Citation Nr: 1807390 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 11-19 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating in excess of 40 percent prior to September 1, 2016 for lumbar spine end plate sclerosis with degenerative arthritis and reversed lordosis (lumbar spine disability). 2. Entitlement to an increased rating in excess of 40 percent after September 1, 2016 for lumbar spine end plate sclerosis with degenerative arthritis and reversed lordosis (lumbar spine disability). 3. Entitlement to total disability rating based on unemployability (TDIU) prior to July 21, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.T.Stallings, Associate Counsel INTRODUCTION The Veteran had active service from July 1986 to July 1989 and from October 1989 to May 1994. These matters come to the Board of Veterans' Appeals (Board) on appeal from February and October 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction has since moved to Cleveland, Ohio. The Veteran's last VA examination in connection with her claim for increase was on September 1, 2016. In the December 2017 Appellant's Brief, the representative, on behalf of the Veteran, alleged a worsening of the disability. The Board finds that at this time, there is sufficient evidence to determine the level of severity of the service-connected lumbar spine disability prior to September 2016 and will remand the disability evaluation as of that date to allow for a new examination. The Board also finds that because the TDIU claim involves a period of time prior to 2014, it can decide the TDIU issue as well. The issue of an increased rating in excess of 40 percent for lumbar spine disability after September 1, 2016 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine or of unfavorable ankylosis of the entire spine prior to September 1, 2016. 2. The Veteran was not precluded from securing or following a substantially gainful occupation due to a service-connected disability or disabilities prior to July 21, 2014. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 40 percent for a lumbar back disability prior to September 1, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for a TDIU rating prior to July 21, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist For the issues decided, neither the Veteran nor the representative has 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 duty to assist argument). II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on 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 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2017). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2017). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the lumbar vertebrae are considered a group of minor joints, rated on parity with major joints. 38 C.F.R. § 4.45(2017). The Veteran's service-connected back disability has been rated as 40 percent disabling since June 1996 under Diagnostic Code (DC) 5242, for degenerative arthritis of the spine, which is rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, for the rating that are relevant to this case, a 40 percent rating will be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating will be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating will be assigned for unfavorable ankylosis of the entire spine. Id. 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. The combined range of motion refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined motion for the thoracolumbar spine is 240 degrees. Id. at Note (2). Additionally, intervertebral disc syndrome may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS). See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS (2017). Under the Formula for Rating IVDS, a 20 percent disability rating is warranted for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. Id. A 40 percent disability rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A maximum 60 percent disability rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. For the purposes of evaluations under the Formula for Rating IVDS, 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. Id. at Note 1. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Based on a review of the record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to an increased disability rating in excess of 40 percent for her service-connected lumbar back disability. The reasons follow. In June 2009, the Veteran filed for an increase in disability claiming her back disability had worsened since her last rating. The Veteran was afforded new VA examinations in September 2009, July 2010, May 2011, December 2012, September 2014 as well as most recently September 2016. The examinations, as well as the rest of the evidence of file, indicate that there is no competent evidence of the Veteran having unfavorable ankylosis of the entire thoracolumbar spine at any time during the appeal period or even favorable ankylosis. For example, the Veteran's worse range of motion at any of her examinations was in September 2014 and her forward flexion was recorded up to 25 degrees which is well within the 40 percent rating criteria. Therefore, the schedular criteria for an increased 50 percent disability rating have not been met. As the 100 percent rating requires a higher standard of unfavorable ankylosis of the entire spine, there is no need to further address that potential rating. The Veteran is at the maximum rating for limitation of motion of the lumbar spine without ankylosis. Necessarily, the Board has considered whether a higher rating could be assigned under the IVDS Formula. None of the Veteran's examinations have indicated that the Veteran has IVDS of the thoracolumbar spine. In the September 2016 VA examination, the examiner made a specific finding that the Veteran did not have IVDS. As such, an alternative rating under the IVDS criteria would not be advantageous to the Veteran. The Board accepts that the Veteran has functional impairment and pain. See DeLuca. These are included and contemplated by the schedular rating criteria. 38 C.F.R. § 4.59 (2017). The Board also finds the Veteran's own reports of symptomatology to be competent. However, neither the lay nor medical evidence reflects the functional equivalent of no movement (ankylosis) of the lumbar spine to warrant the next higher evaluation. Therefore, the lay and medical evidence demonstrates that the currently assigned evaluation of 40 percent is appropriate for the Veteran's lumbar spine disability. In conclusion, the preponderance of evidence weighs against the Veteran's claim of entitlement to an increased disability rating in excess of 40 percent for her service-connected lumbar spine disability. As such, there is no reasonable doubt to be resolved, and the claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. 49. III. TDIU prior to July 21, 2014. The Veteran was granted TDIU as of July 21, 2014, and thus the issue at hand is entitlement to a TDIU rating prior to that date. A total disability rating 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, 3.34l, 4.16(a) (2017). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a TDIU rating for the period prior to July 21, 2014. The Veteran filed for TDIU in May 2010 claiming an inability to work due to her service-connected disabilities. She specifically listed her cervical and lumbar spine disabilities as the cause of her inability to work. Although the Veteran meets the necessary schedular criteria for TDIU having a 70 percent rating since 2005 with a 40 percent rating from her lumbar spine disability in addition to her other service-connected disabilities, the evidence weighs against the fact that the Veteran was unable to maintain substantial and gainful employment due to her service-connected disabilities during this time period. The Veteran voluntarily quit her job in 2008, which she stated was due to all the symptomology she was experiencing from her various disabilities. The Board acknowledges the Veteran's May 2010 private opinion that states that her service-connected cervical and lumbar spine disabilities prevent her from maintaining employment, although it did not specify what type of employment. However, the treatment records attached to the opinion, from the same private office, indicate that the Veteran was self-employed and maintained part-time work even with her disabilities. The same records also indicate that that Veteran, as a part of her physical therapy, was able to work out on the stationery bicycle, elliptical and in the pool as part of her therapy. The Board finds this objective information of her workout routine more probative to the claim and indicative of the Veteran's physical capabilities at the time. Even giving the Veteran benefit of the doubt that she may not have been able to do manual labor, the May 2010 private opinion does not indicate that the Veteran was unable to maintain sedentary work due to her service-connected disabilities. The Veteran had undergone a VA examination in September 2009, and the examiner concluded that the impact of the Veteran's cervical spine and lumbar spine disabilities on her occupation was difficulty walking for prolonged periods of time and difficulty keeping her head extended over a period of time. In a June 2000 private examination report, the examiner stated that the Veteran had "mild reduction of cervical spine range of motion in all directions without complaints of pain." In a May 2011 opinion, a VA examiner found that the Veteran's service-connected lumbar spine disability caused "no restriction with employment" and noted her usual employment was case management work and finance. The Veteran had a VA exam for her lumbar spine disability in December 2012 that exhibited that her service-connected lumbar spine disability affects her work functionality. These VA examinations from 2009, 2011, and 2012 did not indicate that it kept the Veteran from sedentary work. Sedentary work is not limited to those in an office setting. There are non-physical positions, such as security and retail work that can be done while sitting and do not require any particular skill or a higher educational level. The Board notes that the Veteran reported on her June 2010 TDIU application for the time period on appeal that she had completed an Associate's degree and a certificate in Microsoft Office and a certificate in micro enterprise. Therefore, her skill set already qualified her for a wide variety of sedentary work. Although it may not be work that was the Veteran's preference, her service-connected disabilities alone did not preclude her from securing or following a substantially gainful occupation. Also, the Board is aware that the Veteran has submitted a July 2011 private medical opinion that discusses the extent of her non-service-connected myopathy disability, the need for pain treatment and the unlikelihood of rehabilitation. The Board also notes that the Veteran's claims file thoroughly notates the effects of this disability and the Veteran's continuous treatment. The Veteran's VA examination in December 2012 furthers the explanation with the effect the myopathy disability has on her work ability. The examiner indicates that because of her ability to walk only short distances and her muscle weakness in her extremities because of the myopathy, it was affecting her ability to keep up with her work requirements. While the myopathy may be hindering the Veteran's ability to work, it is not a service-connected disability. The Veteran applied and was denied service connection for myopathy in June 2013. As TDIU can be granted based on service-connected disabilities only, the Board cannot grant TDIU based on myopathy alone or based on a combination of non-service-connected and service-connected disabilities. The Veteran also had VA examinations during this time period for her other service-connected disabilities at the time, which included anemia, a hysterectomy and gastritis, but none of the examinations indicated that these disabilities affected the Veteran's ability to secure or follow substantially gainful employment. In fact, the examiners concluded that these disabilities did not impact the Veteran's ability to work. The Board notes that in the most recent VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, submitted in July 2014, the Veteran changed her education level from having finished high school and two years of college with three types of education or training to completing high school only with no further education or training. Compare June 2010 VA Form 21-8940 with July 2014 VA Form 21-8940. The Board finds as fact that the Veteran's educational level was reported correctly on the 2010 application. The Board acknowledges both the Veteran's and her friend's statements in regard to the worsening of the Veteran's disabilities over time. While they are competent to discuss the Veteran's symptomology, the Board does not find that their statements impact the Board's finding that the preponderance of the evidence is against a finding that the Veteran was unable to secure substantially gainful employment prior to July 2014. Additionally, based on their statements, they are including the myopathy disability, which, as noted above, is not service connected. The most probative evidence weighs against the Veteran being unable to maintain substantial employment due to her service-connected disabilities during this time period. Therefore, the preponderance of the evidence weighs against the Veteran being unable to secure and maintain substantial employment due to service-connected disabilities, and a TDIU rating prior to July 21, 2014, is not warranted. ORDER Entitlement to an increased rating in excess of 40 percent prior to September 1, 2016 for lumbar spine end plate sclerosis with degenerative arthritis and reversed lordosis (lumbar spine disability) is denied. Entitlement to total disability rating based on unemployability prior to July 21, 2014, is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure proper development regarding the Veteran's claim on appeal. Here, the Veteran and her representative claim that the Veteran's lumbar spine disability has worsened since her last examination and is significantly impacting her daily living. This requires a remand. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, including any and all testing and imagery deemed necessary by the examiner, to provide a complete disability picture of the Veteran's service-connected lumbar spine end plate sclerosis with degenerative arthritis and reversed lordosis disability. 2. Following the above development, readjudicate the Veteran's claim on appeal. If the benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (2012). ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs