Citation Nr: 1752994 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-10 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to an increased rating for a service-connected back disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2002 to May 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. This case was previously before the Board in April 2015 and remanded for additional development. In a June 2016 rating decision, the RO assigned an increased rating of 40 percent for the Veteran's back disability and granted TDIU, both effective February 4, 2016. Because these awards do not represent total grants of the benefits sought on appeal, the claims remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to service connection for sleep disturbance, lack of focus, and poor concentration have been raised by the record in a December 2010 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these claims and refers them to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. During the course of this appeal, the Veteran's back disability is not shown to be manifested by favorable or unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine. 2. From February 11, 2010 to February 3, 2016, the Veteran's back disability was manifested by flare-ups and functional loss resulting in a limitation of her thoracolumbar forward flexion to between 30 and 60 degrees. 3. The Veteran's service-connected disabilities render her unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The Veteran's back disability does not warrant a rating in excess of 40 percent prior to February 11, 2010 or from February 4, 2016 forward. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017). 2. From February 11, 2010 to February 3, 2016, the Veteran's back disability warrants an increased disability rating of 20 percent, but no higher. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243 (2017). 3. The criteria for entitlement to TDIU have been met during the entire period on appeal. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA's duty to notify was satisfied by a letter in April 2010. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor her representative has raised concerns with the duty to assist. See Scott 789 F.3d at 1381 (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 duty to assist argument). There also was the required compliance, certainly acceptable substantial compliance, with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that "substantial" rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Separate ratings may be assigned for separate periods based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's back disability has been rated under Code 5242 of the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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 flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Unfavorable ankylosis for VA compensation purposes means that the entire thoracolumbar spine or the entire spine is fixed in flexion or extension. See id., Note (5). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes if such episodes had a total duration of at least four weeks but less than six weeks, during the past 12 months. A 60 percent (maximum) rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a . Note (1) following Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. Id. Factual Background The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378,1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. The Veteran initiated an informal claim for an increased rating for her back on April 9, 2010 and for TDIU on February 11, 2010. She submitted her formal claims in November 2010. Because this is a non-initial increased rating claim, the Board may consider up to one year to the date of these claims as the appellate period. Her service-connected back disability is currently rated at 40 percent disabling prior to February 11, 2010, at 10 percent disabling from February 11, 2010 to February 3, 2016, and at 40 percent disabling from February 4, 2016. The August 2010 VA examiner diagnosed the Veteran with mild degenerative arthritis of the thoracolumbar spine. On examination, the thoracolumbar spine range of motion was normal, although the Veteran reported a loss of 50 percent of range of motion during hours-long weekly flare-ups. She denied IVDS incapacitating episodes. The examiner did not note ankylosis of the spine. The examiner stated that the Veteran's back disability affected her occupational and daily activities in that she was unable to sit for prolonged periods. The Veteran reported that her irritable bowel syndrome (IBS) prevented her from working. During her January 2011 TDIU General VA examination, the Veteran reported constant low back burning pain, fatigue, decreased motion, stiffness, weakness, and muscle spasms. She used a cane to walk and was limited to two blocks in distance. She reported weekly flare ups lasting hours precipitated by bending and relieved by rest. On examination, there was no spinal ankylosis. Flexion was 0 to 90 degrees. Extension was 0 to 30 degrees. Rotation and lateral flexion bilaterally was 0 to 30 degrees. There was no pain with motion. There was no spinal muscle guarding, spasm, or tenderness. She reported 50 percent loss of range of motion during flare-ups. There were no incapacitating episodes related to her spinal disability. She reported was not working due to her back disability and her IBS. She could not continue to perform her previous job delivering newspapers because of difficulty with lifting (due to her back) and timely completion of her duties (due to her IBS). The examiner also noted that the Veteran's back disability made it difficult for her to sit for prolonged periods, and that her IBS also affected her occupational functioning. The examiner also stated, however, that the Veteran's spinal arthritis and IBS would not prevent her from sedentary or lightly active employment because she participated in varied activities. In her January 2012 notice of disagreement (NOD), the Veteran clarified that she could perform any occupational activity for very long due to her back pain. She reported worsening back pain, muscle spasms, and incoordination. She experienced pain with sitting, standing, and walking. During her March 2012 VA examination, the Veteran reported worsening back pain after falling. The examiner reviewed a September 2011 MRI that showed an improvement in her back condition with decreased disk extrusion and significantly decreased nerve root encroachment. She reported flare ups precipitated by bending and relieved by rest. These occurred each week and lasted several hours and reduced her baseline range of motion by 50 percent. The Veteran denied additional limitations or functional impairment during flare ups. There were no IVDS incapacitating episodes during the prior year. On examination, there was no spinal ankylosis. There was no muscle guarding, spasm, etc. Her range of motion was flexion 0 to 90, extension 0 to 30, lateral flexion 0 to 30 bilaterally and rotational 0 to 30 bilaterally. The examiner noted that the Veteran reported limited flexion of the spine during the examination and only flexed to 40 degrees; however, the examiner also observed the Veteran flexing without signs of pain to about 70 to 80 degrees. The examiner opined that the difference between the 70 to 80 degrees and normal forward flexion of 90 degrees was caused by the Veteran's abdominal girth. The examiner opined that her service-connected disability would preclude all but sedentary employment. The March 2013 VA fibromyalgia examiner opined that the Veteran would be unable to lift anything over five pounds due to her service-connected fibromyalgia. The examiner stated that bending, stooping, and kneeling should be minimized. The examiner also stated that the Veteran's capacity for sedentary work is limited by her chronic back pain in that she can sit for two hours but then must lie down for four hours due to increased stiffness and pain. The examiner also noted that the Veteran's chronic pain impairs her ability to concentrate and complete detail-oriented tasks. The December 2015 VA-contracted fibromyalgia examiner noted that the Veteran's generalized pain and deconditioning associated with her service-connected IBS and fibromyalgia impacted her ability to work including to walk and to bend. The February 2016 VA spine examiner noted that there was no spinal ankylosis or IVDS incapacitating episodes. This examiner opined that the Veteran's service-connected back disability, radiculopathy, and IBS prevent her from performing any type of work. (CONTINUED ON NEXT PAGE) Analysis I. Back Disability April 9, 2009 to February 10, 2010 During this period, the Veteran's service-connected back disability was rated at 40 percent disabling. To receive a higher rating, the evidence must show either unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes due to intervertebral disc syndrome (IVDS) of six weeks or longer duration during the prior year. A review of the evidence from this time does not show ankylosis or incapacitating episodes to warrant a disability rating higher than 40 percent. February 11, 2010 to February 3, 2016 During this period, the Veteran's spine disability was rated at 10 percent disabling. The evidence shows that the Veteran's range of motion was limited to 45 degrees with forward flexion and 120 degrees combined (50 percent of the measured values on examination) during flare-ups. She also reported significant additional symptoms such as stiffness, weakness, and muscle spasms that limited her functioning. Accordingly, under the provisions of DeLuca and Mitchell, she is entitled to an increased rating of 20 percent. A 40 percent rating (the next highest available for disabilities of the thoracolumbar spine) is not warranted because the evidence does not show forward flexion of her spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Deluca, 8 Vet. App. at 207-07 (1995). A higher rating under the criteria for IVDS is also not warranted because there is no evidence of incapacitating episodes during this time. 38 C.F.R. § 4.71a . From February 4, 2016 The Veteran's spinal disability has been rated at 40 percent disabling since February 4, 2016. A rating higher than 40 percent requires unfavorable ankylosis of the entire thoracolumbar spine or a six week IVDS incapacitating episode, which are not shown here. Accordingly, the Board finds that a rating higher than 40 percent for this period is not warranted. The Board has considered whether the Veteran would be entitled to a higher rating under a different Code. The diagnostic codes specific to the spine are rated under the same criteria, with the exception of IVDS, which can also be rated based on incapacitating episodes. As discussed above, the evidence does not show incapacitating episodes so as to allow an increased rating under the Code for IVDS. The Board also notes that the Veteran is in receipt of disability ratings for radiculopathy and fibromyalgia, which also provide compensation for related symptoms, including pain, stiffness, and functional loss. Consequently, the Board finds that the Veteran would not be entitled to any higher ratings under the criteria for spine disabilities, IVDS, or any other disability suggested by the evidence of record. The Board has considered whether referral of this issue for extraschedular consideration is indicated for any time period under consideration. The Board notes that the schedular rating assigned is inclusive of favorable ankylosis (i.e., immobility), and thus contemplates limitation of movement, regardless of the symptoms precipitating such limitation, that is total. (Unfavorable ankylosis would entitle the Veteran to a higher schedular rating and, as discussed above, is not shown.) The Veteran's schedular rating also encompasses her reported pain and functional limitations including during flare ups. Her schedular ratings for fibromyalgia and radiculopathy also encompass her reported pain and stiffness. Therefore, the Board finds that the schedular criteria are not inadequate, and that referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). II. TDIU A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Accordingly, the Board may consider the Veteran's unemployability from February 11, 2009 forward. To establish entitlement to TDIU, there must be impairment so severe that it is impossible for the Veteran to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Schedular TDIU A veteran is eligible for a schedular rating of TDIU if either one service-connected disability is rated at least 60 percent or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more). 38 C.F.R. § 4.16(a). Where the schedular criteria are not met, an extraschedular rating may be considered. 38 C.F.R. § 4.16(b) In this case, the Veteran meets the schedular criteria for TDIU from December 1, 2010 forward. She has provided competent and credible reports that symptoms from her back and IBS disabilities prevent her from working. Eligibility for TDIU is supported by the evidence showing that she has not worked since May 2008, and that she has significant functional limitations due to her back and IBS as noted on the VA examination reports. Although examiners opined that the Veteran could perform sedentary employment, the Veteran has provided competent and credible evidence that her back disability prevents prolonged sitting and her IBS disability prevents her from timely performance of even self-scheduled occupational pursuits, such as her part-time paper route. This lay evidence is supported by the February 2016 VA examiner's conclusion that the Veteran is unable to work in any type of job due to her service-connected back, radiculopathy, and IBS. Accordingly, the Board finds that the Veteran has been unable to obtain and maintain substantially gainful employment during this period, and TDIU is granted. Extraschedular TDIU Prior to December 1, 2010, the Veteran does not meet the schedular criteria for TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, all veterans who are unable to obtain and maintain substantially gainful employment by reason of service-connected disability or disabilities "shall be rated as totally disabled." 38 C.F.R. § 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran "was ineligible for 4.16(b)-TDIU consideration" by referral to the Director. Id. However, the Board finds that Bowling and Floyd's prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled by the Court's decisions in Thun and Anderson v. Shinseki, 22 Vet. App. 423 (2009), as well as the Federal Circuit's affirmance of Thun and its decisions in Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). It defeats the intent of the law that the Board reviews de novo the Director's determinations, yet must send matters to the Director in the first instance, even when the Board finds that the evidence shows the Veteran is incapable of obtaining or engaging in substantially gainful employment. Moreover, in a recent precedential decision, a Judge of the Court, in a concurring opinion, disagreed with Bowling and cited Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), in determining that the Board may award extraschedular TDIU in the first instance. See Wages v. McDonald, 27 Vet. App. 233, 239) (Kasold, J., concurring). The Wages majority separately noted that, "[i]n sum, the Secretary's contention that § 4.16(b) vests an extraschedular TDIU award solely within the non-reviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. Accordingly, this contention is rejected." Id. (emphasis added). Finally, the majority, in a footnote, observed the absurdity of the § 4.16(b) process, noting that "[a]lthough it is not clear how the Secretary's approach of inserting the Director into the regulatory process while refusing to recognize the Director as the agency of original jurisdiction fits within the statutory scheme for adjudicating VA benefits claims, see, e.g., 38 U.S.C. § 7105 (providing for Board review of decisions by an agency of original jurisdiction), we need not further address this issue in the absence of a direct challenge to that process." Id. at 238 fn 4 (emphasis added). In this case, given the reasoning outlined above, the Board will not make the Veteran wait for any further processing by VA. cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand "perpetuates the hamster-wheel reputation of veterans law"). Therefore, entitlement to TDIU under § 4.16(b), from February 11, 2009 (one year prior to her TDIU claim) is granted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating of 20 percent, but no higher, for the Veteran's back disability is granted from February 11, 2010 to February 3, 2016, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an increased rating of higher than 40 percent for the Veteran's back disability prior to February 11, 2010 and from February 4, 2016 is denied. From December 1, 2010, entitlement to TDIU is granted. Prior to December 1, 2010, entitlement to extraschedular TDIU is granted. . ______________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs