Citation Nr: 1751803 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-24 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial disability rating for a service-connected degenerative disc disease and degenerative joint disease of the lumbosacral spine with strain (lumbar spine disability) in excess of 40 percent prior to May 14, 2013 and in excess of 20 percent thereafter. 2. Entitlement to a total disability rating for compensation due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2011 and May 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In the March 2011 rating decision, the RO granted service connection for chronic lumbosacral sprain, degenerative disc disease and degenerative joint disease of the lumbosacral spine and assigned a 20 percent evaluation. A July 2013 rating decision found clear and unmistakable error with the initial evaluation. Based on the findings from the February 2011 VA examination, the RO assigned an initial evaluation of 40 percent from the date of the application to reopen until a May 14, 2013 VA examination. From the date of the May 14, 2013 VA examination, the RO assigned a 20 percent evaluation. In February 2015, the Veteran testified during a videoconference hearing before the undersigned; a transcript of that hearing is of record. The case was previously before the Board in June 20015, when it was remanded for examination of the veteran and medical opinions. The requested development has been completed. FINDINGS OF FACT 1. Prior to May 14, 2013, the Veteran's service-connected lumbar spine disability was manifested by forward flexion to 30 degrees with repetitive motion along with complaints of pain and discomfort; it was not manifest by any ankylosis or incapacitating episodes requiring bed rest prescribed by a physician. 2. Beginning May 14, 2013, the Veteran's service-connected lumbar spine disability is manifested by forward flexion to at worst 35 degrees with complaints of pain and discomfort; it is not manifest by any ankylosis or incapacitating episodes requiring bed rest prescribed by a physician. 3. The Veteran's combined service-connected disability rating is at most 50 percent, which is considered a single disability rating due to the separate disabilities resulting from a common etiology. 4. The Veteran has an education level of one year of college; he has experience as a truck driver, office worker, and salesman. 5. The probative evidence of record indicates the Veteran's service-connected disabilities alone do not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for the period prior to May 14, 2013, and in excess of 20 percent thereafter for the service-connected lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243 (2017). 2. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). I. Increased Ratings for Lumbar Spine Disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). This appeal is from the initial disability rating assigned upon the award of service connection for a lumbar spine disability. The entire body of evidence is for consideration. Consistent with the facts found, separate ratings can be assigned for separate periods of time, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also, Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected lumbar spine disability includes degenerative disc disease and degenerative joint disease (arthritis) and is rated at a 40 percent disability rating prior to May 14, 2013 and at a 20 percent disability rating thereafter. The Diagnostic Codes indicated are Diagnostic Code 5243 for intervertebral disc syndrome and Diagnostic Code 5237 for lumbosacral strain. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes) 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 as follows: For unfavorable ankylosis of the entire spine (100 percent); For unfavorable ankylosis of the entire thoracolumbar spine (50 percent); For unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent); For forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or the combined range of motion of the cervical spine not greater than 170 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 (20 percent); and For forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 (10 percent). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2017). It is noted that when evaluating diseases and injuries of the spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Veteran has been granted separate compensable disability ratings for radiculopathy of both the right and left lower extremities. However, disagreement with these sperate ratings has not been asserted and they are not presently on appeal. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2) (2017). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion as noted. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3) (2017). Range of motion measurements are to be rounded off to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (2017). Disability of the thoracolumbar and cervical spine segments are to be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2017). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2017). Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2017). The Veteran is diagnosed with intervertebral disc syndrome of the lumbar spine. Diagnostic Code 5243 rates intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Under rating criteria for incapacitating episodes, a 10 percent rating contemplates incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, a 60 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2017). An incapacitating episode is "a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician." Id. Review of the record does not reveal that the Veteran has had any incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. Accordingly, rating the Veteran's low back disability under these criteria is not warranted. Again, the Veteran's service-connected lumbar spine disability is rated at a 40 percent disability rating prior to May 14, 2013 and at a 20 percent disability rating thereafter. In February 2011 a VA examination of the Veteran was conducted in conjunction with his claim for service connection. He reported flare-ups of pain during wintertime relieved with a TENS unit. At that time range of motion testing revealed that he had forward flexion of the thoracolumbar spine to 40 degrees, but it was limited to 30 degrees, with complaints of pain, after repetitive motion testing. Accordingly he was assigned the initial disability rating of 40 percent. The next VA Compensation and Pension examination of the Veteran was conducted on May 14, 2013. He reported flare-ups of pain in certain circumstances. At that time forward flexion of the lumbar spine was limited to 40 degrees, with pain beginning at 35 degrees on range of motion testing. There was no change after repetition. Subsequent VA examinations were conducted in July 2015 where forward flexion was limited to 40 degrees and in February 2017 where forward flexion was limited to 60 degrees. In the last two examination reports there is no indication of additional functional impairment or limitation of range of motion resulting from repetitive motion testing or weight bearing; at both examinations the Veteran denied experiencing flare-ups of the condition. Review of all of the VA examination reports of records does not show that the Veteran has any ankylosis of the spine, or that he has any incapacitating episodes requiring bedrest prescribed by a physician. VA treatment records confirm that he is treated for complaints of low back pain, and that he is prescribed pain medication. Statements submitted by his treating VA physician also indicate treatment for complaints of back pain; however, these statements do not contain evidence which specifically addresses the rating criteria. The Veteran testified that he believes the findings of the VA examinations conducted after the initial examination in February 2011 are not accurate and that he has back pain which he asserts warrants the assignment of ratings in excess of those already assigned. The VA examinations of record were all conducted by different examiners and address the rating criteria. The examination reports dated on and after May 2013 all show physical findings, including range of motion test results, which are consistent and do not meet the criteria for a rating in excess of 20 percent. The Veteran is properly assigned a 40 percent disability rating for the period of time prior to May 14, 2013 because the February 2011 VA examination revealed that the Veteran's range of motion of the lumbar spine was limited to forward flexion of only 30 degrees due to pain after repetitive motion testing. A disability rating in excess of 40 percent for this period of time is not warranted because ankylosis of the spine is not shown. The Veteran is properly assigned a 20 percent disability rating effective May 14, 2013 because the VA examination on that date revealed that the Veteran had forward flexion of the lumbar spine to 40 degrees with pain beginning at 35 degrees. This meets the criteria for the assignment of a 20 percent rating at that time. To warrant a disability rating in excess of 20 percent for the period of time beginning May 14, 2013 the Veteran would have to have forward flexion of the lumbar spine limited to 30 degrees or less, or ankylosis of the spine, which is not shown by the lay or medical evidence of record. Again the Board notes that the Veteran's complaints of low back pain are compensated by the disability ratings assigned for the low back disability along with the separate disability ratings assigned for the radiculopathy in each lower extremity. As the preponderance of the evidence is against a finding that the Veteran's disability more nearly approximates the criteria for a higher rating, higher ratings for the periods of time in question are not warranted. 38 C.F.R. §§ 4.3, 4.7 (2017). II. TDIU The Veteran claims he is unemployable as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service connected for a variety of disabilities, at present his assigned disability ratings are: degenerative disc disease of the lumbar spine at 20 percent; radiculopathy of right lower extremity at 20 percent; radiculopathy of the left lower extremity at 10 percent; left testicle orchectomy at a noncompensable (0%) rating; and right and left inguinal hernia scars at a noncompensable rating. During the appeal period his combined disability ratings are: 40 percent from September 29, 2010; 50 percent from June 26, 2012; 40 percent from May 14, 2013; and finally 50 percent effective from July 31, 2015. The Veteran's combined disability rating is the result of ratings all stemming from his low back disability; as such his combined disability rating is considered a single disability rating. Nevertheless, this rating does not meet the percentage rating standards for consideration of TDIU. See 38 C.F.R. § 4.16(a). When the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Beaty v. Brown, 6 Vet. App. 532, 534 (1994) (considering Veteran's eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). That a veteran can no longer perform a particular job, however, is not dispositive of the issue. Rather, the criteria for a TDIU rating contemplate that a veteran's service-connected disabilities alone preclude him from securing or following all forms of substantially gainful employment. Despite being requested to do so, the Veteran has never filed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, nor provided information related to his employment to VA. However, records obtained from the Social Security Administration show that the Veteran has one year of college education and employment experience as a truck driver, office worker, and salesman. A November 2011 note from the Veteran's VA primary care provider indicates that he is treated for "a variety of medical concerns including degenerative joint disease (CAD) chronic pain and hypertension. Recent imaging studies have shown severe DJD in his neck at C5-C6 and lumbar spondylosis L4-5 and L5-S1. We have been unable to control his pain but continue to increase his pain medications and have recommended a pain expert consult, pain school and physical therapy [the Veteran] is currently unable to work due to his chronic pain." While this indicated unemployability due to overall pain, the Veteran is not service-connected for a cervical spine disability. The examining physician who wrote the July 2015 VA examination report stated the medical opinion that the Veteran's service-connected "back condition prevents him from obtaining and/or maintaining substantially gainful employment," noting chronic pain requiring use of a TENS unit and medication. However, the February 2017 VA examining physician stated that the "Veteran's lumbar spine condition precludes an occupation requiring constant, uninterrupted sitting, prolonged or extensive weightbearing, frequent or repetitive bending, or lifting and/or carrying modestly heavy loads. Relative to this condition alone, given appropriate accommodations such as frequent breaks as needed, however, the Veteran may nonetheless be reasonably expected to function otherwise in a sedentary capacity." Records received from SSA indicate that the Veteran is disabled as a result of his low back disorder and other joint pain including nonservice-connected cervical spine pain, bilateral shoulder disorders, and a left knee tendon tear. While the medical opinion in the July 2015 VA examination report indicates that the Veteran's service-connected low back disability alone renders the Veteran unemployable, the other medical evidence of record indicates that the Veteran's service-connected low back disability in conjunction with a variety of nonservice-connected disabilities resulting in neck, shoulder and knee pain are what render the Veteran unemployable. Moreover, the Board finds the more specific findings of the February 2017 examiner to be more probative as to functional limitations from the back disability than the general statement by the July 2015 examiner about the Veteran not being able to work because of pain. The July 2015 examiner did not attempt to separate the Veteran's low back pain from his other debilitating pain, such as neck pain, nor did he describe the limitations the pain would actually cause. The July 2015 examiner also noted a "limited capacity to do sedentary work" without further discussion on what those limitations would be. The specific functional limitations described by the February 2017 examiner could be overcome by a person such as the Veteran who has some college and experience in semi-sedentary positions such as truck driver, office worker, and salesman. The Veteran does not meet the schedular criteria for consideration of a TDIU and the preponderance of the evidence reveals that he is not unemployable solely due to his service-connected disabilities, but as a result of his service-connected disabilities in combination with nonservice-connected disabilities. Therefore, referral for entitlement to a TDIU on an extraschedular basis is not warranted. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial disability rating for service-connected lumbar spine disability in excess of 40 percent prior to May 14, 2013 and in excess of 20 percent thereafter, is denied. Entitlement to TDIU is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs