Citation Nr: 1803542 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-13 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased rating for lumbar spine disorder, currently evaluated as 10 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 W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to August 1971. His service included a tour in the Republic of Vietnam from July 1969 to February 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2010 rating decision (notification in July 2010) of a Department of Veterans' Affairs (VA) Regional Office (RO) that continued a 10-percent rating. Rating decisions dated in May 2013 and March 2016 denied a TDIU. The Board takes jurisdiction of the TDIU issue and part and parcel of the Veteran's increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A May 2017 letter informed the Veteran that the Board hearing via video conference he requested was scheduled for June 14, 2017 and a second letter reminded him of the scheduled hearing a week prior to the scheduled date. (05/22/2017 Notification; 06/05/2017 Notification) The Veteran did not appear for the hearing, and he did not request that it be rescheduled. Hence, the hearing request is deemed to have been withdrawn. See 38 C.F.R. § 20.702(d) (2017). FINDINGS OF FACT 1. The Veteran's lumbar spine disability has manifested with motion on forward flexion greater than 0 to 60 degrees and combined range of motion (CROM) greater than 120 degrees, subjective complaints of pain, and without probative competent evidence of associated radiculopathy throughout the entire rating period on appeal. 2. The Veteran's service-connected disabilities, other than posttraumatic stress disorder (PTSD), do not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The requirements for an evaluation higher than 10 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242 (2017). 2. The requirements for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Prior to issuance of the July 2010 rating decision, via a March 2010 letter, VA provided the Veteran with notice. Additionally, VA has a duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs), non-VA, and VA treatment records, including the VA examination reports are in the claims file. In the December 2017 brief, the Veteran's representative contented that the Veteran's lumbar spine presents with flare ups that are productive of guarding motions, due to pain and stiffness, not adequately addressed by the VA examiner, that warranted a rating in excess of 10 percent. The Board . . . As such, the Board will proceed to the merits of the appeal. Applicable Law and Regulation Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see Peyton v. Derwinski, 1 Vet. App. 282 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the rating period on appeal based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be, where possible stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court of Appeals for Veterans Claims has held that the final sentence of § 4.59 creates a requirement that certain range of motion and other testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Rating Criteria For the thoracolumbar spine, normal ROM on forward flexion is 0 to 90 degrees; backward extension, 0 to 30 degrees; lateral flexion and lateral rotation, 0 to 30 degrees. See 38 C.F.R. § 4.71a, Plate V. Spine disabilities are rated under the General Formula. Regarding the lumbar spine, 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 applies if forward flexion of the thoracolumbar spine is 0 to 30 degrees or less. The next-higer 20-percent rating applies if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the CROM of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Formula. Discussion Historically, an October 1971 rating decision granted service connection for a recurrent low back strain and assigned an initial 0 percent (noncompensable) rating, effective in August 1971. A December 2003 rating decision granted an increased rating from 0 to 10 percent, effective in August 2003. VA received the Veteran's claim for an increased rating in October 2009. (10/28/2009 VA Form 21-4138.) The submitted a statement indicating that his quality of life had been adversely impacted by daily excruciating pain that precluded him from standing or walking for long, he could not bend or turn to the side, and that he had muscle spasms and cramps. The June 2010 VA examination report (06/16/2010 VA Examination) reflects that the examiner did not have access to the claims file, but he took the Veteran's extensive lay history and noted that he appeared to be a good historian. The Veteran reported that he had been told that he had spondylosis. He complained of pain primarily at the central part of his low back and occasional radiation to the RLE; and, that the pain was worsened by cold weather. He complained further of difficulty lifting and bending and denied any bowel or bladder involvement. The Veteran reported further that he used a cane, and sometimes a walker to ease the pain. He last worked in 2001. Physical examination revealed significant tenderness over the left sacroiliac joint bu not muscle spasms or bony deformities. ROM on forward flexion was 0 to 70 degrees with complaints of 6/10 pain; backwards extension to 30 degrees; lateral flexion to 20 degrees bilaterally; and, lateral rotation to 25 degrees bilaterally, for a CROM of 190 degrees. Upon receipt of the examination report, the RO continued the 10-percent rating. (06/25/2010 Rating Decision-Narrative) The Board affirms the RO's determination. A higher rating was not met or approximated, as the Veteran's motion on forward flexion was greater than 0 to 60 degrees, and his CROM was greater than 120 degrees. Further, the examination did not confirm the Veteran's complaints of muscle spasms. 38 C.F.R. § 4.71, General Formula. The examiner noted that repetitive-use testing revealed no additional loss of ROM. Hence, there is no factual basis for a higher rating on that basis. See 38 C.F.R. §§ 4.40, 4.45. Neurological examination revealed normal motor strength; normal sensation to light touch and temperature; deep tendon reflexes 1+ at the right knee and absent at the left; and straight leg raising was negative bilaterally. The examiner confirmed the diagnosis of record of chronic lumbar strain and noted that the Veteran's symptoms were largely due to sacroiliitis. (Exam Report, p. 4) The Board notes that a November 1999 EMG was read as having shown peripheral neuropathy, motor and sensory type, of the RLE. (11/09/2007 Government Facility, p. 1) Nonetheless, the examiner at the June 2010 examination did not find or diagnose lumbar radiculopathy despite the knee reflex findings. Hence, the Board finds no factual basis for a separate rating for associated objective neurological symptoms. See 38 C.F.R. § 4.71a, General Formula, Note (1). The Board acknowledges the Veteran's long-standing pain due to his lumbar spine disability as well as the examiner's notation that the Veteran's symptoms had progressively worsened over the years. Nonetheless, it is not the mere presence of pain that supports a particular rating but the functional loss due to the pain. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In light of the examination findings set forth above, the Board finds that the assigned 10-percent rating compensates the Veteran for the earning impairment due to the lumbar spine disability to the extent practical. 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, General Formula. The examiner did not comment on the occupational impairment of the Veteran's lumbar spine disorder, perhaps because he had not worked since 2001. Nonetheless, the examination findings would indicate lifting and prolonged sitting or standing restrictions but not a total inability to maintain substantially gainful employment due to the lumbar spine disability. See 38 C.F.R. §§ 3.340, 341, 4.16(b). Outpatient records dated in September 2010 note the Veteran's treatment for increased pain after he slipped and fell in a store in June 2010. A lumbar spine X-ray was read as having shown progressive narrowing at L2/3, L3/4, and L4/5, all with some degree of vacuum phenomena. There are no entries that note findings that would warrant an increased rating. Degenerative disc disease was added the list of the Veteran's active issues. (01/28/2011 Government Facility, p. 1, 7) October 2003 X-rays were read as having showed only moderate degenerative changes, more so at L5-S1. (04/22/2010 Government Facility, p. 9) In his Notice of Disagreement (02/08/2011 VA Form 21-4138), the Veteran reiterated the symptoms he asserted in his informal claim; and, that his disc pathology caused LOM. He asked the RO to obtain his VA records from a Fresno, CA facility, which the RO in fact obtained. Another examination was arranged, and the RO asked the examiner to specifically assess employability. (See 01/28/2011 VA Form 21-2507a) The March 2011 examination report (03/24/2011 VA Examination) reflects that the examiner noted that he had reviewed all volumes of the Veteran's paper claims file, to include his treatment records generated at the Fresno, CA facility. Id., p. 4. The examiner noted that the Veteran was a poor historian. The Veteran complained of constant pain of 8/10 intensity across the low back that radiated down the back of his legs to his feet, and numbness of the feet. The examiner noted that the Veteran was unable to provide any information on flare-ups because of prescribed opioids or illicit drug use. The examiner noted that he pushed hard to obtain information from the Veteran to no avail. He denied any bowel or bladder involvement. The Veteran reported further that he had difficulty standing for long, lifting over 40 pounds, stooping, squatting, kneeling, or bending, and that he used a cane when he left his home. He reported further that he was independent in his activities of daily living, that he had been drug-free since 1999, and that he had taken his prescribed medication four hours prior to the examination. The examiner noted that when the Veteran was called to the examination room, he appeared to be in significant pain when he rose slowly from the chair with his cane in his left hand. He walked slowly and favored his left side. When he departed the examination, however, the examiner observed him to walk freely as he left with his female companion. His gait was slightly broad based. (Exam. Report, p. 12) Physical examination of the thoracolumbar spine revealed a slight reduction of the normal lordosis, but the spinal contour was preserved. ROM on forward flexion was 0 to 70 degrees; backwards extension to 30 degrees; lateral flexion and lateral rotation both to 30 degrees bilaterally, for CROM of 200 degrees. There was no objective evidence of pain, spasm, weakness, tenderness, atrophy, guarding, or paraspinal muscle spasm. The objective findings on clinical examination show that the Veteran's lumbar spine disability continued to manifest at the 10-percent rate. 38 C.F.R. §§ 4.10, 4.71a, General Formula. A higher rating was not met or approximated, as motion on forward flexion was greater than 0 to 60 degrees, CROM was greater than 120 degrees, and there was no evidence of spasms or guarding that severe enough to result in an abnormal gait or spinal contour. Further, the examiner specifically noted that the difference between the Veteran's ROM on examination and what is deemed normal for the thoracolumbar spine was due to his centripetal obesity, and not due to pain, etc. (Exam. Report, p. 14) As for the Veteran's complaints of pain, the examiner noted that they were entirely out of proportion with the objective findings on examination, to include the absence of clinical evidence of pain. The examiner noted that during the examination, the Veteran's pulse rate and all vital signs were normal. The examiner noted further that the Veteran's ROM values remained the same on repeat-use testing. The Board notes the examiner's use of the term, "DeLuca score," and that it was 20 on forward flexion. On first reading, it appeared that the examiner was noting that there was a loss of 20 degrees on forward flexion during repetitive-use testing, see DeLuca, 8 Vet. App. 202, which would in effect reduce the motion on forward flexion to less than 0 to 60 degrees. When read in context, however, to include how the examiner characterized the "DeLuca score" for the other planes of motion, the Board reads the report as meaning that the "score" was the difference between the ROM findings on examination and the normal ROM for the thoracolumbar spine. This is buttressed by the fact that the examiner's notation for the difference was the same as earlier noted, which was the Veteran's obesity. Hence, the Board finds that there is no factual basis for a higher rating on the basis of additional loss of ROM. See 38 C.F.R. §§ 4.40, 4.45. Neurological examination revealed normal tone and power. The Veteran could walk on his heels and on his toes without his cane, and tandem walk. Patrick's, Waddell's, and Romberg signs were negative. Lasegue's (straight leg raising) was to 60 degrees on the left, and 70 degrees on the right. Sensory examination was normal in both LEs. The examiner noted that there were a few areas on the legs where the Veteran stated he could not feel the monofilament, but after careful and persistent examination, sensation was normal in the LEs. (Exam. Report, p. 13-14) Muscle tone and power were normal. Deep tendon reflexes were 1+ at the knees, and 2+ at the ankles. The examiner commented extensively on how thorough the examination was in light of the Veteran's complaints and his past history. The examiner noted the 1999 EMG findings, and a subsequent notation by a VA physician that the EMG findings were due primarily to carpal tunnel syndrome. In light of the Veteran's documented history and the findings on examination, the examiner diagnosed lumbar disc disease without clinical evidence of radiculopathy, and opined that the symptoms of neuropathy were most likely due to alcohol consumption or other toxic substances. (Exam. Report, p. 15) Hence, the Board finds no factual basis for a separate rating for objective neurological symptomatology associated with the lumbar spine disability. Due to the Veteran's long history of low back pain, the VA examiner ordered an MRI examination. The report of that examination reflects that the MRI showed degenerative spinal stenosis at L3/4. (08/05/2014 CAPRI, p. 95) The provider noted that the Veteran's symptoms were stable. The Board noted earlier that the Veteran is entitled to a staged rating for any part of the rating period where his disability manifested at a more severe rate. As set forth and discussed above, however, the Board finds that the evidence of record shows that the Veteran's lumbar spine disability has manifested at the assigned 10-percent rate throughout the rating period on appeal. 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, General Formula. TDIU Applicable Legal Requirements In order to establish entitlement to TDIU, there must be impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100-percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Discussion A March 2016 rating decision granted an increased rating for the Veteran's PTSD from 70 to 100 percent, effective November 23, 2015, and continued the denial of a TDIU. (03/10/2016 Rating Decision-Narrative) The Board notes that all of the documentation related to the Veteran's claim for individual unemployability reflects that he consistently asserted his PTSD as the basis for his claim that he was unable to maintain substantially gainful employment. See 10/22/2010 VA 21-8940; 12/10/2015 VA 21-8940) Further, the medical evidence of record notes that the Veteran's mental health treatment providers opined that he was unable to work due to his PTSD. See 10/16/2009 Government Facility; 11/23/2015 Government Facility. The Board notes further that the Veteran did not appeal the effective date assigned for the PTSD 100-percent rating or the otherwise denial of a TDIU. Initially, the fact that the Veteran has a total rating for his PTSD does not preclude an allowance of a TDIU based on his other service-connected disabilities. See Bradley v. Peake, 22 Vet.App. 280 (2008). Prior to June 13, 2013, service connection was in effect solely for PTSD and the lumbar spine disability. The PTSD was rated at 10 percent prior to April 15, 2009, and 50 percent as of that date, for a total combined rating of 60 percent. See 08/13/2010 Rating Decision-Codesheet. A May 2013 rating decision increased the PTSD from 50 to 70 percent, effective October 22, 2010, which brought the total combined rating to 70 percent as of that date. Thus, the Veteran did not meet the criteria for schedular consideration prior to that date. 38 C.F.R. § 4.16(a). VA's policy is to award TDIU in all cases where service-connected disability precludes gainful employment regardless of the percentages awarded. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Appropriate cases must be referred to the Director of the VA Compensation Service (Director) or Undersecretary for Benefits for such extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). The governing standard is whether the evidence shows a plausible basis for an allowance of TDIU. Id. The Veteran's application for a TDIU reflects that he has a high school education and at least one year of technical training in drafting. The November 2012 VA examination report reflects that the Veteran worked primarily in construction as an electrician apprentice, and that he last worked in 2000 or so. While the reason why he had not worked was not entirely clear, the examiner noted that it was likely related to substance abuse. As noted, VA received the Veteran's claim for an increased rating for his lumbar spine disability in October 2009. For the period October 2009 to October 21, 2010, the Board finds no plausible basis on which to refer the case to the Director for consideration of a TDIU on an extraschedular basis. As noted earlier in this decision, the objective findings at the June 2010 VA examination indicated no more than lifting and sitting restrictions due to the lumbar spine disability. For the period October 22, 2010 to November 22, 2015, the Board notes that the examiner at the March 2011 VA examination opined that the Veteran's lumbar spine did not preclude him from working. The Board notes the examiner's observations that indicated that the Veteran did not give a full credible effort during the examination; and, that a VA examiner at a November 2012 examination opined that the Veteran's PTSD did not render him unable to work. As of June 10, 2013, bilateral hearing loss and tinnitus were added to the Veteran's service-connected disabilities. The medical evidence of record does not indicate that they cause any occupational impairment. As noted, the PTSD was rated total as of November 23, 2015, which means that it may no longer be included when determining if the Veteran is eligible for consideration under the schedular criteria. See Bradley, 22 Vet.App. 280. The bilateral hearing loss is rated noncompensable, see 38 C.F.R. § 4.31, and the tinnitus is rated at 10 percent. (08/07/2014 Rating Decision-Narrative) Hence, as of November 23, 2015, the Veteran is no longer eligible for consideration under the schedular criteria, for the total combined rating for the lumbar spine, bilateral hearing loss, and tinnitus disabilities is 20 percent. See 38 C.F.R. § 4.25. The occupational impact of the lumbar spine disability was discussed earlier. The audio examination report noted the functional loss of the hearing loss was that it was difficult to understand people in communication situations, and that the tinnitus was annoying. There is no indication that those disabilities would preclude substantially gainful employment. (08/04/2014 C&P Exam) Hence, in light of these factors, the Board finds no plausible basis for referring the case to the Director for consideration of a TDIU on an extraschedular basis for the period beginning on November 23, 2015. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to a rating higher than 10 percent for lumbar spine disorder is denied. Entitlement to a TDIU is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs