Citation Nr: 1800994 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-22 154A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased evaluation of intervertebral disc syndrome (IVDS) (previously evaluated as post-operative lumbar condition under Diagnostic Code 5293), currently evaluated as 40 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1980 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In August 2013, the Veteran requested to testify at a travel board hearing before a Veterans Law Judge (VLJ) in regards to this matter. However, the Veteran withdrew his hearing request in November 2016, and as such, this matter is properly before the undersigned. FINDINGS OF FACT 1. The Veteran's service-connected IVDS is manifested by pain on use, with some pain on palpation, and moderate to severe limitation of motion with forward flexion to at worst 30 degrees and without incapacitating episodes having a total duration of at least six weeks during the past 12 months or ankylosis. 2. The competent and credible evidence fails to demonstrate that the Veteran's service connected disabilities are so severe that they preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased rating, in excess of 40 percent, for IVDS have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017) (previously Diagnostic Code 5293). 2. The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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 duty to assist argument). Merits of the Claim I. IVDS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2016). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2016). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505. Where there is a question as to which of two evaluations shall be applied, 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 (2016). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2016) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran's service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disability at issue. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2016); see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment). The Board notes, the criteria for rating spine disabilities were revised in August 2003, effective September 26, 2003. Amendment to Part 4, Schedule for Rating Disabilities, 68 Fed. Reg. 51,454 -51,458 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235, 5236, 5237, 5238, 5239, 5240, 5241, 5242, 5243 (2004)). Prior to that, the rating criteria for evaluating IVDS were changed, effective September 23, 2002. Amendment to Part 4, Schedule for Rating Disabilities, 67 Fed. Reg. 54,345 -54,349 (Aug. 22, 2002) (38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003)). The revised rating criteria for IVDS were subsumed in the aforementioned amended rating schedule for spine disabilities. When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran is entitled to resolution of his claim under the criteria that are more to his advantage. The prior criteria may be applied for the full period of the appeal. The new rating criteria, however, may be applied only to the period after their effective date. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the revised rating criteria, Diagnostic Codes 5237 through 5243 are applicable to the spine. The Veteran is currently rated as 40 percent disabling under Diagnostic Code 5243 (previously 5293). The current General Rating Formula for Diseases and Injuries of the Spine provides that 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, 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. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. Formerly, under Diagnostic Code 5293 for IVDS, a 10 percent rating is provided when the evidence shows mild impairment due to IVDS. A 20 percent rating is provided when the evidence shows moderate impairment with recurrent attacks due to IVDS. A 40 percent rating is provided when the evidence shows severe impairment with recurrent attacks with intermittent relief. A 60 percent rating is provided when the evidence shows pronounced impairment with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. This is the maximum disability rating allowed under Diagnostic Code 5293. The words "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2016). Although the use of similar terminology by medical professionals should be considered, it is not dispositive of the issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 4.2, 4.6 (2016). Moreover, guidance can be obtained from the revised regulations. Although the former rating criteria for spine disabilities did not define normal range of motion for the spine, the revised regulatory criteria are based on medical guidelines in existence since 1984; therefore, there is no inconsistency in the guidance pertaining to range of motion under the former rating criteria as compared to the revised rating criteria. In regard to the revised Formula for Rating Intervertebral Disc Syndrome, which is based on a total of incapacitating episodes during a 12 month period, the rating criteria provide that a 10 percent rating is warranted if intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during a 12 month period. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 20 percent rating is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted if the total duration is at least six weeks during the past 12 months. Id. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Veteran contends that he is entitled to a higher rating than his currently assigned 40 percent rating for his intervertebral disc syndrome. However as detailed below, the Board must deny the Veteran's claim. An April 2013 imaging study revealed evidence of laminectomy and posterolateral hardware fusion, mild spondylosis and degenerative disc disease, and minimal degenerative retrolisthesis. The Veteran underwent a VA medical examination in July 2013 in which he was diagnosed with degenerative disc disease of the lumbar spine and status post-laminectomy. The Veteran stated that his lumbosacral strain resulted from a repelling accident, and was aggravated in 1995 while working with rebar. The Veteran reported a worsening condition since that time, including flare-ups which preclude him from bending, lifting heavy objects, or walking long distances. Range of motion testing of his thoracolumbar spine showed flexion at 60 degrees, extension at 0 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right rotation at 10 degrees, left rotation at 10 degrees, and a combined range of motion at 100 degrees. The joint function of the spine was not additionally limited by pain, fatigue, weakness lack of endurance or incoordination after repetitive use, and there was no evidence of impairment of neurological features upon examination. In an April 2015 VA treatment note, the Veteran complained of chronic back pain with intermittent radiation down his leg. A VA imaging study thereafter revealed an extruded disc behind the L4 vertebra which was "undoubtedly the cause" of the Veteran's radiculopathy. The Board notes that while this exam found the Veteran to have symptoms associated with radiculopathy, no other evidence of record suggests that the Veteran has a current diagnosis of radiculopathy. As such, the Board finds that a rating under the separate criteria for radiculopathy is not warranted. Note (1), General Ratings Formula. The Veteran underwent another VA examination in July 2015 in which he was diagnosed with thoracolumbar strain and sacral strain, status post-multiple surgeries with scars, as well as intervertebral disc syndrome left sciatic nerve. The Veteran reported experiencing severe difficulties with his low back, bulging discs, and arthritis. The Veteran reported flare-ups including moderate to extreme bulge to exterior lumbar area. The pain impacts his sleep. Range of motion testing of his thoracolumbar spine showed flexion at 30 degrees, extension at 5 degrees, right lateral flexion at 5 degrees, left lateral flexion at 5 degrees, right rotation at 5 degrees, and left rotation at 5 degrees, with a combined range of motion of 55 degrees. The examiner noted functional loss in the form of decreased movement, weakened movement, excess fatigability, incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The examiner also noted localized tenderness or pain to palpation, as well as guarding and muscle spasm severe enough to result in an abnormal gain and abnormal spinal contour. The Veteran did not have muscle atrophy or neurologic abnormalities, and does not use any assistive devices. Additionally, the Veteran was noted to have IVDS, but no incapacitating episodes over the last 12 months. The Veteran does not warrant a rating in excess of 40 percent under either the former or revised rating criteria. Because the Veteran does not have unfavorable ankylosis, he is not entitled to a higher rating than his currently assigned 40 percent evaluation under the current rating criteria. In this regard the Board notes that the Veteran has forward flexion to at least 30 degrees during the appeals period and no evidence of favorable or unfavorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Moreover, there is no indication in the record that he has suffered from incapacitating episodes having a total duration of at least six weeks during the past 12 months. In this regard, 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. § 4.71a, Diagnostic Code 5243, Note (1). In this case, the evidence does not show any physician-prescribed bed rest for a period of at least six weeks due to symptoms of back disability during a 12 month period at any time during any portion of the appeals period. Therefore, the criteria for a higher initial rating for IVDS based on incapacitating episodes have not been met or approximated for any period. 38 C.F.R. §§ 4.3, 4.7. Further, pursuant to the former rating criteria, a higher, 60 percent rating is not warranted because the evidence does not support pronounced impairment with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. While the evidence demonstrates that the Veteran has been diagnosed with intervertebral disc syndrome left sciatic nerve, shown symptoms associated with radiculopathy and presented with guarding and muscle spasm severe enough to result in an abnormal gain and abnormal spinal contour, there is no evidence of neurological abnormalities or a diagnosis of radiculopathy. See July 2014 VA examination, April 2015 VA treatment note, and July 2015 VA examination. Therefore the evidence does not support pronounced impairment warranting a 60 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5293. The evidence does not show that symptomatology associated with the Veteran's lumbar spine more nearly approximates the schedular criteria associated with a higher rating at any time relevant to the appeal period. Therefore, the currently assigned 40 percent rating is appropriate for the entire appeal period. The Board has also considered the Veteran's statements regarding the severity of his lumbar spine disability. The Veteran contends that his lumbar spine disability is far more disabling than the rating he was assigned, and in fact, the Veteran is competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153 (a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Ultimately, however, the opinions and observations of the Veteran do not meet the burden for a higher rating imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected lumbar spine. The Board expresses its sympathy for the Veteran's back condition, but ultimately finds a 40 percent rating to be appropriate based on the rating schedule. See Wingard v. McDonald, 779 F.3d 1354, 1359 (Fed. Cir. 2015). Based on the foregoing, the Board finds that the preponderance of the evidence weighs against the assignment of greater than the currently assigned 40 percent disability rating for the Veteran's service-connected IDVS. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. TDIU Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2009); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2016). 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). The law provides that a total disability rating may be assigned where the schedular rating is less than total 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 disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2016). In determining whether the Veteran is eligible to receive TDIU benefits, the Board observes that the Veteran is service-connected for IVDS evaluated as 40 percent disabling, as noted above; post-operative right ankle injury evaluated as 20 percent disabling; and hand warts evaluated as 0 percent disabling. The assigned combined evaluation of 50 percent for the Veteran's service-connected disabilities fails to meet the criteria for schedular consideration of TDIU. See 38 C.F.R. § 4.16(a). Although the Veteran does not meet the schedular criteria for consideration of a TDIU rating, the Board must also consider whether referral for extra-schedular consideration is warranted at any time during the appeal period. Such consideration is warranted when a Veteran fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), and when two additional criteria are met. It must be shown that the claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b) (2016). In this case, as will now be addressed, referral of this case to the Director of the VA Compensation and Pension Service for extra-schedular consideration is not in order. There is no evidence of record to suggest that the Veteran warrants extraschedular consideration for his TDIU claim. The July 2013 VA examination noted that the Veteran could not lift heavy objects or bend. The July 2015 VA examination noted that the impact of the thoracolumbar spine condition on the claimant's ability to work was difficulty with prolonged ambulation, standing, sitting, lifting and carrying heavy objects, climbing stairs, and performing arduous physical activities. Evidence of record indicates that the Veteran last work in May 1995. Evidence further shows that the Veteran used to work as a carpenter and in contruction but was retrained to work in computers. While the evidence is clear that the Veteran experiences a great deal of back pain and various physical limitations as a result of his service-connected back disability, there is no indication that the Veteran is unemployable as a result of the condition. As such, the Veteran's claim to TDIU is denied. ORDER Entitlement to an increased evaluation of IVDS, currently evaluated as 40 percent disabling, is denied. Entitlement to TDIU is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs