Citation Nr: 1802140 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-19 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to September 9, 2013 and in excess of 70 percent thereafter. 4. Entitlement to an initial disability rating in excess of 30 percent for irritable bowel syndrome. 5. Entitlement to an effective date prior to September 23, 2014, for the grant of service connection for irritable bowel syndrome. 6. Entitlement to a rating in excess of 10 percent for lumbosacral strain prior to June 24, 2016, and in excess of 20 percent thereafter. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: George Sink, Attorney ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from April 1993 to December 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in May 2012 and October 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran did not perfect her appeals with respect to the claims for increased disability rating for PTSD and an earlier effective date for the grant of service connection for irritable bowel syndrome. 2. In written correspondence received in May 2016, prior to the promulgation of a decision by the Board, the Veteran withdrew her appeals with respect to the claims of entitlement to service connection for left and right knee disabilities and entitlement to an increased disability rating for irritable bowel syndrome. 3. Prior to June 24, 2016, the Veteran's low back disability did not result in limitation of flexion to less than 60 degrees and incapacitating episodes have not been shown. 4. After June 24, 2016, the Veteran's low back disability resulted in limitation of flexion to 40 degrees; limitation of flexion to less than 30 degrees, incapacitating episodes and ankylosis of the spine have not been shown. 5. The Veteran has been able to maintain gainful full-time substantially employment for many years despite impairment caused by her service-connected disabilities. CONCLUSIONS OF LAW 1. The appeals for increased disability ratings for PTSD and for an earlier effective date for the grant of service connection for irritable bowel syndrome were not perfected. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.104, 20.200, 20.202 (2017). 2. The appeals for service connection for left and right knee disabilities and an increased disability rating for irritable bowel syndrome are withdrawn and the Board does not have appellate jurisdiction to review the claims. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for an initial disability rating in excess of 10 percent for a low back disability prior to June 24, 2016, and in excess of 20 percent thereafter were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Codes 5242, 5243 (2017). 4. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2016); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Claims Withdrawn The Veteran had also filed claims seeking increased disability ratings for posttraumatic stress disorder (PTSD) and irritable bowel syndrome, service connection for right and left knee disabilities, and an earlier effective date for the grant of a separate compensable rating for irritable bowel syndrome. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. Withdrawal of a substantive appeal may be made by the Veteran. 38 C.F.R. § 20.204. In correspondence submitted in May 2016, the Veteran specifically withdrew her appeal for an increased disability rating for irritable bowel syndrome and for service connection for right and left knee disabilities. (See Third Party Correspondence, 05/13/2016.) A substantive appeal consists of a properly completed VA Form 9 which indicates either that all issues in the Statement of the Case are being appealed or specifically identifying the issue being appealed. 38 C.F.R. § 20.202. Proper completion and filing of a substantive appeal are the last actions needed to perfect an appeal. Id. In the VA Form 9 filed in September 2016, the Veteran specified that she only wished to continue her appeal with respect to entitlement to TDIU, and the other issues addressed in the August 2016 Statement of the Case (increased rating for PTSD and an earlier effective date for irritable bowel syndrome) were not perfected. (See Form 9, 09/13/2016.) As such, regardless of any issues certified by the RO on a VA Form 8, only the claims for increased disability rating for low back and for entitlement to TDIU remain on appeal. As there remains no allegation of error of fact or law for appellate consideration with respect to these claims, the Board does not have appellate jurisdiction to review them. 38 U.S.C. § 7105. VA's Duties to Notify and Assist VA notified the Veteran of the evidence and information necessary to substantiate her claims in October 2011. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. These include records from the Social Security Administration (SSA) and private medical providers. The Veteran has undergone VA examinations related to the disabilities on appeal. See VA examinations from December 2009, May 2012, and June 2016. As such, the Board will proceed with consideration of the Veteran's appeal. Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. 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. § 1155. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, staged ratings have been assigned for the low back disability. Facts and Analysis The Veteran is service-connected for a low back disability, diagnosed as mechanical low back pain. A 10 percent disability rating is assigned as of June 2010 and a 20 percent disability rating is assigned as of June 2016. She seeks higher disability ratings for the entire appeals period. Disabilities of the spine are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula). The General Rating Formula provides a 10 percent disability 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 disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made 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. The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). For VA compensation purposes, 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 thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a, Note (2). The IVDS Formula provides for a 10 percent disability rating 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. VA treatment records from July 2008 letter noted the Veteran's complaints of new onset of low back pain which had become problematic as part of a new job as a hair stylist. (See Medical Treatment, 07/18/2008, p. 2.) She was standing a lot and tended to develop spasms as the day went on, with pinching pain in her low back which was possibly related to a remote injury in her back. X-rays of her low back were entirely normal. (p. 7.) An MRI from August 2008 showed mild degenerative changes at L4-5 and L5-S1. (See Medical Treatment, 09/16/2008, p. 2.) At the December 2009 VA examination, the Veteran reported constant pain which did not radiate, for which she used a brace on an as needed basis. (See VA Exam, 12/09/2009, p. 1.) She had not had any physician-prescribed bedrest in the past year. She was unable to lift more than 20 pound, walk more than 45 minutes, or stand more than 10 minutes. She had left her job as a hair stylist because of her back pain and had lost a week of work in the prior year due to her symptoms. She had daily flare-ups of pain which lasted until she took pain relievers. Range of motion testing showed flexion to 70 degrees (with pain at 70), extension to 30 (degrees with pain at 30), side bending to 25 degrees bilaterally, and rotation to 45 degrees bilaterally, with pain at the end points but no spasms or tenderness to palpation. The examiner recorded no additional limitation by pain fatigue, weakness, or lack of endurance following repetitive use. She had a slightly increased lordotic curve. The examiner diagnosed mild lumbar spondylosis. An X-ray from that time period was normal and essentially unchanged from a previous image in July 2008. (See Medical Treatment, 12/23/2009, p. 90.) At the May 2012 VA examination, the Veteran reported that she experienced back pain 6 to 7 times per week lasting up to 30 minutes each. (See VA Exam, 05/17/2012, p. 2.) The pain did not radiate and there was no numbness with the pain. She did have weakness in the back with the pain. She also experienced weakness and flare-ups with bending and leaning. Range of motion testing showed flexion to 90 degrees, extension to 30 degrees, side bending and rotation each to 30 degrees bilaterally, all with pain at the end points. It was noted that she had functional loss after repetitive sue with contributing factors of pain on movement and interference with sitting, standing and/or weight bearing. Straight leg raising test was negative, bilaterally, and there were no signs or symptoms of radiculopathy. IDVS was noted found. Her X-rays were unremarkable and showed no evidence of arthritis. She reported functional limitations at her work including difficulty lifting more than 10 pounds, being unable to walk or stand more than 20 minutes, and missing three to four days of work in the past year. In her VA Form 9 filed in July 2013, the Veteran reported that she had been to the emergency room several times in the past year. (See Form 9, 07/15/2013.) She asserted that the assigned disability rating had not included consideration of incapacitating episodes due to IVDS more than 2 weeks and less than 4 weeks in a 12 month period. In correspondence received in January 2015 the Veteran reported that she had already missed two days of work for back spasms in 2015. (See Correspondence, 01/07/2015.) Her job duties, which required bending over, crawling, and maneuvering in small confined spaces, triggered her back pain. She indicated that she was taking pain pills and had a recent injection. In private treatment records from May 2016 the results of an MRI were reviewed and showed mild facet arthropathy at L3-4, L4-5, and L5-S1. (See Medical Treatment Private, 05/25/2016, p. 8.) She described a constant, aching pain, which is aggravated with prolonged standing and bending, which she does a lot of at work as an airplane inspector for Boeing. She denied any numbness and tingling or lower extremity muscle weakness. She rated her current level of pain as a 6 out of 10. On examination, her strength was 5/5, straight leg raising test was negative, bilaterally, and her gait was nonantalgic. At the VA examination in June 2016, a diagnosis of IVDS was noted. (See C&P Exam, 06/24/2016, p. 1.) Range of motion testing showed flexion to 40 degrees, extension to 20 degrees, lateral flexion to 30 degrees on the right and 25 degrees on the left, and lateral rotation to 30 degrees bilaterally. The examiner stated that the Veteran had not experienced any incapacitating episodes in the past year. At the July 2016 VA examination, the examiner noted a diagnosis of lumbosacral strain with bilateral lower extremity radiculopathy. (See C&P, 07/18/2016, p. 1.) The Veteran reported constant back pain which limited her ability to walk, stand, sit, crawl, and climb. Range of motion testing showed flexion to 50 degrees, extension to 25 degrees, lateral flexion to 25 degrees bilaterally, and lateral rotation to 25 degrees bilaterally. The examiner offered the opinion that the Veteran's low back disability did not limit her ability to work, noting that she continued to be employed full time and was independent with all of her activities of daily living. The Veteran was able to drive and there was no documented evidence of any incapacitating episodes. After considering all of the evidence of record, to include that discussed above, the Board finds that there is no basis for awarding higher disability ratings for the Veteran's low back disability. Specifically, prior to June 2016, the evidence of record shows that the Veteran's range of motion included flexion to 70 degrees or greater, with some minor changes in spinal contour. Limitation of flexion to less than 60 degrees and limitation of combined range of motion to less than 120 degrees was not shown. As of the June 2016 VA examination, the Veteran demonstrated for the first time limitation of motion less than 60 degrees of flexion, but still greater than the 30 degrees of flexion which would warrant a rating in excess of 20 degrees. Ankylosis of the lumbar spine has not been shown, to include on VA examination in June and July 2016. The Veteran asserted in her Form 9 that the assigned rating did not take into account the amount of time involved in incapacitating episodes, which she described as between 2 and 4 weeks per year. While there was a diagnosis of IVDS made at the VA examination in June 2016, the Veteran has denied any incapacitating episodes at all of the VA examinations to date. The Veteran has frequently pointed out the number of days lost to back pain; however, these do not meet the definition of incapacitating episodes in that there is no evidence that doctor prescribed bed rest has been involved. Therefore, an increased disability rating for her low back disability is not warranted under the IVDS Formula either. The Board also finds that the evidence weighs against a separate evaluation of any associate objective neurological abnormalities. See Note (1) to General Rating Formula for Diseases and Injuries of the Spine. In this regard, the May 2012 VA examination report reflects that straight leg raising test was negative, bilaterally, and there were no signs or symptoms of radiculopathy. Additionally, the May 2016 private treatment report reflects that the Veteran denied any numbness and tingling or lower extremity muscle weakness, and on examination, her strength was 5/5, straight leg raising test was negative, bilaterally. As such, the competent evidence does not show associate neurological abnormalities prior to June 2016. Entitlement to TDIU Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, 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, and that, 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. 38 C.F.R. § 4.16(a). Substantially gainful employment does not include marginal employment, which is generally deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis, including but not limited to employment in a protected environment such as family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a); see also Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016) ("[T]he only logical reading of the regulation compels the conclusion that a veteran might be found unable to secure or follow a substantially gainful occupation when the evidence demonstrates that he or she cannot secure or follow an occupation capable of producing income that is more than marginal-i.e., with income that exceeds the amount published by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person."). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the veteran's earned annual income. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring) ("Where a claimant's employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the claimant to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer."). In this instance, the Veteran is asserting entitlement to TDIU based on marginal or protected employment. Specifically, although the Veteran is employed full-time at Boeing and earns over $35,000 per year (see TDIU Claim, 06/01/2015), the Veteran's attorney has asserted that it is sheltered or protected in nature because of the accommodations afforded the Veteran by her employer. (See Correspondence, 10/20/2017.) The Veteran has submitted documentation from her employer that she uses leave under the Family and Medical Leave Act (FMLA) for times when she leaves work early or does not report for work, on an as needed basis. She has also submitted statements from her co-workers regarding the accommodations she receives at work, such as being able to take breaks when she becomes frustrated, being able to leave, and being able to get days off, as well as tolerance for her outbursts towards co-workers. (See Affidavits, 05/13/2016, 05/17/2016.) The Veteran has submitted a report from a vocational assessment that noted the accommodations at the Veteran's job, including being absent from work or late for work in excess of the amount of paid sick leave allotted to her. (See Medical Treatment Private, 05/17/2016, pp. 2-3.) She has been provided breaks from work when she became frustrated and was given counseling and support from her supervisor for anger and irritability outbursts. It was the vocational rehabilitation consultant's opinion that the Veteran would not have been able to retain any type of substantial gainful employment with another employer without the protections and accommodations provided by her current employer. (p. 6.) As a result, the vocational counselor concluded that the Veteran was unable to maintain any type of employment unless it was similarly sheltered from a normal work environment. After careful review of the record, the Board does not find that a TDIU is warranted for any period contemplated by this appeal. The fact remains that despite the Veteran being employed with accommodations, such employment does not constitute marginal employment nor employment in a protected environment. The Board acknowledges that the Secretary, as of this decision, has not defined "protected environment." See MERRIAM-WEBSTER, accessed at https://www.merriam-webster.com/dictionary/protect (defining "protect" primary as "to cover or shield from exposure, injury, damage, or destruction"); see also MERRIAM-WEBSTER, accessed at https://www.merriam-webster.com/dictionary/environment (defining "environment" primarily as "the circumstances, objects, or conditions by which one is surrounded"). As such, this is at the Board's discretion on a case-by-case basis based on the information and evidence of record. Here, the Veteran has worked with the same company since 2007 and while she has lost time from employment, she has continued to work in a full-time capacity with earnings of $35,000 per year. The Board acknowledges that the Veteran was afforded accommodations for her PTSD symptoms and other health issues, to include allowing for the use of FMLA leave on an as-needed basis. While the statement of the Veteran's co-workers have illustrated a level of tension resulting from the accommodations granted her, there is no indication in the record that those accommodations were extraordinary or beyond those that would be required by the Americans with Disabilities Act (ADA). While the Veteran meets the TDIU schedular criteria, awarding a TDIU would not service its intended purpose as the Veteran has been able to maintain gainful full-time employment for many years, despite the severity of her service-connected disabilities, including her PTSD. As discussed in Cantrell, the Veteran's disabilities do not result in lost income and legally required accommodations permit her to maintain gainful employment. Therefore, entitlement to TDIU shall be denied because it would not serve the purpose intended by Congress. See 38 U.S.C. § 1155 ("The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations."). Additionally, the Board notes that the Veteran's education, to include 1 year of college and a cosmetology license, and her work experience, to include as a sales associate for 3 years and as an airline inspector since 2011, demonstrate that she can hold a full-time job and earn income well above the poverty level for an individual. ORDER The appeal for entitlement to service connection for a left knee disability is dismissed. The appeal for entitlement to service connection for a right knee disability is dismissed. The appeal for entitlement to an increased disability rating for PTSD is dismissed. The appeal for entitlement to an increased disability rating for irritable bowel syndrome is dismissed. The appeal for entitlement to an earlier effective date for the grant of service connection for irritable bowel syndrome is dismissed. An initial disability rating in excess of 10 percent for a low back disability prior to June 24, 2016 an in excess of 20 percent thereafter is denied. TDIU is denied. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs