Citation Nr: 20028819 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 13-13 759 DATE: April 24, 2020 ORDER Entitlement to disability rating higher than 20 percent for low back disability, including myofascial pain syndrome and degenerative disc disease of the lumbar spine, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s low back disability, including myofascial pain syndrome and degenerative disc disease of the lumbar spine, has been manifested by chronic pain, limitation of motion, reduced capacity for activity, and reduced endurance for sitting, without functional impairment equivalent or nearly equivalent to ankylosis or limitation of forward flexion of the thoracolumbar spine to 30 degrees or less. 2. The Veteran’s service-connected disabilities, particularly his PTSD and his low back, right knee, and left ankle disabilities, have interfered with his job retention and performance, but have not kept him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for disability rating higher than 20 percent for low back disability, including myofascial pain syndrome and degenerative disc disease of the lumbar spine, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5021, 5242, 5243 (2019). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2005 to May 2006, November 2006 to February 2008, and November 2009 to March 2011. 1. Disability rating for low back disability The Veteran contends that his service-connected low back disability warrants a disability rating higher than the existing 20 percent rating. In a February 2012 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection, effective March 2, 2011, for myofascial pain syndrome (claimed as low back condition). The RO assigned a 20 percent disability rating. The Veteran appealed that rating to the Board of Veterans’ Appeals (Board). In a March 2020 rating decision, an RO changed the description of the service-connected low back disability to myofascial pain syndrome and degenerative disc disease of the lumbar spine. VA assigns disability ratings by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, the Department of Veterans Affairs (VA) shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Under the rating schedule, myositis is rated as comparable to degenerative arthritis, based on limitation of motion of the affected parts. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5021. Degenerative arthritis of the spine is rated under a General Rating Formula for Diseases and Injuries of the Spine (Spine Formula). 38 C.F.R. § 4.71a, Diagnostic Code 5242. Intervertebral disc syndrome is rated under the Spine Formula or under a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), whichever results in the higher rating. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Spine Formula provides for a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 rating is assigned if forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned if there is unfavorable ankylosis of the entire spine. The Incapacitating Episodes Formula provides ratings based on the total duration of incapacitating episodes over the past 12 months. The rating is 20 percent if the total duration is at least 2 weeks but less than 4 weeks, 40 percent if it is at least 4 weeks but less than 6 weeks, and 60 percent if it is at least 6 weeks. When evaluation of a musculoskeletal disability is based on limitation of motion, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened motion, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. § §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating joints with pain on motion, considerations include pain on both active and passive motion, pain with and without weightbearing, and comparison to the range of motion of any opposite undamaged joint. 38 C.F.R. § § 4.59; see Correia v. McDonald, 28 Vet. App. 158 (2016). In a March 2011 post-deployment assessment, the Veteran reported back pain. In private medical treatment in March 2011, he again reported back pain. A clinician who examined his back indicated that it was in normal condition. On VA examination in September 2011, the Veteran reported back pain. In a February 2012 addendum, the examiner stated that his symptoms were primarily symptoms of myofascial pain syndrome. In VA treatment in November 2012, the Veteran reported significant chronic low back pain. In March 2013 he again mentioned back pain. On VA examination in August 2014, the Veteran reported constant back pain since 2011. He stated that the back pain caused difficulty sitting in a car or sitting in a chair for long periods. He had forward flexion of the thoracolumbar spine to 55 degrees, without evidence of painful motion. After three repetitions the range was the same. The examiner found that he did not have intervertebral disc syndrome. Notes of VA treatment of the Veteran in December 2016 reflect ongoing chronic back pain. On VA examination in February 2017, the Veteran reported ongoing low back pain. He stated that the pain was constant, and was aggravated by prolonged standing. He indicated that he could sit in a car for an hour. He stated that occasionally, with twisting, he had spasms. Forward flexion of his thoracolumbar spine was limited to 60 degrees. There was pain on motion. After three repetitions the range was the same. Lumbar spine x-rays showed early degenerative changes. The examiner stated that the Veteran’s low back disability did not affect his ability to work. In VA treatment of the Veteran in March 2017, it was noted that back and foot pain limited his capacity for physical activity. On VA examination in April 2018, the Veteran reported constant low-grade low back pain. He stated that the pain was aggravated by bending, twisting, activity, or prolonged sitting. He indicated that he could not bend forward to lift. He reported that back pain limited him to one hour of sitting in a car. He related that he worked part-time in a gas station convenience store. He said that he could work a full shift if he had good shoes and a cushioned mat to stand on. Forward flexion of his thoracolumbar spine was limited to 35 degrees, with pain on motion. On VA examination in August 2019, the Veteran reported low back pain. He related flare-ups of worse pain with lifting and with prolonged weightbearing. He stated that his low back disability made him unable to carry heavy items such as a case of water. He reported that he had pain with prolonged sitting. There was no ankylosis of his thoracolumbar spine. His thoracolumbar spine had forward flexion to 70 degrees. He had pain with motion, but the pain did not cause additional functional loss. He was able to repeat motions three times without additional functional loss. There was no evidence of pain with weightbearing or without weightbearing. The examiner found that he did not have intervertebral disc syndrome. During the course of the appeal, the Veteran has indicated that his back disability is productive of pain From 2011 forward, the Veteran’s low back disability has not placed his thoracolumbar spine in ankylosis or limited that area to 30 degrees of forward flexion. His low back has reduced his capacity for activity and reduced his endurance for sitting, but has not produced functional impairment equivalent to closely approaching ankylosis or limitation of forward flexion to 30 degrees. He has not reported any incapacitating episodes of back symptoms. His back disability thus has not met or closely approached the criteria for a rating higher than 20 percent. The Board denies a higher rating. 2. TDIU The Veteran contends that his service-connected disabilities make him unemployable. VA regulations allow for the assignment of total disability ratings, where the rating under the rating schedule is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. If there is only one disability, it must be ratable at 60 percent or more. If there are two or more disabilities, they must merit a combined rating of at least 70 percent, with one condition rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). The Veteran has seven service-connected disabilities. His posttraumatic stress disorder (PTSD) with depressive disorder has been rated at 50 percent from February 23, 2017, and 70 percent from June 5, 2018. His obstructive sleep apnea has been rated at 30 percent from March 2, 2011, and 50 percent from May 9, 2011. His low back disability has been rated at 20 percent from March 2, 2011. For his right knee disability, he had two periods of temporary total rating following surgeries. That disability has been rated at 20 percent from March 2, 2011, 100 percent from April 15, 2011, 10 percent from June 1, 2011, 100 percent from June 15, 2012, and 10 percent from December 1, 2012. His left ankle achilles tendonitis has been rated at 0 percent from March 2, 2011, and 10 percent from January 29, 2013. His rhinitis has been rated at 0 percent from March 2, 2011. His chronic sinusitis has been rated at 0 percent from February 21, 2018. Except for the periods in 2011 and 2012 when temporary total ratings were in effect, his combined ratings have been 60 percent from March 2, 2011, 70 percent from January 29, 2013, 80 percent from February 23, 2017, and 90 percent June 5, 2018. From January 29, 2013, his disability ratings have met the criteria for a TDIU. A TDIU is warranted if his service-connected disabilities have made him unable to secure or follow a substantially gainful occupation. Entitlement to a TDIU depends on the impact of a veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as work history, education, and vocational training. 38 C.F.R. § 4.16. Treatment records from 2011 to 2014 reflect that the Veteran’s sleep apnea made him feel not rested upon awakening, and made him feel sleepy during the day. In May 2012 the Veteran reported that his education was through completion of high school. He reported history of employment as a security officer and in transportation. In VA treatment in November 2012, the Veteran reported significant chronic right knee pain and low back pain. He indicated that knee and back pain were triggered by standing, walking, or driving. He stated that he was physically unable to return to past work driving vehicles. He also reported irritability. In January 2013 he related anxiety and difficulty sleeping. In VA treatment in March 2013, the Veteran reported that he worked as a resident assistant at a community counseling and correctional facility. He stated that he was on his feet most of the day. He stated that his right knee and left ankle were in considerable pain after each shift. He expressed a goal of stretching during his work shifts in hopes of reducing the knee and ankle pain. On VA examinations in March 2013, the Veteran reported that he had not lost any days of work because of his left ankle disability. An examiner found that conditions of the Veteran’s nose and sinuses did not affect his ability to work. In VA treatment in May 2013, the Veteran reported that his current medication did not adequately address his knee pain. In August 2013 the Veteran began VA mental health treatment for marital problems due to his anger, irritability, and possible PTSD. In September 2013 he reported difficulty with employment. He expressed his belief that his last job caused his anger. He stated that he recently quit that job, and his anger decreased. In VA treatment in January 2014, the Veteran reported that his right knee continued to cause more trouble the more he was on it. A clinician noted that the knee disability decreased his capacity for physical activity. A screening for PTSD was positive. In April 2014 the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge. The Veteran indicated that he had education and training in electronics. He said that with physical disabilities it was difficult to get a job in electronics. He reported that presently he was working part time, seventeen hours a week, at a retail store. He stated that pain and limited endurance associated with his right knee, left ankle, and low back disabilities made him unable to work more hours. He asserted that his income from the hours he could manage was at a level that was less than substantially gainful. On VA examinations in August 2014, the Veteran reported that his sleep apnea symptoms, including daytime fatigue had improved with use of a continuous positive air pressure (CPAP) machine. The examiner opined that the Veteran’s sleep apnea did not affect his ability to work. The Veteran reported constant aching in his left ankle. He indicated that use of a cane was recommended. He related constant low back pain that caused difficulty sitting in a car or a chair for prolonged periods. He reported right knee pain and swelling, aggravated by standing and walking. The examiner expressed the opinion that the Veteran’s knee, back, and ankle disorders could affect his ability to do physically demanding work. The examiner opined that, with proper accommodations, the Veteran would be able to do sedentary work. In a September 2014 addendum, the examiner opined that the Veteran’s rhinitis did not affect his employability. In September 2014 the Veteran reported that from January 2013 to September 2013 he worked 60 hours a week as a resident assistant at a transition center. He wrote that from October 2013 to May 2014 he worked seventeen hours a week in sales at a retail store. In VA treatment in November 2016, the Veteran indicated that he was in treatment for PTSD at a Vet Center. He reported anger, irritability, and anxiety. A clinician found that he had PTSD symptoms. In December 2016 the Veteran reported mood swings, anxiety, anger, and difficulty sleeping. He reported that he worked in sales at a retail store. A clinician diagnosed PTSD. In January 2017 reported sleep, anger, and temper problems. He stated that he had lost a few jobs due to his anger and temper. He said that recently his anger almost caused him to quit his current job. In February 2017 he indicated that he liked his current employer. On VA examinations in February 2017, the Veteran reported ongoing low back pain. He stated that the pain was constant, and was aggravated by prolonged standing. He indicated that he could sit in a car for an hour. He stated that occasionally, with twisting, he had spasms. The examiner stated that the Veteran’s low back disability did not affect his ability to work. The Veteran reported that he had two right knee surgeries, and presently had right knee pain. The examiner opined that the Veteran’s right knee disability did not affect his ability to work. On VA examination in April 2017, the examiner found that the Veteran had PTSD and a depressive disorder. The Veteran stated that presently he worked as a cashier at a gas station. He related that he felt discomfort interacting with the public, but that his employers were supportive. The examiner found that the Veteran’s PTSD and depressive disorder decreased his work efficiency only during periods of significant stress. In VA treatment in May 2017, the Veteran reported that he worked at a gas station part time, 20 to 30 hours a week. He related that, at work and in other situations, he overreacted when he felt attacked. A clinician noted that the Veteran’s back and foot pain limited his capacity for physical activity. On VA examinations in June 2017, the Veteran reported that daytime fatigue due to sleep apnea was decreased with use of CPAP. He stated that his nose and sinuses always felt congested. He reported that pain and stiffness in his left ankle made prolonged standing difficult. He indicated that he worked 40 hours a week. The examiner opined that the Veteran’s sleep apnea, rhinitis, sinusitis, ankle disability, knee disability, and back disability did not affect his functional abilities. In VA mental health treatment in June 2017, the Veteran reported that his recent busy work schedule was good for his mood, but hard on him physically. In September 2017 he related recently working a lot of hours. In November 2017 he stated that he was working consistently four days a week. On VA examinations in April 2018, the Veteran reported constant nasal congestion and postnasal drainage. X-rays showed sinusitis. The Veteran reported constant low-grade low back pain. He stated that the pain was aggravated by bending, twisting, activity, or prolonged sitting. He indicated that he could not bend forward to lift. He reported that back pain limited him to one hour of sitting in a car. He reported that knee and foot problems limited his endurance for standing. He stated that he occasionally used a cane because of his knee disability. He related that he worked part-time in a gas station convenience store. He said that he could work a full shift if he had good shoes and a cushioned mat to stand on. In August 2018 a private physician examined the Veteran and completed a sinus and rhinitis questionnaire. The Veteran reported that he worked at night as a gas station attendant. The physician stated that the Veteran’s rhinitis and sinusitis produced congestion, drainage, sinus pain, and headaches. The physician found that the congestion contributed to his obstructive sleep apnea and resulting daytime hypersomnolence. On VA mental disorders examination in August 2019, the examiner found that the Veteran’s PTSD symptoms included near-continuous depression, impaired ability to function effectively, and difficulty adapting to a work setting. The examiner concluded that his PTSD produced occupational impairment with deficiencies in most areas, including work. In a December 2019 addendum, the examiner reported having reviewed the Veteran’s claims file. The examiner stated that the Veteran’s ability to interact with others and participate in work settings was hindered by his depression, anxiety, disturbance of motivation and mood, and difficulty managing everyday stressors. On VA back examination in August 2019, the Veteran reported that his back pain caused difficulty sitting in a car or a chair for a long period. He stated that prolonged weightbearing caused flare-ups of more severe back pain. The examiner stated that his low back disability made him unsuitable for prolonged sitting, heavy lifting, or heavy carrying. On VA knee examination in August 2019, the Veteran stated that his right knee ached in cold weather, and with being on his feet for prolonged periods. On examination, there was limitation of motion of the knee. There was evidence of pain with motion. There was evidence of pain without weightbearing. There was no evidence of pain with weightbearing. The examiner stated that his right knee disability made him not a candidate for prolonged walking, running, jogging, frequent squatting, kneeling, or crawling. On VA sleep apnea examination in August 2019, the Veteran reported that daytime fatigue and morning headaches caused by his sleep apnea had improved since he started on CPAP. The examiner opined that his sleep apnea would produce mild productivity issues. The manifestations of the Veteran’s PTSD include difficulty tolerating people and resulting anger. He has reported leaving jobs in anger, and his job histories reflect job changes in 2013 through 2016. His PTSD thus has affected his occupational functioning by causing job turnover. He has, however, related having the same employment, as a gas station cashier, from 2017 forward. Medical records and the Veteran’s statements reflect that his back disability precludes prolonged sitting. He has indicated that his right knee and left ankle disabilities limit his endurance for being on his feet. Examiners have recognized limitations on his endurance for walking, but have not indicated that he cannot work substantial periods in a standing position. His work history, as noted in his statements and in treatment and examination records, reflects that in many periods from 2013 forward he has worked full time hours. In 2018 he indicated that in his gas station cashier job he stands. In summary, his PTSD, low back, right knee, and left ankle disabilities have interfered with his job retention and performance. The interference from those disabilities and his other service-connected disabilities has not kept him, however, from securing and following substantially gainful employment. The Board therefore denies a TDIU. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. J. Kunz, 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.