Citation Nr: 18160097 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 10-38 159 DATE: December 21, 2018 ORDER Entitlement to a rating in excess of 20 percent for lumbar strain is denied. Entitlement to a total rating by reason of individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s service-connected lumbar strain has been manifested by impairment approximating flexion of the thoracolumbar spine limited to less than 60 degrees but greater than 30 degrees. 2. The Veteran is not shown to have been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent is not warranted for the Veteran’s lumbar strain. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2018). 2. The Veteran is not shown to have been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1979 to December 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which continued a 10 percent rating assigned for the Veteran’s service-connected lumbar strain disability. A May 2014 rating decision increased the evaluation to 20 percent disabling, effective March 31, 2009, the date of receipt of the claim for increase. In May 2011, the Veteran testified before a Veterans Law Judge at a video-conference Board hearing. A transcript of the hearing is associated with the Veteran’s electronic claims file. In May 2017, the Board sent the Veteran a letter informing him that the Veterans Law Judge who conducted the May 2011 hearing was no longer employed by the Board, providing the Veteran with 30 days from the date of the letter to request a new hearing before the Board. The same month, the Veteran returned the letter, indicating that he did not wish to appear at another Board hearing. Accordingly, the Board will proceed with the adjudication of the issues on appeal. In August 2017, the Board remanded the claims for further development. The Board acknowledges that the Veteran has challenged the adequacy of the examination conducted in September 2017. In correspondence dated October 2018, the Veteran challenged the adequacy of the examination and the professional competence of the examiner. However, the Board notes that the presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) and applying the presumption of regularity to VA examinations); see also Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). The Board does not find clear evidence that the September 2017 examination was inadequate. No medical examiner decides whether to grant or deny a compensation claim; this is the province of the Board and RO adjudicators. 1. Entitlement to a rating in excess of 20 percent for lumbar strain Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2018). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (“functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded”); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Veteran’s service-connected lumbar strain has been evaluated under Diagnostic Codes 5299-5237 and is currently rated as 20 percent disabling, pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5237 (2018). Under the general rating formula for diseases and injuries of the spine set forth in Diagnostic Codes 5299-5237, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; when muscle spasm, guarding, or localized tenderness does not result in either an abnormal gait or abnormal spinal contour; or when there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted 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 evaluation requires either that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that favorable ankylosis of the entire thoracolumbar spine is shown. A 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Note 2. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months warrants the assignment of a 20 percent rating. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1): For purposes of evaluations under diagnostic code 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2018). Medical treatment records and the Veteran’s May 2011 hearing testimony reflect continued complaints and treatment of the Veteran’s lumbar spine disability, but do not reflect any range of motion measurements. On a June 2010 VA Peripheral Nerves and Spine examination, the Veteran reported low back pain since 2009. The Veteran noted that he has been incapacitated since a motor vehicle accident in June 2009 when he was hit by another truck which threw him out of bed while he was sleeping in his truck. The Veteran reported that he had weakness and stiffness in his back. The Veteran indicated that he experienced numbness to the legs and upper thighs. Upon physical examination, thoracolumbar spine range of motion measurements were as follows: flexion to 40 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees. There was no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive movement. There was no evidence of muscle atrophy. Muscle strength was 5/5 for hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. Sensory testing was normal. There was no evidence of IVDS. The examiner noted that the Veteran’s back condition affected his walking, lifting, bending, and driving as it increased his back pain. The examiner reported that the Veteran was currently unemployed. The examiner noted that the Veteran’s reduced range of motion of the lumbar spine did not represent his true range of motion as the examiner felt that the Veteran displayed poor effort. On a February 2016 VA Back examination, the examiner diagnosed degenerative arthritis of the spine and spondylolisthesis. The examiner noted no evidence of guarding or muscle spasms resulting in abnormal gait or abnormal spinal contour. Thoracolumbar spine range of motion measurements, rounded to the nearest five degrees, were as follows: flexion to 75 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Muscle strength was 5/5 for hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. Sensory testing was normal. There was no evidence of muscle atrophy. There was no ankylosis, bowel dysfunction, or bladder dysfunction or IVDS. There was no evidence of radiculopathy. On a September 2017 VA Back examination, the examiner noted no evidence of guarding or muscle. Thoracolumbar spine range of motion measurements were as follows: flexion to 10 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees each. Muscle strength was 1/5 for hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. Sensory testing was normal. There was no evidence of muscle atrophy. There was no ankylosis, bowel dysfunction, or bladder dysfunction or IVDS. There was no evidence of radiculopathy. The examiner indicated that there evidence of pain with weight-bearing and no evidence of pain with non-weight bearing and that passive ROM could not be performed or was not medically appropriate. The examiner indicated that “due to lack of exertional effort by Veteran during active ROM measurements & during neuromotor testing, there are inconsistencies with other observed movements during the examination & observations noted in the waiting room. Therefore, it is more than likely these determinations are gross under-estimations of the actual ROM & BLE strength measurements and are not a true representation of the Veteran’s lumbar spine disability.” After a review of the evidence, the Board finds that evidence does not warrant a rating in excess of 20 percent for the Veteran’s service-connected lumbar strain. The Veteran is in receipt of 20 percent disability rating. The preponderance of the evidence reflects a consistent picture of flexion exceeding 30 degrees, as shown in June 2010 and February 2016 VA examinations without favorable or unfavorable ankylosis, throughout the appeal period. See 38 C.F.R. § 4.2; Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). A 40 percent rating requires forward flexion of the lumbar spine to be 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. There was also no evidence of any unfavorable thoracolumbar ankylosis at any time during the appeal period to warrant a 50 percent or 100 percent rating. The Board notes the September 2017 forward flexion measurement of 10 degrees; however, this disparity in range of motion testing was explained to be due to the Veteran’s poor effort. Thus, it is not considered probative evidence. Therefore, the criteria more nearly approximate the current 20 percent rating, but no more. A rating under Diagnostic Code 5243 based on incapacitating episodes is not warranted, as the evidence does not reflect physician-ordered bed rest and treatment. The Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. DeLuca, 8 Vet. App. at 206-07. These factors have been taken into consideration in awarding the higher 20 percent rating from March 31, 2009 under Diagnostic Code 5237 because of the Veteran’s pain on motion (see 38 C.F.R. § 4.7) (rather than a 10 percent rating, which the Veteran’s back disability picture actually meets). The Board acknowledges that in advancing this appeal, the Veteran believes that his back disability is more severe than the assigned disability rating reflects. However, the VA examination reports offering detailed findings pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also contemplate the Veteran’s descriptions of his symptoms. Thus, the preponderance of the evidence weighs against the award of a rating in excess of 20 percent for the Veteran’s back disability. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As to whether the Veteran is entitled to a separate compensable disability rating for any associated neurological disability, the Board notes that the Veteran has not been diagnosed with a separate neurological disorder related to his service-connected thoracic scoliosis. The June 2010, February 2016, and September 2017 VA examiners found no radiculopathy, ankylosis, IVDS or other neurological abnormalities. The June 2010 VA Peripheral Nerves and Spine examiner found no radiculopathy and that the Veteran’s global numbness was not related to the Veteran’s service-connected back condition. As the preponderance of the evidence is against the claim for a higher rating, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to TDIU A total rating for compensation 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. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is 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) (2018). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Rating boards are to refer to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements. 38 C.F.R. § 4.16(b) (2018). 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 (a) (2018). A veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2018). 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 and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the rated, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Court has held that TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The record shows service connection has been established for the following disabilities: lumbar strain, rated as 20 percent, and status post bruise to the head (scalp), rated as noncompensable. The combined disability rating is 20 percent. The Veteran does not meet the schedular criteria for a TDIU rating. See 38 C.F.R. § 4.16(a). As the evidence shows the Veteran is unemployable, however, the Board must consider whether the evidence warrants referral for entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). Based upon the overall evidence of record, the Board finds that the Veteran is not shown to be unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities and extra-schedular referral is not warranted. On an April 2009 Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported that he was last employed full-time in March 2009 as a truck driver. The Veteran indicated that he worked as a truck driver for Grayson Freight from 2002 to 2004 and as a truck driver for Heartland Express from October 2008 to March 2009. The Veteran reported that his highest level of education was four years of high school. On a June 2010 VA Peripheral Nerves and Spine examination, the Veteran reported low back pain since 2009. The Veteran noted that he has been incapacitated since a motor vehicle accident in June 2009 when he was hit by another truck which threw him out of bed while he was sleeping in his truck. The Veteran reported that he had weakness and stiffness in his back. The Veteran indicated that he experienced numbness to the legs and upper thighs. Upon physical examination, thoracolumbar spine range of motion measurements were as follows: flexion to 40 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees. There was no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive movement. There was no evidence of muscle atrophy. Muscle strength was 5/5 for hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. Sensory testing was normal. There was no evidence of IVDS. The examiner noted that the Veteran’s back condition affected his walking, lifting, bending, and driving as it increased his back pain. The examiner reported that the Veteran was currently unemployed. During the May 2011 VA Board videoconference hearing, the Veteran stated he was unable to drive his truck and take the medication prescribed for his lumbar spine disability because the medication makes him drowsy. On an October 2012 Medical Release/ Physician’s Statement, Dr. L. L. reported that the Veteran is unable to work due to medications, neck pain, and lower back pain. Dr. L. L. noted that the Veteran was prescribed morphine and hydrocodone. A February 2012 letter from Dr. L. L., Texarkana Community-Based Outpatient Clinic VA Medical Center, Primary Care Services, indicated that in her medical opinion, the Veteran’s severe degenerative arthritis in the neck and neuropathy in the feet due to low back degenerative changes make it unwise for him to continue with his current occupation as a truck driver. Dr. L. L. indicated that the Veteran’s prolonged sitting as a truck driver would exacerbate his low back problems. Dr. L. L. recommended that the Veteran seek another job. An August 2013 Letter from the United States Department of Labor, Office of Workers’ Compensation Programs, noted that a review of their systems does not reflect that the Office had compensated the Veteran in any capacity as a result of a back injury in 2009. On the September 2017 VA Back examination, the examiner noted that the Veteran’s lumbar strain disability would impact his ability to work. The examiner indicated that the Veteran’s work restrictions may include avoidance of prolonged standing, siting, lifting, carrying, bending, and twisting during an episode of pain. Additionally, the examiner noted that Veteran’s use of pain medication and muscle relaxants could affect his dexterity and alertness. However, the Veteran’s lumbar spine condition would not prohibit light duty or sedentary occupations, even though work restrictions or accommodations might be required in some occupations. Heavy duty employment was apparently precluded by the examiner Upon review of all the evidence of record, both lay and medical, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran’s service-connected disorders preclude substantially gainful employment. Referral of the claim for a TDIU for extraschedular consideration is not warranted. His lumbar strain is his primary service-connected disability. The September 2017 examiner noted that the Veteran’s lumbar strain disability would impact his ability to work. The examiner indicated that the Veteran’s work restrictions may include avoidance of prolonged standing, siting, lifting, carrying, bending, and twisting during an episode of pain. Additionally, the examiner noted that the Veteran’s use of pain medication and muscle relaxants could affect his dexterity and alertness. The examiner indicated that the Veteran’s lumbar spine condition would not prohibit light duty or sedentary occupations, even though work restrictions or accommodations might be required in some occupation. Heavy duty work was apparently precluded by his service-connected lumbar strain. His status post bruise to the head (scalp) condition do not appear to be significant impairment to unemployability. The Board notes the February 2012 letter from Dr. L. L. indicating that the Veteran’s non-service connected severe degenerative arthritis in the neck and neuropathy in the feet due to low back degenerative changes make it unwise for him to continue with his current occupation as a truck driver. Dr. L. L. indicated that the Veteran’s prolonged sitting as truck driver would exacerbate his service-connected low back problems. However, the Veteran is shown to have, at least, the equivalent of a high school education and to have prior service and work experience as an administrative specialist that, without considering the effects of his nonservice-connected disabilities, would allow him to obtain gainful sedentary work with mild physical labor that did not require prolonged walking or standing. Therefore, referral for extraschedular consideration for a TDIU is not warranted and the appeal must be denied. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2016); Gilbert, (CONTINUED ON NEXT PAGE) supra. Therefore, the Board is unable to identify a reasonable basis for granting the Veteran’s claim. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel