Citation Nr: 18142992 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 08-05 324 DATE: October 18, 2018 ORDER Entitlement to a higher evaluation for status post anterior lumbar 1 compression fracture with height loss anteriorly and trace retrolisthesis of L1 on L2 with intervertebral disc disease (IVDS) rated 40 percent prior to December 12, 2017, is denied. From December 12, 2017, entitlement to 40 percent rating, but no higher, for status post anterior lumbar 1 compression fracture with height loss anteriorly and trace retrolisthesis of L1 on L2 with IVDS (hereinafter lumbar spine disability) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the entire appeal period, the lumbar spine disability manifested with pain, limitation of motion and functional loss, but not with ankylosis or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. The Veteran is not shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to December 12, 2017, the criteria for an evaluation in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.40-4.71, 4.71a, Diagnostic Codes (DCs) 5242-5243. 2. Effective December 12, 2017, the criteria for a 40 percent disability rating for lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.40-4.71, 4.71a, DCs 5242-5243. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to April 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from September 2007 and January 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded by the Board in February 2010, March 2012, September 2015, and May 2017. The Veteran’s paper claims file went missing in 2013. Pursuant to the Board’s prior Remands, attempts were made to rebuild the file. While some of the file remains unavailable for review, the evidence of record includes the VA examinations and treatment records, private treatment records, and statements from the Veteran and others in support of his claim have also been associated with the record. As a result, the evidence of record is sufficient to proceed with a decision. During the pendency of the appeal, the RO reduced the rating for the Veteran’s lumbar spine disability from 40 percent to 20 percent, effective December 12, 2017. The Veteran informally expressed disagreement with the reduction in a September 2018 Appellate Brief, but has not filed a formal notice of disagreement via a VA Form 21-0958, Notice of Disagreement. Nonetheless, as the Board is herein granting an increased rating of 40 percent for this appeal period, the reduction is effectively moot as his pre-reduction disability rating is restored. Analysis 1. An evaluation in excess of 40 percent prior to December 12, 2017, and 20 percent thereafter for lumbar spine disability The Veteran’s lumbar spine is rated 40 percent prior to December 12, 2017; and 20 percent thereafter under 38 U.S.C. § 4.71, DC 5242-5243. He seeks higher ratings. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities of the spine are rated under General Rating Formula for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula). The General Rating Formula for Diseases and Injuries of the Spine provides for assignment of a 50 percent rating where there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. The IVDS Rating Formula provides a 60 percent rating where IVDS manifests in incapacitating episodes having a total duration of at least 6 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. 38 C.F.R. § 4.71a. The Veteran seeks a higher rating for his lumbar spine. The Veteran, his family, friends, and co-workers report that his condition imposed functional limitation on his ability to climb ladders, kneel, bend, walk or sit for prolonged periods of time, and stability of gait during the course of the appeal. See statements of K. M., son-in-law, B. W., and M. C. Private treatment records note that the Veteran’s back condition has affected his ability to bend, lift, push, and pull. See June 2006 private treatment records. In an October 2006 VA examination, the Veteran was noted to have lower back pain radiating to the right leg with numbness and tingling in the right leg. The Veteran reported aggravation with walking or standing, as well as instability. Upon examination, the Veteran was noted to have abnormal range of motion with forward flexion limited to 30 degrees with pain at 30 degrees with tenderness and muscle spasm bilaterally. The examiner stated that the lumbar spine is not ankylosed. Repetitive use testing produced additional limitations in range of motion due to pain and weakness. In an October 2006 addendum, the examiner clarified that the lumbar spine disability had progressed to include IVDS with right sciatic nerve involvement. At an October 2010 VA examination, the Veteran reported symptoms of pain, spasms, stiffness, abnormal range of motion, and flares 5 times per week. The Veteran did not report incapacitating episodes related to back pain. Functionally, the Veteran indicated that he was able to walk a quarter mile, stand for 45 minutes, and carry 20 to 40 pounds. The Veteran also reported intermittent numbness and weakness in his legs. The examiner observed normal gait and normal reflexes. Upon range of motion testing of the lumbar spine, the Veteran was noted to have flexion to 10 degrees. However, the