Citation Nr: 1752011 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-31 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess 10 percent for degenerative disc disease of the lumbar spine, to include sacroiliac and coccyx pain (back disability). 2. Entitlement to a total disability rating due to individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. B. Kass, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1988 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. Subsequently, the appeal was transferred to the Roanoke, Virginia RO. The Veteran testified before the undersigned Veterans Law Judge in April 2016. A transcript of the hearing has been associated with the record. The Board remanded this case in May 2016. It has since returned for further appellate consideration. FINDINGS OF FACT 1. Prior to June 25, 2010, the Veteran's back disability manifested with stiffness, spasms, weakness, and forward flexion approximating 80 degrees. 2. From June 25, 2010 to March 4, 2017, the Veteran's back disability manifested with tenderness, and forward flexion approximating 30 degrees. 3. From March 4, 2017, the Veteran's back disability manifested with spasms, pain on motion, and forward flexion approximating 80 degrees. 4. The Veteran does not meet the schedular criteria for a TDIU, and her service-connected disability does not result in functional impairment sufficient to preclude gainful employment. CONCLUSIONS OF LAW 1. Prior to June 25, 2010, the criteria for a 10 percent rating, but no higher, for a back disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5242 (2017). 2. From June 25, 2010 to March 4, 2017, the criteria for a 40 percent rating, but no higher, for a back disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5242 (2017). 3. From March 4, 2017, the criteria for a 10 percent rating, but no higher, for a back disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5242 (2017). 3. The criteria for entitlement to a TDIU have not been established. 38 U.S.C.A. §§ 1114, 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating - Lumbar disability Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321 (a), 4.1 (2017). Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4 (2017). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The RO has rated the Veteran's service-connected low back disability as 10 percent disabling pursuant to DC 5242. The Veteran seeks a higher rating. Under the General Rating Formula, a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned due to unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237. Normal range of motion for the thoracolumbar spine is flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and rotation from 0 to 30 degrees. The combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V (2017). With respect to range of motion, an October 2009 VA examination documented forward flexion to 90 degrees with pain at 80 degrees. Extension was 30 degrees with pain at 25 degrees. Bilateral lateral flexion and bilateral lateral rotation was 30 degrees without complain of pain. In June 2010, a VA examination documented forward flexion to 30 degrees, hyperextension to 20 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 20 degrees. There was no pain on motion. A March 2017 VA examination documented forward flexion was 80 degrees, extension was 20 degrees, right lateral flexion was 20 degrees, left lateral flexion was 20 degrees, right lateral rotation was 25 degrees and left lateral rotation was 25 degrees. In addition to the above, the Veteran reported difficulty with physical activity such as running, walking, or jogging during her October 2009 examination. The Veteran reported that she had stiffness, spasms, and weakness. She stated that she had difficulty going down stairs. In June 2010, the Veteran reported stiffness, limited motion, and chronic back pain. In May 2014, treatment notes indicated that had chronic back pain. She also reported flare-ups at the March 2017 VA examination. These resulted in swollen feet and back spasms. The examiner noted that the Veteran exhibited pain on every range of motion measurement. However, the pain did not result in functional loss. Based on these findings of limitation of motion and the Veteran's reported spasms, the Board finds that prior to June 25, 2010, a 10 rating is appropriate. She did not demonstrate forward flexion to 60 degrees or a combined range of motion of less than 120 degrees, which is required for the next higher rating. Her back disability manifested with stiffness, spasms, weakness, and forward flexion approximating 80 degrees. The next higher, 20 percent rating, is not demonstrated by the evidence of the record, as forward flexion of greater than 60 degrees and combined range of motion of the greater than 120 degrees has been found. Accordingly, prior to June 25, 2010, a 10 percent rating is appropriate. From June 25, 2010 to March 4, 2017, the Board finds that a 40 percent rating is appropriate. The Veteran demonstrated forward flexion of 30 degrees during her June 201 VA examination. The next higher, 50 percent rating, is not demonstrated by the evidence of the record, as there was no unfavorable anklyosis. Accordingly, from June 25, 2010 to March 4, 2017, a 40 percent rating is appropriate. From March 4, 2017, Board finds that, a 10 rating is appropriate because her forward flexion was to 80 degrees. Since she did not demonstrate forward flexion to 60 degrees or less or a combined range of motion of less than 120 degrees, the Veteran did not meet the requirements for a 20 percent rating. Accordingly, from March 4, 2017 a 10 percent rating is appropriate. All of the above findings take into account the functional loss from which the Veteran suffered. II. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of her service-connected disabilities, from obtaining and maintaining any form of substantial gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). The Veteran must meet specific requirements before consideration of whether the evidence demonstrates unemployability. If the Veteran has only one service-connected disability, it must be rated at 60 percent or more. If the Veteran has two or more service-connected disabilities, at least one must be rated at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. Id. Here, she does not meet the schedular requirements for a TDIU. Although her combined disability rating is 70 percent, she is not service connected for any disability at 40 percent or more. Even when the combined rating percentage requirements are not met, entitlement to TDIU benefits may be nonetheless considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A review of the evidence indicates the Veteran stopped working in September 2013 as a computer assistant. She also engaged in part-time work as a teacher's assistant from March 2015 through August 2016. Although she has not reported any substantial gainful employment since that time, the Veteran is enrolled in online courses. The Veteran stated that she became too disabled to work in September 2013 due to her back disability and patellofemoral pain syndrome. However, she is not service connected for the patellofemoral pain syndrome. The March 2017 VA examiner concluded the Veteran would have no limitation at a sedentary job, such as any desk job. He explained that the Veteran would have difficulty bending, and difficulty with prolonged standing and walking due to her service-connected bilateral radiculopathy. Based on this evidence, the Board finds a TDIU is not warranted because the Veteran has not shown an inability to obtain or maintain a substantially gainful employment. Her work history shows continued sedentary employment and an associate's degree. The Veteran reported that she was expected to graduate in May 2017 with a degree in Forensic Science. There is no evidence that she has been unable to secure or follow a substantial gainful occupation, due to her service-connected disability. Given her college education, the Veteran has the ability to work in a sedentary position, such as customer service, administrative work, or sitting as a ticket-taker or cashier. Since the record does not indicate her service-connected disabilities preclude her ability to secure or maintain substantially gainful employment, consistent with her claim education, her request must be denied. The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating of 10 percent, but no higher, for a back disability prior to June 25, 2010, is granted. A rating of 40 percent, but no higher, for a back disability from June 25, 2010 to March 4, 2017, is granted. A rating of 10 percent, but no higher, for a back disability from March 4, 2017, is granted. Entitlement to a TDIU is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs