Citation Nr: 22016349 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-04 355 DATE: March 22, 2022 ORDER Entitlement to a rating greater than 20 percent prior to January 12, 2018, and from July 1, 2018, to October 12, 2020, for lumbar spine disability is denied Entitlement to a rating greater than 40 percent from October 13, 2020, and thereafter for lumbar spine disability is denied. Entitlement to a total disability rating due to individual unemployability (TDIU), effective August 27, 2021, is granted. Effective August 27, 2021, entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is granted. FINDINGS OF FACT 1. Prior to January 12, 2018, and from July 1, 2018, to October 12, 2020, the Veteran's lumbar spine disability is manifest by forward flexion limited to 45 degrees. 2. From October 13, 2020, onward, the Veteran's lumbar spine disability is manifest by forward flexion limited to 30 degrees. 3. The Veteran's service-connected lumbar spine disability causes him to be unemployable since August 27, 2021. 4. Effective August 27, 2021, based on the grants of benefits in this appeal, the Veteran has one service-connected disability rated 100 percent and another service-connected disability rated more than 60 percent. CONCLUSIONS OF LAW 1. Prior to January 12, 2018, and from July 1, 2018, to October 13, 2020, the criteria for a rating in excess of 20 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. From October 13, 2020, forward, the criteria for a rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 3. The criteria are met for a TDIU effective August 27, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16. 4. The criteria for SMC housebound are met as of August 27, 2021. 38 U.S.C. § 1114(s). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1980 to June 1980 and November 1990 to July 1991. For his meritorious service, the Veteran was awarded (among other decorations) the Southwest Asia Service Medal with two Bronze Stars and the Army Achievement Medal. The case is before the Board of Veterans' Appeals (Board) from an April 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In May 2021 the Board remanded the claim to obtain an updated VA examination regarding the severity of his back condition after his January 2018 surgery, and to update VA and private treatment records. The Board finds substantial compliance with the remand directives and therefore another remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). In a November 2021 rating decision, the RO increased the Veteran's rating to 40 percent, effective October 13, 2020. During the course of the appeal, the Veteran was awarded service connection for left lower extremity radiculopathy, left and right lower extremity surgical scar, and erectile dysfunction secondary to his service-connected back disability. Absent any argument or separate appeal for those issues, a separate claim under the Appeals Modernization Act (AMA) must be filed to initiate review of "downstream" elements such as the disability rating or effective date assigned, if the Veteran so wishes. As these issues were granted, the only issue before the Board is entitlement to an increased evaluation for a back disability. 1. Increased rating for low back strain with degenerative disc disease The Veteran contends that he is entitled to a higher rating for his low back strain with degenerative disc disease at L5-S1. Service connection for his lumbar spine disability was granted in a June 1992 rating decision. The Veteran filed the instant claim for an increased rating in February 2017. He is presently rated 20 percent from July 1991; 100 percent from January 12, 2018; 20 percent from July 1, 2018; and 40 percent from October 13, 2020, to present. The Veteran's low back disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The November 2021 rating decision increasing the Veteran's rating to 40 percent effective October 13, 2020, based on limitation of flexion under Diagnostic Code 5242. During the pendency of the Veteran's appeal, VA amended the criteria for rating musculoskeletal disabilities. The new regulation applies to claims received on or after February 7, 2021, or previously filed claims that are pending on February 7, 2021, if the new regulation will render more favorable result for the Veteran. However, the changes under Diagnostic Code 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with those diagnostic codes. Under the amended regulations, Diagnostic Code 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010)." Diagnostic Code 5243 now provides that this Diagnostic Code should only be used to evaluate a spine condition when there is disc herniation with compression and/or irritation of the adjacent nerve root. As such, the changes do not impact the rating criteria under either diagnostic code, and evaluation of the disability under the pre- and post-February 7, 2021, regulations is not required. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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. 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). The Formula for Rating IVDS Based on Incapacitating Episodes under Diagnostic Code 5243 provides that 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. For the reasons that follow, the Board finds that prior to October 13, 2020, excepting the period for which the Veteran is assigned a 100 percent rating, the evidence of record persuasively weighs against a rating in excess of 20 percent for lumbar spine strain with degenerative disc disease under the General Rating Criteria. Further, effective October 13, 2020, the evidence of record persuasively weighs against a rating in excess of 40 percent under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine prior to October 13, 2020, and unfavorable ankylosis of the entire thoracolumbar spine thereafter. A July 2016 VA treatment note reflects forward flexion limited to 45 degrees, limited by significant low back pain. An August 2016 MRI of the lumbar spine showed worsening since the September 2014 MRI. A bilateral L5-S1 discectomy was recommended at that time, but not performed until January 2018. VA treatment records prior to the surgery reflect persistent reports of worsening back pain with resulting limitations. The April 2017 VA examination measured flexion to 50 degrees and noted that his back condition likely inhibits prolonged sitting, standing, or walking, and prevent heavy lifting or carrying. The Veteran was assigned a temporary 100 percent rating from the date of his back surgery (January 12, 2018) to July 1, 2018. VA treatment records after the surgery reveal progressively less severe work restrictions until July 2019, when he could return to work 8 hours per day with a 50-pound weight restriction, and no overtime permitted. See, also, January 2018 VA treatment record. At the August 2019 VA examination of his peripheral nerves, the Veteran reported being able to lift no more than 30 pounds. He also reported constant, burning, severe pain in his low back, worse since surgery. In May 2020 VA treatment notes, the Veteran reported worsening back pain since the 2018 surgery. At the October 2020 Board hearing, the Veteran testified that the surgery did not improve his back pain, and he now has trouble standing up straight when he walks. He reported flare-ups and muscle spasms frequently, and that his pain is chronic. A December 2020 letter from private chiropractor Dr. B.K. reveals that the severity of his back pain exacerbations has increased over time. At the October 2021 VA examination the Veteran's forward flexion was decreased to 30 degrees due to pain after three repetitions, after repeated use over time, and during flare-ups. The examiner noted his back condition causes interference with sitting and standing, disturbance of locomotion, and less movement than normal. However, the Veteran did not have IVDS, ankylosis, or require the use of an assistive device. The Board finds the Veteran's October 2020 Board hearing testimony of progressively worsening pain and limitation of motion after the surgery to be competent, credible, and consistent with the medical evidence of record. Thus, while there are no range of motion measurements prior to the October 2021 VA examination, the Board finds the Veteran's testimony is consistent with the findings of the October 2021 VA examination. The Board notes that between the January 2018 back surgery and October 2021 VA examination, the record contains no descriptions of the Veteran's limitation of motion adequate for rating purposes. The evidence available reflects an initial period of improvement immediately post-surgery followed by progressive worsening of pain and functioning beginning around the August 2019 VA peripheral nerves examination. However, at no point prior to the Veteran's October 2020 Board hearing testimony, does the evidence indicate that his back condition worsened to the point that it more nearly approximated forward flexion to 30 degrees or less, or favorable ankylosis of the thoracolumbar spine. In summary, prior to October 13, 2020, the weight of the competent medical and lay evidence indicates the Veteran's lumbar spine forward flexion was limited, at worst, to 45 degrees, including consideration of any additional limitations due to pain. See July 2016 VA treatment note; April 2017 VA examination. Thereafter, the competent medical and lay evidence shows the Veteran's lumbar spine forward flexion was limited, at worst, to 30 degrees; the Veteran's back condition did not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for left lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for low back strain with degenerative disc disease prior to October 13, 2020 (excepting the period the Veteran is already assigned a 100 percent rating), and in excess of 40 percent thereafter. Accordingly, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). 2. Entitlement to a TDIU For the reasons that follow, the Board grants entitlement to a TDIU effective August 27, 2021. When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a Veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); see also Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). The Board finds that the issue of entitlement to a TDIU was raised by the record after the prior remand by the Veteran's statement at the October 2021 VA examination that he retired from work on August 27, 2021, due to his back disability. When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. TDIU 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is an additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a). Here, the Veteran's service-connected disabilities meet the schedular criteria set forth in Section 4.16(a) as of October 13, 2020. The Veteran is rated 50 percent disabled for posttraumatic stress disorder (PTSD) effective February 2018, 40 percent for lumbar spine disability effective October 13, 2020, 10 percent for left lower extremity radiculopathy effective December 2017, and 0 percent each for right and left lower extremity scars effective January 2018, and erectile dysfunction effective September 2020. The Veteran claims he is rendered unemployable by reason of his lumbar spine disability alone, which is rated 40 percent disabling effective October 13, 2020. The record shows the Veteran was working full-time prior to his retirement on August 27, 2021. Thus, the question for the Board is whether the Veteran's lumbar spine disability alone precludes him from obtaining or engaging in substantially gainful employment from August 27, 2021, to present. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. § 3.341, 4.16(a), 4.19; Faust v. West, 13 Vet. App. 342 (2000). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107. The Board finds that the evidence to be in equipoise as to whether the Veteran's lumbar spine disability precludes him from obtaining or engaging in substantially gainful employment. VA and private treatment records after the January 2018 lumbar spine surgery show chronic complaints of worsening lumbar spine pain resulting in occupational difficulties. Additionally, the Veteran consistently reported sleep disturbance due to pain. See, e.g., May 2020 and August 2021 VA treatment records; September 2021 private treatment records. Over this period of time the Veteran sought letters from private and VA physicians limiting his physical duties at work and permitting unscheduled time off for exacerbations of back pain. For example, in December 2020 his private chiropractor Dr. B.K. wrote a letter noting that the Veteran exhibits signs of chronic lumbar instability, which is aggravated by lifting, twisting, walking on uneven ground, and other trivial mishaps. These activities are part of his occupational requirements. The severity of these exacerbations has increased over time, frequently requiring time off work. Dr. B.K. estimated that this occurs about half of the time he presents for treatment. The Veteran presented for treatment one to two times per month. Additionally, a September 2021 note from his private primary care provider indicated that the Veteran has fallen sometimes during the work hours and has had to occasionally miss work. The provider further explained that this provider mostly attempted to manage his symptoms by limiting his hours carrying mail; however, the Veteran has had to retire early because of his significant chronic low back pain. At the October 2021 VA examination the Veteran reported that he had to retire from his job as a mail carrier on August 27, 2021, due to his back disability. He reported that he develops significant low back pain when working, has been restricted to lifting no more than 25 pounds, and typically sleeps only three hours per night due to pain. The examiner opined that the Veteran's back disability impacts work as the Veteran experiences increased severe low back pain when he walks farther than one block, flexes at the waist, stoops, lifts more than 25 pounds, works longer than 8 hours, and sits longer than 30 minutes. The examiner further indicated that his back condition causes interference with sitting, and standing, disturbance of locomotion (slow gait due to pain), and less movement than normal. The Board finds that the Veteran is unable to walk for prolonged periods, sit longer than 30 minutes without significant pain, carry more than 25 pounds on a regular basis, or perform activities that require bending at the waist, stooping, kneeling, or twisting on a regular basis. These limitations are due to his back condition without consideration of any of his other service-connected disabilities. The Veteran worked as a mail carrier since 1997. He has a high school education. The Veteran's prior work required walking long distances, carrying heavy packages, and bending, stopping, and twisting on a regular basis. The limitations found above do not permit the Veteran to perform his past relevant work. Further, as the Veteran has had the same job for the past 20+ years and has no additional education, training, or experience that would permit him to obtain a different type of employment, the Board finds he does not have the skills and education required to obtain employment consistent with the physical limitations from his back disability. Accordingly, the evidence indicates that the Veteran's lumbar spine disability has prevented substantially gainful employment since August 27, 2021, the date the Veteran retired. In light of the above and resolving all reasonable doubt in the Veteran's favor, entitlement to a TDIU is granted effective August 27, 2021. 38 C.F.R. § 4.16. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 56. 3. Effective August 27, 2021, entitlement to special monthly compensation (SMC) under 38 U.S.C. sec 1114(s) A veteran is presumed to be seeking the maximum benefit allowed by law or regulation, and such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, VA has a duty to fully and sympathetically develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Relevant to this appeal, a claim for increased disability compensation may include the "inferred issue" of entitlement to SMC even where the veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Specifically, special monthly compensation (SMC) may be warranted if the Veteran has a TDIU based on a single disability and the Veteran has a separate disability or disabilities rated as 60 percent or more disabling. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (analyzing 38 U.S.C. § 1114(s)). SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). (Continued on next page) The Veteran has been assigned TDIU based solely due to his lumbar spine disability, effective August 27, 2021. Although his lumbar spine disability is not rated as 100 percent, for SMC purposes this disability satisfies the requirement of a "service-connected disability rated as total." See Buie, 24 Vet. App. at 251; see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Because the Veteran has a single service-connected disability rated as total (i.e. his lumbar spine disability) and has additional service-connected disabilities that combine to be independently ratable at least at 60 percent, the criteria for SMC at the housebound rate are met. Thus, considering the Court's decisions in Bradley and in Buie, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114 (s) is granted, effective August 27, 2021. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.