Citation Nr: 1725131	
Decision Date: 06/30/17    Archive Date: 07/10/17

DOCKET NO.  09-21 171	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1. Entitlement to a disability evaluation in excess of 40 percent for lumbar spine degenerative disc disease (DDD), excluding periods for which a temporary total rating has been assigned under 38 C.F.R. § 4.30.

2. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to July 25, 2011, excluding periods for which a temporary total rating has been assigned under 38 C.F.R. § 4.30.


REPRESENTATION

Appellant represented by:	Colorado Department of Veterans Affairs


ATTORNEY FOR THE BOARD

J. Tunis, Associate Counsel


INTRODUCTION

The Veteran had active service from August 1979 to October 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 RO rating decision which effectuated a proposed reduction of the Veteran's disability evaluation for lumbar spine DDD from 40 to 20 percent,
as of September 1, 2008. 

In September 2010, the RO granted a temporary total rating for the Veteran's lumbar spine DDD under the provisions of 38 C.F.R. § 4.30 based upon the need for convalescence following an April 2010 lateral interbody fusion for the period from April 30, 2010, to July 31, 2010. In July 2012, the Appeals Management Center (AMC) granted a temporary total rating for the Veteran's lumbar spine DDD under the provisions of 38 C.F.R. § 4.30 based upon the need for convalescence following a January 2011 lumbar spine reconstructive surgery for the period from January 17, 2011, to April 30, 2011, and increased the evaluation for the Veteran's lumbar spine DDD from 20 to 40 percent, effective August 8, 2011. 

In July 2013, the RO, in pertinent part, granted a temporary total rating for the Veteran's lumbar spine DDD under the provisions of 38 C.F.R. § 4.30 based upon the need for convalescence following a July 2012 L2 to S1 segmental fixation with hardware removal and replacement for the period from July 5, 2012, to August 31, 2012; granted a temporary total rating for the Veteran's lumbar spine DDD under the provisions of 38 C.F.R. § 4.30 based upon the need for convalescence following a November 2012 posterior spinal fusion revision and placement of an internal bone stimulator for the period from November 20, 2012, to December 31, 2012; and granted a TDIU, effective July 25, 2011. 

In a June 2014 Decision, the Board determined that the reduction of the evaluation for the Veteran's lumbar spine DDD from 40 to 20 percent effective as of September 1, 2008, was improper, but remanded the issue of entitlement to a disability evaluation in excess of 40 percent for the Veteran's lumbar spine DDD and the issue of entitlement to a TDIU for the period prior to July 25, 2011. 

In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held, in substance, that every claim for an increased evaluation includes a claim for a TDIU where the Veteran claims that his service-connected disabilities prevent him from working. In light of the holding in Rice, the Board characterized the issues on appeal so as to include a claim for entitlement to TDIU. The Board notes that although a July 2013 rating decision granted TDIU from July 25, 2011, forward, the Veteran indicates that he believes his service-connected disabilities rendered him unemployable for the period prior to July 25, 2011. As the July 2013 rating decision is not a full grant of the benefit on appeal, the Board has characterized the issue on appeal as reflected on the cover page. 

The Board remanded the issue of entitlement to an increased rating for the Veteran's lumbar spine DDD in June 2011 and, as noted, the Board remanded the issues of entitlement to an increased rating for the Veteran's lumbar spine DDD and entitlement to a TDIU prior to July 25, 2011, in June 2014. As will be discussed further below, the Board finds that there has been substantial compliance with its Remand directives, and the matters are now properly before the Board. See Stegall v. West, 11 Vet. App. 268 (1998).

The Board has reviewed the physical claims files and both the Veterans Benefit Management System (VBMS) and the "Virtual VA" files.


FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's service-connected lumbar spine DDD is manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 

2. For the period prior to January 13, 2011, the weight of the competent, probative, and credible evidence does not demonstrate that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.

3. For the period on and after January 13, 2011, resolving doubt in favor of the Veteran, the Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation.


CONCLUSIONS OF LAW

1. The criteria for an increased rating in excess of 40 percent for the Veteran's lumbar spine DDD have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243, (2016).

2. For the period prior to January 13, 2011, the criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25 (2016). 

3. For the period on and after January 13, 2011, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Sup. 2009); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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), 3.159, 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

The Board will address VA's duty to assist and notify separately as they relate to the issues on appeal.

A. Increased Rating 

As the appeal for entitlement to a rating in excess of 40 percent for the Veteran's service-connected lumbar spine DDD arises from the Veteran's disagreement with the rating following the grant of service connection for lumbar spine DDD, no additional notice is required regarding this downstream element of the service connection claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have similarly held that regarding the downstream element of increased rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C.A. § 5103(a) notice is no longer required); 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of notice of disagreement (NOD)).

Regarding the duty to assist in this case, all relevant documentation have been secured. VA has received significant VA and private medical documentation related to the claims. VA has also obtained all records from Social Security Administration (SSA), to include any medical evidence available. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in September 2010, August 2011, and May 2013. The examinations were adequate because the examiners considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examinations, and conducted thorough medical examinations of the Veteran. Furthermore, the examinations addressed the appropriate criteria pursuant to the Diagnostic Code (DC). The Board finds the examination reports to be a thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claims for increased ratings for the low back disability and right leg sciatica claims. See Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Moreover, the Board in its June 2014 Remand directed the RO to afford the Veteran an additional examination to access the current severity of the Veteran's lumbar spine DDD. In accordance with the Board's June 2014 Remand, the Veteran was scheduled for an additional VA examination in February 2016 and was notified of such. However, in February 2016 the Veteran notified VA that he did not wish to attend the examination and requested that the examination be cancelled. Accordingly, VA cancelled its request for examination. The Veteran has not provided any reason or explanation for his request to cancel his scheduled examination. Because the Veteran opted to cancel his examination, the Board will adjudicate the claims from the evidence of record. 38 C.F.R. § 3.655 (b) (2016). It is noted that the duty to assist "is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that VA has satisfied its duty to assist.

While the Board notes the Court's holding in Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016), the Board finds that the Court's holding in Correia does not require an additional VA examination in this case. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, as will be discussed further below, the Veteran is seeking a disability rating in excess of 40 percent for his lumbar spine DDD as rated under Diagnostic Code (DC) 5243, which requires a showing of unfavorable ankylosis of the thoracolumbar spine or of the entire spine. 38 C.F.R. § 4.71a, General Formula. Thus, although the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate, a higher rating is based on whether there is unfavorable ankylosis in this case and no motion is possible. Therefore, the Correia requirements are not applicable. 

Moreover, the Board again notes that the Veteran has opted out of additional examinations, and therefore, the Board adjudicates the claim from the evidence of record. 38 C.F.R. § 3.655 (b) (2016). Therefore, the Board finds that VA has satisfied its duty to assist and finds the examinations of record concerning the Veteran's service-connected lumbar spine DDD to be adequate for adjudication purposes. Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this appeal is satisfied. 

B. TDIU 

Pertaining to the issue of entitlement to a TDIU, the VCAA duty to notify was satisfied by way of a letter sent that fully addressed all three notice elements to the Veteran in May 2013, prior to the initial rating decision in July 2013. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. 

Regarding the duty to assist in this case, all relevant documentation have been secured, and the Board finds that all necessary development has been accomplished. Therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet App 384 (1993). The RO has VA treatment records, private medical records, SSA records, and all relevant employment information from the Veteran and his former employer. As noted above, the Veteran was afforded several thorough and complete VA medical examinations in furtherance of his claim for increase, from which the TDIU issue is derived. Additionally, the Board finds that the Veteran has been provided lay statements regarding the impact of his service-connected disabilities on his employment. 

Last, neither the Veteran nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Therefore, the Board finds that the Veteran's duty to assist has been adequately fulfilled.

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). 

II. Compliance with Stegall

As noted in the Introduction, in June 2011 and June 2014, the Board Remanded the appeal for additional development and adjudication.

In June 2011, the Board remanded the matter for an additional VA examination to determine the current extent and severity of the Veteran's lumbar spine disability. The examiner was directed to conduct all relevant tests, to include range of motion testing and to identify all symptoms associated with the back, to include neurological. Moreover, the June 2011 Board Remand directed the RO to obtain any outstanding and relevant VA treatment records.

