Citation Nr: 1806138	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  12-04 388	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to a rating in excess of 20 percent for the service-connected thoracic sprain.

2. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Erin J. Carroll, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1973 to July 1977. 

This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in March 2011 from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction has since been transferred to the RO in St. Petersburg, Florida.

In May 2014, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing has been associated with the record.

In its November 2014 remand, the Board found that a claim for a TDIU had been raised in connection with the Veteran's January 2011 claim for an increased rating for the service-connected thoracic sprain pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).


FINDINGS OF FACT

1. Prior to June 30, 2011, the Veteran's flexion was limited to no less than 70 degrees.

2. For the period between June 30, 2011 and September 14, 2011, the Veteran's flexion was limited to 30 degrees.

3. Since September 14, 2011, the Veteran's flexion has been limited to no less than 70 degrees.

4. The Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation.


CONCLUSIONS OF LAW

1. Prior to June 30, 2011, the criteria for a disability rating in excess of 20 percent for thoracic sprain have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2017).

2. Between June 30, 2011 and September 14, 2011, the criteria for a 40 percent rating, but no higher, for thoracic sprain have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5237 (2017).

3. Since September 14, 2011, the criteria for a disability rating in excess of 20 percent for thoracic sprain have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5237 (2017).

4. The criteria for an award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. 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 a duty to assist argument).

II. Increased Rating for Thoracic Sprain

A. Applicable Law

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999)

A December 1977 rating decision granted service connection for a residual injury of the thoracic spine and assigned a noncompensable rating, effective July 8, 1977. A February 2007 rating decision increased the disability rating to 20 percent, effective November 27, 2006. The March 2011 rating decision on appeal continued the 20 percent rating for the thoracic sprain. The Veteran perfected an appeal as to the continuation of the 20 percent rating assigned, arguing that his thoracic spine disability warrants a higher disability rating. 

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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. 38 C.F.R. § 4.71a, DC 5242 and Note.

The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating 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 rating is assigned where forward flexion of the thoracolumbar spine is to 30 degrees or less, or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Additionally, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. Id. at Note (1).

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. See 38 C.F.R. § 4.71a, General Rating Formula Note (2); Plate V.

In determining the degree of limitation of motion, the provisions of 38 C.F.R. 
§§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. 

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. 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.

Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table).

The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician.

The evidence of record does not show that the Veteran has experienced IVDS requiring bed rest during any period on appeal. As required bed rest is a fundamental element for an evaluation under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating under these criteria. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's spine disability under the General Rating Formula for Diseases and Injuries of the Spine.

B. Facts and Analysis 

In February 2011, the Veteran was afforded a VA examination to evaluate the severity of this thoracic sprain disability. He reported severe flare-ups that happened on a weekly basis and lasted for several hours. He denied any bladder or bowel impairment, as well as numbness, paresthesias, falls, leg or foot weakness, or unsteadiness. There was no history of fatigue, decreased motion, stiffness, weakness, or spasms. He described moderate back pain, which occurred on a daily basis, but did not radiate to his extremities. There had been no incapacitating episodes related to the spine disability. The examiner noted no evidence of abnormal spine curvatures or ankylosis of the thoracolumbar spine. There was objective evidence of tenderness, but no evidence of spasms, atrophy, guarding, pain with motion, or weakness. The tenderness was not found to be severe enough to result in abnormal gait or spinal contour. Reflex testing and sensory testing were normal. Muscle strength testing was normal, with no evidence of muscle atrophy. Flexion was to 70 degrees and extension was to 10 degrees. Left and right lateral flexion were to 20 degrees, as were left and right lateral rotation. The examiner noted objective evidence of pain following repetitive motion, but no additional limitation after three repetitions. 

A June 30, 2011 VA treatment record documented flexion of the back limited to 30 degrees. The next relevant VA treatment record, dated September 14, 2011, noted the Veteran's reports of improvement in his back pain due to physical therapy.

At the May 2014 Board hearing, the Veteran testified that he experienced daily flare-ups, often lasting for about one hour. He further described difficulty completing daily activities as a result of his back disability, including chores around the house, walking, and going to the store.

Most recently, in April 2016, the Veteran underwent another VA examination for his back disability. He denied experiencing flare-ups or any functional loss or impairment of the lower back. The examiner further noted that there was no evidence of flare-ups or limitations with repetitive use, pain, weakness, fatigability, or incoordination. There was no evidence of localized tenderness or pain on palpation of the joints or associated soft tissue. There was no indication of guarding or muscle spasms. The examiner noted less movement than normal due to ankylosis, adhesions, or other factors. Muscle strength testing was normal, with no evidence of muscle atrophy. Reflex testing and sensory testing were normal. Straight leg testing was negative. There was no ankylosis of the spine, and no evidence of IVDS. The examiner noted no neurological abnormalities or findings related to the thoracolumbar spine, including bowel or bladder abnormalities. The Veteran did not use an assistive device.

Flexion was to 70 degrees and extension was to 20 degrees. Left and right lateral flexion were to 20 degrees, as were left and right lateral rotation. Although, there was pain on range of motion, the pain was not considered to result in or cause functional loss.  There was no evidence of pain with weight bearing. Additionally, the Veteran was able to perform repetitive use testing with at least three repetitions, without additional loss of function or range of motion. 

Based on the symptoms described above, the Board finds that a rating in excess of 20 percent is not warranted for the service-connected thoracic sprain prior to June 30, 2011, or after September 14, 2011. During that period of time, however, the evidence supports the grant of a 40 percent rating, but no higher.

The pertinent evidence dated prior to June 30, 2011, and after September 14, 2011 does not reflect that the Veteran demonstrated flexion to 30 degrees or less, to include as a result of pain, weakness, or other similar factors. Nor is there evidence of favorable or unfavorable ankyloses of the entire thoracolumbar spine, or unfavorable ankyloses of the entire spine at any point during the periods of time in question. Rather, the evidence shows the Veteran's flexion was limited to 70 degrees during these periods of time, as shown at the VA examinations conducted in February 2011 and April 2016. There was no indication that pain further limited the range of motion beyond 70 degrees on those occasions. Additionally, there is no evidence of any form of ankylosis affecting the spine either before June 30, 2011, or after September 14, 2011. Furthermore, although the April 2016 VA examiner suggested that limited movement may be the result of ankylosis, the Veteran's range of motion results at that examination are not representative of ankylosis of the entire thoracolumbar spine.

For the period between June 30, 2011 and September 14, 2011, however, the Board finds that a 40 percent rating is warranted for the Veteran's thoracic sprain because it more nearly approximated limitation of forward flexion to 30 degrees throughout that time. The Board notes the Veteran's reports of severe weekly flare-ups at the February 2011 VA examination and, resolving reasonable doubt in favor of the Veteran, finds that such a significant change in flexion may be evidence of a flare-up at the time of the June 30, 2011 VA evaluation. However, the Board also notes the Veteran's reports of improvement in his back condition at a September 14, 2011 VA appointment, which he attributed to physical therapy. The evidence of record does not contain any indication of symptomatology more closely approximating a 40 percent rating throughout the remaining period on appeal. Taking into consideration the possibility of a flare-up occurring during this period, as reported by the Veteran, the Board finds that his thoracic sprain symptomatology more nearly approximated limitation of forward flexion to 30 degrees or less at that time. Thus, a 40 percent rating for the period between June 30, 2011 and September 14, 2011 is warranted.

In evaluating the Veteran's increased rating claim under DeLuca and Mitchell, supra, the Board notes that the Veteran has endorsed having flare-ups of pain throughout the appeal period, and there has been objective evidence of painful motion on examination. Despite the foregoing, the Board finds that any additional functional limitation caused by the Veteran's pain is contemplated by the 20 percent rating assigned prior to June 30, 2011 and after September 14, 2011, and by the 40 percent rating assigned in between. Indeed, the pertinent evidence has not revealed that, prior to June 30, 2011 and after September 14, 2011, his motion was limited to 30 degrees of less as a result of pain, weakness, fatigability, incoordination, lack of endurance, flare-ups, or repetitive motion to warrant a higher rating. Nor does the evidence reflect that his additional functional limitation has resulted in ankyloses affecting any portion of the spine throughout any of the periods on appeal. Additionally, both VA examiners noted that there was no additional functional loss or limitation of range of motion as a result of the painful motion. Therefore, the Board finds that a rating higher than the 20 percent rating assigned prior to June 30, 2011 and after September 14, 2011, or higher than the 40 percent rating assigned in between, is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017) , the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. To the extent the VA examinations reviewed do not include specific findings as required by the Court's holdings in Sharp, the Board finds that, because (1) the Veteran is receiving the maximum rating based on limitation of motion of the lumbar spine (40 percent) for the period between June 30, 2011 and September 14, 2011, (2) that a higher rating for that period requires unfavorable ankylosis of the thoracolumbar spine or unfavorable ankylosis of the entire spine, (3) ankylosis has not been demonstrated by the record or described by the Veteran, and (4) the Veteran denied experiencing flare-ups at the most recent April 2016 VA examination, additional testing or a retrospective opinion to evaluate the impact of flare-ups and pain on limitation of motion would not avail the Veteran.

As noted above, when evaluating the disability rating assignable to a spinal disability, the Board must consider any neurologic abnormalities associated with the spinal disability. At the outset, the Board notes that the Veteran has reported radicular symptoms, including numbness and pain that radiates into his hips and feet. See May 2014 Board Hearing Testimony p. 11. The April 2016 examiner also noted mild constant pain of the lower extremities, which was indicative of mild radiculopathy of the bilateral lower extremities. However, a September 2011 VA treatment provider attributed the neuropathic pain to the Veteran's non-service connected diabetes. Additionally, the September 2016 VA examiner opined that it was less likely than not that the radicular-like symptoms were due to the thoracic sprain. The examiner based this conclusion on the Veteran's medical history and the April 2016 spine examination. Furthermore, the Veteran has consistently denied any bladder or bowel impairment resulting from his back disability. Based upon the medical evidence of record, the Board finds the preponderance of the evidence does not reflect that the Veteran experiences bladder, bowel, or other objective neurologic abnormalities as a result of his service-connected thoracic sprain disability; thus, a separate compensable rating is not warranted at any point during the appeal period for those considerations. 

In summary, the Board finds the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent for service-connected thoracic sprain prior to June 30, 2011 and following September 14, 2011. However, for the period between June 30, 2011 and September 14, 2011, the Board finds that the preponderance of the evidence supports the award of a 40 percent rating, but no higher. In reaching the foregoing conclusions, the Board has resolved all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

III. Entitlement to a TDIU

A. Applicable Law

Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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 service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991).

To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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).

In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

B. Facts and Analysis

The Veteran is currently service connected for a thoracic sprain rated at 20 percent; tinnitus rated at 10 percent; and bilateral hearing loss rated as noncompensable; his combined service-connected disability rating is 30 percent. 

The Veteran has two or more service-connected disabilities, however, he does not meets the minimum schedular percentage standards for consideration of a TDIU, because he does not have a single disability rated at 60 percent or more and his combined rating is 30 percent, and not 70 percent or more. 38 C.F.R. § 4.16 (a) (2017). Even taking into account the brief period of time in which his thoracic sprain is rated at 40 percent disabling, as granted herein, his combined rating is not 70 percent or more for that period.

Accordingly, the Veteran does not meet the schedular criteria for consideration for the assignment of TDIU. 38 C.F.R. § 4.16 (a) (2017). However, when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16 (a), the case may be referred to appropriate VA officials for consideration of the assignment of a TDIU rating. 38 C.F.R. § 4.16 (b) (2017).

With respect to the Veteran's education and work experience, while the Veteran did not complete and return the VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) provided to him, as requested in the November 2014 Board remand, the most recent April 2016 VA spine examination indicated that the Veteran would be capable of sedentary and physical employment, even in consideration of his thoracic sprain. Additionally, the April 2016 VA audiologist found that his hearing disabilities did not impair his ability to work.  Furthermore, March 2010 findings included in records from the Social Security Administration (SSA) determined that the Veteran would be able to adjust to other types of employment.

Post-service VA treatment records indicate that the Veteran previously owned his own business rehabilitating marine engines, which he sold in 1997. See October 16, 2012 VA Treatment Record. However, a January 2011 VA treatment record documented his reports that he had only stopped working in 2006, while SSA records reflect that he owned this business until January 2007. Thus, the record is unclear regarding the Veteran's employment history. 

The Board acknowledges the Veteran's reports that he owned the engine business for 30 years, before he stopped working in 2006 due to his back condition. See May 2014 Board Hearing Testimony. However, the medical evidence of record indicates that he remains capable of both sedentary and physical employment, despite his disabilities. Thus, the record does not support the notion that the Veteran's service- connected disabilities preclude employment, or establish the presence of any unusual or exceptional disability factors arising from the Veteran's service-connected disabilities that suggest he is unable to secure and follow a substantially gainful occupation as a result of them that warrant referral of the Veteran's claim under 38 C.F.R. § 4.16 (b). 

Accordingly, the Board finds that referral of TDIU on an extraschedular basis is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

Entitlement to a rating in excess of 20 percent for the service-connected thoracic sprain prior to June 30, 2011, is denied.

Entitlement to a 40 percent rating for the service-connected thoracic sprain for the period between June 30, 2011 and September 14, 2011 is granted.

Entitlement to a rating in excess of 20 percent for the service-connected thoracic sprain since September 14, 2011, is denied.

Entitlement to a TDIU is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals






Department of Veterans Affairs