Citation Nr: 20006015 Decision Date: 01/24/20 Archive Date: 01/23/20 DOCKET NO. 18-40 115 DATE: January 24, 2020 ORDER The issue of a rating in excess of 20 percent for a low back disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s low back disability has been characterized by forward flexion of the thoracolumbar not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, flare-ups, and painful limitation of motion. 2. The Veteran’s service-connected disabilities prevent her from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a low back disability 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, DC 5237. 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1980 to May 1984. The matter of a rating in excess of 20 percent for a low back disability comes before the Board of Veterans’ Appeals (Board) from an April 2014 rating decision. In July 2019, the Board remanded the matter of an increased rating for a low back disability to obtain a new VA examination. The claim has since been returned to the Board for review. The Board finds that the agency of original jurisdiction substantially complied with the remand orders, and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, in May 2019 the Veteran submitted a statement along with a private medical opinion indicating that she is unable to obtain and retain substantially gainful employment due to her service-connected disabilities. Thus, the Board finds the issue of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings The Veteran contends that she is entitled to an increased rating for her low back disability. Specifically, she contends that her low back disability is not properly contemplated by the 20 percent rating criteria. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Low Back Disability The Veteran is currently assigned a 20 percent rating for a low back disability under 38 C.F.R. § 4.71a, DC 5237. A rating of 20 percent under DC 5237 is warranted when the evidence demonstrates: • forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; • forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; • the combined range of motion of the thoracolumbar spine not greater than 120 degrees; • the combined range of motion of the cervical spine not greater than 170 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. 38 C.F.R. § 4.71a, DC 5237. A rating of 30 percent under DC 5237 is warranted when the evidence demonstrates: • forward flexion of the cervical spine 15 degrees or less; or, • favorable ankylosis of the entire cervical spine. Id. A rating of 40 percent under DC 5237 is warranted when the evidence demonstrates: • unfavorable ankylosis of the entire cervical spine; • forward flexion of the thoracolumbar spine 30 degrees or less; or, • favorable ankylosis of the entire thoracolumbar spine. Id. Based on the evidence of record, the Board finds that a rating in excess of 20 percent for the Veteran’s low back disability is not warranted. First, in March 2011, the Veteran underwent an in-person VA examination with claims file review regarding her low back disability. The Veteran reported that the onset of her low back disability was in the early 1980s during service. Upon physical examination, the examiner documented that the Veteran’s forward flexion was limited to 0 to 60 degrees and the combined range of motion of the thoracolumbar spine was 180 degrees with no additional motion loss due to pain, fatigue, or weakness. The Veteran reported flare-ups of low back pain causing her to avoid standing and reaching and causing increased loss of range of motion. The examiner noted that the Veteran was not having a flare-up during the examination and stated that a measurement estimating additional loss of range of motion could not be provided. The examiner noted some guarding due to pain. The examination did not note ankylosis. The Veteran also reported limitations of sitting for more than 10 minutes, standing for more than 5 minutes, and walking for more than 5 to 10 minutes. Further, the Veteran stated that she avoids bending and is not able to complete regular household chores. The Board finds the conclusions of the March 2011 VA examiner to be inadequate. The examiner specifically stated that because the Veteran was not having a flare-up during the examination a measurement estimating additional loss of range of motion could not be provided. Therefore, as the examiner did not properly provide measurements regarding additional range of motion loss due to flare-ups, the Board finds the March 2011 VA examination to be inadequate. Sharp v. Shinseki, 29 Vet. App. 26 (2017). Next, the Veteran was afforded a second in-person VA examination with claims file review regarding her low back disability in August 2019. The Veteran reported low back pain every day. Upon physical examination, the examiner documented that the Veteran’s forward flexion was limited to 0 to 60 degrees and the combined range of motion of the thoracolumbar spine was 115 degrees. The examiner noted that the Veteran does not have additional loss of function or range of motion after repeated testing and that pain, weakness, fatigability, and incoordination do not significantly limit functional ability with repeated use over a period of time. The Veteran reported flare-ups that last 1 to 6 weeks. The examiner noted that the Veteran was experiencing a flare-up during the examination and that the range of motion measurements properly reflected the additional loss of range of motion during flare-ups. The examiner further noted that the Veteran does not have guarding or muscle spasms and does not have ankylosis of the spine. The Veteran stated that she is unable to complete household chores and required a house cleaner. She also stated that she is unable to stand for long, has difficulty walking her dog, and that her doctor noted that she is at risk of falling. The Board finds the conclusions of the August 2019 VA examiner to be of highly probative value. The examiner specifically found that the Veteran’s forward flexion was limited to 0 to 60 degrees and the combined range of motion of the thoracolumbar spine was 115 degrees. Further, the Veteran was experiencing a flare-up during the examination and thus the measurements accurately reflect any additional range of motion loss during a flare-up. Additionally, the examiner noted that the Veteran does not have guarding or muscle spasms and does not have ankylosis of the spine. Therefore, as the Veteran’s forward flexion is not limited to 30 degrees or less and she does not have any ankylosis of the spine, the Board finds that the Veteran’s low back disability is properly contemplated by the 20 percent rating criteria. Additionally, the Board notes that the Veteran’s VA treatment records indicate complaints and treatment for persistent and worsening low back pain, which necessitated the August 2019 VA examination; however, the VA treatment records do not indicate the testing and findings necessary to assign a disability rating. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of a rating in excess of 20 percent for a low back disability and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. TDIU The Veteran asserts that her service-connected disabilities prevent her from obtaining and retaining substantially gainful employment. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled Veteran 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 are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. For purposes of entitlement to a TDIU rating, disabilities resulting from a common etiology are considered as one disability. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but age and impairment caused by nonservice-connected disabilities are not factors for consideration. 38 C.F.R. §§ 3.341, 4.16, 4.19. Also, it is necessary that the record reflect some factor that places the Veteran in a different category than other Veterans with equal ratings of disability. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate 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 Board has reviewed the evidence of record and finds that TDIU is warranted. First, the Veteran meets the schedular requirements for TDIU. The Veteran’s combined disability rating is currently 90 percent, and her service-connected disabilities currently include, diabetes mellitus rated at 60 percent, a low back disability rated at 20 percent, right radial nerve radiculopathy rated at 20 percent, left radial nerve radiculopathy rated at 20 percent, degenerative joint disease of the right shoulder rated at 10 percent, degenerative joint disease of the left shoulder rated at 10 percent, peripheral neuropathy left upper extremity rated at 10 percent, peripheral neuropathy right upper extremity rated at 10 percent, peripheral neuropathy left lower extremity rated at 10 percent, and peripheral neuropathy right lower extremity rated at 10 percent. Therefore, as the Veteran’s combined disability rating is 70 percent or greater with at least one disability rated at 40 percent, the Board finds that the Veteran meets the schedular requirements for TDIU. 38 C.F.R. § 4.16(a). First, in August 2019, the Veteran submitted a statement regarding TDIU. The Veteran stated that she last worked in approximately 2009 as a respiratory therapist. Further, the Veteran stated that she left her last employment due to her service-connected disabilities and that all of her service-connected disabilities prevent her from obtaining and retaining substantially gainful employment. Next, in May 2019, the Veteran submitted an opinion from a private physician regarding TDIU. The physician indicated that the Veteran previously worked for many years as a respiratory therapist. The physician noted that Veteran’s service-connected disabilities interfered with her work duties including, limiting her ability to reach overhead, preventing her from lifting greater than 5 pounds, and reaching and holding her arms up. Further, the physician noted that due to the fatigability of her hands the Veteran is unable to type well, test blood gases on patients, lift equipment, or pick up babies, as was required by her work duties. The examiner also noted a history of dropping objects, tripping, and falling. Additionally, the examiner noted that the Veteran avoids bending, walking more that 5 to 10 minutes, and sitting more than 5 minutes. The examiner noted that the Veteran misses the ability to work and enjoyed her long career; however, since leaving her employment due to service-connected disabilities, she experiences fewer falls, drops items less, and is able to modify her activities to accommodate her disabilities. The physician opined that due to the Veteran’s service-connected disabilities, she is prevented from obtaining and retaining substantially gainful employment of any kind. The Board finds the conclusions of the Veteran’s private physician to be of highly probative value. The physician specifically found that the Veteran has severe limitations lifting, bending, reaching, sitting, and walking. Further, the Veteran has severe limitations performing sedentary employment as she is unable to sit or type for more than few minutes. Additionally, the Veteran presents a risk to herself and the workplace as she has a history of dropping objects, tripping, and falling. The Board further notes that these limitations are corroborated by the VA examinations of record including examinations conducted in August 2019, July 2015, July 2014, January 2012, and March 2011. The Board finds that this evidence demonstrates that the Veteran is not capable of obtaining and retaining substantially gainful employment in any occupation, including sedentary employment. Accordingly, the Board resolves all reasonable doubt in favor of the Veteran and grants TDIU. 38 U.S.C. § § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.