Citation Nr: 1752418 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 09-19 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating in excess of 40 percent for chronic back strain with degenerative disc disease. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to July 10, 2014. 3. Entitlement to a TDIU due to service-connected disabilities from July 10, 2014. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1975 to October 1978, and from February 1980 to October 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction was subsequently transferred to the RO in Winston-Salem, North Carolina, and that office forwarded the appeal to the Board. The Board remanded this matter for additional development in August 2013 and February 2016. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to July 10, 2014, is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's chronic back strain with degenerative disc disease is not manifested by unfavorable ankylosis of the entire thoracolumbar spine or with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. From July 10, 2014, the combined effects of the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for chronic back strain with degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, DC 5237 (2017). 2. From July 10, 2014, the criteria for an award of a TDIU have been met. 38 U.S.C. §§ 5107, 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for Chronic Back Strain With Degenerative Disc Disease Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the Diagnostic Code (DC) predicated on limitation of motion. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As with all claims for VA disability compensation, the Board must assess the credibility and weigh all the evidence, including lay and medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998). Disability of the spine may be evaluated under either the General Rating Formula or under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes (DC 5243), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. The Veteran contends that his service-connected chronic back strain with degenerative disc disease is more severe than what is contemplated by his current disability rating. The Veteran's chronic back strain with degenerative disc disease is currently rated as 40 percent under DC 5237, based on limitation of motion as applied under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71(a). The Board notes that the rating criteria for disabilities of the spine were amended effective September 26, 2003. See 68 Fed. Reg. 51,454-51, 458 (Aug. 27, 2003). In this case, service connection for the Veteran's back disability was granted in November 1983 with an effective date of June 16, 1983, and consequently his symptoms were initially evaluated under the former DC 5295. In an April 2004 rating decision (which the Veteran did not appeal), the RO switched diagnostic codes to the currently assigned DC 5237. Because the instant claim for increased compensation was filed in May 2007, only the amended criteria will be addressed in evaluating the nature and severity of the disability. Under the General Rating Formula, a 40-percent rating is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50-percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100-percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71 (a). Note (1) of the General Rating Formula provides that VA should evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Id. The Board notes that the Veteran has been assigned a separate disability rating for right lower extremity radiculopathy. Additionally, the evidence of record does not reflect any other neurologic abnormalities, including, but not limited to, bowel or bladder impairment. See October 2013 and March 2017 VA thoracolumbar spine examination reports. Under DC 5243, a 10-percent rating is warranted for IVDS with 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 is warranted for 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 is provided for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60-percent rating is provided for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. at DC 5243. The Veteran filed the instant claim for an increased rating in May 2007. In August 2007, the Veteran was afforded a VA examination, during which the Veteran reported that his back pain had increased in severity. Physical examination revealed tenderness over the lumbar and parlumbar areas. The Veteran had forward flexion from 0 to 55 degrees with back pain at 80 degrees. Unfavorable ankylosis of the entire thoracolumbar spine was not noted. The Board notes that in an August 2013 Board remand, the Board found that this examination was inadequate because the VA examiner did not address the Veteran's neurologic complaints. However, the Board currently is only relying on this examination report for purposes of the VA examiner's objective findings as to the Veteran's range of motion during the time of the examination. See Monzingo v. Shinseki, 26 Vet. App. 97 (2012) (even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight. If the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains). In October 2013, the Veteran was afforded another VA back (thoracolumbar spine) examination, in which the Veteran reported he was on 100 percent disability receiving benefits from Social Security Administration (SSA) for the past 10 to 12 years. He reported he has difficulty getting up from a chair, at times needs assistance putting on trousers or footwear, and difficulty sleeping due to back pain. The VA examiner noted that the Veteran does use an assistive device, a cane, as a normal mode of locomotion. In terms of the objective findings of the physical examination, the VA noted forward flexion is at 55 degrees, with painful motion at 35 degrees. The Veteran was not able to perform repetitive-use testing due to severe back pain. The VA examiner noted that no ankylosis of the lumbar spine was present. In terms of IVDS, the VA examiner noted the Veteran does have IVDS of the thoracolumbar spine; however, the Veteran has not had any incapacitating episodes over the past 12 months due to IVDS. In July 2014, the Veteran stated that he lives in constant pain and is currently involved in drug therapy to manage the pain. He reported experiencing large muscle spasms on both sides of his spine. He reported that when he wears his back brace he cannot drive, ride in a car, sit up or stand; thus, making it difficult to eat or drink. In March 2017, the Veteran underwent another VA back (thoracolumbar spine) examination, in which the Veteran reported he has experienced back pain since his low back injury in 1983. The Veteran reported low back pain and stiffness. In terms of the objective findings of the physical examination, the VA noted forward flexion is at 50 degrees. The VA examiner reported that loss of motion causes functional loss, in that the Veteran is unable to bend to pick up things. The VA examiner noted objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The VA examiner noted no guarding or muscle spasm of the thoracolumbar spine. The additional factors noted as contributing to the Veteran's back disability were less movement than normal an interference with standing. The VA examiner noted there is no ankylosis of the spine. In terms of IVDS, the VA examiner noted the Veteran does not have IVDS. The Veteran's post service treatment records reflect ongoing complaints and treatment for his back disability. However, the treatment records do not show any ankylosis or IVDS with any incapacitating episodes. Given such, based on the review of all the evidence, the Board finds that an increased rating in excess of 40 percent is not warranted. In order for the next higher rating of a 50-percent evaluation under DC 5237, the medical evidence must show unfavorable ankylosis of the entire thoracolumbar spine. That is simply not the evidence in this case. Specifically, the Veteran's October 2013 and March 2017 examination reports reflect a clear finding of no ankylosis of the thoracolumbar spine. Additionally, an evaluation that an increased rating is not warranted on the basis of incapacitating episodes of IVDS, under DC 5243. Under DC 5243, in order to establish a rating of 50 percent, the evidence must reflect there are incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the past 12 months. Although the October 2013 VA examiner noted IVDS, the VA examiner noted no incapacitating episodes within the past 12 months. Additionally, the March 2017 VA examiner noted that the Veteran does not have IVDS. Furthermore, the medical evidence does not support IVDS, as for purposes of rating under DC 5243, Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71 (a), DC 5243. In this case, even accepting that the Veteran had an IVDS diagnosis in October 2013, there is no indication in the record of physician-prescribed bedrest specifically on account of IVDS least 6 weeks during the past 12 months, as is required for a rating in excess of 40 percent. See Id. The Board has carefully reviewed and considered the Veteran's numerous statements regarding the severity of his back disability. To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. The Board is likewise aware of the Veteran's contentions that his back disability impacts his employability and daily activities, both independently and in conjunction with his other service-connected disabilities. Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain and limitation of motion. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, however, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria, namely, determinations as to range of motion of the thoracolumbar spine, functional impairment, and incapacitating episodes are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The medical evidence also largely contemplates the Veteran's descriptions of his symptoms, including his reports of impairment with respect to sitting, standing, walking, running, bending, squatting, and lifting, as well as his reports of constant back pain. In fact, the Board has taken the Veteran's contentions into consideration when assigning the current 40-percent rating throughout the course of the appeal. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In sum, the evidence deemed most probative by the Board establishes that the Veteran's chronic back strain with degenerative disc disease more nearly approximates the criteria for a 40-percent rating throughout the entire appeal period. The preponderance of the evidence is therefore against a rating in excess of 40 percent. TDIU A total rating for compensation purposes 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 service-connected disabilities, provided at least one disability that 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). For a veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that 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 the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran's education, employment history, and vocational attainment. See Ferraro v. Derwkinsi, 1 Vet. App. 326, 332 (1991). In terms of whether the minimum schedular requirements for TDIU are met for the period from July 10, 2014, the Veteran has at least one disability that is ratable at 40 percent, chronic back strain with degenerative disc disease, and the Veteran's service-connected disabilities have a combined rating of 80 percent. Thus, minimum schedular requirements for TDIU have been satisfied for this period. From July 10, 2014 Based on the evidence of record, the Board finds that the preponderance of evidence is for a finding that the Veteran is entitled to a TDIU for the period from to July 10, 2014. The Veteran contends he has not been able to work due to his service-connected disabilities, primarily due to his back disability, since July 1, 2001. See Social Security Administration (SSA) records. In terms of the Veteran's employment history, the Veteran reported that during service he served as a mechanic and cartographer. He reported he did a variety of jobs after discharge from the military, including working as a mechanic, moving furniture, and carpentry. See October 2013 VA examination report. In the October 2013 VA back (thoracolumbar spine) examination report, the VA examiner noted functional loss and/or impairment of the back, in that the Veteran has less movement than normal, pain on movement, and interference with sitting, standing and/or weigh bearing. Additionally, the VA examiner noted that the Veteran's back condition does impact his ability to work, in that the Veteran has been on SSA disability benefits for the past 10 to 12 years for this condition. In a July 2014 statement, the Veteran reports that he is 100 percent disabled through and receiving SSA benefits. The Board notes that the SSA records reveal that the Veteran has been receiving SSA disability benefits based on a finding that the Veteran's was disabled since July 1, 2001. The basis of the disability determination is due to the Veteran's herniated discs, diabetes, arthritis of the knees, and migraine headaches. In a March 2017 VA back (thoracolumbar spine) examination report, the VA examiner opined that the Veteran's back condition does have an impact on his ability to work, in that he is limited to lifting over 25 pounds repetitively. Additionally, he cannot stoop, bend, climb, or crawl. The VA examiner noted that the Veteran is able to do light to moderate duties. Ultimately, the VA examiner opined that although there is not a 50 percent or better probability that the Veteran's service-connected back disability is sufficient by itself to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education or occupational background, there is a 50 percent or better probability that ALL the Veteran's service-connected disabilities render him unemployable. The VA examiner noted that the Veteran has multiple injuries and problems besides his back, which make him unemployable. For the period from July 10, 2014, given the favorable evidence, specifically the March 2017 VA examiner's opinion that the Veteran's service-connected disabilities combined render them unemployable, the Board finds the evidence supports a finding that the combined effects of the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. ORDER Entitlement to a disability rating in excess of 40 percent for chronic back strain with degenerative disc disease is denied. For the period from July 14, 2014, entitlement to a TDIU is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the claim remaining on appeal so that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). TDIU - Period prior to July 14, 2014 In terms of the period from May 31, 2007 to July 10, 2014, the Board finds that the minimum schedular requirements are not met because the Veteran did not have a single disability at 60 percent or two or more service-connected disabilities with a combined rating to 70 percent or more. Where claimants do not meet the percentage standards set forth in § 4.16(a), as is the case here, the matter of a TDIU rating should be referred to the Director of Compensation and Pension for extraschedular consideration when it is found that the claimant is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Factors to be considered include, but are not limited to, the veteran's service-connected disabilities, employment history, and educational and vocational attainment. 38 C.F.R. § 4.16(b). The Board finds that remand is warranted for a medical examination, as the evidence of record is insufficient to assess whether the Veteran is unemployable due to his service-connected disabilities prior to July 14, 2014. Notably, the Veteran was service-connected for chronic back strain with degenerative disc disease at 40 percent and right lower extremity radiculopathy associated with his chronic back strain with degenerative disc disease at 10 percent. The Board notes that although the Veteran has received benefits for disability from the Social Security Administration (SSA), and a multitude of disabilities were reviewed for his 2001 application, which included his service-connected disability, the primary diagnosis for finding the Veteran disabled since 2005 was diabetes mellitus, which is not service connected. See 2005 Disability Determination and Transmittal. In fact, no secondary diagnosis was provided by the SSA. This of course does not negate that his service-connected disability was not included within the SSA decision. However, it does not establish that the Veteran was disabled and unemployable solely due to his service-connected disabilities, which is the essential evidence required for referral of this claim. Rather, the SSA records only established that the Veteran was disabled and unable to work due to his non-service-connected disability. Given that the SSA does not answer the essential relevant question, its probativeness is limited. Notably, the October 2013 VA examination report does address the impact that the Veteran's service-connected back disability has on the Veteran's ability to work, stating the Veteran"[h]as been on SSI-Disability for the past 10-12 years for lower back condition." Unfortunately, this examination has no probative value as it is based on an inaccurate factual predicate, where the examiner reports in the medical history of the report that the Veteran has been on "SSI @100% disability for back pain for the past 10-12 year, as well as opines. As discussed, the SSA decision is based on more than just the Veteran's back pain, and his disability is mainly due to his diabetes mellitus, which is not service connected. Given the lack of information from the SSA determination and the October 2013 VA examination report, a retrospective medical opinion is warranted to assess whether the Veteran's service-connected back disability to include radiculopathy of the lower extremity, rendered the Veteran unemployable prior to May 2014. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file to an appropriate examiner to conduct a retrospective examination prior to July 2014, to assess the employability of the Veteran's service-connected low back disability with radiculopathy. If the examiner requires examination, then when should be scheduled. The examiner should state whether the Veteran was unable to secure or maintain substantially gainful employment as a result of his disability. The examiner should discuss the degree of occupational impairment attributable to his back. In particular, the examiner should describe what types of employment activities would be limited on his daily activities because of the Veteran's service-connected disability, what types of employment would not be limited (if any), and whether any limitation on employment was likely to be permanent. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Inform the Veteran if he is scheduled for an examination that if he does not appear for the scheduled examination without good cause, his claim may be denied. See 38 C.F.R. § 3.655. 3. The AOJ should review the examination reports to ensure that they are in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. Once the above has been completed, the AOJ should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. 4.16(b). In so doing, the AOJ may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. If the AOJ finds the Veteran unemployable, refer the case to the Director. Any indicated evaluations, studies, and tests should be conducted. A clear rational must be provided for all conclusions reached. 5. If the Veteran's claim remains denied, issue an SSOC, allow appropriate time for response, and return the case to the Board for further adjudication. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs