Citation Nr: 18146024 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 12-09 271 DATE: October 30, 2018 ORDER A 40 percent evaluation for intervertebral disc disease is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. REFERRED The issue of entitlement to an evaluation in excess of 20 percent for a hemorrhoid disability was raised in a June 2014 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. Intervertebral disc disease of the lumbar spine manifest as functional limitation of flexion of 30 degrees or worse. At no time was unfavorable ankylosis shown. 2. The Veteran is able to secure and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 40 percent evaluation for intervertebral disc disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2017). 2. The criteria for entitlement to a total disability rating based upon individual unemployability (TDIU) have not been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to July 1984. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The April 2010 rating decision reduced the Veteran’s back disability rating from 20 percent to 10 percent, effective August 1, 2010. In January 2014, the Board restored the 20 percent rating. The Board also remanded the underlying increased rating claim for a back disability, as well as for entitlement to a TDIU, for additional development and consideration. Thereafter, the Board remanded the claims again in August 2016 and in September 2017 for additional development. Neither the Veteran nor his representative have 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). 1. An evaluation in excess of 20 percent for intervertebral disc disease. The Veteran seeks an evaluation in excess of 20 percent for intervertebral disc disease. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, it is more favorable to evaluate the Veteran under the Spinal Formula. His IVDS is not shown to produce incapacitating episodes of the requisite duration to support a higher disability rating. The August 2015 VA examination report found that episodes of bed rest were less than two weeks during the prior twelve-month period. No other evidence contradicts this report as to the duration of IVDS episodes. Evaluating the evidence under the Spinal Formula, the Veteran underwent VA examinations in August 2008, February 2010, August 2015, and October 2017. Range of motion testing was performed and showed, at worst, forward flexion to 45 degrees. During examinations the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. In this regard, during the August 2008 examination, the Veteran did report flare-ups. He described those flare-ups as severe, occurring weekly, lasting for hours, and precipitated by bending and heavy lifting. He reported that his back disorder made it extremely difficult to perform activities of daily living. He further reported that he walked with a cane and was unable to walk more than a few yards. Likewise, at his February 2010 examination, he described flare-ups as severe, occurring on a daily basis, and lasting for hours. The flare-ups were precipitated by walking, standing, bending, twisting, lifting and carrying. The Veteran reported being unable to walk more than a half a block. At his August 2015 VA examination, no pain with weight bearing was ascertained by the examiner. There was no additional loss of range of motion after repetitive use testing. The examination was performed after repeated use over time and no additional limitation of motion was ascertained. The Veteran described flare-ups as being very painful and causing him to feel terrible, mostly in the morning. He reported not being able to stand up for very long or walk very far. At the October 2017 VA examination, the Veteran described flare-ups as his back hurting with prolonged walking and standing. There was pain with motion causing the limitation of motion. The examiner was unable to estimate the additional range of motion in terms of degrees for repeated use over time and flare-ups because the situation is hypothetical and, therefore, would require the examiner to resort to speculation. The examiner described functional limitations contributing to the disability, such as interference with sitting and standing, and a description of the flare-up. The examiner found there was no pain with weight-bearing and that other “Correia” factors were inapplicable to this disability. The Board finds that, when giving the Veteran the benefit of the doubt, his flare-ups and repeated use over time could cause another 15 degrees or more of additional loss of range of motion. The Veteran reported in the February 2010 VA examination that flare-ups occurred daily, were severe, and lasted several hours. He also reported being severely limited in his ability to walk in the August 2008 VA examination. Thus, the Board finds that the disability more nearly approximates the higher evaluation. A 40 percent disability rating is therefore granted. However, the criteria for a 50 percent rating are not met because the Veteran retains the ability to move his spine. He does not have ankylosis in any form. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Regarding relevant neurological findings, the examiners noted that neuropathy symptoms experienced by the Veteran until August 2015 were due to causes other than the spine disorder. Right lower extremity radiculopathy was awarded at 10 percent effective August 1, 2015, and at 20 percent effective October 26, 2017. These evaluations are appropriate as the respective VA examinations found mild and moderate incomplete paralysis of the sciatic nerve. There is no other evidence in significant conflict with these findings. The Board further finds there are no other symptoms which should be addressed by a separately-assigned disability rating. 2. Entitlement to a TDIU. The Veteran seeks a TDIU. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Individual unemployability must be determined without regard to any non-service connected disabilities or the veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran is service-connected for: IVDS evaluated at 40 percent (as a result of this decision), effective June 10, 2008; hemorrhoids evaluated at 20 percent effective August 4, 2007; and right lower extremity radiculopathy, evaluated at 10 percent effective August 1, 2015, and at 20 percent effective October 26, 2017. His combined evaluations resulting from this decision are: 50 percent effective June 10, 2008; and 60 percent effective August 1, 2015. The Veteran does not qualify for a schedular TDIU based on his combined evaluation. Nonetheless, an extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). In such case, the Board must refer the claim to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b) (2017). The evidence shows that the Veteran was a customer service representative, compliance manager, and telemarketer. See May 2014 Application for Increased Compensation Based on Unemployability; June 2007 VA examination. He reported becoming too disabled to work in May 2007. He stated that he completed high school. In June 2012, he applied for VA Vocational Rehabilitation benefits. In the documents related to the claim, the Veteran was reported to have stopped working in 2006 when his wife passed away and he “went off the deep end.” He started using drugs heavily, then found out he had non-Hodgkins lymphoma. The Veteran reported he had limited computer skills but could type 30 words per minute. He has a twelfth-grade education. See June 2012 Application for Vocational Rehabilitation. In the August 2008 VA examination, the Veteran reported being unemployed. The examiner reported the reasons for unemployment as psychiatric pathology and medical co-morbidities. Effects on his usual occupation due to the low back disorder were found to be significant, requiring “assigned different duties.” Other effects on occupational activities were reported as decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength in the lower extremity, and pain. A September 2009 decision by the Social Security Administration noted that the Veteran’s severe impairments were HIV/AIDS and polysubstance abuse/dependence. The Veteran’s low back or hemorrhoid disorders were not included. The February 2010 VA hemorrhoids examination did not provide information as to the effects on the Veteran’s occupation because the Veteran was unemployed. The February 2010 VA spine examination again found significant effects on the usual occupation, specifically, decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, and pain. At the September 2015 VA hemorrhoid examination, the Veteran reported hemorrhoid symptoms that impair activities of daily living. He reported intermittent rectal bleeding that would soil his clothing. At the October 2017 VA spine examination, the Veteran reported that his back hurt from prolonged sitting and standing. He further reported that he used to work as a telemarketing specialist, but stopped in 2007 due to a “back disability from social security department [sic].” As noted above, the Social Security Administration records that the Board has obtained do not include disability due to his low back disorder. The Board concludes that the preponderance of the evidence shows that the Veteran was able to secure and maintain substantially gainful employment in sedentary occupations. The most probative evidence shows that the Veteran became too disabled to work due to nonservice-connected health concerns and substance abuse. This probative evidence consists of the Social Security Administration records and the VA Vocational Rehabilitation claims file records. These records are most probative because they are more thorough and detailed with respect to his occupation history and limitations than other records, such as the brief references to occupational impairment in VA examinations. Although the Board acknowledges significant physical limitations due to the low back disorder, these limitations do not preclude sedentary employment. By sedentary employment, the Board means employment in which sitting is possible for at least 6 hours in an eight-hour day, but may involve some limited walking or standing for brief periods at a time, where the use of assistive devices such as a wheelchair is possible. The employment would also afford the Veteran the periodic ability to stand and work or stand and stretch. The Board finds that occupations such as customer service representatives, telemarketers, office clerks, file clerks, library assistants, information and record clerks, etc., would enable the Veteran to maintain substantially gainful employment considering his work experience in telemarketing and customer service, yet limited education. The Board finds that the mild to moderate radiculopathy would not marginally increase the occupational impairment over what is present already from the low back disorder. Similarly, the occupational impairment due to hemorrhoids is minimal, occasionally requiring more frequent trips to the bathroom to potentially change clothing or absorbent materials due to soiling. Ultimately, the Board finds that the Veteran has not established his inability to secure and maintain substantially gainful employment. Accordingly, no referral to the Director of Compensation Service is required for the extraschedular portion of the appeal period. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel