Citation Nr: 20002178 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 09-11 380A DATE: January 9, 2020 ORDER A 20 percent rating, but no more, for degenerative spine disorder prior to January 6, 2009 is granted. A rating in excess of 40 percent for a degenerative spine disorder since January 6, 2009 is denied. Service connection for a disability manifested by shortness of breath is denied. Entitlement to a total disability evaluation based on individual unemployability prior to August 14, 2008, is denied. FINDINGS OF FACT 1. Prior to January 6, 2009, the Veteran’s back disability had been characterized by incapacitating episodes having a total duration of at least 4 weeks but less than 6; incapacitating episodes having a total duration of at least 6 weeks or unfavorable ankylosis of the entire spine or thoracolumbar spine were not shown. 2. As of January 6, 2009, the Veteran’s back disability has been characterized by forward flexion of the thoracolumbar spine less than 30 degrees, favorable ankylosis of the entire thoracolumbar spine, and/or intervertebral disc syndrome with for at least 6 weeks during the past 12 months; unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine have not been shown. 3. The Veteran’s disability manifested by shortness of breath is not a separate or identifiable disorder for VA compensation purposes. 4. Prior to August 14, 2008, the Veteran’s service-connected disabilities do not prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating of in excess of 20 percent, for a back disability prior to January 6, 2009, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DCs) 5295 (2001), 5239 (2019). 2. The criteria for a rating in excess of 40 percent for a back disability as of January 6, 2009, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DCs 5295 (2001), 5239 (2019). 3. The criteria for service connection for a disability manifested by shortness of breath are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Prior to August 14, 2008, the criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1977 to June 1995. This appeal was remanded for additional development in December 2017 for additional development, to include obtaining an addendum opinion for the March 2017 VA examination. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran’s March 2017 VA examination was adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Additionally, the Board notes that the nerve disabilities due to the Veteran’s back disability have been adjudicated separately in a December 2017 Board decision. As these claims were not appealed, the Board does not have jurisdiction over these issues. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (in situations where an issue is bifurcated, an appellant must then specifically appeal each bifurcated issue). Increased Ratings The Veteran is seeking an increased rating for his back disability. Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. For musculoskeletal disabilities, a higher rating may be warranted based on greater limitation of motion due to pain on use, including during flare-ups. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and therefore, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. 1. Entitlement to a rating in excess of 20 percent for degenerative spine disorder prior to January 6, 2009 and in excess of 40 percent thereafter Prior to January 6, 2009 The Veteran has been in receipt of a 10 percent rating from July 1995 and a 20 percent rating for a back disability from June 2006 under 38 C.F.R. § 4.71a (initially under DC 5295, then under DC 5239). As a preliminary matter, it should be noted that VA has revised the criteria for evaluating the spine two times during the appeal period, effective September 23, 2002, and September 26, 2003. However, the Board will not address the amendment effective September 23, 2002, as the only change in the rating schedule pertained to 38 C.F.R. § 4.71a, Diagnostic Code 5293, intervertebral disc syndrome (IVDS) and there is no evidence of IVDS prior to the September 23, 2002 effective period, and the Veteran has not alleged any incapacitating episodes as defined by regulation that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula, Note (1). However, the Board acknowledges that the Veteran experienced periods of IVDS starting on November 17, 2008. To receive a higher rating under DC 5241, requires the following: • Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine (30 percent); • Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); • Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); • Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); • Incapacitating episodes having a total duration of at least 6 weeks but less than during the past 12 months (60 percent); or • Unfavorable ankylosis of the entire spine (100 percent). In this case, the Board assigns 40 percent starting November 17, 2008 for the Veteran’s IVDS. Specifically, the medical evidence, including the Veteran’s February and September 2009 VA and private medical records, is in relative equipoise to demonstrate that the Veteran had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Notably, the February 2009 VA examination states that the Veteran was unable to work from November 17, 2008 to February 10, 2009. As such, an initial rating of 40 percent is warranted starting November 2008. Prior to November 2008, there is no indication that a higher rating is warranted for any of the periods on appeal. Specifically, the Veteran’s August 1995 VA examination reflected that the Veteran’s forward flexion was at 90 without discomfort and at 70 with discomfort. On examination, there was no evidence of IVDS or any symptoms, such as ankylosis, that would warrant a higher rating. Further, on his December 2006 VA examination he reported forward flexion as 0 to 50 degrees with a decrease of 10 degrees secondary to pain and a decrease of 10 degrees with repetitions. Further, favorable ankylosis of the entire spine or thoracolumbar were not noted during the periods on appeal. Additionally, there were no signs of incapacitating episodes during the periods on appeal. Therefore, a higher rating prior to November 2008 is not warranted for the remaining periods on appeal. Ultimately, the board concludes that the Veteran’s 40 percent rating is only warranted starting from November 2008. After January 6, 2009 Next, the Board will determine if the Veteran is entitled to a rating in excess of 40 percent. In order to warrant a rating in excess of 40 percent under the rating criteria, the evidence must demonstrate: • Unfavorable ankylosis of the entire thoracolumbar spine (50 percent under DC 5241); • Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent under DC 5243); or • Unfavorable ankylosis of the entire spine (100 percent). Based on the evidence of record, a rating in excess of 40 percent is not warranted. Specifically, a January 2009 treatment record noted that the Veteran’s spine flexion was abnormal and decreased to 20 degrees. No ankylosis or IVDS were reported. Similarly, in a February 2009 VA examination, the Veteran complained of severe flare-ups which impacted his ability to stand, sit, climb, twist, and engage in heavy lifting. Upon examination, he exhibited 50 degrees of flexion that was reduced by 10 percent due to flare-ups. No ankylosis was documented. However, the examination reported IVDS in November 2008, which the Veteran’s rating currently incorporates. Likewise, at a February 2010 VA examination, the Veteran complained of a “continuous knife-like pain,” which radiated down his legs. On examination, he exhibited 20 degrees of flexion. There was no evidence of additional functional loss due to pain, weight-bearing, and/or flare-ups. Moreover, there was no evidence of ankylosis or IVDS. Further, the findings from the Veteran’s June 2011 VA examination are most consistent with the criteria for a 40 percent rating. In this case, while the Veteran continued to report flare-ups twice a week and prolonged sitting or standing which caused discomfort, his flexion improved to 45 degrees without loss of function with repetitive motion due to pain, fatigue, weakness, lack of endurance or incoordination. No additional functional limitation due to pain, weight-bearing, or flare-ups was observed. Additionally, there was no evidence of ankylosis or IVDS. The Veteran’s April 2013 and March 2017 VA examinations also reflect symptoms consistent with the criteria for a 40 percent rating. Specifically, on the April 2013 VA examination, the Veteran complained of experiencing dull aching and shooting pain. He also displayed a forward flexion of 25 degrees. There was no evidence of ankylosis or incapacitating episodes over the past 12 months. Similarly, the Veteran’s March 2017 VA examination did not note ankylosis of the spine and stated that the Veteran did not have IVDS of the spine. Notably, the March 2017 addendum (June 2018) clarified that there were no reports that reflected that the Veteran had any incapacitating episodes after the April 2013 VA examination. Additionally, the Veteran’s private treatment records, including from September 2009, February 2010, July 2010, and August 2010, indicated that the Veteran had IVDS for various periods at a time. However, the Board notes that the Veteran’s IVDS during this period is reflected in his current 40 percent rating. Specifically, his July 2010 treatment record notes that the Veteran was on modified bed rest for the past 3 to 4 weeks. The Veteran’s treatment records do not show that he suffered from unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of at least 6 weeks, which is required for the next higher ratings. Therefore, a rating in excess of 40 percent under is not warranted for the period on appeal. The Board also noted that while the Veteran is receiving the maximum rating based upon limitation of motion, the Board has nevertheless considered the impact of functional loss in the Veteran’s back due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness to determine if his functional loss was equivalent to ankylosis. 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shinseki, 29 Vet. App. 26 (2017); DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). In this case, the Veteran has complained that he is limited in performing activities of daily living due to fatigue, pain, flare-ups, and weakness. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss equivalent to ankylosis, as he still had some range of motion in his back, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Here, the February 2009, February 2010, June 2011, April 2013, and March 2017 VA examiners, as well as his treating physician during examinations in January 2009, February 2009, and August 2010, did not find any additional loss of motion or functioning after flare-ups, repetitive testing, or weight bearing that would warrant a higher rating. Next, when evaluating the extent of the Veteran’s lumbar spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a). As previously discussed, the Veteran did not appeal the ratings for his lower extremity nerve disorders, and therefore these issues are not on appeal. In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran that his service-connected disorders are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his back disorder according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. 2. Entitlement to service connection for a disability manifested by shortness of breath The Veteran asserts that his disability manifested by shortness of breath is related to active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not etiologically related to, including aggravated by, an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304, 3.307, 3.309. As a preliminary matter, the Board recognizes that the Veteran was formerly diagnosed with exertional dyspnea by a June 2008 private examiner. However, the Board concludes that the Veteran does not have a current diagnosis related to this disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In this case, the Board finds that after a thorough reading of the evidence of record, including the Veteran’s medical treatment records, the evidence does not reflect a current diagnosis related to a disability manifested by shortness of breath at any time during the period on appeal. Specifically, the Board acknowledges that the Veteran experienced instances of shortness of breath while in service and post-service. However, a June 2018 VA addendum examiner concluded that the Veteran does not have a valid respiratory diagnosis. In this instance, the June 2018 VA examiner, stated that shortness of breath and exertional dyspnea are not legitimate medical diagnosis, but are rather symptoms. Therefore, the Veteran does not suffer from an actual diagnosis, which could be rated by the VA. The Board acknowledges the Veteran’s assertions and belief that he has a respiratory disorder, however, he is not competent to provide a diagnosis in this case. The issue is medically complex and requires specialized medical education and knowledge of the interaction between multiple systems in the body, as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the preponderance of the evidence is against a finding that the Veteran has a respiratory disorder and a hernia at any point during the time on appeal. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). 3. Entitlement to a total disability evaluation based on individual unemployability prior to August 14, 2008 The Veteran asserts that his disabilities rendered him unable to work prior to August 14, 2008. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Further, the Board should also consider whether given the Veteran’s history, education, skill, and training, in conjunction with the Veteran’s physical ability and mental ability, can perform the type of activities required by the occupation at issue. See Id. Moreover, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). After a review of the evidence of record, the Board determines that TDIU is not warranted prior to August 14, 2008. As an initial matter, the Veteran did not meet the schedular criteria for any part of the period on appeal. Specifically, his service-connected disabilities prior to August 14, 2008, included: degenerative osteoarthritis (10 percent from July 1995 and 20 percent from June 2006), right ankle strain (10 percent from July 1995 and 20 percent from February 2007), left ankle strain (20 percent from February 2007), bilateral neuropathy (10 percent each from June 2006). As such, his combined overall rating was no higher than 60 percent at any point prior to August 14, 2008. The Veteran has not met the schedular criteria of 38 C.F.R. § 4.16(a) for the period prior to August 18, 2008. Next the Board finds that referral for extraschedular consideration is not warranted as the Veteran’s service-connected disabilities did not prevent him from being able to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(b). Specifically, his August 2006 and December 2007 VA examinations, reported that the Veteran continued to work despite his limitations with walking, carrying, and lifting. Further, the Veteran noted on his August 2006 VA examination, that during flareups, he is not able to complete any jobs because he has to frequently stretch. While his disorders have some impact on his activities of daily living, there was no indication that his disorders precluded physical or sedentary employment prior to August 18, 2008. In fact, the Veteran continued to work full-time as a mailman, despite his physical limitations, until September 2009. Moreover, the Veteran’s Social Security Administration and private treatment records also do not reflect impairment from his service-connected disabilities that would prevent him from obtaining and retaining substantially gainful employment until September 2009. The Board also notes that the Veteran has a college degree and worked as a mailman for over 14 years. As such, given the lack of evidence supporting the Veteran’s contention that he was precluded from obtaining and retaining substantially gainful employment at the physical level, the Board finds that the Veteran was able to obtain and maintain substantial gainful activity, including his previous job duties, despite some physical limitations. In arriving at this conclusion, the Board acknowledges the evidence in support of TDIU, which includes the Veteran’s statements. However, the Board finds his statements less probative as that the medical evidence, as discussed, indicates that he was able to perform his previous job duties. As such, the Board assigns more probative weight to the medical evidence which indicates that the Veteran’s service-connected disabilities did not prevent him from obtaining and retaining substantial gainful employment prior to August 18, 2008. Moreover, the Board also finds that the clinical evidence is sufficient for the Board to make its own conclusions as well. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner). Therefore, the weight of the evidence is against the Veteran’s TDIU claim. As such, the Veteran’s TDIU claim is denied. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. McGee, Attorney-Advisor