Citation Nr: 1647164 Decision Date: 12/16/16 Archive Date: 12/30/16 DOCKET NO. 09-06 949A ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for an L-5 vertebra fracture (lumbar spine disability), rated 10 percent disabling prior to July 8, 2011, and 20 percent from that date. 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) prior to February 1, 2015, to include on an extraschedular basis. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and C.T. ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1992, to include service in Southwest Asia. These matters initially came before the Board of Veterans' Appeals (Board) from January 2008 and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the January 2008 decision, the RO denied entitlement to a rating in excess of 10 percent for an L-5 vertebra fracture. In the December 2009 decision, the RO denied entitlement to a TDIU. The Veteran testified before a Decision Review Officer (DRO) and a Veterans Law Judge, who is no longer available, at January and December 2010 hearings, respectively. Transcripts of these hearings have been associated with his claims folder. In January 2013, the RO granted an increased (20 percent) rating for the service-connected lumbar spine disability, effective from July 8, 2011. The Board remanded these matters in December 2014 for further development. The case has been returned to the Board for further appellate review. The law requires that the VLJ who conducts a hearing must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015). In November 2016, the Board sent a letter to the Veteran, which explained that the VLJ was no longer available to participate in the appeal and offered the Veteran a hearing before a different VLJ. Later that month, the Veteran responded that he did not want another hearing. Thus, the Board will proceed with the matter on appeal. Prior to certification of the appeal to the Board, in a September 2016 rating decision, the RO granted the Veteran's claims for a TDIU due to his service-connected disabilities, to include his lumbar spine disability, effective from February 1, 2015. The Veteran has obtained a full grant of the benefits sought from that date; however, the Veteran disagreed with this partial grant in an October 2016 notice of disagreement, indicating that he was not fully satisfied with the effective date assigned. As such, his appeal for a TDIU continues. See also AB v. Brown, 6 Vet. App. 35, 38 (1993) (finding that a claimant is presumed to be seeking the maximum available benefit for a given disability). The Board additionally notes that the Veteran filed a notice of disagreement with the assigned rating for his migraine headaches in October 2016. In response to the notice of disagreement, the agency of original jurisdiction (AOJ) notified the Veteran of the post decision review process and offered options for the type of review that the Veteran could choose in a letter later that month. Thus, although issuance of a statement of the case is required in response to a notice of disagreement, here the evidence reflects that the AOJ is in the process of developing the claim in order to do so, and a remand for this action is, therefore, not required. Cf. 38 C.F.R. § 19.9(c) (2015), codifying Manlincon v. West, 12 Vet. App. 238 (1999). As the claim is still in the development stage, it is not in appellate status and will not be considered by the Board at this time. As a final point, the Board notes that the Veteran submitted a September 2016 employability evaluation (submitted in November 2016), with an attached waiver of initial RO consideration. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. 112-154, § 501, 126 Stat. 1165, 1190 (Camp Lejeune Act); 38 C.F.R. § 20.1304 (2015). However, the AOJ will have opportunity to review the additional evidence received on remand (discussed below). The Board's decision addressing the claim for an increased rating for lumbar spine disability is set forth below. The claim for entitlement to a TDIU prior to February 1, 2015, is addressed in the remand following the order; this matter is being remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. FINDING OF FACT The evidence is at least evenly balanced as to whether, throughout the pendency of the appeal period, symptoms of the Veteran's lumbar spine disability have most nearly approximated forward flexion to 30 degrees, but there was no ankylosis or incapacitating episodes due to intervertebral disc syndrome. CONCLUSION OF LAW The criteria for a rating of 40 percent, but no higher, for lumbar spine disability have been met throughout the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Code (DC) 5237-5243 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Generally, VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the AOJ's January 2007 letter provided fully compliant, pre-adjudicatory notice on this claim. In this letter, the Veteran was advised of the types of evidence needed to substantiate his increased rating claim, which included describing his symptoms, their frequency and severity, and other involvement, extension and additional disablement caused by his disability. Additionally, the Veteran was advised of the respective duties upon himself and VA in obtaining evidence to substantiate the claim as well as the criteria for establishing a disability rating, and an effective date of award. Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available relevant evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records, VA treatment records, VA examination reports, private treatment records, and statements from the Veteran. The Veteran was also afforded VA examinations in connection with the matter decided herein, and as requested by the Board. For the reasons indicated in the discussion below, the examination reports, along with the other medical and lay evidence of records, contains sufficient evidence by which to evaluate the Veteran's claim decided herein. The Board remanded the case in December 2014 for further evidentiary development and adjudication. Per the Board's instructions, the AOJ provided the Veteran with an adequate VA examination and opinion, which was provided in June 2015. Thus, there has been compliance with the Board's remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Analysis The Veteran's lumbar spine disability is rated as 10 percent disabling from July 8, 2011, and 20 percent from that date under 38 C.F.R. § 4.71a, DC 5237-5243, applicable to lumbar strain and intervertebral disc syndrome (IVDS). All spine disabilities other than IVDS are rated under the general rating formula for diseases and injuries of the spine (general rating formula). IVDS is rated either under the general rating formula or under the Formula for Rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the general rating formula, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. In addition, the only higher schedular rating available under the formula for rating IVDS based on incapacitating episodes is a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the Formula for Rating IVDS based on incapacitating episodes defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The Veteran filed his claim for an increasing rating for his lumbar spine disability on January 17, 2007. In a June 2007 VA examination, the Veteran reported that his back pain was getting progressively worse. The Veteran described the pain as getting hit in the back with a hammer. The examiner noted that the pain level was moderate occurring for hours on a weekly to monthly basis. There was no radiation of pain reported. The examiner also noted additional symptoms of fatigue, decreased motion, and stiffness. Active and passive range of motion testing revealed forward flexion of 90 degrees with no objective evidence of painful motion. There was no additional limitation of motion following repetitive use testing. The examiner concluded that the thoracolumbar spine range of motion was normal. The examiner noted the Veteran had some sclerosis related to degenerative changes. There was no incapacitating episodes and no limitation in walking. There was no ankylosis noted. The examiner noted that the Veteran was employed full-time and concluded that the Veteran's lumbar spine disability had a moderate effect on his usual daily activities and there were no significant effects on his usual occupation. A July 2007 VA treatment record reflects that range of motion testing revealed forward flexion of 90 degrees with no complaint of pain. The Veteran indicated that he missed work on two occasions due to back pain. A June 2009 VA examination report reflects that the Veteran had symptoms of decreased motion, stiffness, weakness, spasms, and daily pain descried as a stabbing pain. The Veteran indicated that his pain level was severe with duration of one to two days. There was no radiation of pain. The Veteran reported that he had forty incapacitating episodes lasting a half-a-day. He is able to walk a quarter of a mile. He uses a transcutaneous electrical nerve stimulation (TENS) unit for relief, as well as pain medication. No flare-ups were reported. The Veteran reported that he is no longer working due to his PTSD and joint pain. No range of motion testing expressed in degrees of limitation was conducted, however, the examiner noted that the range of motion was reduced and that the Veteran's back pain appears to be debilitating enough that he cannot function in any labor intensive job and based on his history, and thus, he cannot function in a sedentary job due to his frequent incapacitating episodes. However the examiner noted that the objective findings of normal imaging on his most recent MRI are not consistent with his history. There was no ankylosis and no incapacitating episodes due to IVDS noted. During the Veteran's December 2010 Board hearing, the Veteran testified that he had been wearing a back brace since July 2007 and that he uses a TENS unit and heating pad every thirty minutes. He reported experiencing radiating and tingling pain in his lower extremities with an onset of three to four years prior. He indicated that he takes pain medication four times a day to alleviate the pain. The Veteran also indicated that he worked part-time as a supervisor of a housekeeping crew. The Veteran indicated that he was unable to retrain in a different occupation due to his service-connected disabilities and that he is unemployable mainly due to his service-connected PTSD. The Veteran also stated that he had lost a trucking job due to his PTSD. The Veteran's testimony was consistent with his January 2010 DRO hearing testimony. During the DRO hearing, the Veteran also indicated that he experienced incapacitating episodes, which required him to stay in bed. On a July 2011 VA examination, range of motion testing revealed forward flexion of 50 degrees with objective evidence of painful motion. There was no additional limitation of motion following repetitive use testing. There was no ankylosis noted and neurological examination was normal. In a November 2011 VA examination, the Veteran reported that he had multiple courses of therapy, to include epidural injections. The Veteran did not report flare-ups. Range of motion testing revealed forward flexion of 40 degrees with objective evidence of painful motion beginning at 30 degrees. There was no additional limitation of motion following repetitive use testing. The examiner noted functional loss and/or functional impairment of the thoracolumbar spine, consisting of less movement than normal, weakened movement, and pain on movement. The Veteran had normal motor and sensory function. There was no radiculopathy symptoms found. There were no incapacitating episodes over twelve months due to IVDS or ankylosis of the thoracolumbar spine noted. The examiner noted that pain and limited motion limits his ability to lift, carry, or do any manual labor. On the June 2015 VA examination, the Veteran reported that his lumbar spine disability had worsened, as he was having more pain, making it difficult to walk, stand, and bend. The Veteran reported flare-ups, which cause increased pain. Range of motion testing revealed forward flexion of 45 degrees with objective evidence of pain. There was no additional limitation of motion following repetitive use testing. The examiner noted that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time and during flare-ups as a result of pain and lack of endurance. The examiner noted functional loss of the thoracolumbar spine, consisting of difficulty in walking, standing, and bending for long periods. The Veteran had an abnormal gait or spinal contour due to muscle spasms. The Veteran had normal motor and sensory function. The examiner concluded that were no radiculopathy and no ankylosis of the thoracolumbar spine noted. The examiner noted the Veteran had IVDS, but no incapacitating episodes over the twelve months due to IVDS. The Veteran has reported that he experiences increased pain and difficulty with bending, stiffness, and difficulty sitting and standing during flare-ups. Although range of motion testing conducted in the June 2007 VA examination and June 2007 VA treatment records did not reflect flexion of the thoracolumbar spine limited to 30 degrees or less, and the Veteran did not report flare-ups, the June 2007 VA treatment record reflects that the Veteran reported that he missed work on two occasions due to his back pain. Here, the examiners did not consider these notations and the range of motion testing conducted at those times did not capture the limitation of motion during those reported flare-ups. Furthermore, in the July 2009 VA examination report, the Veteran reported experiencing about forty incapacitating episodes in the past year, which, in addition to other service-connected disabilities, prevented him from working. In addition, during the December 2010 hearing, the Veteran stated that he has been wearing a back brace since July 2007, takes pain medication, and uses a TENS unit and a heating pad every thirty minutes to alleviate the pain. The November 2011 VA examination revealed that flexion was limited to 40 degrees and that pain began at 30 degrees. The June 2015 VA examination revealed forward flexion of 45 degrees with objective evidence of pain. However, the range of motion testing conducted at the examinations do not reflect the Veteran's limitation of motion during flare-ups, nor did the VA examiners address any additional limitations due to his flare-ups, and the Veteran credibly reported that he experienced flare ups that caused limitation in motion, as well as limitations in bending and standing. The VA examiners also noted that the Veteran's flare-up resulted in less movement than normal, weakened movement, pain on movement, and difficulty in standing, walking, and bending for long periods of time. Thus, the evidence is at least evenly balanced as to whether the symptoms of the Veteran's lumbar spine disability more nearly approximate flexion limited to 30 degrees or less. As applicable law requires that the reasonable doubt created by this approximate balance in the evidence be resolved in favor of the Veteran, entitlement to a rating of 40 percent is warranted for the lumbar spine disability for the entire period on appeal. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. However, neither the VA reports of examination or treatment records indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Rather, these documents contain either specific findings of no ankylosis or findings reflecting that there is no ankylosis. The lay statements similarly do not indicate that there has been ankylosis. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Board has awarded the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Although, the Veteran indicated during the January 2010 DRO hearing and November 2011 VA examination, that he experienced a number of incapacitating episodes due to his back, there is no indication in the record that the Veteran was prescribed bed rest by a physician. Furthermore, the VA examiners specifically concluded that the Veteran did not suffer from incapacitating episodes with prescribed bed rest due to IVDS, as defined under the Formula for Rating IVDS. Here, although the Veteran testified to radiating pain down his bilateral lower extremities, the Board finds the specific findings of the trained health care professionals indicating normal motor and sensory function and no radiculopathy, and thus a lack of associated objective neurologic abnormalities, to be of greater probative weight than the Veteran's more general lay assertions. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization. If the disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms are fully contemplated by the applicable rating criteria. The general rating formula for diseases and injuries of the spine indicates that its criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. This broad language in the criteria thus contemplates all of the symptoms even though they are not specifically listed. Moreover, pain is contemplated in the rating criteria for all musculoskeletal disabilities, and therefore it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59 (2015); see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that § 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis); see also 38 C.F.R. §§ 4.40 4.45 (2015). The difficulty in walking and standing are consequences of the symptom of pain and not separate symptoms. As the criteria contemplate the symptoms, the Board need not consider whether the lumbar spine disability causes marked interference with employment for purposes of an extraschedular rating. In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). The Board will therefore not address the issue further. For the foregoing reasons, a rating of 40 percent, but no higher, is warranted for the Veteran's lumbar spine disability throughout the appeal period. As the preponderance of the evidence reflects the symptoms of the Veteran's lumbar spine disability do not more nearly approximate the criteria for a rating higher than 40 percent, the benefit of the doubt doctrine is not for application and the claim for a rating higher than that assigned herein must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to a rating of 40 percent, but no higher, for lumbar spine disability is granted for the entire appeal period, subject to controlling regulations governing the payment of monetary awards. REMAND Under 38 C.F.R. § 4.16(a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran's single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. A veteran who has service-connected disabilities that do not meet the requirements of 38 C.F.R. § 4.16(a), however, may still be considered for a TDIU rating under 38 C.F.R. § 4.16(b), under an extraschedular basis, if unemployable by reason of service connected disabilities that do not meet the percentage standards set forth in § 4.16(a). For purposes of entitlement to TDIU, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. Generally, marginal employment 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 as the poverty threshold for one person. 38 C.F.R. § 4.16 (b). Marginal employment may be held to exist on a "facts found basis" even 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." 38 C.F.R. § 4.16 (b). Further, a Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385. Here, prior to February 1, 2015, the Veteran did not meet the schedular requirements for a TDIU. However, the Veteran has indicated that his service-connected disabilities prevented him from maintaining substantially gainful employment since 2007, as reflected in a September 2016 employability evaluation. The Veteran submitted a June 2015 statement listing all of his prior employment history from 2010, which includes some full-time and part-time positions. It appears that he had more than marginal employment for some, but not all of the period. Thus, there is some evidence of an inability to maintain gainful employment due to his service connected disabilities, but it is unclear whether the Veteran has more than "marginal employment" as defined in 38 C.F.R. § 4.16(a) at any time during the appeal period. A remand is, therefore, warranted for the AOJ to consider this issue in the first instance, to include any appropriate development and whether referral to the Director is warranted under 38 C.F.R. § 4.16(b). Accordingly, the claim for TDIU prior to February 1, 2015 is REMANDED for the following action: 1. After undertaking any appropriate development, adjudicate the issue of entitlement to a TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). 2. After considering any additional evidence received and conducting any development deemed appropriate (to include referral of the claim to VA's Director of Compensation for extraschedular consideration, if appropriate), readjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a SSOC and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2015) Department of Veterans Affairs