Citation Nr: 19156972 Decision Date: 07/23/19 Archive Date: 07/23/19 DOCKET NO. 15-12 856 DATE: July 23, 2019 ORDER An initial disability rating in excess of 10 percent for bulge/protrusion, lumbar spine (previously rated as lumbosacral strain) prior to July 24, 2015, and in excess of 20 percent thereafter is denied. Prior to November 13, 2017, a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The weight of the competent evidence reflects that, prior to July 24, 2015, the Veteran’s bulge/protrusion, lumbar spine, was not manifested by functional limitations or limitation of motion equivalent to less than 60 degrees of forward flexion, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour. 2. The weight of the competent evidence reflects that, as of July 24, 2015, the Veteran’s bulge/protrusion, lumbar spine, was not manifested by functional limitations or limitation of motion equivalent to 30 degrees or less of forward flexion, or favorable ankylosis of the entire thoracolumbar spine. 3. The competent evidence of record is against a finding that the Veteran’s service-connected disabilities precluded him from maintaining substantially gainful employment prior to November 13, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for bulge/protrusion, lumbar spine prior to July 24, 2015, have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5242-5237. 2. The criteria for entitlement to a disability rating in excess of 20 percent for bulge/protrusion, lumbar spine as of July 24, 2015, have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5242-5237. 3. Prior to November 13, 2017, the criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to November 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that an August 2018 rating decision granted service connection for schizophrenia with cannabis use disorder, which constituted a full grant of the benefit sought. Accordingly, the claim of service connection for schizophrenia with cannabis use disorder is no longer in appellate status and is thus not currently before the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial disability rating assigned after a grant of service connection, the evidence since the effective date of the award must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct periods during the course of the appeal. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to report symptoms and experiences observable by his or her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).   1. Entitlement to a disability rating in excess of 10 percent for bulge/protrusion, lumbar spine, prior to July 24, 2015, and in excess of 20 percent thereafter. The Veteran contends that he is entitled to a rating in excess of 10 percent for bulge/protrusion, lumbar spine, prior to July 24, 2015, and in excess of 20 percent thereafter, evaluated under Diagnostic Codes 5242-5237. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Ratings under the General Rating 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. The “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because “pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See Plate V, 38 C.F.R. § 4.71a, Note (2). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, staged ratings were assigned for the Veteran’s lumbar spine disability. The evidence does not support a change to the assigned ratings. The Veteran’s lumbar spine disability is currently rated as 10 percent disabling for the period prior to July 24, 2015, and as 20 percent disabling since that date. As noted above, in order to warrant a higher rating for the period prior to July 24, 2015, the Veteran’s disability would have to be manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. In a July 2014 VA examination, the Veteran was diagnosed with disc bulge/protrusion, lumbar spine. In range of motion (ROM) testing, the forward flexion was noted at 75 degrees, with objective evidence of pain noted at 65 degrees. The combined range of motion was 200 degrees, with objective evidence of pain noted at a combined 140 degrees. Repetitive use testing for ROM was not conducted due to pain and safety concerns. The Veteran was noted to have localized tenderness and guarding of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour. The examiner found that the Veteran did not have muscle spasms, radiculopathy, ankylosis, nor invertebral disc syndrome (IVDS). His functional limitations include restrictions with bending, lifting, twisting and limited walking/standing to approximately 15 minutes at a time. 07/25/2014, C&P Exam. After reviewing the pertinent evidence, the Board finds that it does not reflect a disability picture with functional limitation significant enough to more nearly approximate flexion restricted to 60 degrees or less, a combined range of motion of 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Therefore, the criteria for a disability rating higher than 10 percent prior to July 24, 2015, are not met. As noted above, in order to warrant a higher rating for the period as of July 24, 2015, the Veteran’s disability would have to be manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A July 2015 VA examination conducted ROM testing and noted forward flexion of 50 degrees. Pain was noted in the ROM testing, but did not result in functional loss. The examiner found that the Veteran did not have ankylosis, muscle atrophy, or radiculopathy (or any other neurologic abnormalities or findings related to the back). Although the Veteran was noted to have IVDS, the report reflects that the Veteran did not have any incapacitating episodes in the past twelve months. 07/24/2015, C&P Exam. In a December 2017 correspondence, the Veteran stated that he still experiences back pain and is limited in lifting, standing and bending. 12/22/2017, Correspondence. A January 2018 VA examination also conducted ROM testing and noted forward flexion of 60 degrees, with pain noted on rest and non-movement, as well as in movement in all directions. The Veteran did not report flare-up at this time, but he did have pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner found that the Veteran did not have muscle atrophy, ankylosis, radiculopathy, or IVDS. 01/16/18, C&P Exam. After reviewing the pertinent evidence, the Board finds that it does not reflect a disability picture with functional limitation significant enough to more nearly approximate flexion restricted to 30 degrees, or analogous to favorable ankylosis of the entire thoracolumbar spine. Therefore, the criteria for a disability rating higher than 20 percent as of July 24, 2015, are not met. TDIU 2. Entitlement to TDIU prior to November 13, 2017. TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Generally, to be eligible for a TDIU claim, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to show 100 percent unemployability in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In looking at the time of the Veteran’s application for TDIU, the Veteran did not meet the schedular criteria per § 4.16(a), as his combined rating from that date was 10 percent, and was increased to 20 percent effective July 24, 2015. Prior to November 13, 2017, the Veteran’s only service-connected disability was bulge/protrusion, lumbar spine. Although the Veteran did not meet the schedular criteria for consideration of TDIU prior to November 13, 2017, TDIU may still be assigned to a veteran who fails to meet the percentage standards if he or she is unemployable by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16(b) (2018). Specifically, the regulations provide that, in exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In such a case, the Under Secretary for Benefits or the Director, Compensation Service is authorized to approve an award on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board is not authorized to award extraschedular benefits in the first instance. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board cannot award TDIU under § 4.16(b) in the first instance because the Board has no power to do so). Here, the Board finds that the evidence fails to show that the service-connected disabilities are sufficient to produce unemployability; thus, the evidence does not warrant referral of the claim to the Director of VA’s Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The Veteran completed a VA Form 21-8940 in July 2009, indicating that he completed his GED in 1984, and that he has been unemployed since 1985. 07/27/2009. Likewise, in a December 2017 correspondence, the Veteran stated that his limitations in lifting standing, and bending, in conjunction with his psychiatric disorders, caused him difficulty finding and keeping a job. 12/22/2017, Correspondence. A July 2014 VA examination noted that the Veteran’s thoracolumbar spine condition impacts his ability to work insofar as that he has restrictions on bending, lifting, and twisting, as well as with standing and walking for more than 15 minutes at a time. 07/25/2014. A July 2015 VA examination noted that the Veteran’s thoracolumbar spine condition impacts his ability to work insofar as that he has lost out on jobs due to his lifting restrictions. 07/24/2015, C&P Exam. The Board notes that the ultimate issue of whether a TDIU should be awarded is not a medical issue, but is a legal determination for the adjudicator to make. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Based on a review of the evidence of record, the Board finds that the weight of the medical and lay evidence is against a finding that the Veteran’s service-connected disability renders him unable to secure or follow a substantially gainful occupation. Specifically, the medical evidence does not suggest that the Veteran is precluded from sedentary work. Likewise, the Veteran’s December 2017 statement suggests that he was unemployable due, in part, to his psychiatric disabilities, which were not service connected prior to November 13, 2017, and cannot be considered in the TDIU determination at that time. The Board notes that the Veteran is in receipt of a 10, then 20, percent rating for his service connection lumbar spine and this compensates him for his symptomatology that causes earning impairment. See 38 C.F.R. § 4.1 (2018) ("The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations."). Because the record does not reflect that, prior to November 13, 2017, the Veteran is unemployable due solely to his service-connected thoracolumbar spine condition, the preponderance of the evidence is against his claim for TDIU and referral for an extraschedular evaluation is not warranted. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Effective November 13, 2017, a 100 percent rating is in effect for the Veteran’s service-connected schizophrenia with cannabis use disorder. 08/11/2018, Rating Decision. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities indicates that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Locklear v. Shinseki, 24 Vet. App. 311, 314 n.2 (2011) (finding entitlement to TDIU mooted from the effective date of a 100 percent schedular disability rating); see also Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). SMC is available when a veteran “has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of service-connected disability, or disabilities, is permanently housebound.” 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(2). In Bradley v. Peake, 22 Vet. App. 280, 293 (2008), the Court held that a grant of TDIU based on a single disability constitutes a service-connected disability rated as total for purposes of section 1114(s). The “permanently housebound” requirement is met if a veteran is “substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.” 38 C.F.R. § 3.351(i)(2). Here, the Veteran’s schizophrenia with cannabis use disorder was rated at 100 percent disabling, effective November 13, 2017. Thus, the Veteran was not entitled to SMC prior to this date based on a single disability being rated at 100 percent. In addition, prior to November 13, 2017, his remaining service-connected disabilities were not ratable individually or in combination with a 60 percent rating; as such, SMC was not applicable. The Board also notes there is no indication in the competent medical evidence of record that the Veteran is permanently housebound. Therefore, there is no basis for assignment of SMC per 38 U.S.C. § 1114, prior to November 13, 2017. (CONTINUED ON THE NEXT PAGE)   The preponderance of the evidence is against the Veteran’s contention that his service-connected disabilities are of such severity to preclude his participation in substantially gainful employment prior to November 13, 2017. The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is not applicable. 38 U.S.C. § 5107(b); see Gilbert v Derwinski, 1 Vet. App. 49, 53 (1990). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Han, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.