Citation Nr: 20021271 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-30 711 DATE: March 25, 2020 ORDER An initial rating of 40 percent, but no more, for a lumbar spine disorder is granted. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran’s back disorder has been characterized by pain and limitation of motion; unfavorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes of at least 6 weeks during the past 12 months, have not been shown. 2. The Veteran’s service-connected disabilities prevented him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria to establish an initial rating of 40 percent, but no more for a lumbar spine disorder 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 Code (DC) 5243. 2. The criteria for TDIU have 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 May 2002 to October 2014. The Board acknowledges that throughout the period on appeal, the Veteran has received temporary total disability ratings due to his back disorder. This decision is not to disturb those temporary total disability ratings. 38 C.F.R. § 4.29 1. Entitlement to an increased initial rating for a lumbar disorder The Veteran is seeking an increased initial rating for his service-connected back disorder. 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. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While 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. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by 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. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. In cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Rating in excess of 20 percent Prior to April 4, 2017 For the period prior to April 4, 2017, the Veteran has been in receipt of an initial 20 percent rating for his back disorder under 38 C.F.R. § 4.71a, DC 5243. A rating in excess of 20 percent is warranted for a lumbar spine disability when the evidence shows: • Forward flexion of the thoracolumbar spine to 30 degrees or less (40 percent); • Favorable ankylosis of the entire thoracolumbar spine (40 percent); or, • Intervertebral disc syndrome with incapacitating episodes having a total duration of at 4 weeks but less than 6 weeks during the past 12 months (40 percent). 38 C.F.R. § 4.71a, DC 5243. Based on the evidence of record, a 40 percent rating is warranted for the entire period on appeal. Specifically, during a May and August 2015 VA examination, the Veteran reported worsening back pain since his motor vehicle accident in 2013 while in service. On examination, the examiner reported that the Veteran’s forward flexion was 25 degrees with pain throughout motion and abnormal movement. In March 2018 another VA examination was conducted where the examiner observed the Veteran’s forward flexion was less than 30 degrees. Additionally, the Veteran reported back pain with abnormal range of motion before his motor vehicle accident in November 2012. He has continually been treated for his back disorder for many years pre and post his July 2013 motor vehicle accident. He also has a history of multiple surgeries related to his back disorder. The Board acknowledges the negative evidence including the February 2014 and July 2015 VA examinations where the examiners observed the Veteran’s forward flexion to be 40 percent. These examiners’ observations are inconsistent with the other examiners’ observations during the same time period; as such, this evidence is found to be in equipoise. In an effort to resolve all doubt in favor of the Veteran, an initial rating in excess of 20 percent is warranted. Rating in excess of 40 percent As the Veteran is currently rated at 40 percent for the entire period on appeal, the Board must consider whether a rating in excess of 40 percent is warranted for a period on appeal. In order to warrant a rating in excess of 40 percent, the evidence must show: A rating in excess of 40 percent is warranted for a lumbar spine disability when the evidence shows: • Unfavorable ankylosis of the entire thoracolumbar spine (50 percent under DC 5241); or, • incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Based on the evidence of record, a rating in excess of 40 percent is not warranted for any portion of the appeal. During his VA examinations he did report painful motion and difficultly standing and walking; however, he was still able to move his back. On examination, the Veteran had flexion to at least 25 degrees with motion. Even with reduced motion due to pain and repetition, there was no evidence of ankylosis or IVDS. Further, the Veteran’s treatment records did not evidence any ankylosis. As such, a rating in excess of 40 percent is not warranted. When considering these ratings, the Board has considered the impact of functional loss in the Veteran’s back due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; 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, and weakness. Specifically, that his pain limits activities of daily living such as bathing, dressing and bending noting that he cannot stand for long periods or lift over 20 pounds. Moreover, he has indicated that his pain and flare-ups cause additional functional loss. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the increased initial rating. 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 multiple VA examiners 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). In this case, the medical evidence does reveal evidence of neurological abnormalities or associated neurological impairments related to his lumbar spine disability during the period on appeal. However, the Veteran has received ratings for such additional impairments without objection. 2. Entitlement to TDIU The Veteran asserts that he is unable to work because of his service-connected disabilities. 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). In this case, the Board determines that TDIU should be granted. As an initial matter, the Board notes that based upon the rating assigned herein, the Veteran met the schedular requirements for TDIU throughout the entire period on appeal. Specifically, he has been service-connected for the following disabilities throughout the entire period on appeal: post-traumatic stress disorder (30 percent), back disorder (20 percent), bilateral knee disorder (10 percent for each), right lower extremity radiculopathy (10 percent), cervical spine radiculopathy (20 percent), cervical spine disorder (30 percent), tinnitus (10 percent), gastro esophageal reflux disease (10 percent), sciatic nerve radiculopathy (10 percent), left knee meniscal tear (10 percent), and noncompensable ratings for erectile dysfunction, nephrolithiasis, tension headaches, hypertension and scars. The Board notes that the Veteran has been service connected for other disorders throughout the period on appeal, and the Veteran’s ratings for the disorders granted herein have not been assigned, he nevertheless has a combined total combined disability rating of at least 80 percent during the entire period on appeal, and he currently has a combined disability rating of 100 percent. Further, the evidence demonstrates that the Veteran was unable to obtain gainful employment during the period on appeal. In making this determination, the Board places significant probative value on the Veteran’s assertions that the combined effects of his service-connected disabilities, including his post-traumatic stress disorder with hypervigilance, inability to get along with others, and sleep disturbance, as well as his difficulties concentrating, walking, sitting, standing, lifting, and performing certain physical activities prevent him from working. Moreover, the Board acknowledges the Social Security Administration’s finding of total disability in January 2014, which in conjunction with the Veteran’s credible statements, reflect that the Veteran could not perform any type of substantial gainful employment, including performing his prior duties as a human resource professional. Moreover, the Board also places significant probative value on the opinions from the VA examiners which indicate that the Veteran’s service-connected disabilities caused significant interference with his ability to work. Again, the question in this case is whether the Veteran could secure or follow substantially gainful employment, not whether he was totally precluded from work. As such, the Board finds that the clinical evidence and opinions from the VA examiners and the Veteran’s private treating medical providers, in conjunction with the credible statements from the Veteran, places the question of substantially gainful employment in great doubt, and the Board has resolved all doubt in the Veteran’s favor. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Accordingly, entitlement to TDIU is granted. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel