Citation Nr: 18145413 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 14-04 568 DATE: October 29, 2018 ORDER From January 17, 2012, a disability rating of 20 percent, but no higher, for lumbar sprain/strain, with degenerative disc disease (DDD), is granted, subject to the laws and regulations governing monetary benefits. From April 27, 2017, entitlement to a disability rating in excess of 20 percent, for lumbar sprain/strain with DDD, is denied. Entitlement to a disability rating in excess of 10 percent for left ankle sprain/strain, with chronic degenerative joint disease (DJD), is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), as due to service-connected disabilities, is denied. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, from January 17, 2012, his lumbar sprain/strain, with DDD, has been characterized by disability commensurate to flexion to 45 degrees. 2. Throughout the appeal period, the Veteran’s lumbar sprain/strain with DDD has been characterized by flexion to 45 degrees; at no point during the appeal period has it been characterized by flexion 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 3. Throughout the appeal period, the Veteran’s left ankle sprain/strain, with chronic DJD, has been characterized by moderate limited motion; at no point during the appeal period has it been characterized by marked limited motion of the ankle, ankylosis of the left ankle, malunion, or astragalectomy. 4. The preponderance of the evidence shows that the Veteran’s service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Affording the Veteran the benefit of the doubt, from January 17, 2012, the criteria for disability rating of 20 percent for lumbar sprain/strain, with DDD, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a, Diagnostic Codes (DCs) 5242-5237, General Rating Formula for Diseases and Injuries of the Spine. 2. The criteria for a disability rating in excess of 20 percent for lumbar sprain/strain, with DDD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a, DCs 5242-5237, General Rating Formula for Diseases and Injuries of the Spine. 3. The criteria for a disability rating in excess of 10 percent for left ankle sprain/strain, with chronic DJD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a, DC 5271. 4. The criteria for TDIU have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to January 1977, and from January 1979 to May 1979. These matters are before the Board of Veterans’ Appeals (Board) on appeal from February 2012 and August 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In July 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). This case was previously before the Board in October 2016 when it was remanded for additional development. The Board finds that there has been substantial compliance with its prior remand directives as to the claims decided herein. See Stegall v. West, 11. Vet. App. 268 (1998). During the period of the appeal, the RO granted service connection for depression in an October 2017 Rating Decision. Therefore, that claim has been resolved and is no longer before the Board on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Neither the Veteran nor his agent have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Entitlement to a disability rating in excess of 10 percent prior to April 27, 2017, and in excess of 20 percent thereafter, for lumbar sprain/strain with DDD. Under DCs 5235 to 5243, the minimum 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. 38 C.F.R. § 4.71a, DCs 5235 to 5243. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Id. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. The maximum 100 percent rating is warranted for 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, unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Under DC 5243, intervertebral disc syndrome (IVDS) may be rated under either the General Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes. Under the Formula for Rating IVDS, incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrant a rating of 10 percent. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrant a rating of 20 percent. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a rating of 30 percent. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a rating of 60 percent. Id. For purposes of evaluating under DC 5243, an “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Prior to April 27, 2017, the Veteran’s lumbar sprain/strain was rated as 10 percent disabling. In a January 2012 VA examination report, the Veteran noted that he had pain and discomfort in his back. Upon range of motion testing, the Veteran had flexion to 45 degrees. While the VA examiner reported that the Veteran appeared to be misrepresenting his symptoms and range of motion limitations, affording the Veteran the doubt, and without any further evidence of his supposed deception, the Board will assume that his flexion to 45 degrees was genuine. As a result, from January 17, 2012, the date of the Veteran’s examination, a 20 percent disability rating, but no higher, for lumbar sprain/strain, with DDD, is warranted. 38 C.F.R. §§ 3.102, 4.71a, DCs 5235-5243. This represents a partial grant of this appeal. The newly assigned 20 percent evaluation for the Veteran’s lumbar sprain/strain, with DDD, fully contemplates all muscle spasm and gait symptoms, as well as all motions other than flexion; these need not be further discussed here. The evidence of record, including January 2012 and April 2017 VA examination reports, consistently indicates pain-free flexion to 45 degrees. There is no evidence of favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes (doctor-prescribed bedrest) having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. There accordingly exists no basis for an underlying low back rating in excess of 20 percent. 38 C.F.R. § 4.71, DCs 5235-5243. Additionally, the Board notes that there is no competent evidence of any other associated objective neurologic abnormalities, to include radiculopathy, so separate compensable ratings are not applicable. The Board finds that the January 2012 and April 2017 VA examination reports, describing the Veteran’s back symptoms, to be the most probative evidence of record, as the examiners reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent to observe his back symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his lumbar sprain/strain with DDD. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Entitlement to a disability rating in excess of 10 percent for left ankle sprain/strain, with chronic DJD. The Veteran’s left ankle disability is currently rated 10 percent under DC 5271 for moderate limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Under DC 5270 for ankylosis of the ankle, the minimum 20 percent rating is warranted for ankylosis in plantar flexion, less than 30 degrees. 38 C.F.R. § 4.71a, DC 5270. A 30 percent rating is warranted for ankylosis in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. Id. The maximum 40 percent rating is warranted for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. Id. Under DC 5271 for limited motion of the ankle, the minimum 10 percent rating is warranted for moderate limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. The maximum 20 percent is warranted for marked limited motion of the ankle. Id. Under DC 5272 for ankylosis of the subastragalar or tarsal joint, the minimum 10 percent rating is warranted for ankylosis of the subastragalar or tarsal joint in good weight-bearing position. The maximum 20 percent rating is warranted for ankylosis of the subastragalar or tarsal joint in poor weight-bearing positing. 38 C.F.R. § 4.71a, DC 5272. Under DC 5273 for malunion of the os calcis or astragalus, the minimum 10 percent rating is warranted for a moderate deformity. The maximum 20 percent rating is warranted for a marked deformity. 38 C.F.R. § 4.71a, DC 5273. Under DC 5274, a 20 percent rating is warranted for astragalectomy. 38 C.F.R. § 4.71a, DC 5274. The currently assigned 10 percent evaluation for the Veteran’s left ankle sprain/strain with chronic DJD fully contemplates all ankle and leg symptoms, as well as all range of motion. The evidence of record, including January 2012 and April 2017 VA examination reports, consistently indicates moderate limited motion of the Veteran’s left ankle. In January 2012, dorsiflexion was to 15 degrees, and plantar flexion was to 45 degrees. In April 2017, dorsiflexion was to 15 degrees, and plantar flexion was to 40 degrees, with pain on dorsiflexion noted to not result in a functional loss. There is no evidence of markedly limited motion, ankylosis of the left ankle, malunion, or astragalectomy. There accordingly exists no basis for an underlying left ankle rating in excess of 10 percent, and the claim must be denied. 38 C.F.R. § 4.71, DCs 5270-5274. The Board finds that the January 2012 and April 2017 VA examination reports, describing the Veteran’s left ankle symptoms, to be the most probative evidence of record, as the examiners reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, supra. While the Veteran is competent to observe his ankle symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his left ankle sprain/strain with chronic DJD. See Jandreau v. Nicholson, supra. TDIU Entitlement to TDIU. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.34; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). While the regulations do not provide a definition of “substantially gainful employment,” the VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as “that 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.” Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income…” In this case, the Veteran is service connected for persistent depressive disorder associated with lumbar sprain with degenerative disc disease, rated 50 percent; lumbar sprain/strain, with DDD, rated 20 percent; and left ankle sprain/strain, with chronic DJD, rated 10 percent. The Veteran meets the criteria for consideration under 38 C.F.R.§ 4.16(a), as his depression and lumbar spine disorders stem result from a common etiology and combine to 60 percent. Despite that, the question that remains is whether his service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In an April 2017 VA examination report for the Veteran’s back, the examiner noted that the Veteran’s service-connected lumbar sprain/strain would not impact his ability to work. Additionally, in an April 2017 VA examination report for the Veteran’s left ankle, the VA examiner noted that the Veteran’s service-connected left ankle sprain/strain would also not impact his ability to work. Finally, in a February 2018 VA supplemental opinion for the Veteran’s service-connected depression, the VA examiner noted that the Veteran’s psychiatric symptoms did not appear to significantly negatively impact his social or occupational functioning. Based upon the evidence of record, the Board finds the Veteran’s service-connected disabilities are not shown to be so disabling as to preclude him from securing or following substantially gainful employment in keeping with his education and occupational experience. As noted above, substantially gainful employment is “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income…” Faust v. West, 13 Vet. App. 342 (2000). The Board finds that the April 2017 VA examination reports, as well as the February 2018 supplemental opinion, describing the impact the Veteran’s service-connected disabilities have on his ability to obtain or engage in substantially gainful employment, to be the most probative evidence of record, as the examiners reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, supra. While the Veteran is competent to observe his service-connected disability symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms and their impact on his ability to secure and maintain all forms of substantially gainful employment. See Jandreau v. Nicholson, supra. Because a preponderance of the evidence is against assigning TDIU in this case, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107(b). Therefore, the claim of entitlement to TDIU must be denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel