Citation Nr: 1806229 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 09-22 948A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for cervical spine degenerative arthritis. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from August 1983 to August 2007, to include service in Southwest Asia. He was awarded the Combat Action Badge, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction has since been transferred to the RO in Wichita, Kansas. This matter was previously before the Board in May 2011, May 2014, and April 2017. FINDINGS OF FACT 1. The Veteran's neck disability has primarily been manifested by pain and limitation of motion; forward flexion of the cervical spine to 30 degrees or less; a combined cervical spine range of motion of 170 degrees or less, and muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour are not shown. 2. The Veteran failed to submit within one year a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, which would have provided critical information to adjudicate the TDIU claim; even so, the available evidence shows his service-connected disabilities do not render him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for cervical spine degenerative arthritis have not been met. 38 U.S.C. §§ 1110, 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2017). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has not 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). I. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. 38 U.S.C. § 1155. 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). Separate diagnostic codes identify the various disabilities. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings may be assigned when the factual findings show distinct time periods during the appeal period where the service connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim is denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Id. § 4.7. Otherwise, the lower rating will be assigned. Id. Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. The Veteran's neck disability is currently rated at 10 percent under DC 5242, which pertains to degenerative arthritis of the spine. Under DC 5242, a 20 percent rating is warranted when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine is not greater than 170 degrees; or when there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent rating is warranted when there is evidence of forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. Id. Any associated objective neurologic abnormalities, such as radiculopathy, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees; extension is 0 to 45 degrees; left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 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 cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided herein are the maximum that can be used for calculation of the combined range of motion. Id. at Note 2. When a veteran has intervertebral disc syndrome (IVDS), ratings can also be assigned based on the duration of incapacitating episodes (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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2017). Separate ratings cannot be assigned based on the General Formula and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See id.; see also 38 C.F.R. § 4.14 (2017). In this case, the Veteran was afforded examinations in August 2007, June 2012, and May 2017. During the August 2007 examination, the Veteran reported radiating pain with no specific flare-up. It was specifically noted that there was no additional limitation of motion or functional impairment due to flare-up. He had a combined range of motion of 290 degrees, with forward flexion at 40 degrees, and no additional functional impairment due to pain, weakness, fatigue, or incoordination after repetitive motion. Additionally, there was no evidence of IVDS, or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. During the June 2012 examination the Veteran reported neck pain that flares up if he physically "overdoes it." Forward flexion of the cervical spine was to 45 degrees and the combined range of motion was to 340 degrees; this represents a full range of motion. There was no objective evidence of painful motion at any measurement. Also, there was no additional limitation of motion or functional loss after repetitive use testing, and no evidence of IVDS, muscle spasms, or guarding. During the May 2017 examination the Veteran reported constant nagging pain in his neck at rest that he rates at about 6/10. With excessive movement of the cervical spine, the pain reportedly flared to 8/10 and limited movement with the spine. Regarding functional impairment, the Veteran reported difficulty driving during flares because he has difficulty looking laterally for traffic and posteriorly to back up his vehicle. Forward flexion of the cervical spine was to 40 degrees and the combined rating of motion was to 245 degrees. It was noted that the Veteran's ability to look laterally and posteriorly was limited. There was no additional loss of function or range of motion after three repetitions. Pain was present on examination, although there was no pain with weightbearing. The examiner could not offer an opinion regarding whether pain, weakness, fatigability, or incoordination would adversely affect the range of motion of the cervical spine during flare-ups or after repetitive use. The Veteran did not have guarding or muscle spasm of the spine. There was no ankylosis of the spine. While the Veteran had IVDS, he had not had an incapacitating episode in the past 12 months. Given the above, a higher rating is not warranted. The evidence does not suggest guarding or muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour. Range of motion testing was performed during the VA examinations and showed at worst forward flexion of the cervical spine to 40 degrees and a combined range of cervical motion of 245 degrees. This equates to a 10 percent rating. 38 C.F.R. § 4.71a, General Formula. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The reports do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's lay statements. The examiner in 2017, after review of the evidence of record including the Veteran's description of his disability during flare-up, adequately explained that an opinion regarding additional functional loss during flare-up or after repetitive use could not be offered. In this regard, the examiner explained that there are many factors to consider when evaluating alteration in function of a joint when afflicted by pain or strenuous activity. These would include the type of activity the patient is doing, whether or not he is taking pain medication, environmental conditions such as temperature and humidity (cold weather will adversely affect joints), and the patient's psychological state. Without direct observation of the patient under these conditions it is not possible to currently determine what loss of function or range of motion may take place. While the Veteran has essentially stated that he has reduced motion in his neck, he has not described a range of motion less than that found on examination. In this regard, during the 2007 examination he reported no significant flare-ups of the disability. At the 2012 examination he only reported an increase of neck pain when he "overdoes it;" he did not describe any further limited range of cervical spine motion. At the 2017 examination he stated that flare-ups consisted of increased pain and limitations in looking laterally and posteriorly, which he noticed when driving. The Veteran's statements do not show the requisite limitation of motion necessary for a higher or separate rating. Treatment records do not show greater limitation of motion than the examination findings. Given the above, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. The Veteran has already been awarded disability ratings for left and right upper extremity radiculopathy associated with his neck disability. No other neurological manifestations of the disability are alleged or shown by the evidence of record. Therefore, no additional separate compensable ratings are warranted. Likewise, a rating based on IVDS is not warranted as the evidence is against a finding that the Veteran has had any significant incapacitating episodes of IVDS. 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, 369-370 (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). II. TDIU To establish entitlement to TDIU, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The central inquiry in any TDIU determination is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. 38 C.F.R. § 3.340; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating is itself recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the appellant is capable of performing the physical and mental acts required by employment, not whether the appellant can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "Substantially gainful employment" is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. The ultimate question of whether a Veteran is capable of substantially gainful employment is for the adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Where the schedular rating is less than total, a total disability rating may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. The schedular requirements are met if there is only one service-connected disability and the disability is rated at 60 percent or more; or, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran meets the schedular criteria for TDIU. He is service-connected for obstructive sleep apnea with restless leg syndrome (50%), right upper extremity radiculopathy (40%), posttraumatic stress disorder (PTSD) (30%), left upper extremity radiculopathy (20% prior to May 1, 2017, and 30% thereafter), status post right shoulder surgery (10%), lumbar spine disability (10%), cervical spine disability (10%), left knee disability (10%), hypertension (10%), hallux valgus of the left foot (0%), right and left foot calcaneal heel spur (both 0%), scar on the right shoulder (0%), and meralgia paresthetica of the right thigh (0%). His combined disability rating was 80% from September 1, 2007, until May 1, 2017, when it increased to 90%. However, after careful consideration, the Board finds that the Veteran's service-connected disabilities have not prevented him from securing and following substantially gainful employment. As an initial matter, the VA made reasonable efforts to assist the Veteran in developing his TDIU claim. On April 27, 2016, VA sent the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and was asked to complete the form. The letter was sent prior to the initial RO decision in this matter, addressed all of VA's notice requirements, and informed the Veteran of what evidence was required to substantiate his claim. The Veteran never responded to this request, and he has not alleged insufficient notice. While VA is required to assist veterans in substantiating their claims, the duty to assist is not a one-way street. Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Claimants are required to cooperate and assist the VA in developing evidence to substantiate their claims. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes, 5 Vet. App. at 688 ("If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Here, a substantially complete VA Form 21-8940 would have helped gather relevant and indispensable information regarding the claimant's disabilities, as well as employment and educational history. The Veteran failed to submit the form, however. The Veteran's Department of Defense Form 214 reflects that he was a Sergeant First Class in the Army, which the Board associates with some management experience. The Veteran also appears to have been effective during his time in the military as he was awarded a Meritorious Service Medal and three separate Professional Development Ribbons. He attended multiple courses designed to develop leadership and management skills, such as Noncommissioned Officer courses and a Leadership Development course. After service, the Veteran was gainfully employed by a federal contractor as a technical trainer professional from August 2007 to April 2010. See 2010 Vocational Rehab. App. Resume. In that capacity, the Veteran prepared, operated and led mandatory combat training and sustainment trainings for military transition teams in support of Operation Iraqi Freedom and Enduring Freedom, which is consistent with his prior work experience. Thereafter, the record indicates the Veteran prepared to, and did, leave the United States to work overseas. In fact, on June 22, 2010, he reported to an examiner that he was likely leaving to work as a contractor in Kuwait. See Junction City VAMC Records (received May 25, 2011). The Veteran's wife subsequently confirmed his overseas status in December 2010, though she did not indicate his departure date. In February 2012, the Veteran reported that he was still in Kuwait and would return to the United States sometime in June or July 2012. Upon his arrival, the Veteran was afforded a Knee and Neck VA examination (VAX) on June 28, 2012. By July 12, 2012, attempts to schedule the Veteran for an EMG study to corroborate his symptoms of radiculopathy failed because he was already working overseas again. See June 2012 Neck VAX, p. 20 (remarks section). Then in September 2012, the Veteran submitted correspondence from a Camp Life Support Area (LSA) in Kuwait expressing disagreement with the August 2012 Supplemental Statement of the Case. He submitted additional correspondence in September 2016 stating he was still out of the country and would not return until sometime between December 2016 and March 2017. During the May 2017 Neck VAX, the Veteran reported he had been working overseas as a supervisor for the last several years. See May 2017 Neck VAX, p. 2, 8-9. While the Veteran reported to the VA that he was volunteering in Kuwait, see Feb. 2012 Correspondence, his statements to various medical professionals indicate he was gainfully employed with a federal contractor while overseas. See 2010 Vocational Rehab. App. Resume (showing the Veteran was employed by a federal contractor prior to leaving for Kuwait); June 2010 Junction City VAMC Records (telling his examiner he was leaving to work as a contractor in Kuwait); May 2017 Neck VAX, p. 2, 8-9 (telling examiner he had been working overseas as a supervisor for the past several years). The Board finds his statements to various medical professionals are more consistent with other evidence of record and assigns more probative weight to them. TDIU is not warranted from August 2007 to March 2017 because the evidence indicates the Veteran was gainfully employed as a federal contractor during this period. Even if the Veteran was volunteering, the preponderance of the evidence shows that the Veteran's service-connected disabilities do not cause occupational impairments so severe that it would be impossible for the Veteran to obtain and follow a substantially gainful occupation. The Veteran clearly has training and experience from his 20 plus years in the military and post-service duties as a supervisor to be qualified for management and supervisory work that would be of a sedentary nature. The record does not support a finding that his service-connected disabilities would prevent him from undertaking sedentary work. In fact, by his own report he has successfully functioned as a supervisor recently. While the May 2017 VAX report states the Veteran was recently diagnosed with nasopharyngeal cancer for which he is undergoing radiation therapy, this is not a service-connected disability and cannot be considered when determining his eligibility for a TDIU. The Veteran's history indicates that when considering only his service-connected disabilities, he would be able to obtain and maintain gainful employment. For the aforementioned reasons, entitlement to TDIU is denied. ORDER Entitlement to a rating in excess of 10 percent for cervical spine degenerative arthritis is denied. Entitlement to TDIU is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs