Citation Nr: 20042796 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 06-28 275 DATE: June 24, 2020 ORDER Entitlement to a rating greater than 20 percent for a back disability is denied. Entitlement to a total disability based upon individual unemployability (TDIU) on an extraschedular basis effective July 15, 2003, is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s back disability was not manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less or ankylosis, and there were no incapacitating episodes due to intervertebral disc syndrome. 2. The Veteran’s service-connected disabilities are of such a nature or severity as to prevent him from obtaining or retaining substantially gainful employment since July 15, 2003. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating greater than 20 percent for a back disability have not been met. U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.71a, Diagnostic Code (DC) 5242-5243. 2. The criteria for an extraschedular TDIU, effective July 15, 2003 have been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to October 1985 with active duty training from April 1992 to August 1992 and in August 1998. In a June 2019 decision, the Board granted TDIU on an extraschedular basis from April 11, 2006. The Veteran subsequently appealed the denial of TDIU prior April 2006 to the United States Court of Appeals for Veterans Claims (Court). In a January 2020 order, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated that the Board’s decision that denied entitlement to TDIU prior to April 11, 2006. 1. Entitlement to a rating greater than 20 percent for a back disability After the Veteran’s July 15, 2003 notice of disagreement (NOD) was determined not timely filed by the Agency of Original Jurisdiction (AOJ). The AOJ considered the Veteran’s July 2003 NOD as a new claim to reopen his increased rating claim for a back disability. The Veteran contends that his back disability is more severe than the currently assigned 20 percent rating. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, 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 Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s back disability has been rated under Diagnostic Code 5242-5243 for degenerative arthritis of the spine and for intervertebral disc syndrome (IVDS). Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5243. Under the General Rating Formula for Diseases and Injuries of the Spine a 100 percent rating is warranted for ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242-5243. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the entire thoracolumbar spine not greater than 120 degrees; or, if 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. Id. Under notes to the rating formula: Note (1) any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (see also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80 (1997). The provisions of 38 C.F.R. § 4.59 contain additional guidelines for evaluating musculoskeletal disability, but are inapplicable where, as here, the disability is already rated at a compensable level. Vilfranc v. McDonald, 28 Vet. App. 357 (2017). Additionally, the Veteran has IVDS, which is evaluated either under the General Rating Formula for Disease and Injuries of the Spine or Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. VA examinations prior to February 2020 were previously found inadequate. During the February 2020 examination, the examiner noted that the Veteran had moderate pain on palpation of lumbosacral paraspinal muscles, left lumbar muscle spasm. The Veteran also reported that he has difficulty sitting greater than 30 minutes, standing greater than 10 minutes, walking greater than 50 yards inclined, or one-half block. He also reported having difficulty walking up steps. The Veteran stated it seems like he drags his feet a lot and trips over curbs. The examiner opined that the Veteran’s range of motion (ROM) during flare-ups was the same as his repetitive test ROM measurements. The repetitive ROM showed a limitation of painful motion of 0-50 degrees forward flexion and a combined ROM limited to 110 degrees. The Veteran had an antalgic gait and guarding of bilateral rotation, bilateral flexion, forward flexion and extension. The Veteran’s straight leg test was negative bilaterally, but the examiner noted mild radiculopathy of the bilateral lower extremities affecting the femoral and sciatic nerve roots. The Veteran did not have ankylosis. The Veteran’s functional impact was described as difficulty with prolonged sitting, standing and walking. This affects his ability to perform prolonged physical activities. Additionally, the Veteran had additional neurological abnormalities associated with his back disability of loss of control of bowel and bladder after twisting, using riding mower and at nighttime. The Board finds that evidence does not show an increased rating is warranted for any period on appeal. Although the Veteran has been diagnosed with intervertebral disc syndrome, there is no evidence of incapacitating episodes, as defined by regulation. Thus, increased ratings are not warranted based on consideration of the formula pertaining to intervertebral disc syndrome. Increased ratings are also not warranted under the General Rating Formula. The Veteran’s ROM was shown not to be limited more than 50 degrees forward flexion of the spine with a combined ROM of 110 degrees. There is no objective evidence that the Veteran’s back disability manifested ankylosis or a forward flexion of 30 degrees or less at any time during the period on appeal. The Board also notes that the Veteran is already in receipt of separate ratings for radiculopathy of the bilateral lower extremities at 20 percent and also neurogenic bladder associated with his back disability at 20 percent. Thus, the criteria for a 40 percent rating are not met or more closely approximated. The preponderance of the evidence is against the claim for an increased rating for the service-connected low back disability in excess of 20 percent. 38 U.S.C. § 5107(b). 2. Entitlement to TDIU on an extraschedular basis prior to April 11, 2006 In a November 2017 decision, the Board granted TDIU on a schedular basis, effective April 18, 2016, and remanded the claim for consideration on an extraschedular basis for the period prior to that date. In the June 2019 decision, the Board granted TDIU on a schedular basis from April 11, 2006, but no earlier. As a result of the January 2020 JMPR, the issue before the Board is whether TDIU is warranted prior to April 11, 2006. The Board finds that the Veteran is entitled to TDIU, on an extraschedular basis, from July 15, 2003, the date that the Veteran filed to reopen his increased rating claim for his back disability. See Rice v. Shinseki 22 Vet. App. 447 (2009). The Veteran contends that he has not worked since April 2006 due to his service-connected disabilities and that even though he was employed prior to April 2006, that employment was marginal. TDIU may be assigned to a Veteran who meets certain disability percentage thresholds and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a). The Veteran does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16 prior to April 18, 2016. The TDIU claim was referred to the Director for Compensation and Pension Service (Director) for extraschedular consideration in the first instance. In May 2018, the Director decided a grant of TDIU on an extraschedular basis prior to April 18, 2016, was “not recommended.” Prior to April 18, 2016, the Veteran’s combined disability rating was 60 percent from January 2004 and 70 percent from October 2015. Service connection was in effect for the following disabilities: pes planus, rated as 10 percent disabling; back disability, 20 percent; neurogenic bladder, 20 percent; right forearm scar, 10 percent; radiculopathy of the right and left lower extremities, 10 percent for each extremity; right and left hip disabilities, 10 percent for each hip; and tinnitus, 10 percent. The Board finds that he is so entitled, effective July 15, 2003, the date that the Veteran filed to reopen his increased rating claim for his back disability. The issue of TDIU is considered part and parcel of the increased rating claims. See Rice v. Shinseki 22 Vet. App. 447 (2009). Consideration has been given to the Veteran’s level of education, special training, and previous work experience in arriving at this conclusion. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his or her particular case. Regardless of the method, if the evidence or facts reflect that a veteran is capable only of marginal employment, he or she is incapable of securing or following a substantially gainful occupation and is therefore entitled to total disability evaluation based on individual unemployability if his or her service-connected disabilities are the cause of that incapability. Cantrell v. Shulkin, 28 Vet. App. 382 (2017). On a VA Form 21-8940, Application for TDIU, submitted in February 2007, the Veteran stated he last worked in February 2006 as a substitute teacher. In March 2019, the Veteran submitted an updated VA Form 21-8940 where he stated he last work as a substitute teacher in April 11, 2006. The Veteran reported that he earned his highest annual income in 2002, when he worked as a mechanic. The Veteran has four years of college. A VA examination opinion was obtained in October 2010. The examiner opined on the functional impact the Veteran’s disabilities had on his employment. The examiner opined that the Veteran could not engage in physical employment that required standing or lifting, but he could work in a sedentary employment capacity. The opinion did not discuss how all of the Veteran’s disabilities combined would functionally impact sedentary employment. Additionally, the Veteran was not yet service-connected for urinary incontinence effective January 30, 2004, until a January 2018 rating decision. The Veteran was given a VA examination in February 2016 and diagnosed with neurogenic bladder secondary to lower back injury. The VA examiner noted that the Veteran experiences urinary leakage that requires changing an absorbent pad up to two times a day, but also noted a contradiction in the Veteran’s records whether he had any urinary incontinence. The examiner opined that the Veteran’s urinary disability does not functionally impact his employment. In March 2019, the Veteran submitted a statement stating that he was terminated from his employment in 2002 due to his service-connected back injury preventing him from fulfilling the requirements of his position as a mechanic. The Veteran further reported that he next became a substitute teacher, despite the unbearable pain from his service-connected disabilities. The Veteran then started experiencing urinary incontinence (a service-connected disability) due to nerves pinching in his back. The Veteran stated that on many occasions he would have to leave school early because he soiled his clothing or from the pain from his disabilities. As a result, he was only able to work two to three days per week and stopped working in April 2006. Furthermore, the evidence shows that the Veteran’s employment was marginal at best. The Veteran did not work fulltime and on many occasions had to leave work early due to his service-connected disabilities. The Board finds the Veteran’s statement competent, credible and probative Layno v. Brown, 6 Vet. App. 465 (1994); Falzone v. Brown, 8 Vet. App. 398 (1995). The Veteran’s March 2019 statement expresses how the combined effect of his service-connected disabilities affect his ability to obtain and remain substantially gainfully employment. The record shows that with each disability, the Veteran attempted to modify his skillset to remain employed. The Veteran stopped working after the combination of his service-connected disabilities prevented his employment. The Veteran also submitted a private vocational opinion in March 2019, where the expert opined that the Veteran’s employment from 2001 to 2012 is not considered substantially gainful employment because the Veteran’s earnings were below the poverty threshold. Previous VA examinations during that period only discussed the effect of the Veteran’s disabilities individually, and not the combined effect that all of the Veteran’s disabilities would have on his ability to work in a sedentary employment environment. The Board finds it significant that the medical evidence shows that the Veteran’s service-connected disabilities render him both unable to perform heavy lifting and prolonged walking or standing, and unable to work at even a sedentary level once the Veteran’s service-connected disability ratings met the schedular criteria for TDIU. The Board further notes that the Veteran’s overall disability picture changed very little prior to the effective date of April 18, 2016. Given the impairment related to the Veteran’s service-connected disabilities, and considering his work and education history, he is precluded from securing and following substantially gainful employment due to his service-connected disabilities. As a result, an extraschedular TDIU is warranted from July 15, 2003, the date the appeals period began. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.