Accordingly, the Veteran was afforded a VA examination in August 2011. The examination report indicates that the examiner reviewed the Veteran's claims file, completed a physical examination of the Veteran, and conducted relevant range of motion testing. The examiner reported the Veteran's asserted symptoms and provided a report of the Veteran's functional limitations. Additionally, significant VA and private treatment records were obtained and associated by the claims file, and a supplemental statement of the case (SSOC) was furnished in May 2012.

The Board again remanded the appeal in June 2014. The Board directed the RO to obtain all outstanding private and VA treatment records, to include all post-operative records, and to obtain all SSA records and associate such with the Veteran's claims file. The Board also directed the RO to afford the Veteran an additional VA examination to determine the current severity of the Veteran's lumbar spine DDD and to specifically state whether the Veteran has ankylosis of the lumbar spine, and if so, whether such ankylosis is favorable or unfavorable. 

Accordingly, as previously noted above, the Veteran was scheduled for a VA examination to take place in February 2016, and the Veteran was notified of such. However, the record reflects that the Veteran wished to cancel his scheduled examination. Moreover, the RO obtained all SSA records, additional private and VA treatment records, to include VA treatment records through September 2016, and associated such with the claims file. An SSOC was furnished in September 2016. 

The Board finds that the VA has adequately developed the Veteran's claims by making sufficient efforts to collect the Veteran's records and by providing the Veteran with appropriate notice, the necessary VA examinations, and an SSOC. Therefore, the Board finds that there has been substantial compliance with its prior Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

III. Increased Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2016); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran contends he is entitled to an increased rating in excess of 40 percent for his service-connected lumbar spine DDD. The Veteran's lumbar spine DDD is rated under DC 5243, covering degenerative arthritis of the spine. All spine disabilities covered by DC 5235 to 5243 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated 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. Id.

Under the General Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Formula. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id.

Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate DC. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, 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. Id. at Note 2. 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 lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id.

Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id.

Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, DC 5243, Incapacitating Episodes Formula, Note 1.

The Board must also consider whether DC 5003 might serve as a basis for an increased rating in this case. Under VA regulations, degenerative disc disease is rated under Diagnostic Code 5242, which refers to Diagnostic Code 5003 (degenerative arthritis), and under 5003 degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242, Note (6). However, the maximum disability rating under Diagnostic Code 5003 is 20 percent, and the Veteran has been assigned a 40 percent rating for his lumbar spine DDD under Diagnostic Code 5243. Therefore, the Board does not find that DC 2003 serves as a basis for an increased rating in this case. Instead, the Board analyzes whether the Veteran is entitled to an increased rating in excess of 40 percent under DC 5243.

The Veteran contends that his lumbar spine DDD warrants an increased disability rating in excess of 40 percent. In an August 2008 statement in support of claim the Veteran asserts that he has had three back surgeries, various series of shots, and numerous doctor appointments. The Veteran contends that his back hurts so much that it is hard to get in and out of bed in the morning, that his back stiffens when he sits for any length of time, and that he has pain radiating from the middle of his back to his legs and toes. He stated that when he tries to stand up it is hard for him to straighten up and move. He asserts that he pain is continuous and that he is no longer able to go out for leisure or recreation.

January 2008 to April 2008 private treatment records from V. V. P., M.D., note treatment of the Veteran's back, with findings that include minimal dextro curvature centered, postoperative changes involving posterior rods and transpedicular screws, postlaminectomy syndrome of the lumbar spine, low back pain with pain in legs and buttock, and DDD of the lumbar spine. However, the private treatment records do not note ankylosis of the lumbar spine. 

A May 2008 letter by E. B., M.D., notes that the Veteran "has had multiple lumbar spine surgeries with continued low back pain and right leg pain that is quite debilitating." The letter asserts that the Veteran has "limited range of motion and has increased pain with any activities that cause extension of his back." Dr. E. B. notes that the Veteran is unable to stand for more than 30 minutes at a time, and is unable to walk more than half a block.

April 2010 private treatment records from W. C. R., M.D., note a back surgery, and report the following assessments: intractable low back pain, intractable left great than right leg pain, L1-L2 spinal stenosis, L5-S1 disk herniation/ stenosis, left SI joint dysfunction/pain, and sagittal plane imbalance. Again, such private treatment records do not note ankylosis of the lumbar spine.

A VA examination was provided in September 2010. The examination report includes a diagnosis of DDD of the lumbar spine, and notes flare ups that are severe, weekly, last for hours, and are caused by prolonged sitting. The VA examination report notes fatigue, decreased motion, stiffness, weakness, spasm, spine pain daily, and a constant dull ache with muscle spasm. Additionally, the Veteran reported radicular radiation of the pain down bilateral lower extremities just above the knees. The VA examiner noted stooped posture and a mildly antalgic gait with the use of a cane; however, the examiner did not find lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or thoracolumbar spine ankylosis. Upon examination of the muscles of the spine, the examiner noted spasm of the left and right, pain with motion of the left and right, and tenderness of the left and right.

The September 2010 VA examination report includes range of motion testing. Upon active motion, flexion measured 0 to 80 degrees, extension measured -5 to 0 degrees, left lateral flexion measured 0 to 10 degrees, left lateral rotation measured 0 to 10 degrees, right lateral flexion measured 0 to 10 degrees, right lateral rotation measured 0 to 10 degrees, and noted objective evidence of pain. Additionally, the VA examiner reported objective evidence of pain following repetitive motion, but did not find any additional limitations after three repetitions of range of motion. The examiner concluded that the Veteran has the following: mild lumbar scoliosis, L1 through L4 laminectomies, extensive posterior fusion from T10 through the sacrum, interbody fusions at T10-11, T11-12, T12-L1, and L1-2, anterior innerbody fusion at L3-4, incomplete interbody fusion at L2-3, incomplete interbody fusion at L4-5, incomplete interbody fusion at L5-S1, and grade I spondylolisthesis at L2-3 and L5-S1. Last, the examiner noted that there has not been any incapacitating episodes due to the intervertebral disc syndrome; but noted that the Veteran has difficulty ambulating long distances, cannot lift or carry heavy loads, and cannot sit or stand for prolonged periods of time secondary to pain. 

Of record are VA treatment records. VA treatment records from September 2008 to October 2009 note low back pain with lumbar disc/ spine disability. VA treatment records dated October 2010 report that the Veteran experiences flare ups that are severe, occur weekly, and last hours as a result of prolonged sitting and standing. The Veteran reported fatigue, decreased motion, stiffness, weakness, spasms, and pain daily, with a constant dull ache and muscle spasms. The Veteran also reported radicular radiation of the pain down to his bilateral lower extremities and reported being unable to work more than a few yards. However, again, no thoracolumbar spine ankylosis was found.

Additional private treatment records dated February 2011 from Dr. W. C. R., note that the Veteran underwent reconstructive surgery of his thoracolumbar spine in January 2011, and that he is inpatient in a long-term rehabilitation facility. Private treatment records from January 2011 note the Veteran's spine surgery, and note the following diagnoses: sagittal and coronal plane imbalance (left), intractable back and bilateral leg pain, status-post multiple surgeries with fusion from T10 to the pelvis, pseudoarthrosis (painful right SI joint), pseudoarthrosis with broken hardware L5-S1, and proximal junction kyphosis (thoracolumbar spine). Once again, the private treatment records do not indicate any findings of ankylosis.

The Veteran was afforded a VA examination in August 2011. As to the Veteran's spine, the examiner reported that there is a decrease in the usual thoracic kyphosis and lumbar lordosis. There is no scoliosis because of thoracolumbar spine fusion, but there are muscle spasms palpable bilaterally through the whole thoracolumbar spine with tenderness. The examiner also reported numbness to light touch in the midline spine over the scar. The examiner noted muscle spasm, guarding, and ankylosis severe enough to result in abnormal spinal contour and gait. Upon straight leg raise, the left was negative for radicular pain, but the right was positive with parethesias into the bottom of the foot. Range of motion testing was productive of the following: flexion measured at 45 degrees with pain at 25, extension measuring -20 degrees with pain at -20, left lateral flexion measuring 0 degrees with pain at 0, right lateral flexion measuring 0 degrees with pain at 0, left lateral rotation measuring 5 degrees with pain at 0, and right lateral rotation measuring 5 degrees with pain at 0.

The August 2011 VA examiner concluded that the Veteran has a diagnosis of lumbar DDD and spondylosis with "chronic pain and complete surgical ankylosis from the sacrum to T2 in a 'favorable' position (meaning the Veteran has his head relatively erect and can see where he is going, although his activities of daily living are clearly adversely affected by the length of spine which is ankylosed)." Moreover, the examiner noted evidence of right lumbosacral radiculopathy. 

April 2012 private treatment record from Dr. V. V. P. notes lumbar spine tenderness, pain upon motion, and palpation, with a diagnosis of lumbar disc degeneration, sacroilitis, and postlaminectomy syndrome (lumbar). However, no thoracolumbar spine ankylosis was noted. Additionally, July 2012 private treatment record notes an additional surgery of the Veteran's lumbar spine, and noted broken rods at the L5-S1 junction, pseudoarthrosis with debilitating pain, and weakness in the Veteran's arms and legs. No notation of ankylosis was reported. 

SSA records have been associated with the claims file. Of record is an SSA examination performed by E. A. T., M.D. in February 2012. The examiner noted that the Veteran had "cervical, thoracic, lumbar, and sacral spinous process tenderness to palpation or in accompanying paraspinal areas. He had sacroiliac joint, ischial tubercle, or iliac wing tenderness with palpation as well." The examiner concluded that the Veteran is able to stand or walk less than two hours out of a normal eight hour workday, he can barely stand with arm crutches, is in significant pain even when sitting, and is unable to lift or carry any weight. 

VA treatment records include a May 2013 VA examination. The examiner noted DDD of the lumbar spine, radiculopathy of the left lower extremity, and status-post multiple fusions lumbar spine. Again, the Veteran reported flare ups that cause decreased capacity to bend, lift, or twist. Range of motion testing produced the following results: forward flexion measuring 50 degrees with painful motion beginning at 50, extension measuring 10 degrees with painful motion beginning at 10, right lateral flexion measuring 10 degrees with no objective evidence of painful motion, left lateral flexion measuring 10 degrees with no objective evidence of painful motion, right lateral rotation measuring 10 degrees with painful motion beginning at 10 degrees, and left lateral rotation measuring 10 degrees with painful motion beginning at 10 degrees. Repetitive motion testing produced the following results: forward flexion measuring 80 degrees, extension measuring 10 degrees, right lateral flexion measuring 10 degrees, left lateral flexion measuring 10 degrees, right lateral rotation measuring 10 degrees, and left lateral rotation measuring 10 degrees. The May 2013 VA examination report notes that the Veteran does not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing.

The May 2013 VA examiner noted functional loss and/or impairment of the Veteran's thoracolumbar spine, to include less movement than normal, pain on movement, instability of station, disturbance  of locomotion, interference with sitting, standing, and/or weight-bearing. The examiner further reported point radicular pain, tenderness throughout the lumbar spine, and guarding and/or muscle spasms, but found that such do not result in abnormal gait or spinal contour. No notation of ankylosis was reported.

Continued VA treatment records note complaints and treatment for lower back pain through February 2016. However, no further range of motion testing or notation of ankylosis is of record.

Based on the evidence of record, the preponderance of the evidence is against a finding that the Veteran's lumbar spine DDD more nearly approximates the level of severity contemplated by a rating greater than 40 percent. The objective measurements contained in the VA and private medical examinations indicate the level of limitation contemplated by a 40 percent rating. A rating of 40 percent, as previously noted, is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Formula. Range of motion testing completed September 2010, August 2011, and May 2013 produced forward flexion of more than 30 degrees, but the August 2011 VA examiner noted favorable ankylosis of the thoracolumbar spine. 

The Board finds that a 50 percent rating is not warranted in this case. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Formula. Although the August 2011 VA examiner noted "complete surgical ankylosis from the sacrum to T2," the examiner found this ankylosis to be in a favorable position given that the Veteran's head is relatively erect and he can see where he is going. The August 2011 examiner noted that the Veteran's activities of daily living are clearly adversely affected by the length of spine which is ankylosed. However, unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id. Therefore, in this case, although the Veteran's daily activities are adversely affected by the length of spine ankylosed, as completed in the rating criteria, the medical evidence of record does not indicate that the Veteran's ankylosis is unfavorable given that the above manifestations are not noted and given that the Veteran's fixation of a spinal segment is in a neutral position.

Thus, based on the lay and medical evidence of record, the Board finds that the preponderance of the medical evidence is against a finding that a rating in excess of 40 percent for the Veteran's lumbar spine DDD is warranted in this case. 38 C.F.R. §§ 4.7, 4.71a, DC 5243.

In evaluating the Veteran's current level of disability functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has, at different times, complained of pain and limitation of motion, which the Veteran is competent to report. Jandreau, 492 F.3d 1372. However, the medical evidence does not show additional functional loss due to pain, weakness, fatigue, or incoordination upon repetitive testing. While the September 2010 VA examiner noted objective evidence of pain following repetitive motion, the evidence does not indicate any additional functional loss. During the May 2013 VA examination the Veteran performed repetitive-use testing, and the examiner reported that the Veteran does not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. In determining this, the examiner considered the Veteran's motion testing and a description of his symptoms. In addition, no private examiner has made findings in this respect. As such, the Board finds that any contentions the Veteran has concerning further limitation due to factors such as weakness, fatigue, and other factors are outweighed by the objective findings of the VA examiners. 38 C.F.R. §§ 4.40, 4.45. Instead, the Board notes that the Veteran's complaints of pain on motion are fully contemplated by his current ratings. 38 C.F.R. § 4.59.

No additional higher or alternative ratings under different diagnostic codes can be applied. As previously noted, the Board has considered whether DC 5003 might serve as a basis for an increased rating in this case, however, given the Veteran's 40 percent rating for his lumbar spine DDD, a higher rating under DC 5003 cannot be applied. Moreover, the medical evidence of record does not indicate that the Veteran has IVDS. Additionally, outside of his surgeries which have already been contemplated with separate temporary total ratings under the provisions of 38 C.F.R. § 4.30 based upon the need for convalescence, none of the treatment records, VA or private, indicate that the Veteran has at any point experienced acute signs and symptoms requiring physician prescribed bed rest and physician treatment. See 38 C.F.R. § 4.71a, DC 5243, Incapacitating Episodes Formula, Note 1. Finally, the Veteran has not alleged that he has at any point been prescribed bed rest for his low back disability. Id. In light of the lay and medical evidence of record, a rating in excess of 40 percent based on incapacitating episodes lasting at least one week but less than two weeks is not warranted. Id.

Last, when evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable DC. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, service connection for the Veteran's radiculopathy of the left lower extremity, radiculopathy of the left upper extremity, radiculopathy of the right upper extremity, and radiculopathy of the right lower extremity have already been granted. No other neurologic abnormalities have been noted as being associated with the Veteran's low back disability. Therefore, such associated objective neurologic abnormalities have already been contemplated by the assigned ratings. 

Thus, the preponderance of the evidence is against an rating in excess of 40 percent for the Veteran's service-connected lumbar spine DDD. Additionally, staged ratings are not warranted, as the Veteran has had a stable level of symptomatology throughout the period on appeal. See Hart, 21 Vet. App. 505. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

IV. Extraschedular Considerations

Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," 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." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.

The first Thun element is not satisfied here. The Veteran's service-connected lumbar spine DDD is manifested by spasms, pain, and limited motion, to include limitations and pain when lifting, sitting, and standing. These signs and symptoms, and their resulting impairment, are specifically contemplated by the rating schedule as part of the schedule of ratings for the musculoskeletal system. See 38 C.F.R. § 4.71a, DC 5276. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. Therefore, referral for extraschedular consideration is not warranted in this case. 

Finally, the Board notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, the Veteran is service connected for lumbar spine DDD, radiculopathy of the left lower extremity, radiculopathy of the left upper extremity, radiculopathy of the right upper extremity, and radiculopathy of the right lower extremity, asthma, dysthymic disorder, hypertension, retropatellar pain syndrome of the left knee with degenerative joint disease, cervical spine degenerative disease and stenosis, right inguinal hernia repair with healed surgical scar, second degree burn scar right hand, scar residual of laceration and fracture of left index finger, and right genitofemoral nerve entrapment status post neurolysis. The Veteran has not alleged and the evidence does not indicate that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability.

V. Entitlement to a TDIU for the period prior to July 25, 2011

TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). For the above purposes of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating may nonetheless be granted, based on referral for extraschedular consideration, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. 
§§ 3.321(b), 4.16(b) (2014). 

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran's employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. 38 C.F.R. §4.16(a). 

After a review of all the evidence, lay and medical, the Board finds that entitlement to a TDIU for the period prior to January 13, 2011, is not warranted, but that an entitlement to a TDIU for the period on and after January 13, 2011, is warranted.

In this case, prior to July 25, 2011, the Veteran was service connected for lumbar spine DDD at 40 percent disabling (with periods of temporary total ratings under 38 C.F.R. § 4.30), asthma at 10 percent disabling, dysthymic disorder at 10 percent disabling, hypertension at 10 percent disabling, retropatellar pain syndrome of the left knee with degenerative joint disease at 0 percent disabling, right inguinal hernia repair with healed surgical scar at 0 percent disabling, second degree burn scar right hand at 0 percent disabling, scar residual of laceration and fracture of left index finger at 0 percent disabling, and right genitofemoral nerve entrapment status post neurolysis at 0 percent disabling. The combined evaluation for compensation during the period on appeal was 70 percent, with periods of temporary total ratings under 38 C.F.R. § 4.30. Thus, the Veteran's service-connected disabilities meet the schedular criteria for consideration of TDIU for the period prior to July 25, 2011, as there are two or more disabilities with a combined rating of at least 70 percent with one disability ratable at 40 percent or more. 38 C.F.R. § 4.16(a). 

Therefore, the Board analyzes the evidence of record to determine whether, for the period prior to July 25, 2011, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.

A private treatment record by R. B. S., M.D., dated May 2008, notes that the Veteran is doing computer work. Moreover, private treatment from E. L. B., M.D., dated March 2008, states that the Veteran is currently a computer consultant; and a notation by S. M. E., nurse practitioner, dated March 2008 notes that the Veteran is currently working full-time, but that he continues to experience pain. 

In an August 2008 statement, the Veteran asserts that his back hurts so much that it is hard for him to get in and out of bed in the morning and that he has pain when he sits for any length of time. He contends that although pain medication can help "take the edge off the pain" his pain is never relieved. He continued, stating that "[a]s a system's administrator, I have to lift, bend, reach, and crawl under and around desks. Although this adds even more stress to my back, I have to keep working to support my family." Similarly, an August 2008 private treatment record indicates that the Veteran is working but that the pain makes it difficult to work.

A September 2009 VA examination notes that the Veteran's lumbar spine DDD effects the Veteran's usual occupation and resulting work problems because it is difficult for him to ambulate long distances, he cannot lift or carry heavy loads, and he cannot sit for prolonged periods of time secondary to pain. An October 2009 VA treatment record notes irritability with coworkers.

February 2010 and March 2010 VA treatment records indicate that the Veteran currently works as a computer systems analyst, but that he has been irritable as a result of pain. However, a June 2010 VA treatment record reports that the Veteran has been off work since April, but that he will try to go back to work part-time in mid-July. 

October 2010 VA treatment records indicate that the Veteran was put on probation at work because of his negative attitude and "nasty interactions with coworkers." The Veteran reported that he is suffering from depression and that he has been successful at changing his attitudes and behaviors, but that the pain he experiences is making it difficult to do his job efficiently. He further noted that he gets frustrated that his coworkers do not help when they easily could and that they act superior to him.

A February 2011 letter from W. C. R., M.D., notes that the Veteran underwent surgery of his spine in January 2011, and that he is unable to work because he is in long-term rehabilitation. Dr. W. C. R. explained that he was uncertain if and when the Veteran was going to be able to return to work. 

A July 2011 letter from Dr. W. C. R. states that, after a review of the Veteran's long-term and short-term disability, it is his recommendation and anticipation that the Veteran "would not be able to return to an occupation postoperatively that will require lift, bend, twist, carry, squat, crawl, kneel, etc." 

Private treatment record dated July 19, 2011, notes that the Veteran has been unemployed since January 13, 2011. The Veteran contends that he is unemployed as a result of his disability, with him missing eight to nine months of work in the past year due to illness or injury.

In September 2012, the Veteran filed VA Form 21-8940, Veteran's application for increased compensation based on unemployability. The Veteran stated that he is unable to work as a result of his back disability, noting a loss of mobility. As for the date his disability affected his full-time employment, the Veteran reported July 17, 2011; for the date he last worked full-time, the Veteran reported January 14, 2011; for the date he became too disable to work, the Veteran reported January 17, 2012. The Board notes, however, that the date the Veteran became too disabled to work appears to be an error, and the Board assumes that the Veteran intended to report the date of January 17, 2011, as he is consistently reports this date as the last date he was employed.

Accordingly, in September 2012, the Veteran's employer responded to VA's request for employment information, and reported that on January 13, 2011, the Veteran was placed on long-term disability from his position as a systems administrator. The employer described the Veteran's job as "installed computers and equipment," and noted that the Veteran had many physical restrictions, such as "lifting, pushing, pulling, bending, which is needed for equipment installation and repairs. Staff pitched in to help with these duties until he wasn't able to perform the basic requirements of the job." The Veteran performed this job since November 2000. Veteran's employment dates are corroborated in the SSA records, and therefore, are consistent throughout the record.

Thus, after a review of all the evidence, lay and medical, the Board finds that for the period prior to January 13, 2011, a TDIU is not warranted. Although the Veteran meets the schedular criteria for a TDIU for this period, the preponderance of the evidence is against a finding that the Veteran was unable to secure or maintain substantially gainful employment by reason of his service-connected disabilities.

Instead, the evidence of record consistently indicates that the Veteran was employed prior to January 13, 2011. Although the Veteran notes pain and difficulties at work, to include a period of probation, and although the Veteran was granted temporary total ratings under the provisions of 38 C.F.R. § 4.30 based upon the need for convalescence during this time, the Veteran reports being employed full-time until his surgery in January 2011. Moreover, the Veteran's employer reports that the Veteran was placed on long-term disability from his position on January 13, 2011. Therefore, the Board finds that prior to January 13, 2011, the preponderance of the evidence is against a finding that the Veteran was unemployable as a result of his service-connected disabilities because the Veteran was in fact employed full-time. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107 (b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the claim for this period.

As for the period on and after January 13, 2011, with the threshold requirements satisfied, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In determining whether the Veteran is capable of obtaining and maintaining gainful employment, the Board must consider the Veteran's work history, education, and any special training. In this case, the Veteran's experience is noted to be in computer consulting and systems administration. The Veteran asserts that he is unable to sit for a long time and that he is unable to lift or carry heavy loads. Medical evidence of record corroborates the Veteran's functional limitations and occupational limitations. See, e.g., September 2009 VA examiner (noting the Veteran's functional limitations to include being unable to lift or carry heavy loads and being unable to sit for prolong periods of time). 

Although the Veteran was employed full-time despite these limitations prior to January 13, 2011, the record indicates that the Veteran received surgery in January 2011, and thereafter, could not return to work. Again, the Board notes a February 2011 letter from Dr. W. C. R., which states that the Veteran is unable to work because he is in a long-term rehabilitation program; and a July 2011 letter from Dr. W. C. R. states that the Veteran "would not be able to return to an occupation postoperatively that will require lift, bend, twist, carry, squat, crawl, kneel, etc." A July 19, 2011, private treatment record reports that the Veteran missed eight to nine months of work in the past year due to illness or injury. In September 2012, the Veteran's employer reported that the Veteran had many physical restrictions, such as "lifting, pushing, pulling, bending, which is needed for equipment installation and repairs. Staff pitched in to help with these duties until he wasn't able to perform the basic requirements of the job."

The Board finds the Veteran's assertions, the employer's lay statements, and the medical evidence of record to be probative in this matter. Given the evidence of record, the Board concludes that in addition to the Veteran's assertions that he was forced to quit his job as a result of his service-connected disabilities, the medical evidence of record significantly supports the Veteran's assertions. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (stating that a veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to them through their senses). Thus, in weighing the lay and medical evidence of record, as well as the Veteran's work history, the Board finds that the weight of the evidence demonstrates that the Veteran is not able to obtain or maintain substantially gainful employment in his prior field or in another profession or field due to his service-connected disabilities and that entitlement to TDIU for the period on and after January 13, 2011, is warranted.

ORDER

Entitlement to a disability evaluation in excess of 40 percent for the Veteran's lumbar spine DDD, is denied.

Entitlement to a TDIU for the period prior to January 13, 2011, is denied.

Entitlement to a TDIU for the period on and after January 13, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs