Citation Nr: 1318275	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  07-17 272A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to a rating higher than 20 percent for a low back disability, specifically, for degenerative disc disease (DDD) of the lumbar spine

2.  Entitlement to a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Appellant Represented by:  The American Legion


ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel



INTRODUCTION

The Veteran served on active duty from September 1977 to September 1980.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from June and October 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

In March 2011, because the claims required further development before being decided on appeal, the Board remanded them to the RO via the Appeals Management Center (AMC) in Washington, DC.  The Board directed the AMC to:  1) obtain the Veteran's Social Security Administration (SSA) records, if confirmed he is receiving disability benefits or supplemental security income (SSI) from this other Federal agency (that is, not just because of his age/retirement); 2) obtain his outstanding VA outpatient treatment records dated since April 2008, including from the local VA Medical Center (VAMC) in Jackson; 3) obtain his outstanding private treatment records, including, but not limited to, from the Laurel Bone and Joint Clinic and Drs. L. and W. M; and 4) reschedule the Veteran's VA compensation examination to reassess the severity of his low back disability, including determining whether it renders him unemployable.

Also in that remand, the Board instead referred the issue of his entitlement to service connection for Hodgkin's Lymphoma since it has been raised by the record but had not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ).  Therefore, the Board did not have jurisdiction over this additional claim, so referred it to the RO for appropriate development and consideration.  See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO).

Since completing the requested development, the AMC has continued to deny a rating higher than 20 percent for the Veteran's low back disability and a TDIU, so these claims are again before the Board.


FINDINGS OF FACT

1.  Prior to October 22, 2009, the DDD of the Veteran's lumbar spine was manifested primarily by complaints of pain and stiffness, forward flexion to 60 degrees, and a combined range of thoracolumbar spine motion of 160 degrees.

2.  From October 22, 2009 through March 9, 2011, this low back disability was manifested primarily by complaints of pain and stiffness and forward flexion to just 30 degrees.

3.  Since March 10, 2011, this low back disability has been manifested primarily by complaints of pain and stiffness, forward flexion to 45 degrees, and a combined range of thoracolumbar spine motion of at least 122 degrees.

4.  The DDD of his lumbar spine is his only adjudicated service-connected disability, which, as a result of this decision, will continue to be rated as 20-percent disabling prior to October 22, 2009; but as 40 percent disabling from October 22, 2009 through March 9, 2011, and again as 20-percent disabling from March 10, 2011 to the present.

5.  He has a high school education and work experience as a truck driver.

6.  His service-connected low back disability does not preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison - that is, when considering his level of education, prior work experience and training, but not his advancing age and disabilities that have not been determined to be related to his military service, i.e., service connected.



CONCLUSIONS OF LAW

1.  For the period prior to October 22, 2009, the criteria are not met for a rating higher than 20 percent for the DDD of the lumbar spine.   38 U.S.C.A. § 1155, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012).

2.  But for the intervening period from October 22, 2009 through March 9, 2011, the criteria are met for a higher 40 percent rating for this low back disability, though no greater rating.  Id.

3.  Since March 10, 2011, however, the criteria have not been met for a rating higher than 20 percent for this low back disability.  Id.

4.  The criteria also are not met for a TDIU.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

Prior to considering the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory and regulatory duty to notify and assist obligations as concerning these claims.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

In April and August 2006, respectively, VA received his claims and there is no issue as to providing an appropriate application form or completeness of the application.  Following receipt of those applications, VA informed him that in order to establish his entitlement to an increased rating for his service-connected disability, the evidence needed to show the disability had worsened and the manner in which the worsening had affected his employment and daily life.  38 U.S.C.A. § 5103(a).

VA also informed him of the criteria for a TDIU.  In addition, VA notified him of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him and of the evidence VA would attempt to obtain on his behalf.  38 C.F.R. § 3.159(b).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

During the pendency of this appeal, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), holding that VA needed to provide a greater degree of specificity with respect to notice of the criteria necessary for an increased rating, which included a derivative TDIU claim since it, too, is a type of increased-rating claim, not a separate claim, inasmuch as the Veteran is trying to obtain the highest possible rating or greatest level of compensation for his service-connected disability or disabilities.  However, that decision later was vacated by the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), which held instead that VA need only provide generic notice and need not apprise the Veteran of alternative diagnostic codes or to present evidence as to how his disability affects his daily-life experiences.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009).

VA also as mentioned has a duty to assist the Veteran in obtaining evidence necessary to substantiate these claims.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting him in obtaining records and providing medical examinations or obtaining medical opinions when necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to the claimant).


Here, following provision of the required notice to the Veteran, VA also fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claims.  To this end, VA obtained or ensured the presence of records reflecting his VA treatment from April 2006 through February 2012; an August 2006 report from R. B., a private health care provider; a September 2006 report from the Veteran's former employer; records reflecting his treatment by W. A. M., M.D., from June 2007 to May 2008; a July 2007 report from J. J., M.D.; and the Veteran's SSA records.  Many of these records were obtained following and as a result of the Board remanding these claims in March 2011.

Also, in May 2006 and March 2011, VA examined and reexamined the Veteran to assess and reassess the severity of his low back disability, including its effect on his ability to work a substantially gainful job.  And that more recent March 2011 VA compensation examination also was the result of the Board remanding these claims in March 2011.  The VA examination reports indicate the examiners reviewed the Veteran's medical history, interviewed and examined him, documented his current medical conditions and their severity, including their impact on his employability, and rendered diagnoses and opinions consistent with the other evidence in the file.  Therefore, the Board concludes the VA examinations are adequate for rating purposes such that additional examination is not needed.  See 38 C.F.R. §§ 3.327, 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate).

Moreover, there was compliance with the Board's March 2011 remand directives in terms of obtaining all outstanding Federal records from SSA and VA and from private healthcare providers and in having the Veteran reexamined to reassess the severity of his low back disability and, in the process, determine its affect on his employability.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

As well, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing, but he elected not to have one, including before the Board.  38 C.F.R. §§ 20.700, 20.702, 20.704.

In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of his claims, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  He has not identified any other outstanding evidence that would tend to support his claims, and there is no suggestion of any VA error in notifying or assisting him in developing is claims that could result in undue prejudice to him in deciding these claims or that could otherwise affect the essential fairness of the adjudication of these claims.

In deciding these claims, the Board has reviewed all of the evidence in his claims file, both his physical claims file and electronic ("Virtual VA") claims file.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each and every piece of evidence reviewed, certainly not in exhaustive detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  He therefore must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

It is VA's defined and consistently applied policy 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 service origin, the degree of disability, or any other point, this doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists that does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012).


The Merits of the Appeal

Disability evaluations are determined by the application of VA's Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability.  38 C.F.R. § 4.1.

When there is a question as to which of two evaluations shall be assigned, the higher evaluation 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.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation, that is, a "staging" of the rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus is on the state of the disability from the year immediately preceding the receipt of the claim for a higher rating for the disability until VA makes a decision on the claim.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).


According to Harper v. Brown, 10 Vet. App. 125, 126 (1997), three possible effective dates may be assigned for a higher rating for a service-connected disability depending on the facts of the particular case:

(1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or

(3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

So determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred.  38 C.F.R. §§ 3.155, 3.400(o)(2).  See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a 
one-year grace period for filing a claim following an increase in the severity of a service-connected disability).

Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.


Whether a Higher Rating is Warranted for the DDD of the Lumbar Spine

The DDD of the Veteran's lumbar spine is rated in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5243, as intervertebral disc syndrome (IVDS).  A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  

For the purpose of evaluating claims under 38 C.F.R. § 4.71a, DC 5243, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  "Chronic orthopedic and neurologic manifestations" mean orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so.  38 C.F.R. § 4.71a, DC 5243, Note (1).  

IVDS also may be rated under the General Rating Formula for Diseases and Injuries of the Spine, so DCs 5235-5242.  The noted ratings may be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

A 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, when muscle spasm, guarding, or localized tenderness does not result in an abnormal gait or abnormal spinal contour; or, when there is a vertebral body fracture with loss of 50 percent or more of the height.


A 20 percent rating is warranted when 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 are 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 when there is unfavorable ankylosis of the entire cervical spine; or, when forward flexion of the thoracolumbar spine is accomplished to 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine.

And a 100 percent rating is warrant when there is unfavorable ankylosis of the entire spine (that is, when additionally considering the adjacent cervical segment).

Note (1):  Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated under an appropriate DC.

Note (2):  (See also Plate V.)  For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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 thoracolumbar 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 (3):  In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4):  Round each range of motion measurement to the nearest five degrees.

Note (5):  For VA compensation purposes, 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 (zero degrees) always represents favorable ankylosis.

Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

In determining the adequacy of assigned disability ratings, consideration is given to factors affecting functional loss.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use including that experienced during flare ups.  38 C.F.R. § 4.40.  Consideration is also given to weakened movement, excess fatigability, and incoordination, as well as the effects of the disability on the Veteran's ordinary activity.  38 C.F.R. § 4.10, 4.45.  