examiner noted the range of motion was invalid because the Veteran demonstrated normal flexion during observation but marked limitation on formal examination. The examiner noted that although the Veteran made statements of incapacitation due to his back condition, these were without merit as he continued in physically demanding work during the period. The examiner further noted that there was no specific nerve involvement and no radicular findings. The examiner noted the appropriate diagnosis was fracture of the L1 vertebral body with degenerative changes and spondylolisthesis. At a November 2011 VA examination, the Veteran reported constant low back pain radiating to bilateral lower extremities with the inability to bend or pick up anything. The examiner indicated that the Veteran declined to undergo testing for range of motion because he reported inability to move or bend his back. The examiner further indicated that the Veteran’s posture was normal. The examiner did not endorse radiculopathy. At a May 2012 VA examination, the Veteran reported that although he is still employed full-time, he needs assistance from others to do the heavy lifting required in his job. The Veteran also reported missing work 5 to 6 times due to his back and incapacitating episodes 2 to 3 times per year. However, the examiner noted that there was no prescribed bed rest. Like the previous examination, the examination results were invalidated due to the Veteran’s failure to perform to the full extent of his ability. The examiner indicated that compared to the passive observations of the Veteran- where he sat comfortably without adjustment for over an hour, walked, sat on the exam table, dressed, and undressed - the Veteran had negligible range of motion during testing, to less than 5 degrees. The examiner noted there was no objective evidence of painful motion but indicated that there was functional loss due to less movement than normal, incoordination, pain behaviors, and constant use of a cane. The examiner noted there was normal sensory function and thus no IVDS affecting a specific nerve. In October 2012 private treatment records, the Veteran was noted to have significant lumbar pain and spasms. Examination showed tenderness and spasms bilaterally with range of motion in flexion worse on the right, but without measurements. Ultimately, the clinician endorsed numerous physical limitation of the Veteran to include lifting or carrying less than 10 pounds, standing or walking more than 2 hours, sitting for more than 6 hours and pushing or pulling with the lower extremities. At a December 2017 VA examination, the Veteran was noted to have a diagnosis of IVDS, a progression of the service-connected disability. The Veteran reported flare ups and functional loss due to constant pain with difficulty bending. Pain was noted on passive, non-weight bearing and weight bearing motion. Upon examination, the Veteran was noted to have abnormal range of motion with forward flexion to 50 degrees. After repetitive testing and considering reported flares, range of motion in forward flexion decreased to 40 degrees. The examiner noted pain on examination causing functional loss. The examiner further indicated that there would be further functional loss with repetitive use over time and during flare ups due to factors such as pain, fatigue, weakness, lack of endurance, incoordination. Weakened movement, deformity, instability, disturbance of locomotion, and interference with sitting and standing were also noted. The examiner indicated that there was no atrophy or ankylosis. No other neurological abnormality other than radiculopathy was noted. The examiner also indicated that the Veteran’s IVDS required bed rest in the last 12 months, with total duration of less than one week. The examiner noted regular use of an assistive device and arthritis documented in imaging. As to functional impact, the Veteran reported that he retired due to back pain, cannot climb ladders, carry 30 pounds, or walk very far. Upon consideration of the evidence of record, the Board finds that a rating of 40 percent, and no higher, is warranted for the entire appeal period. Initially, the Board notes that a rating in excess of 20 percent is warranted for the most recent period on appeal, from December 12, 2017. A review of the objective testing in the December 2017 VA examination shows that the Veteran’s lumbar spine forward flexion was limited to 50 degrees on initial testing but then further limitation to 40 degrees upon repetitive testing. Based on this, the examiner noted that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. The examiner further opined that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time and during flare-ups. Notably, the Veteran’s examination was not conducted during a flare-up. Throughout the appeal, and during the 2017 examination, the Veteran has reported that he retired from working as a refrigerator technician due to his back condition. At the 2017 examination, he noted that his flare-ups interfere with his ability to bend and stand for prolonged periods. In January 2018 statements, the Veteran’s son-in-law and friend, K. M., indicated that the Veteran’s condition lumbar condition manifests in functional limitation on occupation to include gait instability, difficulty with sitting or standing for any length of time, and weakness. The Board is mindful that the 2017 examination finding of flexion to 50 degrees, and even 40 degrees, is not consistent with a 40 percent rating under the General Rating Formula. A 40 percent rating requires flexion be limited to at least 30 degrees. However, the Board has considered whether functional loss due to factors such as pain, weakness and fatigability further limit the Veteran’s lumbar range of motion beyond that shown on objective testing. DeLuca v. Brown, 8 Vet. App. 202 (1995). Given the VA examiner’s endorsement of additional loss of motion upon flares and with repetitive use, and the credible lay evidence of functional impairment that interferes with the Veteran’s occupational functioning, the Board resolves all reasonable doubt in his favor to find that his degree of flexion would more nearly approximate 30 degrees of flexion when functional loss is considered. The Board has considered whether a rating in excess of 40 percent is warranted under the General Rating Formula at any time during the appeal period but finds that it is not. Such a rating requires the presence of unfavorable ankylosis of the thoracolumbar spine or unfavorable ankylosis of the entire spine. Ankylosis has not been shown at any point during the appeal period. All examinations show the Veteran retained motion in his lumbar spine; indeed he has not been shown to have less than 40 degrees of flexion. Functional ankylosis has not been asserted by the Veteran or described or noted by any VA examiner or private clinician. Furthermore, as the disability assigned the highest rating available for limitation of motion without ankylosis, further consideration of DeLuca is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). During the entirety of the appeal period, a rating in excess of 40 percent is also not warranted pursuant to the Formula for Rating IVDS based on incapacitating episodes because the evidence does not show that the Veteran has had an incapacitating episode as defined by the pertinent VA regulations. VA examiners noted that there were no incapacitating episodes requiring bed rest prescribed by a physician as a result of the lumbar spine disability. Although the Veteran reported incapacitating episodes, these episodes are not shown to have included bed rest and treatment prescribed by a clinician, or have lasted a total duration of at least 6 weeks during a 12-month period. The Board has considered whether separate ratings are warranted for neurologic impairment. No bowel or bladder impairment is shown by competent evidence. The Veteran is already in receipt of service connection for radiculopathy of the bilateral lower extremities and has not appealed the evaluations assigned. Accordingly, they are not within the scope of this appeal.   2. Entitlement to a TDIU The Veteran contends his service-connected disabilities renders him unable to obtain or maintain employment. See January 2018 correspondence. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 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); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; 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. “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled 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). As further provided by 38 C.F.R. § 4.16(a), “marginal employment shall not be considered substantially gainful employment.” For purposes of TDIU, marginal employment generally shall be 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. Marginal employment may also be held to exist, on a facts-found basis including, but not limited to, employment in a protected environment such as a family business or sheltered workshop-when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one service-connected disability, this disability shall be ratable at 60 percent or more; 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. Id. The Board notes that the Veteran meets the schedular requirements for a TDIU. The Veteran is service-connected for: (1) depressive disorder rated at 10 percent prior to August 4, 2006; and 50 percent thereafter; (2) a lumbar spine disability rated at 40 percent from November 13, 2002; (3) radiculopathy of the left lower extremity rated 20 percent from December 12, 2017; (4) tinnitus rated at 10 percent from June 9, 2003; and (5) radiculopathy of the right lower extremity rated at 10 percent from August 4, 2006, noncompensable from June 1, 2013, and 10 percent from December 12, 2017. The Veteran’s combined evaluation is 80 percent from August 4, 2006; 70 percent from June 1, 2013; and 80 percent from December 12, 2017. In July 2017, the AOJ sent the Veteran a letter which requested that he complete and return VA Form 21-8940, and authorization to disclose information to the VA, VA form 21-4142. No response was received from the Veteran. While failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of necessary information as to the Veteran’s employment history, educational history and training, and income information necessary to address a claim for TDIU. “The duty to assist is not always a one-way street. 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.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board will therefore attempt to assess the claim based on the information of record. As to the Veteran’s education and work history, the Board notes the Veteran has some specialty training and was employed full-time with the same employer for the majority of the appeal period. At an October 2006 VA examination, the Veteran reported education at a technical school for air conditioning and prior work experience in tool and dye for seven years. He reported current employment, but was fearful of losing his job. At an October 2010 VA examination, the Veteran was still employed with the same employer. At a May 2012 examination, the Veteran reported continued full-time employment with the same employer. In June 2015, the Veteran’s current supervisor at the Tulsa Public School System reported that he had worked with the Veteran for 15 years. Additionally, the Veteran’s current and prior supervisors reported that the Veteran’s back condition affected his employment and he was assigned an assistant. Although it is unclear exactly when the Veteran ceased employment, the Veteran reported having retired due to back pain from his prior occupation in the December 2017 VA examination. In an October 2006 VA mental examination, the Veteran was evaluated for depression with reported symptoms of chronic sadness, irritability, problems at work, difficulty getting out of bed, loneliness, chronic sleep impairment, memory deficits, avoidance of social activities, and bouts of crying spells. The Veteran indicated that the symptoms occur constantly with severe effect, and he feared losing his job. Nonetheless, the clinician indicated an unremarkable examination except difficulty understanding and recalling complex commands. Based upon the above, the Board finds that the Veteran’s service-connected disabilities do not preclude him from securing and following substantial gainful employment. The record clearly shows that the Veteran has been working as a refrigerator technician for the same employer during the majority of the appeal period. While various examiners and clinicians noted that the Veteran’s service-connected disabilities cause some level of functional impairment in terms of occupational functioning, they did not indicate total impairment in that area. Also, while the Veteran’s supervisors and co-workers reported that the Veteran’s service-connected disabilities make it difficult for him to perform certain responsibilities of his job such as climbing ladders, the evidence does not show that they have made him unable to work. Additionally, the Board notes that some evidence suggests that his current level of occupational functioning is, in part, due to disabilities that are not service-connected. For example, in a May 2006 private treatment record, a clinician recommended that the Veteran discontinue his present occupation because of repetitive bending, lifting, pushing, and pulling which aggravates symptoms in his back. However, the clinician indicated that the new complications from the Veteran’s other conditions, to include non-service connected heart condition, influence consideration for complete disability. Likewise, the Veteran’s treating chiropractor indicated that the Veteran has limited ability to work due to non-service connected disabilities that include high blood pressure and hyperlipidemia, as well as service-connected disabilities of the back and depression. This evidence does not support a finding that the Veteran is unemployable due solely to his service-connected disabilities. The Veteran’s representative argues that although the Veteran was engaged in full-time work during the appeal, he was in a protected employment situation because his employer made accommodations by assigning him a work partner to help with tasks. The Board finds the evidence does not support such a finding. 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”). Therefore, it is at the Board’s discretion on a case-by-case basis based on the information and evidence of record. The Veteran’s failure to complete the VA Form 21-8940 leaves the Board without the ability to request information from his employer, and he has not otherwise provided his income or any other information that would support a finding of marginal employment in this case. Moreover, there is no evidence showing his prior employment is the type of occupational environment envisioned by the regulations, such as a family business or sheltered workshop. Further, no evidence has been presented to show the Veteran’s employer made any extraordinary accommodations to allow him to perform his job successfully and on a full-time basis or beyond those that would be required by the Americans with Disabilities Act. Thus, the Board must find that the Veteran has not been engaged in marginal employment based on the evidence of record. In summation, the evidence does not show that the Veteran is precluded from substantially gainful employment due solely to his service-connected disabilities. Accordingly, there is no basis for granting TDIU. As the preponderance of the evidence is against the claim for TDIU, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel