Citation Nr: 1639643 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 10-25 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for lumbar spine degenerative changes. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from September 1990 to February 1995. This matter comes to the Board of the Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. In September 2014, the Veteran withdrew his request for a hearing at the RO. The hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.704 (e). The issues on appeal were previously remanded by the Board in November 2014 for further evidentiary development of requesting outstanding post-service VA treatment records and to obtain a VA examination for the Veteran's disability. This was accomplished, and the claims were readjudicated in a November 2015 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See 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 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran's lumbar spine strain is manifested by reduced forward flexion of the thoracolumbar spine limited to 30 degrees, but not ankylosis. 2. The Veteran does not meet the scheduler criteria for a TDIU. 3. The Veteran's service-connected disabilities are not shown to result in an inability to obtain or maintain substantially gainful employment so as to warrant consideration of a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for lumbar spine degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2015). 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the increased rating issue decided herein. The RO sent the Veteran letters in June 2007 and February 2008 that informed him of the requirements needed to establish increased rating. In accordance with the requirements of VCAA, the VA letters informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, post-service treatment records, and the Veteran's statements. In addition, the Veteran has been afforded adequate examination on the issue of increased rating for service-connected lumbar spine disability. VA provided the Veteran with examinations in July 2009 and October 2015. The Veteran's history was taken and a complete examination was conducted that included specific range of motion testing of the spine. Conclusions reached and diagnoses given were consistent with the examination reports. For these reasons, the Board finds that the Veteran has been afforded an adequate examination on the issue of increased rating for service-connected lumbar spine disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. However, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In addition, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. 38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. A 40 percent evaluation would only be warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is granted if the Veteran has unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Additionally, under Diagnostic Code 5243, intervertebral disc syndrome (IVDS) is rated either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations, whichever method results in the higher rating. If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is warranted. The revised IVDS rating criteria do not provide for an evaluation in excess of 60 percent on the basis of the total duration of incapacitating episodes. Note 1 to the revised Diagnostic Code 5293 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician. Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes . 67 Fed. Reg. 54345, 54347 (August 22, 2002). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Rating Analysis for Lumbar Spine Disability The Veteran is currently rated at a 40 percent disability rating level and contends that a higher rating is warranted. The Veteran has complained of back pain, especially when bending, stooping, prolonged walking, and prolonged driving. In order to warrant a disability rating in excess of 40 percent, the Veteran must demonstrate unfavorable ankylosis of the entire thoracolumbar spine (50 percent disability rating) or unfavorable ankylosis of the entire spine (100 percent disability rating). In the present case, the Veteran does not have any ankylosis of the spine. In a July 2009 VA examination, the examiner indicated that range of motion was limited; however, the examiner found movement of the spine and no ankylosis of the thoracolumbar spine. The evidence also includes an October 2015 VA spine examination. During the evaluation, the Veteran reported that he had flare-ups about every couple of weeks. These flare-ups were noted to occur after bending, stooping, or lifting 5-20 pounds. Prolonged sitting and driving also increased pain. There was no complete incapacitation or bed rest ordered by the Veteran's physician. Upon physical examination, the Veteran's gait, stance, and propulsion were normal without any assistive device. Posture was erect and straight without evidence of unilateral weakness. The Veteran had reduced range of motion testing, but no ankylosis of the spine. The Veteran also did not have IVDS or radicular pain or other neurological abnormalities. The Board has reviewed the remaining evidence of record; however, it does not show evidence of ankylosis of the spine. As the Veteran has not been shown to have ankylosis of the spine, the Board finds that a disability rating in excess of 40 percent is not warranted for the entire rating period on appeal. It is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca, 8 Vet. App. at 206-7. The Board finds that there is evidence of functional impairment as a result of flare-ups of symptomatology, but that this functional impairment was contemplated by the RO when granting the 40 percent disability evaluation. Even when considering the Veteran's pain with motion and his reports of loss of motion, the Veteran still does not meet the criteria for a disability rating in excess of 40 percent. The Board notes that the rating contemplates complaints of pain, especially on extended use. There is no showing of any other functional impairment which would warrant a higher rating for the complaints of pain. The next higher rating applicable for the Veteran requires ankylosis of the spine, showing no range of motion. Any additional loss of range of motion short of ankylosis of the entire spine would not support a higher rating for the Veteran's claim. With respect to intervertebral disc syndrome, under Diagnostic Code 5243, based on incapacitating episodes, a 60 percent rating evaluation would require incapacitating episodes of a total duration of at least six weeks during the past twelve months, with an "incapacitating episode" defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. No evidence shows that the Veteran had incapacitating episodes prescribed by a physician or as part of a physician's treatment for his service-connected back disability. The record also does not include any complaints by the Veteran of incapacitating episodes with bedrest. Importantly, the October 2015 VA examiner specifically found that the Veteran does not have intervertebral disc syndrome. As such, a rating under such criteria is not warranted. Additionally, Diagnostic Code 5243, Note 1 indicates that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. The record does not support finding that the Veteran has a bowel or bladder neurologic abnormality. The October 2015 VA examiner found no bowel or bladder problem. The July 2009 and October 2015 VA examiners also found no radicular pain or other signs or symptoms due to radiculopathy. The July 2009 VA examiner reported that the Veteran did not have any deficits in either lower extremity after sensory examination. For these reasons the Board finds that the evidence weighs against a rating in excess of 40 percent for the Veteran's lumbar spine disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The Veteran's claim for a disability rating in excess of 40 percent for lumbar spine strain is denied. Extraschedular Considerations The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, 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). Under the approach prescribed by VA, 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, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 included "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Further, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321 (b)] for referral for an extraschedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321 (b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's lumbar spine disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provide for ratings based on limitation of motion, including due to pain and other orthopedic factors, as well as neurological symptoms. See 38 C.F.R. §§ 4. 40, 4.45, 4.59, 4.71a, 4.125a; see also DeLuca at 202. In this regard, the Veteran's lumbar spine disability has been manifested by pain and limitation of motion, but without ankylosis of the spine or incapacitating episodes requiring bedrest. Additionally, the Veteran has not asserted, and the evidence of record has not suggested, any combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. As such, the Board finds that the Rating Schedule is adequate to evaluate the Veteran's current disabilities and symptomatology. Therefore, in the absence of exceptional factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Thun, 22 Vet. App. at 115-16; Johnson, 762 F.3d 1362; Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Board notes that the Veteran is service connected for degenerative changes of the lumbar spine, rated as 40 percent disabling; and residuals of injury to the cervical spine, rated as 20 percent disabling. The Veteran's combined rating is 50 percent; therefore, his service-connected disabilities do not meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a). As such, the Board finds that entitlement to a TDIU is not warranted on a schedular basis. Nevertheless, the Board must consider whether the evidence warrants referral to the Director of Compensation Service for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16 (b). See Bowling, 15 Vet. App. at 6. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Board has considered whether referral for consideration of an extraschedular evaluation is warranted at any time during the appeal, and finds that it is not. In the July 2009 VA examination report, the Veteran stated that he was unemployed and that he could not work because of his increasing pain on movement of his neck and back. In an August 2015 VA treatment record, the Veteran reported that he was self-employed in a tire business and was receiving two to three thousand dollars per month. During the October 2015 VA examination, the Veteran stated that since November 2013, he had been donating his time to his church and a community food bank two days a week. He was also helping at a church mostly on Mondays and Wednesdays in the afternoons about 4 hours doing clerical work, usher work, cleaning, and kitchen work. In an October 2015 VA general examination report, the examiner indicated that the Veteran's disability did not impact his ability to work. In light of the foregoing, the Board concludes that the evidence of record does not indicate the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment, so referral for consideration of an extraschedular TDIU evaluation s not warranted. The evidence shows that the Veteran is working in a tire business and is earning approximately two to three thousand dollars per month. The October 2015 VA examiner also indicated that the Veteran's lumbar spine disorder did not impact his ability to work. Here, the central inquiry is whether the Veteran's service-connected lumbar and cervical spine disabilities alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). While the evidence clearly shows that the Veteran's service-connected disabilities may have an impact on his usual employment, the evidence suggests that he continues to perform some gainful employment. He has also demonstrated that he is actively participating in his church and community events, which further indicates that the Veteran is able to perform tasks often associated with employment (i.e., clerical work, cleaning, and kitchen work). There is no evidence of anything out of the ordinary, or not average, in the Veteran's situation as a result of his service-connected disabilities. As such, the Board finds that this case presents no unusual or exceptional circumstances that would justify a referral of the total rating claim for extra-schedular consideration. In sum, there is no indication that the average industrial impairment from the service-connected spine disabilities would be in excess of those contemplated by the assigned rating. As the evidence of record does not indicate that the Veteran is unemployable due to his service-connected disabilities, referral for consideration of entitlement to TDIU on an extraschedular basis is not warranted. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for a TDIU, including consideration under the provisions of 38 C.F.R. § 4.16 (b), have not been met or more nearly approximated, and a referral to the Director of Compensation and Pension for consideration of a TDIU under 38 C.F.R. § 4.16 (b) is not warranted. ORDER A disability rating in excess of 40 percent for lumbar spine degenerative changes is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs