Back to BVA DecisionsMIXEDSpecial Benefit TDIU; EARLIER EFFECTIVE DATE Docket No. 221025-288401
INTERVERTEBRAL DISC SYNDROME
THOMAS ENGLISH · 2024 · Case ID: A24085037
Summary
The veteran, who served from November 1978 to July 1981, appeals the denial of an increased rating for his service-connected back condition and the remand of his claims for Total Disability based on Individual Unemployability (TDIU) and an earlier effective date for Dependents' Educational Assistance (DEA). The Board reviewed the veteran's back condition based on VA examinations from January 2019 and May 2021. The January 2019 exam noted muscle spasms but no abnormal spinal contour or ankylosis. The May 2021 exam noted pain and functional loss with weight-bearing and during flare-ups, but also found no ankylosis. The Board denied an increased rating above 40 percent, finding no evidence of ankylosis or functional loss approximating ankylosis, even considering pain under 38 C.F.R. §§ 4.40 and 4.45. The Board remanded the TDIU claim, finding the veteran may have been unemployable as early as December 2018 but did not meet schedular criteria before March 25, 2021, necessitating extraschedular consideration. The DEA claim was remanded as it is inextricably intertwined with the TDIU claim.
Rationale
No evidence of ankylosis found on examinations.; Pain and functional loss did not approximate ankylosis.; Rating criteria for 50% or higher requires ankylosis.
Full Decision Text
Citation Nr: A24085037 Decision Date: 12/19/24 Archive Date: 12/19/24 DOCKET NO. 221025-288401 DATE: December 19, 2024 ORDER From December 24, 2018, an increased rating in excess of 40 percent for a service-connected back condition is denied. REMANDED The claim for a total disability rating based on individual unemployability (TDIU) rating on an extraschedular basis prior to March 25, 2021, is remanded. The claim of entitlement to an earlier effective date for the grant of Dependents' Educational Assistance (DEA) prior to March 25, 2021, is remanded. FINDING OF FACT From December 24, 2018, the probative evidence of record does not support a finding that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine or its functional equivalent. CONCLUSION OF LAW From December 24, 2018, the criteria for a rating in excess of 40 percent for?a service-connected back condition have not been met.?38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, DC 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from November 1978 to July 1981. This appeal arises before the?Board of Veterans' Appeals?(Board) from an October 2022 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2022, the Veteran, submitted a VA Form 10182 Notice of Disagreement (NOD), seeking?direct?review by a Veterans Law Judge (VLJ) under the Appeals Modernization Act (AMA). Under?Direct?Review, all evidence available at the time of the decision on appeal is considered. From December 24, 2018, an increased rating in excess of 40 percent for a service-connected back condition is denied. Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See?38?U.S.C. §?1155;?38?C.F.R. §?4.1. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38?C.F.R. §?4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38?U.S.C. §?5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38?U.S.C. §?5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38?U.S.C. §?5110. While portions of the?rating?schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. 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. Id. A 20 percent?rating?is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the?cervical?spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. Id. A 20 percent?rating?is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the?cervical?spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the?cervical?spine not greater than 170 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent?rating?is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent?rating?is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent?rating?is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. Id. at Note (2). 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. Id. All measured ranges of motion are to be rounded to the nearest five degrees. Id. at Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar 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. Id. at Note (5). Factual Background The Veteran was afforded a January 2019 VA examination. Upon range of motion testing of the lumbar spine, the Veteran displayed 0 to 40 degrees of forward flexion, 0 to 0 degrees of extension, 0 to 15 degrees of left lateral rotation, 0 to 20 degrees of right lateral rotation, 0 to 15 degrees of left lateral flexion, and 0 to 20 degrees of right lateral flexion. The Veteran was able to perform repetitive use testing with at least three repetitions which resulted in additional loss of function or range of motion. The Veteran displayed 0 to 30 degrees of forward flexion, 0 to 0 degrees of extension, 0 to 15 degrees of left lateral rotation, 0 to 20 degrees of right lateral rotation, 0 to 15 degrees of left lateral flexion, and 0 to 15 degrees of right lateral flexion. The conducting examiner indicated that the Veteran was being examined immediately after repetitive use over time. The examiner further indicated that pain, fatigue and weakness would not limit functional ability with repeated use over a period of time. The conducting examiner indicated that the Veteran was not being examined during a flare-up. The examiner was unable to opine as to whether pain, weakness, fatigability or incoordination would significantly limit functional ability with flare-ups. The examiner explained that pain, weakness, fatigability, or incoordination with flare-ups can vary in its intensity and limitation in functional ability and that there is no way to predict without observation. The examiner noted that the Veteran had muscle spams of the back which did not result in abnormal gait or abnormal spinal contour. The examiner indicated that the Veteran did not have ankylosis of the spine. The examiner noted that the Veteran had intervertebral disc syndrome (IVDS) of the thoracolumbar spine but did not was not being examined during a flare-up. The examiner was unable to opine as to whether pain, weakness, fatigability or incoordination would significantly limit functional ability with flare-ups. The examiner explained that pain, weakness, fatigability, or incoordination with flare-ups can vary in its intensity and limitation in functional ability and that there is no way to predict without observation. The examiner noted that the Veteran had muscle spams of the back which did not result in abnormal gait or abnormal spinal contour. The examiner indicated that the Veteran did not have ankylosis of the spine. The examiner noted that the Veteran had intervertebral disc syndrome (IVDS) of the thoracolumbar spine but did not have any episode of bedrest within the past 12 months. The Veteran was afforded a May 2021 VA examination. The Veteran was unable to perform any range of motion exercises due to intense pain and fear of further damage to his condition. There was evidence of pain with weight-bearing which causes functional loss. The Veteran stated that he could not perform any range of motion exercises due to intense pain and fear of further damage to his condition. The Veteran also stated that he cannot walk, run, stand for long periods without complaints of pain during flare-ups and with excessive repeated use. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The conducting examiner indicated that the Veteran was not being examined immediately after repetitive use over time. The examiner further indicated that pain, fatigue, lack of endurance, incoordination and weakness would limit functional ability with repeated use over a period of time. The examiner estimated that the Veteran's range of motion would be 0 to 85 degrees of forward flexion, 0 to 25 degrees of extension, 0 to 25 degrees of left lateral rotation, 0 to 25 degrees of right lateral rotation, 0 to 25 degrees of left lateral flexion, and 0 to 25 degrees of right lateral flexion. The conducting examiner indicated that the Veteran was being examined during a flare-up. The examiner noted that the procured evidence suggests pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability with flare-ups but did not provide any range of motion estimates. The examiner indicated that the Veteran did not have ankylosis of the spine. The examiner noted that the Veteran had IVDS of the thoracolumbar spine but did not have any episode of bedrest within the past 12 months. Analysis Under the General Rating Formula, a 50 percent evaluation or greater is not based on a range of motion measurement. Instead, an evaluation of 50 percent or higher requires a finding of ankylosis of the thoracolumbar spine. Unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note The Board finds that a 50 percent disability rating is not warranted for any portion of the appellate period. There are no indications of ankylosis on any of the VA examinations or within the Veteran's treatment records. Even considering functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 for the Veteran's back disability, the Board finds that ankylosis is not approximated. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). There is no medical or lay evidence in the record which shows that the Veteran's thoracolumbar spine was fixed in the neutral position, or that he was unable to bend forward. Although the January 2019 VA examiner explained that the Veteran had muscle spasms of the back, they also explained that it did not result in abnormal spinal contour. Accordingly, from December 24, 201 and 4.45 for the Veteran's back disability, the Board finds that ankylosis is not approximated. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). There is no medical or lay evidence in the record which shows that the Veteran's thoracolumbar spine was fixed in the neutral position, or that he was unable to bend forward. Although the January 2019 VA examiner explained that the Veteran had muscle spasms of the back, they also explained that it did not result in abnormal spinal contour. Accordingly, from December 24, 2018, a rating in excess of 40 percent for a service-connected back condition is denied. REASONS FOR REMAND 1. The claim for a total disability rating based on individual unemployability (TDIU) rating on an extraschedular basis prior to March 25, 2021, is remanded. With respect to the issue of entitlement to an effective date earlier than March 25, 2021, for the award of a TDIU, historically, the Board notes that the Veteran submitted an increased rating claim for his lumbar spine disability on December 24, 2018. Subsequently, the Veteran submitted medical treatment records indicating that he lost his job due to back pain. See January 2019 medical treatment note. Accordingly, the Board finds that the TDIU issue was initially raised in the context of the Veteran's December 24, 2018, claim for an increased rating for the lumbar spine which has been pending since then. The Board finds that the probative evidence of record indicates that the Veteran's service-connected back disability may have rendered him unemployable as early as December 2018. However, the Veteran did not meet the schedular criteria for a TDIU rating prior to March 25, 2021. Therefore, the Board finds that the Veteran's claim should have been referred?to?the VA's Director of Compensation Service for?extraschedular?consideration?for the appeal period prior?to?March 25, 2021. This remand will correct that pre-decisional duty to assist error and refer for extraschedular consideration. 2. The claim of entitlement to an earlier effective date for the grant of Dependents' Educational Assistance (DEA) prior to March 25, 2021, is remanded. Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a veteran may be established if the veteran has a permanent total service-connected disability. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. In this case, basic eligibility for Chapter 35 (DEA) benefits has been established based upon when the Veteran was found to be permanently and totally disabled; i.e., when TDIU was awarded. As such, the DEA claim is inextricably intertwined with the TDIU claim. Accordingly, and because the TDIU claim is being remanded, the Board will remand the DEA claim as well. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for another issue). 38 C.F.R. § 20.802 specifically allows the Board to remand for correction of any other error by the AOJ in satisfying a regulatory or statutory duty if correction of the error would have a reasonable possibility of aiding in substantiating the Veteran's claim. The Board determines that the Veteran's pending extraschedular TDIU remand creates the reasonable possibility of aiding in substantiating the Veteran's claim to an earlier effective date for DEA. Remand is thus appropriate. The matters are REMANDED for the following action: 1. Refer the Veteran's case to the Director of the Compensation Service for consideration of whether a TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) for the period prior to March 25, 2021. Thomas L. English Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bahus, Alexander 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. are REMANDED for the following action: 1. Refer the Veteran's case to the Director of the Compensation Service for consideration of whether a TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) for the period prior to March 25, 2021. Thomas L. English Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bahus, Alexander 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.