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.  This directive to assign a minimally compensable rating in the presence of pain applies to joint pain generally and is not limited to pain only associated with arthritis.  See Burton v. Shinseki, 25 Vet. App. 1, 1-2 (2011).

The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).

But when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion.  See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011).  Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance.  Id., at 37.  In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss.  Id., at 36.  Where the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not apply.  Johnson v. Brown, 9 Vet. App. 7, 11 (1996).  So a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

Turning now to the relevant facts and circumstances of this particular case at hand, a review of the evidence, such as the report of the Veteran's May 2006 VA compensation examination, discloses that at the outset of his claim for a higher or increased rating for his service-connected low back disability it was manifested primarily by complaints of constant pain, which he said increased with activity, and of stiffness and tenderness to palpation.  There was no suggestion of ankylosis, and he was able to flex his lumbar spine to 60 degrees.  Positive straight leg raising was also noted at that level, and he had a combined range of thoracolumbar spine motion of 160 degrees.  Repetitive testing did not change the range of motion, and there was no objective evidence of pain, such as spasm, crepitation, or weakness.  He denied the use of any device to assist him with ambulation, such as a back brace, cane, crutches, or a walker.  He walked with a steady gait and reported no history of falls.  He also denied the presence of any bowel or bladder impairment associated with his low back disability.  In addition, he denied having experienced any incapacitating episodes.  Moreover, despite his low back problems, he remained independent in his performance of the activities of daily living (ADLs).

In October 2007 he had low back surgery involving a hemilaminectomy at L4-L5, a discectomy, and lysis of adhesions.  He was taken to the recovery room in satisfactory condition, and subsequent records are unremarkable for any evidence of additional limitation of motion of the lumbar spine or incapacitating episodes as defined by VA.  There was evidence of peripheral neuropathy of the feet, however, the evidence such as a June 2007 report from W. A. M., M.D., shows the disorder was associated with chemotherapy the Veteran was undergoing to treat his Hodgkin's lymphoma (so not on account or as a result of his service-connected low back disability).  Although he had diminished reflexes in his lower extremities, bilaterally, his sensation remained intact, and his strength remained full at 5/5 with normal tone, dexterity, bulk, and coordination.  

In sum, prior to October 22, 2009, the evidence showed that the manifestations of his service-connected low back disability were consistent with or more nearly reflected in the criteria for a 20 percent rating under 38 C.F.R. § 4.71a, DC 5243.  Therefore, to that point, an increased rating was not warranted.

But during an October 22, 2009 medical examination for SSA, there was evidence the Veteran's low back disability was causing a greater level of impairment.  He continued to report chronic low back pain and stiffness, and he had a difficult time getting on and off the examining table.  While he continued to walk unassisted, the examiner observed the Veteran appeared to be in some discomfort.  He had limited range of motion in all planes, and it was noted that he was only able to flex his low back to about 30 degrees.  Additional SSA records dated in December 2009, so from around that same time, show he also had some postural limitations with frequent difficulty balancing and occasional difficulty climbing, stooping, kneeling, crouching, and crawling.

In view of those additional limitations in general, and in particular the flexion restriction to just 30 degrees, the Board finds that effective October 22, 2009, his low back disability met or more nearly approximated the schedular criteria for a higher 40 percent rating under 38 C.F.R. § 4.71a, DC 5243.  Therefore, an increased rating was warranted to reflect the higher degree of disability at that time.  Hart.

In arriving at this decision, the Board has considered the possibility of a still-higher schedular rating.  However, the Veteran does not demonstrate unfavorable ankylosis of his entire thoracolumbar (thoracic and lumbar) spine, much less of his entire spine when also considering the adjacent cervical segment.  Aside from the Note (5) definition of ankylosis in 38 C.F.R. § 4.71a, DCs 5235-5242, consider also that ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure"); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  

See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  Because he has retained some quantifiable measure of range of motion, even if not normal range of motion, so involving some restriction, he by definition does not have ankylosis, either favorable or unfavorable, since that is tantamount to absolutely no range of motion at all.

Moreover, there continues to be no suggestion of any incapacitating episodes as defined by VA regulation, which, to reiterate, means doctor-prescribed bedrest, not merely instead electing to stay in bed on one's own initiative.  Therefore, effective October 22, 2009, a higher 40 percent rating and no more is warranted for the Veteran's service-connected low back disability.

After October 2009, the Veteran continued to receive VA treatment for his low back disability, and records from the SSA, such as those dated in November 2009, show he could not lift more than 10 pounds and that he used a motorized wheelchair when he went to the store.  When dressing, he needed help putting on his shoes and socks, but was otherwise able to dress himself.  Generally, he had few problems with personal care.  In addition, he prepared his own meals, one to two times a week, mowed the lawn with a riding mower, folded clothes, watered the flowers, shopped in stores, and watered and fed two dogs with help.  

More recent records, such as the reports of his VA examinations on March 10 and March 30, 2011, show that, although he uses a cane, he continues to walk with an even gait.  Indeed, it was noted that he had a normal wear pattern on his shoes.  He dressed rapidly, and during range-of-motion testing he demonstrated thoracolumbar flexion to 48 degrees.  Repetitive testing did not diminish that figure.  In addition, he demonstrated at least 122 degrees of combined thoracolumbar motion, even on repeat testing.  Aside from a small grunt, range-of-motion testing provided no objective evidence of pain.  Although his deep tendon reflexes remained diminished, his strength remained normal at 5/5 without evidence of atrophy or impaired tone, dexterity, or incoordination.  The sensory deficits in his feet continued to be attributed to the peripheral neuropathy associated with chemotherapy, rather than to his service-connected lumbar spine disability.

Further during his March 2011 VA examinations, he reported that three times a day he would rest for at least an hour for pain relief.  However, those periods were not prescribed by a physician or otherwise considered incapacitating episodes as defined by VA.  Indeed, following the March 2011 examinations, it was noted that he generally moved about and functioned well.  This was consistent with the November 2011 findings of a VA chiropractor, who noted the Veteran had an increased ability to perform the activities of daily living and that there had been an overall decrease in his symptoms.

Consequently, the Board finds that since March 10, 2011, the manifestations of the DDD of the Veteran's lumbar spine have met or more nearly reflected the criteria for a 20 percent rating under 38 C.F.R. § 4.71a, DC 5243, rather than any higher rating, including at the 40-percent level.  Accordingly, from that point going forward, the 20 percent rating for the low back disability will resume.  Hart.

The Board additionally has considered the possibility of referring this case to the Director of VA's Compensation and Pension Service for possible approval of an extra-schedular rating for the Veteran's service-connected low back disability.  38 C.F.R. § 3.321(b)(1) (2012).

Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).


Because the ratings provided in VA's Schedule for Rating Disabilities are averages, an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun v. Peake, 22 Vet. App. 111, 114 (2008).  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extra-schedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1). 

There is a three-step inquiry for determining whether a claimant is entitled to an extra-schedular rating.  Thun, 22 Vet. App. at 115.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Id.  If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required.  Id.  Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.


In this case, neither the Veteran nor his representative has expressly raised the matter of entitlement to an extra-schedular rating.  The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned schedular rating.  See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant).  
But more importantly, the criteria for rating his lumbar spine DDD specifically contemplate the symptoms he has complained about - namely, pain and consequent limitation of motion, spinal deformity, muscle spasm, ankylosis, the quality of his gait, and need for an assistive device for ambulation.

In short, he does not have symptoms associated with this service-connected disability that have been left uncompensated or unaccounted for by the assignment of his schedular ratings, especially when considering the "staging" of his rating in this decision from 20 to 40 and then back to 20 percent.  Thun, 22 Vet. App. at 115.  Therefore, the preponderance of the evidence is against a finding that his disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards.  Accordingly, further action is not warranted under 38 C.F.R. § 3.321(b)(1).  See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

TDIU

When a Veteran has a schedular rating less than 100 percent, a total rating nonetheless may be assigned - provided that, if, as here, there is just one 
service-connected disability, it is rated as at least 60-percent disabling and precludes him from being able to secure or follow a substantially gainful occupation.  38 C.F.R. § 4.16(a).  A claim for a TDIU presupposes that the rating for the 
service-connected condition is less than 100 percent, and only asks for a TDIU because of "subjective" factors that the "objective" rating does not consider.  See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).

A TDIU also may be granted on an extra-schedular basis under § 4.16(b), however, so even though a Veteran fails to meet these percentage requirements of § 4.16(a), if it is established he is unemployable on account of his service-connected disability.
The Veterans Court (CAVC) has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1)  . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16."  Kellar v. Brown, 6 Vet. App. 157, 162 (1994). The former requires marked interference with employment; whereas the latter requires evidence of unemployability. Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008), ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable.").

Since VA received the Veteran's claim for a TDIU, he has failed to meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a).  This in turn means he can only obtain this benefit with consideration of the special provisions of § 4.16(b).  He has just one adjudicated service-connected disability, the DDD of his lumbar spine, which, even with the benefit of this decision, has at most been rated as 40-percent disabling and, effectively since March 10, 2011, only instead as 
20-percent disabling.  The remaining question, then, is whether this 
service-connected disability precludes him from obtaining and maintaining substantially gainful employment.

Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides.  VA adjudication manual, 
M-21-1MR, Part IV, sub. ii, Ch. 2, Sec. F, 24(d).  This suggests a living wage.  Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991).  Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined 'substantially gainful employment' as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income....'


The ability to work sporadically or to obtain marginal employment is not substantially gainful employment.  Marginal employment, for example, as a 
self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered 'substantially gainful employment.'  38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same.  See 38 C.F.R. § 4.18.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  38 C.F.R. § 4.16(a).  Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Id.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  Id.

Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment.  The use of the word 'substantially' suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

Any consideration as to whether the Veteran is unemployable is a subjective one, that is, one that is based upon the Veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Prec. Op. VA Gen. Counsel 75-91 ("Unemployability" in VA Regulations on Total Rating Compensation, Inability to Secure and Follow Substantially Gainful Employment; No Average Person Standard, 57 Fed. Reg. 2317  (1992)). 


Advancing age and nonservice-connected disability may not be considered in the determination of whether a Veteran is entitled to TDIU.  38 C.F.R. § 3.341(a), 4.19 (2009).  See also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992).

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Veteran maintains that he is unemployable because of his service-connected low back disability.  He points out that another Federal agency, namely, SSA, has found him unemployable because of this disability.  He therefore contends that he should be considered unemployable as well by VA.  While a finding of unemployability by the SSA is relevant evidence needing to be weighed and evaluated, it is not altogether dispositive of the issue.  So while SSA records are pertinent, they are not outright controlling on VA determinations.  See, e.g., Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  Indeed, each agency has its own laws and regulations to consider in making such a determination.  Hence, a finding of unemployability by the SSA is not binding on VA.  See, e.g., Faust v. West, 13 Vet. App. 342, 356 (2000).

In this case, the evidence of record, including the Veteran's TDIU application (VA Form 21-8940, received by the RO August 2006), shows he has a high school education and work experience as a truck driver.  During his March 2011 VA psychiatric examination, it was also noted that he had experience farming, working in sawmills, and as a self-employed carpenter.


On his TDIU application, he strongly suggested that he was unable to return to work due to his Hodgkin's lymphoma, so not because of his service-connected low back disability.  Indeed, he acknowledged that, because of the chemotherapy for his Hodgkin's lymphoma, there was no place for him at his old job.  In July 2007, J. J., M.D., affirmed as much by similarly indicating the Veteran was unable to return to work due primarily to the side effects of his [chemo]therapy for his Hodgkin's lymphoma.  So both attributed the Veteran's inability to return to the workforce to something other than the service-connected low back disability.

Their acknowledgements are contrasted with a June 2007 statement from W. A. M., M.D., indicating the Veteran was unable to work and suggesting it was due primarily to his service-connected lumbar spine DDD.

Following the more recent March 2011 VA examination of the Veteran's spine, the examiner acknowledged the Veteran would not be able to drive a truck but would be able to still do more sedentary work.  The examiner observed that, despite the abnormalities of the Veteran's low back on his MRI, he moved about and functioned rather well.  Moreover, a March 2011 VA neurologic examiner concluded the Veteran did not have a neurologic disorder associated with the service-connected low back disability that would prevent him from performing employment.

The preponderance of the evidence, on the whole, is against finding that the Veteran's service-connected low back disability, alone, precludes him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison.  Rather, the evidence shows his lack of employment is the result of a combination of his service-connected low back disability and non-service-connected  Hodgkin's lymphoma and associated peripheral neuropathy.  But, to reiterate, he must be unemployable if only considering his service-connected disability, so if only considering his low back disability, not also his Hodkin's lymphoma and the peripheral neuropathy that has been attributed to it rather than to his service-connected low back disability.  Accordingly, a TDIU is not warranted, and this remaining portion of the appeal resultantly is denied.


ORDER

For the period prior to October 22, 2009, entitlement to a rating higher than 20 percent for the DDD of the lumbar spine is denied.

But for the intervening period from October 22, 2009 through March 9, 2011, a higher 40 percent rating is granted for the low back disability, though no greater rating, subject to the statutes and regulations governing the payment of VA compensation.

For the period since March 10, 2011, however, entitlement to a rating higher than 20 percent for the low back disability is denied.

As well, entitlement to a TDIU is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs