Citation Nr: 22010290 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 19-00 364 DATE: February 23, 2022 ORDER For the entire increased rating period from July 14, 2014, an increased disability rating of 40 percent for degenerative disc disease (DDD) of the lumbar spine, but no higher, is granted. REMANDED Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT From July 14, 2014, the service-connected DDD of the lumbar spine more nearly approximated painful limitation of motion of the lumbar spine, with flare ups of pain, resulting in forward flexion approximating 30 degrees. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the entire increased rating period on appeal from July 14, 2014, the criteria for a disability rating of 40 percent, but no higher, for the service connected DDD of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from May 1976 to August 1980. This matter came before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran testified at a September 2020 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. An appellant is presumed to be seeking the maximum possible benefit for the rating appealed. See A.B. v. Brown, 6 Vet. App. 35 (1993). In A.B., the United States Court of Appeals for Veterans Claims (Court) recognized that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service connected disability. Id. at 39. At the September 2020 virtual Board hearing, the Veteran and representative explicitly testified that the grant of a 40 percent disability rating for the service-connected DDD of the lumbar spine from July 14, 2014, the date of claim for increase, would satisfy the appeal as to that issue. In the instant decision the Board grants the requested back disability rating of 40 percent from the date requested. No subsequent statements by the Veteran indicate a desire to seek a disability rating in excess of 40 percent for the DDD of the lumbar spine, the evidence does not suggest a rating in excess of 40 percent is warranted, and the Veteran has not indicated that any of the rating criteria for a disability rating in excess of 40 percent are met or approximated for the lumbar spine. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants a 40 percent disability rating for the service-connected DDD of the lumbar spine for the entire increased rating period on appeal, which is a complete grant of benefits as to that issue, and remands the issue of entitlement to a TDIU, no further discussion of VA's duties to notify and assist is necessary. 1. An Increased Disability Rating of 40 Percent for DDD of the Lumbar Spine is Granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The General Rating Formula provides for a 10 percent disability rating for forward flexion of the lumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the lumbar 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 provided for forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range-of-motion of the lumbar 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 disability rating is assigned for forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire lumbar spine; and a 50 percent disability rating is assigned for unfavorable ankylosis of the entire lumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The diagnostic codes for rating spine disabilities are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. The IVDS Rating Formula provides a 10 percent disability rating 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 disability rating 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. After a review of all the evidence, lay and medical, the Board finds that for the entire increased rating period on appeal, from July 14, 2014, the service-connected DDD of the lumbar spine more nearly approximated painful limitation of motion of the lumbar spine, with flare ups of pain, resulting in forward flexion approximating 30 degrees. The Veteran underwent a VA back examination in July 2015. Per the examination report, the back pain was currently flaring, as the Veteran had car trouble on the way to the appointment and had to do some walking. Upon examination there was forward flexion to 45 degrees. The VA examiner indicated that the examination was being performed during a flare-up of back pain. The November 2018 statement of the case (SOC) indicates that the Veteran received a new VA back examination in December 2015, and that the Veteran had forward flexion limited to 20 degrees at that time; however, review of the Veteran's claims file does contain the report from any such December 2015 VA back examination. The Board notes that the SOC indicates that, per the December 2015 VA examination report, the Veteran had received lumbar fusion surgery in the past; however, per the report from an October 2020 VA back examination, the Veteran denied prior back surgery. As such, it appears that the report of a VA examination being performed in December 2015 was a mistake by the agency of original jurisdiction (AOJ). Nonetheless, as the instant decision fully grants the Veteran's appeal as to the back rating issue, the Board does not need to remand to verify that no VA back examination took place in December 2015. A new VA back examination was performed in December 2017. Upon range of motion testing, forward flexion was limited to 40 degrees. The Veteran reported flare-ups of pain and a recent visit to the emergency room following a painful flare-up. The VA examiner was unable to opine as to additional range of motion lost during a flare up of pain in the lumbar spine. VA received a lay statement dated June 2019 from the Veteran's nephew. The nephew has lived with the Veteran for many years. Per the lay statement, the Veteran was in constant back pain. The nephew specifically wrote that the Veteran was unable bend over and has difficulty standing straight due to pain, uses a walker for ambulation, and spends most of the time in a reclining chair. The Veteran testified at a September 2020 virtual Board hearing. Significantly, the Veteran testified to having similar symptoms, to include painful flare-ups, throughout the entire increased rating period on appeal. Another VA back examination was performed in July 2021. At that time, the Veteran continued to advance having flare-ups of pain in the back. The back pain symptoms appeared too severe for the examiner to perform range of motion testing safely at that time. The Veteran also received a VA back examination in October 2020, approximately one month following testimony before the Board. Per the examination report, the Veteran's forward flexion was only limited to 70 degrees, and the Veteran denied having any flare-ups. This information is contrary to the prior VA examinations, the Veteran's testimony a mere month prior concerning symptom severity and flare-ups, and the July 2021 VA back examination performed less than a year later. As such, the Board does not find the October 2020 VA back examination's history to be accurate. After a review of all the evidence, lay and medical, the Board finds that, from July 14, 2014, the service-connected DDD of the lumbar spine more nearly approximated painful limitation of motion of the lumbar spine, with flare ups of pain, resulting limitation in forward flexion approximating 30 degrees during flare-ups. Per the report from the December 2017 VA back examination, forward flexion was limited to 40 degrees. While the VA examiner did not opine as to additional loss of range of motion during a flare-up of pain, review of the evidence of record, to include the Veteran's lay testimony, the lay statement from the Veteran's nephew dated June 2019, and the report from the July 2021 VA back examination, supports that during a flare-up of pain limitation of forward flexion would more nearly approximate to 30 degrees. While the report from the July 2015 VA back examination indicated that forward flexion was only limited to 45 degrees during a painful flare up, considering the other evidence of record, to include the Veteran's testimony that back symptoms have been the same throughout the entire appeal period, the Board finds that this was likely only a partial flare-up of pain caused by the limited walking the Veteran had to do prior to the appointment, and that during a full flare up of pain forward flexion would more nearly approximate 30 degrees. As such, the Board will resolve reasonable doubt in favor of the Veteran to find that, from July 14, 2014, an increased 40 percent disability rating for the service connected DDD of the lumbar spine due to painful limitation of motion is warranted. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242; DeLuca. The appeal for an increased disability rating for the service-connected DDD of the lumbar spine is fully granted in this Board decision. As discussed above, at the September 2020 virtual Board hearing, the Veteran clearly stated that a 40 percent disability rating would satisfy the lumbar spine rating issue on appeal; thus, this is a full grant of the benefit sought on appeal as to the lumbar spine rating. This is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B. at 39 (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). The Board finds the waiver of the remaining aspects of the appeal for an increased disability rating was knowing, intelligent, and consistent with the evidence of record. Because a 40 percent increased disability rating for the DDD of the lumbar spine was granted for the period from July 14, 2014, the date of claim for increase, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher disability rating in excess of 40 percent. See 38 C.F.R. § 20.205 (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any question of an increased disability rating in excess of 40 percent for the lumbar spine disability, to include the question of separate compensable disability ratings, is rendered moot, with no remaining questions of law or fact to decide. See 38 U.S.C. § 7104; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). REASONS FOR REMAND 2. TDIU is Remanded. VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). TDIU may 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 disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue are to be addressed. 38 C.F.R. § 4.16(a),(b). The Veteran is service connected for multiple orthopedic disabilities and residual neurological symptoms. In October 2020, a VA examiner opined that the Veteran's service-connected disabilities prevented physical, but not sedentary, employment; however, a review of the evidence of record indicates that, since separating from service, the Veteran primarily worked in physical employment, to include building mobile homes, insulation work, and housekeeping/janitorial work. In a May 2020 lay statement, the Veteran advanced not having any computer training and never having worked a sedentary job. The Veteran conveyed attempting to take a computer training class many years earlier, but he had to withdraw from the program due to being unable to sit for an hour. Per a September 2020 VA Form 21 8940, the Veteran's highest level of education was one year of community college. There is conflicting evidence as to when the Veteran last worked full-time substantially gainful employment. In the most recent September 2020 VA Form 21-8940, and in testimony at the September 2020 virtual Board hearing, the Veteran advanced last working in 2014; however, in the August 2017 VA Form 21-8940, the Veteran conveyed last working in June 2016, and this date is consistent with available Social Security Administration (SSA) records. Significantly, an October 2017 VA Form 21-4192 from the Veteran's prior employer indicates that the Veteran last worked on February 14, 2017. As the evidence is unclear concerning when the Veteran last worked full-time substantially gainful employment, as the evidence shows that the Veteran had primarily worked in physical employment since separating from service, and as it is unclear whether the Veteran has the skills to work in sedentary employment, or could train to learn such skills, the Board finds obtaining a VA occupational evaluation may assist in its determination as to whether the service connected disabilities alone preclude substantially gainful employment, and if so, from what date unemployability began. The issue of entitlement to a TDIU is REMANDED for the following action: 1. Ask a VA vocational or similar occupational specialist to evaluate the effect of the service-connected disabilities on employment-related tasks (the ability to obtain or maintain substantially gainful employment). Specifically, the VA examiner is directed to assess the extent of functional and industrial impairment resulting from the service-connected disabilities. The evaluation should address whether the service connected disabilities alone are so disabling as to render the Veteran unable to perform any level of work, and/or are so disabling as to prevent training for positions at which the Veteran could work. A medical, educational, and employment history should be taken. The Veteran's age and the effects of non service connected disabilities cannot be factors for consideration in making the determination; however, the effects of treatments and medications used to treat the service-connected disabilities should be considered in the opinion. A rationale for all opinions and a discussion of the facts should be provided. If the VA examiner finds that the Veteran is unable to perform any level of work and/or obtain training for work due to service-connected disabilities, the VA examiner should identify, based upon the lay and medical evidence of record, when the service-connected disability symptoms first rendered the Veteran unemployable. The Board notes that there is conflicting evidence of record concerning whether the Veteran last worked full-time substantially gainful employment in 2014, 2016, or 2017. The VA examiner should attempt to verify the Veteran's actual last day of full-time substantially gainful employment. 2. Then, readjudicate the issue of a TDIU. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.