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This case is being appealed to CAVC. Any input would be appreciated especially the confusing part about what was granted and the effective dates. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter is before the Board of Veterans’ Appeals (Board) on appeal from November 2007 and April 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).
Department of Veterans Affairs (VA) Regional Office (RO).
Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509–10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 1. Entitlement to an initial rating in excess of 10 percent prior to September 26, 2003, and 20 percent thereafter for a lumbar disability. 2. Entitlement to a rating in excess of 40 percent for a lumbar disability. The Veteran’s lumbar disability is rated at 10 percent disabling prior to September 26, 2003, and 20 percent thereafter based on the General Rating Formula for the Spine under Diagnostic Code 5237. 38 C.F.R. § 4.71a, DC 5237. After January 27, 2012, he is rated at 40 percent. Under the General Rating Formula for the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 evaluation is warranted where the evidence shows 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 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id., Note (1). Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243, a ten percent evaluation requires incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months, and 20 percent evaluating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. Id. DC 5243. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities. 38 C.F.R. § 4.71a. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes “additional functional loss—i.e., ‘the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’—including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Because there is no indication that the structural integrity of the Veteran’s service-connected joints is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran’s range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. Additionally, it is acknowledged that some of examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development solely for this purpose would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). As noted below, the examination reports contain evidence regarding the frequency, severity, and duration of the Veteran’s pain level during flare-ups per his report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran’s service-connected disabilities. As such, the Board finds that it has adequate competent evidence when viewed in total to assess the Veteran’s disability picture. Prior to October 11, 2007 He underwent a VA examination in October 2006. It was reported that he had one flare-up per month with nine out of ten pain. He reported functional loss where he was unable to do twisting movements. He had flexion of 70 degrees, rotation of 40 degrees, and he had sharp abrupt pain. His medical records document pain and occasional shooting pain. A lumbar strain was shown in late 2003. He did not have abnormal range of motion in December 2003. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the competent, probative evidence is at least in equipoise to warrant an initial rating of 20 percent. Although the Veteran’s flexion was 70 degrees, the Board finds that with his flare-ups and accompanying significant pain and functional loss that a 20 percent rating is warranted. Prior to October 11, 2007, he had flare-ups with nine out of ten pain. He had functional loss where he was unable to twist, and he had sharp abrupt pain. As such, the Board finds that his symptoms are more nearly approximated by an initial rating of 20 percent for limited flexion and functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59.; Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Moreover, the Board finds several factors produce a disability picture more nearly approximated by the next-higher schedular rating. In this regard, the Veteran reported flare-ups, pain, and has had documented disturbance of locomotion where he was unable to turn his back. Additionally, the Board finds that a rating of 40 percent is not warranted as the Veteran’s flexion was not limited to 30 degrees or less during this period on appeal. Nor does he have IVDS. Moreover, the Board finds that his functional loss is more nearly approximated by the now assigned 20 percent rating. October 11, 2007 Onward On October 11, 2007, an independent medical examination noted his flexion was limited to 25 degrees. An additional examination was provided in January 2012. He reported flare-ups every other month where he spent a lot of time in bed and did not sleep well because of pain. He had forward flexion of 30 degrees, and normal extension (30 degrees). He was able to perform three times repetitive use testing with the same range of motion. He had functional loss in that he had less movement than normal and pain on movement. He had localized tenderness, but did not have guarding or muscle spasms. He did not have muscle atrophy. He had normal reflexes (2+) and had normal sensation testing other than his left foot/toes which was decreased. Moderate radiculopathy was reported. The examiner reported IVDS, but stated that he had not had any incapacitating episodes over the past 12 months. His 2008 medical records show his flexion was limited to 40 degrees. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the competent, probative evidence warrants a rating of 40 percent from October 11, 2007 onward. The independent medical examination showed flexion of 25 degrees. However, his records in 2008 show flexion of 40 degrees. As such, the Board finds that when resolving reasonable doubt in favor of the Veteran that a rating of 40 percent, but no higher, from October 11, 2007 onward is warranted. A rating in excess of 40 percent is not warranted as at no point during this period, has he had either favorable or unfavorable ankylosis. He has not had IVDS requiring bed rest in the past 12 months, to include as recorded on the 2007 independent examination and the 2012 VA examination report. Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claim for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the formal claim. 38 C.F.R. § 3.155. For claims for an increase in a service-connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98. 3. Entitlement to an earlier effective date for service connection for a lumbar disability. The Veteran asserts entitlement to an earlier effective date of January 16, 1973 for service connection for a lumbar disability. In this case, the Veteran states that he did not receive notice of his appellate rights in the November 1973 rating decision. He argues, in essence, that the rating decision never became final (because he did not receive notice of his appellate rights), and that the underlying claim therefore remained open and pending at the time of the subsequent award. Therefore, the earlier effective date issue in this case centers around the question of notice of the prior rating decision’s appellate rights. Under the provisions during the period in question, “the claimant and his representative, if any, will be informed of the right to initiate an appeal by the filing of a notice of disagreement in writing, and the time limit within which such notice must be filed. This information will be included in each notification of a determination of entitlement or non-entitlement to Veterans Administration benefits by the agency of original jurisdiction.” 38 C.F.R. § 19.109 (1973). However, “[w]hile it is contemplated that the agency of original jurisdiction will give proper notice of the right to appeal and the time limit, failure to notify the claimant of his right to such appellate review or the time limit applicable to a notice of disagreement or substantive appeal will not extend the applicable period for taking this action.” See 38 C.F.R. § 19.110 (1973). See 48 Fed. Reg. 6961 (Feb. 17, 1983) (stating that the January 22, 1964 version of the Rules of Practice, as amended, will apply to all claims filed before January 1, 1980 and that January 1, 1980 is the effective date of the new Rules). Thus, as the claim decided in 1973 was received before January 1, 1980, the regulations just cited were in effect. Regarding whether or not notice of a decision and appellate rights were received, there is a presumption of regularity in the administrative process, in which it is presumed that a claimant received proper notice by VA. Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014) (holding that under the presumption of regularity, if notice is sent to the claimant’s last known address of record, it will be presumed that VA properly discharged its official duties). This presumption that the Veteran received notice may only be rebutted with clear evidence to the contrary. Schoolman v. West, 12 Vet. App. 307, 310 (1999). The mere assertion that the notice was not received does not by itself constitute clear evidence rebutting the presumption. Jones v. West, 12 Vet. App. 98, 102 (1998). Such evidence that would rebut the presumption includes clear evidence that VA did not follow its regular mailing practices. Boyd, 27 Vet. App. at 72. The presumption may also be rebutted where there is evidence that VA used an incorrect address on the mailing in question or mail was returned as undeliverable and there were other possible and plausible addresses available to VA at the time. Id. In this case, the November 1973 rating decision did not contain notice of the Veteran’s appellate rights. Prior to that decision, the Veteran received notice of his appellate rights in April 1973. Then, in a July 24, 1973 Notification Letter, the VA informed the Veteran that his claim was denied because he failed to report to an examination. Thereafter, the Veteran attended a scheduled VA examination in October 1973. Subsequently, the November 1973 rating decision denied the back issue. See Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) (presuming that VA officials acted consistently with their legal duty under 38 U.S.C. § 7105(b)(1) to mail the veteran notification of a rating decision). The is no indication in the claims file that the November 1973 determination was not sent to the latest address of record or that it was returned to VA for incorrect addressing or being undeliverable. [In contrast, in the 2000s, there are pieces of mail that were returned to VA.] The Board notes that after the November 1973 rating decision, the claims file is absent for any communication from the Veteran until 1992. As noted above, the failure to notify the claimant of his right to such appellate review did not extend the applicable period to file a notice of disagreement or substantive appeal. As such, the Board finds that the November 1973 rating decision became final when the Veteran did not file a notice of disagreement or appeal the decision. 38 C.F.R. § 19.110 (1973). The Veteran next filed his claim for service connection for a lumbar disability in November 2001. Therefore, the Board concludes that an earlier effective date for the grant of service connection for a lumbar disability is not warranted. 4. Entitlement to an earlier effective date for service connection for an acquired psychiatric disorder. 5. Entitlement to an earlier effective date for service connection for a voiding dysfunction. 6. Entitlement to an earlier effective date for service connection for peripheral neuropathy of the right lower extremity. 7. Entitlement to an earlier effective date for service connection for peripheral neuropathy of the left lower extremity. 8. Entitlement to an earlier effective date for special monthly compensation (SMC) based on the loss of use of a creative organ. The Veteran’s attorney asserts entitlement to an earlier effective date for the grant of service connection for an acquired psychiatric disorder, voiding dysfunction, peripheral neuropathy of the right and left lower extremity, and SMC based on the loss of use of a creative organ. In support, he argues that the Veteran filed a notice of disagreement with the initial rating for the lumbar disability, and that he submitted new evidence (5/19/2009 and 7/8/2009) after he submitted a NOD (11/12/2008). As part of his assertion, he contends that his claims for secondary service connection were new and material evidence under 38 C.F.R. § 3.156(b) related to the initial rating assigned to the Veteran’s lumbar disability. The Board acknowledges these contentions. By way of procedural history, the Board notes that the Veteran was granted service connection for the lumbar disability in a November 2007 rating decision with an initial 10 percent rating, effective November 9, 2001. He filed a notice of disagreement with that rating an effective date assigned for the lumbar spine in November 2008. Later, he filed a claim for entitlement to a TDIU based on his lumbar spine disability on November 19, 2008, which was denied in a March 2009 rating decision. On May 19, 2009, he filed a claim for service connection for all conditions as secondary to his service-connected lumbar disability. Additional supporting evidence was submitted on late in 2009. A claim for secondary service connection is not part of an original service connection claim. See Manzanares v. Shulkin, 863 F.3d. 1374, 1377-78 (Fed. Cir. 2017) (rejecting the argument that a combination of 38 C.F.R. §§ 3.310(a) and 3.156(b) should be construed to mean that a claim for secondary service connection is “part of” an original service-connected condition, and that a claim for an increased rating constitutes new evidence filed in connection with the original claim). Accordingly, the Veteran’s claim for service connection for a lumbar disability in November 2001 cannot be construed as filing a secondary claim for service connection for his above listed claims as it goes against the precedential case law just noted. Additionally, after a review of the claims file, the Board notes that there is no earlier claim (formal or informal) for secondary service connection. See, e.g., 38 C.F.R. § 3.155 (prior to Mar. 24, 2015) (stating that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim). As such, entitlement to earlier effective dates for acquired psychiatric disorder, voiding dysfunction, peripheral neuropathy of the right and left lower extremity, and SMC based on the loss of use of a creative organ is denied. REASONS FOR REMAND 1. Entitlement to an earlier effective date for a total rating based on individual unemployability (TDIU) is remanded. The Veteran asserts entitlement to an earlier effective date for his TDIU. The Board notes that his TDIU is effective May 19, 2009. Prior to that date, the Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis because the combined rating does not satisfy the percentage requirements. In this regard, the Veteran does not have a single disability of 60 percent disabling and he does not have a service-connected disability that is 40 percent or greater with a total combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). There is competent medical evidence, to include a July 2017 vocational assessment, suggesting that the Veteran was unable to work due to his service-connected lumbar disability during this time. See 09/05/2017 Medical Treatment Record – Non-Gov’t Facility. As such, the Board finds that a referral is warranted. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any records cannot be obtained, notify the Veteran and his representative of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records 2. Send appropriate notice to the Veteran regarding TDIU and complete any necessary development. This should include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of his employment history and his educational background for proper adjudication of the TDIU matter. He should be asked to specifically identify by date the period or periods during which he claims individual unemployability due to service-connected disabilities. 3. Refer the Veteran’s request for a TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities preclude him from participating in gainful employment prior to May 19, 2009. 4. After completion of the above, readjudicate entitlement to a TDIU considering all relevant evidence.
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Anyone have experience with sending their claim to the Director of Compensation for Extraschedular consideration? REASONS FOR REMAND 1. Entitlement to an earlier effective date for a total rating based on individual unemployability (TDIU) is remanded. The Veteran asserts entitlement to an earlier...