Citation Nr: 1631157	
Decision Date: 08/04/16    Archive Date: 08/11/16

DOCKET NO.  09-50 061	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington

THE ISSUES

1.  Entitlement to a rating higher than 10 percent prior to April 29, 2013, higher than 20 percent from April 29, 2013 to December 2, 2013, and higher than 40 percent since December 3, 2013, for a low back disability. 

2.  Entitlement to a rating higher than 20 percent for associated radicular involvement of the left sciatic nerve.  

3.  Entitlement to a total disability rating based on individual unemployability (TDIU). 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Christopher M. Collins, Associate Counsel
INTRODUCTION

The appellant is a Veteran who served on active duty from October 1975 to April 1984. 

This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

In support of these claims, also a claim for service connection for an acquired psychiatric disorder (including depression and anxiety) secondary to the service-connected low back disability, the Veteran testified at a hearing at the RO in November 2014 before the undersigned Veterans Law Judge of the Board (Travel Board hearing).  A transcript of the hearing is of record. 

In January 2015, the Board granted the claim for service connection for an acquired psychiatric disorder, but instead remanded these remaining claims to the Agency of Original Jurisdiction (AOJ) for further development and consideration.  In particular, the Board determined that the claims file did not contain VA treatment records beyond September 2012, and thus that there was no documentation of the Veteran's then recent treatment for his low back disability and associated radicular involvement of his left sciatic nerve.  Furthermore, after determining that he was entitled to service connection for the acquired psychiatric disorder secondary to his service-connected low back disability, the Board found that an opinion as to the functional and occupational impairment resulting from the acquired psychiatric disorder consequently was needed to, in turn, adjudicate the derivative claim for a TDIU since all service-connected disabilities must be considered in deciding this derivative claim.

On remand, after obtaining the updated VA treatment records and a medical opinion on this determinative issue of functional and occupational impairment resulting from the acquired psychiatric disorder, that is, in combination with the other service-connected disabilities, the AOJ continued to deny the TDIU and underlying increased-rating claims, so they are again before the Board.

This appeal is being processed entirely electronically using Virtual VA and the Veterans Benefits Management System (VBMS), which are paperless claims processing systems.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records.


FINDINGS OF FACT

1.  Prior to April 29, 2013, the Veteran's low back disability was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. 

2.  For the period from April 29, 2013 to December 2, 2013, his low back disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 

3.  Since December 3, 2013, his low back disability has been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; at no point during the pendency of the appeal of this claim has he had ankylosis of either segment of his spine (thoracolumbar (i.e., thoracic and lumbar) or cervical).

4.  At no point during the pendency of this appeal has the associated radicular involvement of his left sciatic nerve been manifested by symptoms of more than moderate severity, including when considering pain and numbness. 

5.  The record indicates however that his service-connected disabilities, especially in combination, render him unable to obtain and maintain employment that could be considered substantially gainful versus just marginal in comparison when considering his level of education, prior work experience and training, but not instead his advancing age and disabilities that are not service connected.



CONCLUSIONS OF LAW

1.  The criteria are not met for a rating higher than 10 percent for the low back disability prior to April 29, 2013, or a rating higher than 20 percent from April 29, 2013 to December 2, 2013, or a rating higher than 40 percent since.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.71a, Diagnostic Codes 5235-5243 (2015).

2.  The criteria also are not met for a rating higher than 20 percent for the associated radicular involvement of the left sciatic nerve.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.124a, Diagnostic Codes 8520-8720 (2015).

3.  But the criteria are met for a TDIU.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, not of record that is necessary to substantiate the claim, also of the information and evidence the claimant is expected to provide versus that VA will attempt to obtain for the claimant, so on his behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

According to the U.S. Court of Appeals for the Federal Circuit, in a case as here involving a claim for an increased rating for a disability already determined to be service connected, the notice described in 38 U.S.C.A. § 5103(a) need not be Veteran specific or advise him that, to substantiate his claim, he must submit medical or lay evidence showing the effect any worsening in his disability has on his employment and daily life.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  Rather, VA need only provide what amounts to "generic" notice advising him of the evidentiary and legal criteria for establishing his entitlement to greater compensation.  Id.  And this level of notice was provided in this instance.

This VCAA duty to notify was satisfied by way of a November 2008 letter that fully addressed all notice elements.  It was sent prior to the initial RO decision that is at issue in this appeal, so in the preferred sequence.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The letter duly informed the Veteran of the type of evidence required to substantiate his claims and of his and VA's respective responsibilities in obtaining this necessary supporting evidence.

VA also as mentioned has a duty to assist the Veteran in developing his claims.  This duty includes assisting him in the procurement of relevant records, so from both prior to, during, and since his service, therefore including his service treatment records (STRs) and pertinent post-service VA and private treatment records.  This duty to assist also includes providing an examination for a medical opinion when needed to help decide a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no such obligation when there is no reasonable possibility the assistance would help substantiate the claim.

The Board finds that all necessary development has been accomplished, and therefore appellate review of these claims may proceed without prejudicing the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO/AOJ has obtained his STRs, post-service VA clinical records, and private medical records.  Furthermore, he was afforded several VA medical examinations in response to these claims, as well as an opportunity to testify at a hearing before the undersigned Veterans Law Judge (VLJ) in furtherance of these claims. 

As concerning the November 2014 Travel Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  During the November 2014 hearing, to this end, the undersigned presiding judge correctly identified the issues and focused on the elements necessary to substantiate the claims.  The Veteran has not alleged any deficiency in the conducting of the hearing and the Board finds that, consistent with Bryant, the duties set forth in § 3.103(c)(2) were satisfied.

Moreover, there was compliance, certainly substantial compliance, with the Board's January 2015 remand directives, including especially in terms of taking the necessary steps to obtain updated VA treatment records and affording the Veteran a VA compensation examination for the needed opinion regarding the functional and occupational impairment resulting from the service-connected acquired psychiatric disorder, including in combination with the other service-connected disabilities.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Recognizing these efforts, the Veteran has had meaningful opportunity to participate effectively in the processing of these claims, and there is no indication of prejudicial error with regards to VA's duties to notify and assist him with these claims.  Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010).  Accordingly, the Board is proceeding with appellate review of these claims.


In deciding these claims, the Board has reviewed all of the evidence in the Veteran's electronic (paperless) claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Whether Higher Ratings are Warranted for the Low Back Disability

Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 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.  Where there is a question as to which of two evaluations shall be applied, 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).  "Staged" ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings.  And this practice is employed irrespective of whether it is an established or initial rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).  In the established-rating context, however, the relevant temporal focus is on the state of the disability from the year immediately preceding the filing of the claim for a higher rating, whereas in the initial-rating context the focus, instead, is on the state of the disability only since the filing of the claim (or thereabouts).  See 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2).

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (VA's anti-pyramiding regulation).  However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Disabilities affecting the spine are rated based on either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or, if involving Intervertebral Disc Syndrome (IVDS), based on incapacitating episodes, in particular, their frequency and duration.  The General Rating Formula for Diseases and Injuries of the Spine covers Diagnostic Codes 5235-42, whereas IVDS is addressed in Diagnostic Code 5243.

Diagnostic Code 5237, so within the range of Diagnostic Codes 5235-42, specifically concerns lumbar strain.  Diagnostic Code 5242, in particular, concerns degenerative arthritis of the spine and indicates to see also Diagnostic Code 5003 since it, too, pertains to rating degenerative arthritis (hypertrophic or osteoarthritis). Diagnostic Code 5003, as well as Diagnostic Codes 5235-5242, indicates to rate the arthritis on the basis of the extent it causes limitation of motion of the specific joint or joints affected. 

Diagnostic Codes 5235-42, since specifically concerning limitation of motion of the spine, provide a 10 percent rating when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is between 120 and 235 degrees, or where muscle spasm or guarding does not result in an abnormal gait or abnormal spinal contour.  A 20 percent rating is assigned where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or where muscle spasm or guarding is 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 assigned if evidence shows forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, a 50 percent rating if the evidence shows unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating if the evidence shows unfavorable ankylosis of the entire spine (that is, when additionally considering the adjacent cervical segment).  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is from zero to 30 degrees, left and right lateral flexion are from zero to 30 degrees, and left and right rotation are from zero to 30 degrees.  38 C.F.R. § 4.71a, Plate V.

The Veteran already has what amounts to a "staged" rating for his service-connected low back disability.  It was rated as 10-percent disabling from April 11, 1984 to April 28, 2013, as 20-percent disabling from April 29, 2013 to December 2, 2013, and as 40-percent disabling since December 3, 2013.

The Veteran submitted his claim for an increased rating of his low back disability in September 2008.  He was afforded a VA medical examination in December 2008, during which he reported the same symptoms of stiffness, pain, and numbness in his low back as he had in years past.  A physical examination revealed no evidence of radiating pain on movement and no muscle spasms or ankylosis.  Range-of-motion testing revealed the following:  flexion of 65 degrees, extension of 30 degrees, right lateral flexion of 30 degrees, left lateral flexion of 30 degrees, right rotation of 30 degrees, and left rotation of 30 degrees.  The examiner noted there were signs of Lumbar IVDS and, a result, changed the diagnosis to lumbar spine strain and IVDS involving external cutaneous nerve of thigh.  The examiner concluded by stating that the low back disability limited the Veteran's ability to sit, stoop, and walk.

In the January 2009 rating decision that formed the basis of this appeal, the RO confirmed and continued the 10 percent evaluation for the low back disability.  Additionally, though, the RO distinguished an additional service-connected disability, namely, IVDS involving external cutaneous nerve of the thigh, and assigned this additional disability a noncompensable rating.  In October 2009, in response, the Veteran filed a Notice of Disagreement (NOD) regarding the denial of his claim for an increased rating for his low back disability.  Thereafter, in a November 2009 Statement of the Case (SOC), the RO confirmed and continued the 10 percent evaluation of the low back disability.  The Veteran then in response completed the steps to "perfect" his appeal of this claim to the Board by submitting a timely Substantive Appeal (on VA Form 9) in December 2009.  In a July 2013 decision since issued, however, during the pendency of this appeal, a local Decision Review Officer (DRO) increased the rating for the Veteran's low back disability from 10 to 20 percent effective April 29, 2013, the date of the most recent VA medical examination at that time.  The DRO also granted a separate 20 percent rating for the associated radicular involvement of the left sciatic nerve, which previously as mentioned had been rated as part and parcel of the low back disability.  In yet another, even more recent, decision in January 2014 a DRO again increased the rating for the Veteran's low back disability, this time from 20 to 40 percent as of December 3, 2013.  The Veteran since has continued to appeal for even higher ratings.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a disability, absent express indication otherwise, so receipt of a higher rating, but less than the maximum possible rating, does not abrogate a pending appeal.).

The Board later, as mentioned, in January 2015 remanded these claims to the AOJ for an addendum (supplemental) medical opinion and for some missing records.  Following completion of these remand directives, the RO/AOJ issued an October 2015 Supplemental SOC (SSOC) confirming and continuing the 40 percent rating for the Veteran's low back disability, so this claim was returned to the Board for further appellate consideration.

The Veteran submitted a statement from a Dr. Sekaran dated in November 2009.  In the statement Dr. Sekaran asserted that he was primary care physician for the Veteran and that he had been treating the Veteran for chronic degenerative disc disease and osteoarthritis.  Dr. Sekaran further stated that the low back disability precluded regular, extended physical activity secondary to chronic pain. 

In a personal statement dated in October 2009, the Veteran asserted that his low back disability has a negative impact on his ability to perform his job.  Specifically, he contended that the constant, nagging, ever-present pain is a major source of mental strain and distraction.  He stated that he could not sit or stand for a prolonged period of time and was not able to lay down at his job, which restricted his ability to work. 

The Veteran submitted a statement dated in January 2013 in which he asserted that his low back pain is constant and that he regularly experienced tightening of the back muscles.  Furthermore, he detailed how he experienced numbness, tingling, and shooting pain in his left leg. 

The Veteran submitted a lay statement from a D.U. dated in April 2013 in which she asserted that he has difficulty getting out of bed due to his back pain and muscle tension.  In addition, she stated that she has observed him having painful muscle cramps when he moved his body in certain ways. 

The Veteran submitted a statement dated in April 2013 in which he asserted that he recently began experiencing painful muscle cramps on the side of his body, stomach, and lower back.  He further stated that he could not lie down on his back for more than a minute.  In addition, he detailed his complications with his left leg, including experiencing buckling in his left ankle and certain occasions when his left knee would give out. 

The Veteran was afforded a VA medical examination in April 2013 to reevaluate the severity of his low back disability.  He reported that his condition had worsened since his last low back examination and that he was told he had a deteriorating disc in 2009.  He also detailed his difficulties with sleeping, bending over, twisting at the waist, and lifting anything heavy.  A physical examination revealed no evidence of ankylosis but did reveal evidence of muscle spasms.  Range of motion testing revealed the following: flexion of 60 degrees, extension of 25 degrees, right lateral flexion of 20 degrees, left lateral flexion of 20 degrees, right rotation of 20 degrees, and left rotation of 20 degrees.  Repetitive testing did not decrease any of the findings.  Functional impairment was noted as less movement than normal and pain on movement.  The examiner found left lower extremity radiculopathy of moderate severity, which was identified as involvement of left L4/L5/S1/S2/S3 nerve roots.  The examiner noted that the Veteran experienced IVDS but that there was less than one week of incapacitating episodes over the past 12 months.  With regards to the functional impact of the low back disability, the examiner found that the Veteran was unable to walk long distances, was in constant pain, required stretching and massaging as well as sleep medication to fall asleep, and could not do even sedentary work. 

The Veteran was afforded another VA medical examination in December 2013 to again reassess the severity of his low back disability.  He reported that he had daily low back pain and that he was limited to walking no more than a block before his pain required that he stop and rest.  He also reported that he experienced flare ups two to three times a month which resulted in decreased range of motion and an increase in pain.  A physical examination revealed no evidence of muscle spasms but did reveal evidence of bilateral lumbar paraspinous musculature.  Range-of-motion testing revealed the following:  flexion of 20 degrees, extension of 10 degrees, right lateral flexion of 10 degrees, left lateral flexion of 10 degrees, right rotation of 20 degrees, and left rotation of 20 degrees.  Repetitive testing resulted in the following decreased measurements: flexion of 10 degrees, extension of 5 degrees, right rotation of 10 degrees, and left rotation of 15 degrees.  Functional impairment was noted as less movement than normal, weakened movement, and pain on movement.  The examiner found left lower extremity radiculopathy of mild severity, which was identified as involvement of left L4/L5/S1/S2/S3 nerve roots.  On this examination, no IVDS was noted.  The examiner concluded by stating that the Veteran "would need sedentary work with limited hours from the back standpoint." 

The Veteran was invited in November 2014 to testify before the undersigned VLJ at a Travel Board hearing at the RO.  He stated that he had near-constant low back pain and that it would intermittently increase in severity.  He also detailed his difficulties with his left knee giving out and with pain and numbness in his left leg.  Moreover, he explained how difficult it was for him to bend over or extend without experiencing pain and cramping and how these symptoms complicated his ability to carry out activities of daily living (ADL's).  When specifically asked, he acknowledged never actually being prescribed bed rest by a doctor; however, he did describe how he would intermittently experience symptoms to the point that he felt compelled to lie down in his bed to try and alleviate them, but often to no avail.

Having been directed to do so by the Board in its January 2015 remand, the RO obtained additional VA medical records documenting the Veteran's treatment for his low back disability from the period between September 2012 and April 2015.  These records demonstrate that his treating physicians acknowledge his history of a low back disability but are not actively treating the symptoms of this disability.  According to the Veteran's statements during an October 2015 VA examination for the purposes of evaluating his derivative TDIU claim, he was addressing the symptoms of his low back disability with yoga, chiropractic care, deep breathing exercises, and reading the Bible.  Furthermore, he stated that the chronic pain had improved over the past few years and that he was better able to carry out ADL's.

After considering this collective body of evidence, the Board finds that a rating higher than 10 percent prior to April 29, 2013 is not warranted as forward flexion of the thoracolumbar spine was to greater than 60 degrees, the combined range of motion of the thoracolumbar spine was to greater than 120 degrees, there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, and there was no ankylosis of the low back.  Consequently, an evaluation exceeding 10 percent cannot be granted under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243 unless Diagnostic Code 5243 is rated under the criteria for IVDS.

A rating higher than 10 percent also is not warranted before April 29, 2013, alternatively under the IVDS rating criteria because incapacitating episodes as defined by VA regulation were not shown before that date (or, indeed, even since).  See again 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).  In short, there must have been doctor- or physician-prescribed bed rest, and there simply was not.  The Veteran, himself, acknowledged as much during his November 2014 hearing.

A rating higher than 20 percent from April 29, 2013 to December 2, 2013, also is not warranted under the General Rating Formula for Diseases and Injuries of the Spine.  Forward flexion of the thoracolumbar spine was between 30 and 60 degrees, and no ankylosis was shown.  Furthermore, although the April 2013 examiner acknowledged IVDS, it was reported that the IVDS had resulted in less than one week of incapacitating episodes over the past 12 months (even to the extent one could argue that an incapacitating episode had been experienced, which, in actuality, one had not according to the regulatory definition).  Consequently, an evaluation exceeding 20 percent cannot be granted for this period under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243. 

A rating higher than 40 percent since December 3, 2013 is not warranted either.  Despite symptoms such as weakened movement and reduced range of motion, unfavorable ankylosis of either the thoracolumbar segment of the spine or the entire spine is not indicated.  Such would have to be shown in order for an evaluation exceeding 40 percent to be warranted.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243 unless Diagnostic Code 5243 is rated under the criteria for IVDS.  Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  See 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)].  Moreover, Note (5) to Diagnostic Codes 5235-5242 indicates that, for VA compensation purposes, fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis.  Whereas unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or the entire spine is fixed in flexion or extension.  Neither is the situation here and never has been.  All of the VA compensation examiners have confirmed as much.


An evaluation exceeding 40 percent also cannot alternatively be assigned under the criteria applicable to IVDS because incapacitation is at worst minimal and, to reiterate, because incapacitating episodes as defined by VA regulation have not been actually experienced.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).  Indeed, as already alluded to, the Veteran, himself, conceded this during his November 2014 hearing.  The fact that he has elected or even felt compelled, from a personal standpoint, to resort to resting in bed is insufficient to meet the regulatory definition of an incapacitating episode since not actually prescribed by a doctor or physician and, unfortunately, equally does not constitute something akin or tantamount to this level of impairment.

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 (2013) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected in range-of-motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 (2013) provides that consideration also be given to weakened movement, premature or excess fatigability, and incoordination.

Painful motion is an important factor of disability, and it is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  See 38 CF.R. § 4.59.  See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not just limited to cases where there is arthritis).

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 § 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).


A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id.; see 38 C.F.R. § 4.40.  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 and 4.45 do not apply.  Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston, 10 Vet. App. at 84-85.

In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable under the applicable Diagnostic Code.  The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with Diagnostic Code 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable Diagnostic Code pertaining to range of motion simply because pain is present throughout the range of motion.  See id.

Here, to the extent these manifestations have been present during any period of time that is the subject of this appeal, they have been taken into consideration since the Veteran has had a 10 percent, then 20 percent, and now 40 percent rating for his low back disability.  There simply is no means by which to assign higher ratings, at least on this basis, even accepting that he has chronic pain in his low back and even accepting that it has and has had a detrimental effect on his range of motion in terms of reducing it to something less than normal.


In denying this claim for higher ratings for this low back disability, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis under the special provisions of 38 C.F.R. § 3.321(b)(1).  

According to Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating.  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.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.

Here, with respect to the first prong of Thun, the evidence does not show such an exceptional disability picture such that the available schedular evaluations for this service-connected low back disability are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's low back disability with the established criteria found in the Rating Schedule for disabilities of the spine - including IVDS - shows that the rating criteria reasonably describe his disability levels and symptomatology.  The rating criteria allow for consideration of pain and consequent limitation of motion, also altered gait, abnormal spinal curvature, ankylosis, and incapacitating episodes.  His symptomatology is encompassed within the symptomatology contemplated by the applicable Diagnostic Codes.  Moreover, the holding in DeLuca dictates that VA adjudicators consider multiple types of effects on his occupational functioning and in his daily activities. 


The Board further observes that, even if the available schedular evaluations for the disability are inadequate (which they manifestly are not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  So he does not satisfy the second prong of the Thun analysis, either, therefore irrespective of the first prong.  See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc).  The record does not show that he has required frequent hospitalizations for treatment of his low back disability.  Indeed, it does not appear from the record that he has been hospitalized at all for this disability.  To the contrary, most, if not all, of his evaluation and treatment has been on an outpatient rather than inpatient basis.  The Board acknowledges that he is not currently employed, partly owing to difficulty working on account of this particular disability, but he will be duly compensated for this by the granting of his derivative TDIU claim.  There otherwise, meaning outside of that, is no evidence in the medical records of an exceptional or unusual disability picture.

In short, there is nothing in the record indicating this service-connected disability causes impairment in employment over and above that which is contemplated in the assigned schedular ratings and not encompassed by the granting of the derivative TDIU claim.  See 38 C.F.R. §§ 4.1 and 4.15 indicating an effect on occupation is a symptom already contemplated in the assigned schedular rating for a service-connected disability.  See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (similarly noting that the disability rating, itself, is recognition that industrial capabilities are impaired).  The Board therefore has determined that referral of this claim for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

In making these determinations regarding the appropriateness of the ratings for this disability, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.3, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision.


Increased Rating for the Associated Radicular Involvement of the Left Sciatic Nerve

The Veteran has been assigned a separate 20 percent disability rating for the associated radicular involvement of his left sciatic nerve attributable to his low back disability.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5242, Note (1), specifying to evaluate any associated objective neurologic abnormalities separately under the appropriate diagnostic code.  He contends generally that he is entitled to a disability rating exceeding 20 percent for this associated radicular involvement of the left sciatic nerve. 

The RO first assigned the Veteran a separate disability rating for the radiculopathy of the left sciatic nerve in the July 2013 SSOC on the basis of the results of the April 29, 2013 VA examination.  Diagnostic Codes 8520 through 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve, respectively.  Disability ratings of 10, 20, 40, and 60 are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve.  A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve; in this circumstance the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee weakened or lost.  38 C.F.R. § 4.124a.

Prior to April 29, 2013, the record does not demonstrate that associated radiculopathy of the Veteran's left sciatic nerve was severe enough to warrant more than a noncompensable rating.  The December 2008 VA examination revealed no radiating pain, and there are no records prior to the April 29, 2013 VA examination documenting his complaints of radicular involvement of this nerve to an extent necessary to warrant a separate compensable rating.  During both the April 2013 and December 2013 VA examinations, the examiners described the severity of the radicular involvement of the left sciatic nerve as "moderate", thereby corresponding to the current 20 percent rating.  Thereafter, neither treatment records nor the Veteran's own testimony during the hearing indicate the symptoms of the left sciatic nerve radiculopathy have worsened to the point that a higher 40 percent rating is warranted.  The Board therefore is denying any greater rating.

The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis for the associated radiculopathy of the sciatic nerve.  With respect to the first prong of Thun, however, the evidence does not show such an exceptional disability picture that the available schedular evaluations for this service-connected disability are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's left sciatic nerve radiculopathy with the established criteria found in the Rating Schedule shows that the rating criteria reasonably describes his disability level and symptomatology.  His symptoms and areas of impairment are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria.  See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002) (discussing this in the context of a mental disorder where it is permissible to concentrate more so on the consequent functional effect of the symptoms, not just whether they are specifically listed in the rating criteria).  His symptoms were evaluated by both the April and December 2013 VA examiners as being of "moderate" severity, which as mentioned directly corresponds to those rating criteria outlined in the Rating Schedule. 

And just as in the case of his low back disability, even if the available schedular evaluations for the left sciatic nerve radiculopathy are inadequate (which they manifestly are not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  So he does not satisfy the second prong of the Thun analysis, either, therefore irrespective of the first prong.  See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc).  The record does not show or suggests he has required frequent hospitalizations for treatment of his left sciatic nerve radiculopathy.  Indeed, to the contrary, it does not appear from the record that he has been hospitalized at all for this disability.  Most, if not all, of his evaluation and treatment instead has been on an outpatient basis rather than as an inpatient.  Additionally, there is not shown to be evidence of marked interference with his employment due to this disability.  And, to reiterate, to the extent it has an effect on his employability, especially in combination with his other service-connected disabilities, he will be compensated for this by way of his TDIU.

In short, there is nothing in the record indicating this service-connected disability causes impairment in his employment over and above that which is contemplated in the assigned schedular rating or outside the purview of a TDIU.  38 C.F.R. § 4.1.  See also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating, itself, is recognition that industrial capabilities are impaired).  The Board therefore has determined that referral of this claim for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is unwarranted.

In making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.3, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant an even more favorable decision.

TDIU

The Veteran contends that he is unable to work due to his service-connected disabilities, especially their combined effect.  The disabilities for which service connection has been established are an acquired psychiatric disorder, the low back disability and left sciatic nerve radiculopathy adjudicated in this decision, and tinnitus.  The combined rating for these disabilities is 10 percent from April 11, 1984, 60 percent from September 11, 2008, 70 percent from April 29, 2013, and 90 percent from December 3, 2013. 

The Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability or disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.  Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or impairment caused by any disabilities that are not service connected.  See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. 
The Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294, 297 (1994).  The Board also may not offer its own opinion regarding whether the Veteran can perform work based on his current level of disabilities, a technique that the Court has previously determined to be "inadequate" in Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991) (citations omitted).  See also Beaty v. Brown, 6 Vet. App. 532, 537 (1994).

In a claim for a TDIU, however, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator.  See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10 (2013), but it is the rating official who is responsible for' 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,' 38 C.F.R. § 4.2 (2013).").

Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  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."  Under VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), "substantially gainful employment," is defined as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." 


In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment" and noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): 

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. 

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).  See also Moore (Robert) 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.

In determining entitlement to a TDIU, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability, without regard to advancing age or disabilities for which service connection has not been established.  See 38 C.F.R. §§ 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  VAOPGCPREC 75-91.  Thus, the criteria use a subjective (not just objective) standard.  See id.  VA's General Counsel further observed that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  Id.

Importantly, requiring a Veteran to prove 100 percent or total unemployability is different from requiring proof that he cannot obtain or maintain "substantially gainful employment."  The use of the word "substantially" suggests intent to impart flexibility into a determination of overall employability, whereas a requirement that he prove 100-percent unemployability leaves no flexibility.  See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

But all of that said, the mere fact that a claimant is unemployed or has difficulty obtaining employment is insufficient reason to find that he is unemployable.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  A disability rating in itself is recognition that the impairment makes it difficult to obtain and keep employment, as VA's Rating Schedule is already designed to take into consideration impairment that renders it difficult to obtain and keep employment.  Id.; see also 38 C.F.R. §§ 4.1, 4.15.

The Veteran did not qualify for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) until April 29, 2013, when the combined rating of his service-connected disabilities rose to 70 percent.  Prior to that date, a TDIU only would be grantable on an alternative extra-schedular basis pursuant to the special provisions of § 4.16(b), if it is shown he was indeed unemployable even during this earlier time period because of his service-connected disabilities.  While the Board does not have the authority to grant an extra-schedular rating in the first instance, it does have the authority to decide whether a claim should be referred to VA's Director of the Compensation and Pension Service for special consideration when the issue either 

is raised by the claimant or reasonably raised by the evidence of record.  See Barringer v. Peake, 22 Vet. App. 242 (2008).

Upon consideration of the evidence of record, and in acknowledgement of the benefit-of-the-doubt standard, the Board finds that the Veteran's service-connected disabilities render him unemployable.  During the April 2013 VA examination, the examiner found that the Veteran was unable to walk long distances, was in constant pain, required stretching and massaging as well as sleep medication to fall asleep, and could not do even sedentary work.  The December 2013 VA examiner did not find that the Veteran was entirely precluded from doing sedentary work by virtue of his low back disorder and related service-connected disabilities, but did find that he would be limited in his ability to work for long stretches of time.  Most recently, in an opinion obtained in October 2015 pursuant to the Board's January 2015 remand directive, a VA examiner opined that the Veteran's mental health condition causes mild-to-moderate impairment in his ability to obtain and maintain gainful employment.  In support thereof, the examiner noted that the Veteran's depression causes a mild depressive mood and sleep impairment that is associated with occasional decrease in work efficiency.  The examiner also commented that, due to the functional limitations of the service-connected mental health condition, the Veteran is better suited for work that is not fast-paced in nature and allows breaks as needed. 

Taking into account these opinions of the VA examiners in April 2013, December 2013, and October 2015, as well as the Veteran's own assertions that he would not be able to function in a substantially gainful occupation were he to attempt to re-enter the workforce, the evidence on the whole is in favor of granting a TDIU, certainly is as supportive of this claim as it is against it so in any event requires resolution of this reasonable doubt in his favor.  Although the most recent evidence of record suggests possible improvement in his functioning, such as with regards to his low back disorder and associated radiculopathy, especially, primarily due to the various modalities of treatment he has received, and a just relatively mild-to-moderate additional impact owing to his mental disorder, all of these disabilities must be considered in combination in assessing whether a TDIU is warranted.  And the simple fact of the matter is that he remains still severely limited in his ability to focus and perform even sedentary work, if at all, due to the aggregate or collective effect of his service-connected disabilities.  According to the TDIU application (VA Form 21-8940) he submitted in April 2015, as also directed in the Board's remand, he last worked full time in 2007 and became too disabled to work in September 2008.  The most he every had earned in a year was $40,000 (in 2006) as a senior loan officer.  His prior work experience was for Liberty House in the mortgage industry, but only part time, and for Manufacturing Solutions, also just part time.  He further indicated that he left his last job because of his service-connected disabilities and receives or expects to receive disability retirement benefits as a result or consequence.  He then goes on to point out how he was advised by VA to file for disabilities, as he could not be rehabilitated or qualify for rehabilitation in his area of work (meaning consistent with his work history).  He indicated he had completed 3 years of college but listed telemarketing as his sole source of other training, beginning in 1995 and completed in 2003, with no additional education or training since he became too disabled to work.

These circumstances suggest the Veteran is only able to return to the workforce with special accommodation, in other words in just a marginal (sheltered) not substantially gainful capacity.  Therefore, he is for all intents and purposes unemployable because of the collective severity of his service-connected disabilities and resultantly entitled to a TDIU pursuant to 38 C.F.R. § 4.16(a).



ORDER

A rating higher than 10 percent for the low back disability prior to April 29, 2013, higher than 20 percent from April 29, 2013 to December 2, 2013, and higher than 40 percent since December 3, 2013, is denied. 

A rating higher than 20 percent for the associated radicular involvement of the left sciatic nerve also is denied.  

However, a TDIU is granted, subject to the statutes and regulations governing the payment of VA compensation.




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



Department of Veterans Affairs