Citation Nr: 20041679 Decision Date: 06/18/20 Archive Date: 06/18/20 DOCKET NO. 09-25 127 DATE: June 18, 2020 ORDER Entitlement to a 20 percent rating, but no higher, for a back disability is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence showed that the Veteran’s back disability is manifested by adverse symptomatology that equates to forward flexion of the thoracolumbar spine less than 60 degrees when considering his complaints of pain but not 30 degrees or less even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor is it manifested by ankylosis or incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks during a 12-month period. 2. The Veteran’s service-connected disabilities precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for a back disability, but no higher, have been met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5235 to 5243. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty with the United States Air Force (USAF) from January 1982 to July 2007 with service in Iraq from March 2004 to June 2004. The Veteran was scheduled to testify at a Travel Board hearing before a Veterans Law Judge in December 2010. However, he failed to report to the hearing. As such, his hearing request is considered withdrawn. 38C.F.R.§ 20.704. In a May 2016 decision issued by another Veterans’ Law Judge, the Board of Veterans’ Appeal (Board), among other things, denied the Veteran’s claim for a rating in excess of 10 percent for his back disability. The Veteran appealed the May 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent April 2017 order, that incorporated the parties of Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the May 2016 decision to the extent that it denied the Veteran’s claim for a rating in excess of 10 percent for a back disability. In September 2017, the Board found that under Rice v. Shinseki, 22 Vet. App. 447 (2009) the record also raised a TDIU clam and Remanded the appeal for additional development. The Board finds that the post-remand development substantially complied with the Remand because the post-Remand VA examination dated in December 2018 provided information needed to rate the Veteran’s back disability as well as his TDIU claim, including in accordance with the Court’s holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has reached this conclusion because after a review of the record and an examination of the Veteran the examiner provide all needed information to rate his back and his TDIU claim under all applicable rating criteria including range of motion studies that considered, in accordance with the JMPR, among other things, his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). The Rating Claim The Veteran contends that his back disability is more severely disabling than represented by the rating assigned at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Correia and Sharp Concerns Initially, in adjudicating below whether the Veteran meets the criteria for a higher evaluation for his back, the Board has not overlooked the Court’s holdings in Correia, supra, and Sharp, supra, as well as the JMPR. Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases as well as in the April 2017 JMPR because the December 2018 examiner specifically considered the range of motion of the thoracolumbar spine taking into account the Veteran’s complaints of pain with and without weight bearing and resistance in passive and active range of motion. The Board has also reached this conclusion because that examiner specifically noted that the Veteran denied having any flare-ups and therefore range of motion (i.e., actual and estimated) during flare-ups could not be provided. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Merits of the Claim The Veteran’s back disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242. In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, 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 if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. The Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. i. As to a rating in excess of 10 percent for the back disability With the above criteria in mind, the Board notes that when considering the Veteran’s complaints of pain flexion of the back was 55 degrees at the March 2014 VA examination. Tellingly, the Court has held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, while back flexion was not documented as being as restricted by the earlier October 2007 and August 2009 and subsequent December 2018 VA examiners, with giving the Veteran the benefit of doubt in this matter, the Board nonetheless finds that when considering 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court’s holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), that he meets the criteria for at least the next higher, 20 percent, rating under the General Rating Formula for Disease and Injuries of the Spine at all times during the appeal because the record showed that flexion was less than 60 degrees (i.e. 55 degrees) at the March 2014 VA examination. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; Also see 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra. ii. As to a rating in excess of 20 percent for the back disability As to a rating in excess of 20 percent for the back disability, the Board finds that even when considering the Veteran’s complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court’s holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 40 percent, rating at any time during the appeal because flexion of the thoracolumbar spine was 90 degrees at the October 2007 and August 2009 VA examinations, 55 degrees at the March 2014 VA examination, and 80 degrees at the December 2018 VA examination; not the 30 degrees or less required for an increased rating. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242; Fenderson, supra; Hart, supra. The Board also notes that the treatment records also do not document flexion being 30 degrees or less as well as finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin, supra; Davidson, supra. Similarly, the Board finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for his back disability under the General Rating Formula for Disease and Injuries of the Spine during the appeal period because the record is negative for a diagnosis of ankylosis of the thoracolumbar spine. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; VA examinations dated in March 2014 and December 2018. See Colvin, supra. In fact, the March 2014 and December 2018 VA examiners opined that the Veteran did not have ankylosis and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent or credible to provide the missing diagnosis because this is a medical finding and he does not have the required expertise. See Davidson, supra. Furthermore, in the absence of ankylosis the Board may not rate his back disability as ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for his back disability under the Formula for Rating Intervertebral Disc Syndrome at any time during the appeal period because of having physician ordered bedrest. In fact, the October 2007 and December 2018 VA examiners opined that the Veteran did not have physician ordered bedrest/incapacitating episodes due to his back disability. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent or credible to provide the missing evidence of having physician ordered bedrest because this is a medical finding and he does not have the required training and the medical the record does not show he ever had a total of at least 4 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. See Davidson, supra. Therefore, the Board also finds that the criteria for a rating in excess of 20 percent for the Veteran’s back disability is not met at any time during the appeal under 38 C.F.R. § 4.71a, Diagnostic Code 5243. See Fenderson, supra; Hart, supra; Davidson, supra; Colvin, supra. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim to the extent outlined above, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, supra; Gilbert, 1 Vet. App. at 55-56. The TDIU Claim The record raises a claim for a TDIU. See Rice, supra. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record shows that the Veteran is service-connected for the following disabilities: • posttraumatic stress disorder (PTSD) rated as 70 percent disabling; • a left shoulder disability rated as 20 percent disabling; • a back disability rated as 20 percent disabling; • right hip disability rated as 10 percent disabling; • a facial scar rated as 10 percent disabling; • a chest scar rated as 10 percent disabling; and • left and right small finger disabilities, a deviated nasal septum, and onychomycosis each rated as noncompensable. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated at 40 percent or higher and his combined rating is 70 percent or higher. Thus, the question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the record does not show that the Veteran filed with the regional office (RO) a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. However, from the record the Board can piece together the following employment history; while on active duty the Veteran’s occupational specialty was car mechanic for the almost 20 years he served in the USAF and since 2007 he worked intermittently detailing and painting cars. See, e.g., DD 214; VA examinations dated in February 2010 and June 2016. As to the Veteran’s education, the record shows that he graduated high school before entering service and while on active duty he earned an associate degree in vehicle and maintenance management and a second in human resources. See, e.g., VA examination dated in February 2010. Significantly, as to the Veteran’s work history performing jobs that require non-sedentary employment, including his past employment as a car mechanic as well as detailing and painting cars and other possible non-sedentary employment that could make use of his work experience, the Board finds that the problems his service-connected PTSD would cause interacting with co-workers and customers when combined with the physical limitations placed on his physical activities by his service-connected left shoulder disability, back disability, right hip disability, and left and right small finger disabilities would adversely impact his ability to work in these fields because he could neither lift, carry, stand, walk, or drive for prolonged periods of time. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that they would make it unsafe for him to work in this field. Likewise, as to the Veteran’s working for the first time at an occupation that involved sedentary employment, including occupations that could make use of his associates degrees in vehicle and maintenance management and human resources, the Board finds that the problems his service-connected PTSD would cause interacting with co-workers and learning new tasks when combined with his inability to sit for prolonged periods of time due to the pain caused by his service-connected back and right hip disabilities and the difficulty using his hands to write and operate a computer because of the problems caused by his service-connected left shoulder as well as his left and right small finger disabilities and his lack of experience would adversely impact his ability to work in these fields for the first time even though his VA examiners opined that these were the only types of jobs his service-connected back disability would allow him to work. See Geib, supra; see, e.g., VA examinations dated in February 2014 and December 2018. Given the above, the Board finds that his service-connected disabilities would prevent him from securing or following a “substantially gainful” occupation given his prior vocational history, work experience, his education, and the collective impact his service-connected PTSD, left shoulder disability, back disability, right hip disability, and left and right small finger disabilities would have maintaining a physically demanding employment including in his past occupation as a car mechanic as well as detailing and painting cars and obtaining and maintaining for the first time non-physically demanding employment that could make use of his associates degrees in vehicle and maintenance management and human resources. There are some gaps of information in this case. However, the Board is attempting to address this issue without a remand to the RO for more development. A remand would delay the full adjudication of this case. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment and the criteria for a TDIU have been met. 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.