Citation Nr: 1635245 Decision Date: 09/08/16 Archive Date: 09/20/16 DOCKET NO. 12-28 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a low back disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2003 to October 2003 and from April 2008 to April 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for a low back disability with an initial noncompensable rating. A September 2012 rating decision increased the initial rating to 10 percent from the effective date of service connection. This matter was previously before the Board in June 2014, when it was remanded for further development. At that time, the Board determined the issue of entitlement to TDIU was an element of the appeal of the initial ratings assigned for multiple disabilities, to include the low back disability, because unemployability had been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. The Veteran has retained more than 30 degrees of forward flexion and 120 degrees of combined range of motion of the thoracolumbar spine throughout the appeal period, even after consideration of pain, weakened movement, excess fatigability, incoordination, and flare-ups, with no evidence of ankylosis or neurological impairment associated with his low back disability. 2. The Veteran's service-connected disabilities have not prevented him from securing or following substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2015). 2. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). In the instant case, VA provided adequate notice in letters sent to the Veteran in February 2010 and September 2015. VA has also satisfied its duty to assist. This duty includes assisting with the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered regarding this claim. In September 2015, the Veteran reported there is no additional evidence outstanding regarding his claim. VA provided examinations in March 2010, June 2012, and February 2016. There is nothing that suggests the examination reports are inadequate for rating purposes as the examiners provided specific findings regarding the applicable rating criteria after physical examination and review of the claims file; the examiners also made specific findings regarding the effects of the Veteran's service-connected disabilities on his ability to secure or follow substantially gainful employment. There has also been substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2014, the Board remanded this matter to schedule a new back examination and to obtain a formal TDIU application. The Veteran submitted a formal TDIU application in September 2015, and VA provided a new back examination in February 2016. As previously noted, the February 2016 examination report is adequate for rating purposes. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Initial Low Back Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret 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. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Veteran's low back disability is currently rated as 10 percent disabling under Diagnostic Code 5237 in accordance with the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. Higher ratings for the thoracolumbar spine are assigned as follows: a 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. The following notes accompany the General Rating Formula: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are 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 cervical spine is 340 degrees and 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 dysphasia; 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. General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a. The Veteran's initial VA examination took place in March 2010. The March 2010 examiner reported the forward flexion of the Veteran's thoracolumbar spine was 0 to 90 degrees. Extension was 0 to 30 degrees. Right and left lateral flexion were 0 to 30. Right and left rotation were 0 to 30 degrees. There was no additional range of motion loss of repetitive-use testing. The examiner reported the Veteran experienced stiffness, spasms, decreased motion and paresthesia as a result of his low back disability. The examiner indicated the Veteran reported increased pain during flare-ups, but no fatigue or other impairment. The examiner noted there was guarding, but explained it did not result in an abnormal gait or other impairment. There was no evidence of ankylosis, and no neurological abnormalities were shown on examination. The Veteran was recently examined in February 2016 pursuant to the Board's June 2014 remand directives. The February 2016 examiner reported the forward flexion of the Veteran's thoracolumbar spine was 0 to 70 degrees. Extension was 0 to 20 degrees. Right and left lateral flexion were 0 to 20 degrees. Right and left rotation were 0 to 30 degrees. There was no additional range of motion loss of repetitive-use testing; however, the examiner indicated pain, weakness and lack of endurance resulted in limited functional ability with repeated use over a period of time. The examiner indicated he was unable to describe the additional limited functional ability in terms of range of motion loss because there was no change on examination even though pain limited bending and lifting. This explanation is logical, and the Board finds it sufficient to support the examiner's determination that additional range of motion loss could not be specified in terms of degrees. The February 2016 examiner noted there was localized tenderness, but indicated it did not result in an abnormal gait or other impairment. There was no evidence of ankylosis, and no neurological abnormalities were shown on examination. Review of the Veteran's treatment records shows he has consistently sought treatment for low back pain during the appeal period, but there is no evidence of range of motion loss beyond that shown during VA examinations. He has also reported having difficulty sleeping due to back pain in treatment sessions. The Board finds an initial rating in excess of 10 percent is not warranted for the Veteran's low back disability at any point during the appeal period because he has retained more than 30 degrees of forward flexion and 120 degrees of combined range of motion of the thoracolumbar spine throughout the appeal period, even after consideration of pain, weakened movement, excess fatigability, incoordination, and flare-ups. The greatest range of motion loss for the thoracolumbar spine was shown during the February 2016 examination, when forward flexion was 70 degrees and the combined range of motion was 190 degrees. These measurements do not support a 20 percent rating General Rating Formula for Diseases and Injuries of the Spine. The Board acknowledges VA examiners have reported the Veteran experiences increased pain during flare-ups, but the record does not establish this pain results in substantial range of motion loss beyond that shown on examination. The February 2016 examiner explained pain was present throughout the Veteran's range of motion during the examination, but did not cause significant range of motion loss. To warrant a 20 percent rating, there would have to be at least 40 degrees of additional range of motion loss beyond that shown during the February 2016 examination. Pain without accompanying functional limitation cannot serve as the basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to factors such a pain). Thus, the Board finds it is less likely than not that the additional functional impairment during flare-ups would limit the Veteran's forward flexion to 30 degrees or less or to a combined range of motion to 120 degrees or less. Ankylosis has not been shown on examination. Thus, a rating in excess of 10 percent is not warranted for the Veteran's service-connected low back disability using the General Rating Formula for Diseases and Injuries of the Spine at any time during the course of the appeal. Additional ratings are potentially available on the basis of neurologic impairment, but treatment records show no neurologic abnormalities and findings on the examinations were normal. The Veteran has also not reported any neurologic symptoms. Thus, the evidence weighs against additional ratings on the basis of neurologic impairment. There is no evidence the Veteran has intervertebral disc syndrome (preoperatively or postoperatively). Therefore, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is inapplicable. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Furthermore, even if the formula was applicable, there have been no reports of physician prescribed bedrest as would be necessary for a higher rating under that formula. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted, as the question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996) (discussing 38 C.F.R. § 3.321(b)(1)). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Initially, there must be a comparison between 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. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. In the second step of the inquiry, the Board must determine whether the claimant's exceptional or unusual disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The Veteran's low back disability, as discussed above, is manifested by the loss of range of motion, which is clearly contemplated by the rating criteria for diseases and injuries of the spine. These rating criteria, which represent the average impairment of earning capacity resulting from disability, also take into account the limitation of function reported by the Veteran, to include difficulty lifting and bending. The rating criteria also account for the disturbances in gait noted on examination. The Veteran has reported additional symptomatology, primarily pain, stiffness and spams with periods of prolonged sitting and standing. Interference with sitting and standing is considered as part of the schedular rating criteria under 38 C.F.R. § 4.45, which contemplates disturbance of locomotion and interference with weight-bearing. The Veteran has reported difficult sleeping as a result of his low back disability; however, he is already compensated for sleep impairment for the rating assigned under Diagnostic Code 9411. The Veteran has not reported any additional symptomatology as a result of his low back disability. Although service connection has also been established for PTSD, the record does not show a collective effect of the two disabilities that make the Veteran's disability picture an unusual one. Hence, referral for consideration of an extraschedular rating is not warranted. Thun, 22 Vet. App. at 114-15. III. TDIU VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following a substantially gainful occupation, taking into consideration his education and occupational background. 38 C.F.R. § 4.16. There are two regulatory subsections that allow for a TDIU. The first, called a "schedular TDIU," is found at 38 C.F.R. § 4.16(a) and requires that certain disability rating percentages be in place. Either the Board or the AOJ can grant a schedular TDIU in the first instance. The second, called an "extraschedular TDIU," is found at 38 C.F.R. § 4.16(b). It does not have the percentage requirement, but cannot be granted by the Board or the AOJ in the first instance; it must be submitted to VA's Director, Compensation Service for initial consideration. 38 C.F.R. § 4.16(b). The schedular TDIU subsection provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: 1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Id. The extraschedular subsection of § 4.16 explains that it is the established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in subsection (a). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. Id. Marginal employment generally shall be deemed to exist when a claimant'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. Id. Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including, but not limited, to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. Here, service connection has been established for post-traumatic stress disorder (PTSD), rated as 50 percent disabling, and a low back disability, rated as 10 percent disabling. The Veteran's combined disability rating is 60 percent. His disabilities do not result from a common etiology or trigger any of the other provisions requiring them to be considered a single disability for TDIU purposes. Thus, he does not meet the schedular percentage requirements for TDIU because he does not have one disability rated as 60 percent disabling or more; or one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Although the Veteran does not meet the schedular percentage requirements for TDIU, he is not prevented from receiving TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). Although the Board cannot assign an extraschedular TDIU in the first instance, it is not precluded from specifically adjudicating whether to refer a case for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the record. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Here, the evidence of record indicates referral for extraschedular consideration is not warranted. VA examiners who have assessed the severity of the Veteran's low back disability have indicated the low back disability would impact the Veteran's ability to work in so much that it limits his ability to lift and bend. While this impairment would foreclose the possibility of Veteran engaging in extremely physical occupations, it does not prevent him from working in positions that require light physical activity or in sedentary employment. The February 2016 VA psychiatric examiner, who also assessed the Veteran in May 2012, described the Veteran's psychological impairment as moderate. The February 2016 VA psychiatric examiner further explained the Veteran's service-connected psychiatric disability does not prevent him from securing or following substantially gainful employment for which his education and occupational experience would otherwise qualify him. The February 2016 VA psychiatric examiner determined the Veteran would not have difficult adapting to stressful circumstances, including work or a worklike setting, as a result of PTSD. Although the February 2016 examiner noted several symptoms related to PTSD, the examiner concluded the Veteran would be able to perform mental acts of employment. Thus, it appears the functional impairment resulting from his service-connected disabilities does not prevent the Veteran from obtaining and maintaining a position that requires light physical activity or engage in sedentary employment. Information provided by one of the Veteran's former employer, Tristate Metal Works, does indicate some concessions were made due to his service-connected low back disability; however, the report from Tristate Metal Works indicates the Veteran was not terminated as a result of his service-connected disabilities and was laid-off due to business needs. Although the Veteran reported he has not worked since September 2010 on his TDIU application, the report from Tristate Metal Works, the only employer included on the application, indicates he was laid-off in September 2011. Additionally, VA treatment records from March 2013 indicate the Veteran was working at that time. The Veteran reported to his treating physician that he worked at T&D Tire at that time. Several other treatment records reference the Veteran working as a mechanic during the appeal period. This employment activity was not included on the TDIU application. Thus, it appears the Veteran has not accurately reported his employment history and has been employed for the majority of the appeal period, despite his reports of being unemployed since September 2010 on his TDIU application and during VA examinations. Ultimately, the preponderance of evidence is against a finding that the impairment resulting from the Veteran's service-connected disabilities prohibits him performing the physical and mental acts required by employment. The Board acknowledges the Veteran's service-connected low back disability results in pain with activity and reduced range of motion that may limit his ability to perform some types of physical work, but it does not prohibit light physical or sedentary employment. His PTSD does not prohibit him from performing the mental acts required by such employment. As such, referral to the Director, Compensation Service for consideration of TDIU on extraschedular basis is not warranted, and the Veteran's claim of entitlement to TDIU must be denied. ORDER Entitlement to an initial rating in excess of 10 percent for a low back disability is denied. Entitlement to TDIU is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs