Citation Nr: 1743336 Decision Date: 09/28/17 Archive Date: 10/10/17 DOCKET NO. 13-09 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease (DDD) L4-L5 with thoracolumbar strain. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served in the U.S. Marines and U.S. Army from October 1992 to April 1993 and March 1994 to July 1995, respectively. This case comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for degenerative disc disease L4-L5 with thoracolumbar strain, and assigned an initial disability rating of 20 percent. This case was previously before the Board in a May 2015, where the Board remanded the issues on appeal for further evidentiary development. FINDINGS OF FACTS 1. Based on the evidence of record the Veteran failed to appear for his VA examination as directed under the May 2015 Board remand, and to date, has not provided good cause for his absence. 2. The Veteran's service-connected degenerative disc disease L4-L5 with thoracolumbar spine is manifested by subjective complaints of pain and limited range of motion, but objectively, no evidence of forward flexion of the thoracolumbar spine being 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 3. The evidence on record is against a finding that the Veteran's service-connected disability precludes him from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The Veteran's failure to provide good cause explaining his absence for his VA examination warrants that his claim be considered based on the evidence of record. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.103, 3.326, 3.327, 3.655(b). 2. The criteria for a disability rating in excess of 20 percent for the Veteran's degenerative disc disease (DDD) L4-L5 with thoracolumbar spine are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1 - 414, 4.71a, Diagnostic Codes (DCs) 5237-5243 (2014). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify & Assist The duty to notify has been met. The Veteran has not alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran ...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all available records pertinent to the claim have been obtained. Prior to the Board remand, the Veteran was afforded adequate VA examinations satisfying the VA's duty to assist. However, the May 2015 Board remand directed the RO to schedule the Veteran for a VA examination to assess the current severity of his DDD. In an August 2016 letter, the Veteran was notified that he would be scheduled for another VA examination by the VA medical facility nearest him and was advised of the provisions of 38 C.F.R. § 3.655 regarding the failure to appear at a scheduled examination. The record shows that in September 2016, the Veteran was scheduled for a VA examination for his DDD, but that he failed to report for the examination. To date, neither the Veteran nor his representative has submitted any information regarding the missed VA examination. The record does not indicate that any letters sent to the Veteran have been returned to VA as undeliverable, and the Veteran's representative has submitted subsequent correspondence to VA, never indicating any lack of receipt of notice or change in address. The May 2015 remand directives included scheduling the Veteran for a VA examination to determine the current severity of his DDD. As discussed above, the Veteran was provided with adequate notice concerning VA's duty to assist was scheduled for VA examinations in September 2016. VA fulfilled its duty to assist the Veteran in attempting to obtain outstanding evidence needed to substantiate the claim, and as warranted by law, affording VA examinations. As such, the Board finds that the RO has substantially complied with the remand directives and that no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remanded not required under Stegall, 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). Therefore, the Board finds that the duty to notify and duty to assist have been satisfied. Accordingly, the Board will address the merits of the claims. Failure to Report Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. 38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, and 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655(a). 38 C.F.R. § 3.655(b) holds that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. With no clear evidence to the contrary, the Board concludes that the Veteran was properly notified of the scheduled examination. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Minderhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). Administrative records on file indicate that proper notice was provided. Moreover, the Veteran was informed in the December 2016 Supplemental Statement of the Case that he did not report for the scheduled examination, and he has not indicated a willingness to do so. As no good cause has been shown for the missed VA examination, the claim for an initial rating in excess of 20 percent will be determined based on the evidence of record. See 38 C.F.R. § 3.655(b). Initial Rating Increase for Degenerative Disc Disease Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. General policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal is from the initial rating assigned with the award of service connection, separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's low back disability is rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides that a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or for favorable ankylosis of the entire thoracolumbar spine. Notes following provide that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Notes 1 and 2. When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Here, the most recent medical evidence is the Veteran's October 2013 VA examination. During the examination, the Veteran's thoracolumbar spine demonstrated 70 degrees of forward flexion, 25 degrees of extension, 30 degrees of bilateral lateral flexion, and 30 degrees of bilateral lateral rotation. There was objective evidence of pain with motion; however, there was no additional loss of motion with repetitive movement. Additionally, the Veteran reported that flare-ups do not impact function. Moreover, both of the Veteran's lower extremities demonstrated normal sensation, normal motor strength, and normal deep tendon reflexes, and there was no evidence of radiculopathy. As noted above, a higher evaluation of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Therefore, a rating in excess of 20 is not warranted for the Veteran's DDD. Higher ratings are also not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. At no time has the Veteran experienced an incapacitating episode associated with his service-connected lumbar spine disability. More importantly, there is no evidence of the Veteran being diagnosed with IVDS. As such ratings in excess of 20 percent for the Veteran's service-connected lumbar spine disability is not warranted based on the frequency of physician prescribed incapacitating episodes as contemplated by DC 5243. The Board notes that the General Rating Formula also provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). However, there is no evidence of any neurologic abnormalities or findings related to the service-connected lumbar spine disability. Thus, the medical evidence of record does not show associated objective neurologic abnormalities of bowel and bladder impairment so that a separate neurological disability rating, as it applies to his service-connected lumbar spine disability is warranted. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an initial rating in excess of 20 percent for the Veteran's service-connected degenerative disc disease. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. TDIU The Veteran contends that his service-connected DDD render him unemployable and that he is therefore entitled to a TDIU. The Board notes that generally, a total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2016). Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2016). For the Veteran to prevail in a claim for a TDIU, the evidence must show that he is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The sole fact that a Veteran 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 or keep employment, but 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). Entitlement to a TDIU is warranted under 38 C.F.R. § 4.16(b) regardless of the Veteran's disability ratings where the service-connected disabilities alone render him unemployable. The Board cannot grant a total disability rating based on individual unemployability under 38 C.F.R. § 4.16(b) in the first instance, but must consider whether a remand for the AOJ to refer the case to the Under Secretary for Benefits or the Director of Compensation is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). For the following reasons, the Board finds that a remand to refer is not warranted. In this case, the Veteran's claim for a TDIU arose from a statement in his VA Form 9 concerning his inability to work. Although provided with a Veteran's Application for Increased Compensation Based on Unemployability, the Veteran has not returned the form. As such, the Board obtained the Veteran's work history and level of education from SSA forms, where he applied for disability benefits. Based on that information, the Veteran completed one year of college and worked in numerous positions since leaving service. Most recently, he worked as a repairperson and with a staffing agency. Prior to these positions, the Veteran had a number of sedentary positions including telemarketing, debt collection, and sales. Although the Veteran worked in these sedentary positions, the Veteran contends that his service-connected disability prevents him from working. Currently, the Veteran's DDD is rated at 20 percent disabling. At that rate, the Veteran does not meet the schedular rating for a TDIU, which contemplates the severity of a disability or disabilities necessary to render a veteran unable to obtain or maintain substantially gainful employment. Moreover, evidence from the Social Security Administration shows that Veteran was denied entitlement to disability benefits. In denying the Veteran's application, the SSA reviewed the Veteran's medical evidence and other relevant evidence concerning his age, education, training, and work experience. Although the Board does not consider age, the SSA's determination is relevant. Even more, the medical evidence of record does not show that the low back disability is of such severity to prevent the Veteran from obtaining all forms of substantially gainful employment. Likewise, email correspondence from the Vocational Rehabilitation and Education Department noted that the Veteran applied for services in 2010 and a plan was approved where the Veteran would complete a Bachelor's of Science in communications with a graduate certificate in Business Administration. It was noted that the Veteran received employment services and was considered employable in a suitable occupation. The Veteran has not provided any updated information for reconsideration of this determination. As the evidence does not show that the Veteran meets the schedular requirements for entitlement to individual unemployability and the medical evidence of record does not indicate that the Veteran's disability is severe enough to render him unable to obtain or sustain substantially gainful employment, entitlement to individual unemployability is denied. After considering the totality of the record, the Board finds that the preponderance of the evidence reflects that the Veteran's service-connected disability alone have not precluded him from obtaining and maintaining substantially gainful employment. The benefit of the doubt doctrine is thus not for application and the claim must therefore be denied. 38 U.S.C. § 5107(b). ORDER Entitlement to an initial rating in excess of 20 percent for degenerative disc disease L4-L5 with thoracolumbar strain is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs