Citation Nr: 20007152 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 10-26 900 DATE: January 28, 2020 ORDER Entitlement to a disability rating in excess of 40 percent for chronic bilateral sacroiliitis, status post (s/p) fusion at the left S1 joint without radiographic evidence of a solid fusion and s/p right sacroiliac joint fusion, is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire period on appeal, the preponderance of the evidence shows that the Veteran’s lumbar spine disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during the past twelve months; similarly, no associated objective neurologic abnormalities or radiculopathy were shown. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 40 percent for chronic bilateral sacroiliitis, s/p fusion at the left S1 joint without radiographic evidence of a solid fusion and s/p right sacroiliac joint fusion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5299-5241. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1998 to January 2006. This case has a lengthy procedural history, but these claims originally came to the Board of Veterans’ Appeals (Board) from December 2008 and March 2009 Rating Decisions by a Veterans Affairs (VA) Regional Office (RO). These claims were most recently remanded by the Board in February 2016. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Preliminarily, the Board notes that the Veteran’s lumbar spine disorder is rated as 40 percent disabling. This rating contemplates all loss of motion and spasm-related symptoms. There are limited bases for a higher schedular rating. Under the General Rating Formula for spine disorders (38 C.F.R. § 4.71a, DCs 5235-5242), a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Ankylosis represents complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). Under Diagnostic Code 5243, concerning intervertebral disc syndrome, a 60 percent disability rating for intervertebral disc syndrome (IVDS) is warranted for incapacitating episodes (i.e., acute signs and symptoms requiring physician-prescribed bed rest) having a total duration of at least 6 weeks during the past 12 months. The Board has reviewed the evidence of record, specifically to include VA examinations from July 2006, September 2014, and March 2017. These examinations revealed no evidence of ankylosis of the lumbar spine, or of acute signs and symptoms requiring physician-prescribed bed rest having a total duration of at least six weeks during the past 12 months. There is accordingly no basis for a higher evaluation. Furthermore, while separate evaluations may be assigned for associated radiculopathy or objective neurologic abnormalities, none were shown on the noted VA examinations. The TDIU claim is addressed below. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND Entitlement to TDIU The Veteran asserts that her service-connected disabilities prevent her from securing or maintaining a substantially gainful occupation. In October 2014, the Veteran was afforded a VA medical opinion concerning her claim for TDIU. The examiner opined that the Veteran’s service-connected disabilities contributed to a decreased functionality but did not prevent her from securing or maintaining a substantially gainful occupation. The examiner did not offer a detailed rationale to support their opinion. In September 2019, the Veteran submitted a lay statement and employment history asserting that she had not been able to maintain full-time employment since 2014. The Veteran asserts that she was fired from her last three jobs because of her disabilities and related concerns. See September 2019 Application for Increased Compensation Based on Unemployability; September 2019 statement. The Board finds the October 2014 VA opinion inadequate for adjudication purposes and too remote in time to serve as competent evidence as to whether the Veteran’s service-connected disabilities currently prevent her from securing or maintain substantially gainful employment. Accordingly, this claim is remanded so that the Veteran can be afforded an additional VA examination to ascertain the effects of her service-connected disabilities on her employability during the pendency of this appeal. The matters are REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 2. Afford the Veteran a VA examination, with an appropriate examiner, to ascertain the effects of her service-connected disabilities (as listed in an August 2019 rating decision) on her ability to secure and follow a substantially gainful occupation. This opinion must address the entire pendency of this appeal, dating back to the May 2008 claim. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.