Citation Nr: 18146638 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-22 609 DATE: October 31, 2018 ORDER Entitlement to a disability rating in excess of 50 percent for the Veteran’s T4-9 laminectomy and fusion disability (back) is denied. Since November 29, 2012, entitlement to total disability based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s disability did not manifest as unfavorable ankylosis of the entire spine. 2. Since November 29, 2012, the Veteran’s service-connected back disability has rendered him unable to obtain and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for the Veteran’s back disability have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 2. Since November 29, 2012, the criteria for TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation already has 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). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, under which a 40 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Id. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. Id. at Plate V. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2015). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). Intervertebral Disc Syndrome (IVDS) can be evaluated under Diagnostic Code 5243, which provides the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a (2017). An incapacitating episode is a period of acute signs and symptoms due to Intervertebral Disc Syndrome that requires bed rest and prescribed by a physician and treatment by a physician. Id. The Veteran does have IVDS. However, at each examination, the medical evidence of record indicates the Veteran has not an incapacitating episode in the previous year. due to his low back disability as defined by VA regulations. Therefore, the Formula for Rating Intervertebral Disc Syndrome does not apply. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2017); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As the Veteran’s claim for increased rating was filed in November 2012, the Board will consider evidence from up to 1 year prior to the date of claim. In March 2012, the Veteran’s Social Security Administration (SSA) records documented his continuous complaints regarding his back problems. He reported numbness in his lower extremities and problems with walking, standing, and lying down. The Veteran’s range of motion was as follows: flexion to 30 degrees, extension to 10 degrees, left lateral rotation to 5 degrees, and right lateral rotation to 5 degrees. There was no objective evidence of pain with repetition. In November 2012, the VA medical records similarly noted the Veteran’s chronic back pain. The Veteran was unemployed and seeking disability as his work performance was significantly limited due to his back complaints. He could lift, carry, push, and pull; he could work in jobs that required light physical demands. However, it was questionable if he could tolerate the amount of sitting required in sedentary light jobs because the Veteran could only sit for about 15 to 20 minutes before needing to stand. Similarly, in December 2012, the VA medical records not the Veteran’s back pain had increased. In addition, his activity was extremely limited in that he could only engage in activities with only 10 to 15 minutes of sitting and no more than 10 pounds of lifting. The examiner noted the Veteran’s pain was not likely to improve. In January 2013, the Veteran reported a burning sensation in his low back that radiated to his left calf. He stated the pain could occur spontaneously with no trigger. He also experienced daily right leg numbness with prolonged walking and standing. The Veteran’s flexion was to 45 degrees and his extension was to 10 degrees. In January 2013, the Veteran also received a VA examination. The Veteran reported flare ups if he stood in one spot for more than 8 to 10 minutes or after sitting in a hard chair. His range of motion was recorded as follows: flexion to 40 degrees, with pain at 20; extension to 15 degrees, with pain at 10; right lateral flexion to 15 degrees, with pain at 10; left lateral flexion to 10 degrees, with pain at 10; right lateral rotation to 15 degrees, with pain at 15; left lateral rotation to 15 degrees, with pain at 15. After repetitive testing his range of motion was flexion to 20 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. In addition, he experienced less movement than normal, incoordination, pain on movement, and interference with sitting, standing, and weight-bearing. He had an abnormal gait and abnormal spinal contour. Further the Veteran consistently used a cane. The Veteran’s most recent examination was in January 2016. He reported flare ups that he treated with rest, narcotic medication, and hot tub soaks. He experienced flare ups 5 to 6 times a day which made him unable to do any activity. He experienced numbness in both feet but not issues with bowel and bladder control. He used a cane and back brace for walking. The Veteran’s abnormal range of motion led to pain and stiffness. His flexion was to 30 degrees, extension to 0, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 0 degrees, and left lateral rotation to 0 degrees. After repetition, his range of motion did not change, but he experienced pain and lack of endurance. He could not stand for more than 10 minutes and needed frequent breaks when sitting. He could only perform sedentary work with intermittent breaks. The January 2016 VA examiner noted the Veteran also suffered from bilateral lower extremity radiculopathy. However, the examiner concluded the Veteran’s current neurological condition were due to his lumbar condition not his service-connected thoracic spine compression. The examiner emphasized they are 2 separate anatomical parts of the spine and the Veteran’s service-connected disability did not cause or aggravate his lumbar radiculopathy. Instead, this condition was due to aging. Furthermore, his current limitation, pain, and weakness, were more likely due to his lumbar spine condition than his service-connected disability. Last, the evidence of record contains multiple lay statements from the Veteran. The Veteran stated he had pain every day. He could not stand or sit for long periods of time. The Veteran stated he had to stop working because of the constant pain. He was unable to do household chores or other activities he liked to do. He could no longer walk without a cane. The Board finds a rating in excess of 50 percent is not warranted at any point during the appellate period. The Board notes the period from July 10, 2018 to September 1, 2018, is not under consideration as the Veteran’s disability rating was at 100 percent due to surgery. At no point during the appeal period has the Veteran suffered from ankylosis, favorable or unfavorable, and certainly not of the entirety of the spine. The maximum, 100 percent rating is not warranted on a Schedular basis. The Board is aware that the current 50 percent rating is assigned on an extraschedular basis under 38 C.F.R. § 3.321, following review by Director of Compensation and Pension services. No additional referral is required. The complaints of the Veteran and his reported functional impacts, to include pain, flare ups multiple times per day, and issues with prolonged standing and walking, are contemplated by the current 50 percent rating. Additionally, the Board notes the January 2016 VA examiner concluded the Veteran’s current limitation, pain, and weakness was more likely due to his bilateral lower extremity radiculopathy, which he specified was not related to the service-connected fracture at T-6. TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16(b). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. From November 29, 2012 From November 29, 2012 to May 31, 2016, the Veteran was rated for a single disability at 50 percent. Accordingly, he did not meet the schedular requirements for a TDIU. However, based on the evidence of record, the case was referred to the Director of Compensation Service. The Director determined that entitlement to TDIU on an extraschedular basis was not warranted. The Director found that a review of the medical records showed that the Veteran could engage in sedentary employment. Thus, the Director concluded that while physical activity was limited, it was not impossible. The Director acknowledges the Veteran’s disability would interfere with his past job as a truck driver, and thus, increased the disability rating for his back to 50 percent. The evidence contains multiple lay statements from the Veteran that he had to stop working as a truck driver because of his back disability. The lay and medical evidence consistently indicates the Veteran is unable to sit for long periods of time. From the beginning of the appeal period, the Veteran reported being unable to sit for more than 15 to 20 minutes before needing to stand. In November 2012, the VA examiner noted that it was questionable if the Veteran could tolerate the amount of sitting required in a sedentary job. His Social Security Administration Records also noted that he had to stop working because he was unable to continue his job as a truck driver due to his back disability. In his TDIU application, the Veteran stated that he worked for the same truck driving company for 7 years. The Board must consider the Veteran’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). The Board finds the Veteran is no longer able to work in his former job as a truck driver. Furthermore, as noted by the medical evidence of record the Veteran’s back disability causes severe limitation on the Veteran’s employability in sedentary or physical work. Based upon the relevant evidence of record, and resolving any reasonable doubt in favor of the Veteran, the preponderance of evidence weighs in favor of a grant of TDIU based on an extraschedular basis. The Board notes the Veteran was awarded service connection for depression on June 1, 2016. Consequently, the Veteran’s combined disability rating increased to 80 percent and he subsequently met the schedular requirements for TDIU. This increase in his combined disability rating has no impact on his TDIU, as the Board has determined that the low back disability alone renders him unemployable. The Board notes that although there is a single service-connected disability rated 100 percent disabling, there is no additional disability rated 60 percent or more. Accordingly, a claim for special monthly compensation based on statutory housebound status is not inferred. Bradley v. Peake, 22 Vet. App. 280 (2008); Akles v. Derwinski, 1 Vet. App 118 (1991). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel