 percent. Otherwise, the Board may only refer the claim to Director, Compensation Service for an extra-schedular consideration. As of September 2013, the combined rating of the Veteran's multiple disabilities was at 60 rather than 70 percent. But given that the Veteran's psychiatric disability rated at 50 percent is secondary to his back disability rated at 20 percent and thus both stemming from common etiology, these two disabilities with a combined rating at 60 percent are considered a single disability for the purposes of a schedular TDIU consideration, which satisfies the legal criteria, as set forth in subpart 4.16(a), for the Board to consider assigning a schedular TDIU rating prior to April 27, 2020. In sum, the Board has found that the Veteran had met an eligibility for a schedular TDIU consideration in September 2013, then met the criteria for a TDIU rating in November 2013, and a TIDU issue was reasonably raised by the evidence of record in December 2013. Generally, an increased rating award, to include a TIDU rating, is effectuated from the date of receipt of claim or the date the entitlement arose, whichever is later. See 38 C.F.R. § 3.400(o). Here, a TDIU rating claim has been reasonably raised by the evidence of record based on the Veteran's statement in his substantive appeal that he has not worked since his second back surgery. As such, his claim for a TDIU rating had been constructively received on December 20, 2013. For the reasons explained in the May 2020 Board's decision, the Veteran was found to be unable to secure or maintain gainful employment due to his service-connected disabilities. Of note, however, while the Veteran initially reported that he has not worked since his second back surgery in October 2011, in his May 2012 Notice of Disagreement, the Veteran states: "I am not seeking individual unemployability at this time." Further, a January 2014 VA mental health evaluation report reflects the Veteran's statement that he had actually retired in November 2013, when "[i]t got to a point here [he] couldn't do it." This is when his entitlement to a TDIU rating has arisen. In cases, like this, where an entitlement to an increased rating, to include a TIDU, arises within twelve months preceding the date of receipt of claim, the award may be effectuated from the earliest date as of which it is factually ascertainable that an entitlement to the sought benefit had arisen. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). In this case, an entitlement to a TDIU rating arose in November 2013, within one month of the constructive receipt of the claim on December 20, 2013. Although the specific date of the Veteran's retirement is unclear from the record, the TDIU rating award is not payable for any period prior to the first day of the calendar month following the month in which the award became effective. See 38 U.S.C. § 5111(a)(1); 38 C.F.R. § 3.31. As such, given that the Veteran would not be deprived of any monetary or other VA benefits otherwise available to him, the Board finds that effectuating the award of a TDIU rating from November 30, 2013, is without prejudice to the Veteran. Accordingly, a TDIU rating effective November 30, 2013, but not earlier, is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alex Bardin, 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.