Citation Nr: 21001190 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-07 258 DATE: January 7, 2021 ORDER Entitlement to a 20 percent evaluation prior to July 23, 2020 for lumbar spine degenerative joint and disc disease is granted. Entitlement to an evaluation higher than 40 percent on and after July 23, 2020 for lumbar spine degenerative joint and disc disease is denied. Entitlement to a separate evaluation for right lower extremity radiculopathy is granted. Entitlement to a separate evaluation for left lower extremity radiculopathy is granted. Entitlement to an evaluation higher than 30 percent for service-connected status-post left ankle with osteochondral lesion microfracture and tibial spur resection with ankle arthroscopy and arthrotomy is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Prior to July 23, 2020, the service-connected lumbar spine degenerative joint and disc disease resulted in back pain with abnormal spinal curvature and antalgic gait, and flexion more nearly approximating 30 to 60 degrees. 2. On and after July 23, 2020, the lumbar spine degenerative joint and disc disease caused flexion to be limited to 30 degrees or less but did not result in ankylosis of the thoracolumbar spine. 3. Right lower extremity radiculopathy is diagnosed and due to the lumbar spine degenerative joint and disc disease. 4. Left lower extremity radiculopathy is diagnosed and due to the lumbar spine degenerative joint and disc disease. 5. Throughout the appeal, there has not been ankylosis of the left ankle or loss of use of the foot. 6. The Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to July 23, 2020, the criteria for a 20 percent evaluation for lumbar spine degenerative joint and disc disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for an evaluation higher than 40 percent on and after July 23, 2020 for chronic low back strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. 3. The criteria for a separate evaluation for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. 4. The criteria for a separate evaluation for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. 5. The criteria for an evaluation higher than 30 percent for service-connected status-post left ankle with osteochondral lesion microfracture and tibial spur resection with ankle arthroscopy and arthrotomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5270, 5271, 5284. 6. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.103, 3.340, 3.341(a), 4.16(a), 4.25 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1998 to February 1999 and September 2001 to July 2006. This matter comes to the Board of Veterans Appeals (Board) on appeal from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding is of record. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The matter was remanded by the Board in August 2018 and has been returned for further appellate review. The Board finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2019). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2019). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Entitlement to a 20 percent evaluation prior to July 23, 2020 for lumbar spine degenerative joint and disc disease is granted. 2. Entitlement to an evaluation higher than 40 percent on and after July 23, 2020 for chronic low back strain is denied. The Veteran seeks higher evaluations for his service-connected lumbar spine disorder. Service connection was initially granted for chronic lumbar strain, but the condition has now progressed to lumbar degenerative joint disease with degenerative disc disease. See October 2019 VA examination report. Although the 2020 VA examiner found the diagnoses were unrelated, the 2019 VA examiner did not make this finding. Thus, and resolving all doubt in favor of the Veteran, the service-connected disability has been recharacterized in this appeal as lumbar spine degenerative joint and disc disease (lumbar spine disorder). The Veteran’s lumbar spine disorder is rated under 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. Prior to July 23, 2020, the criteria for a 20 percent rating are met for muscle guarding with abnormal gait and spinal curvature. Also, resolving reasonable doubt in the Veteran’s favor, the symptoms experienced during flares more nearly approximate forward flexion greater than 30 degrees but not greater than 60 degrees. Available VA treatment records document the Veteran’s back pain was severe enough in January 2011 he presented to a VA emergency room with complaints of difficulty sitting or standing straight. The pain was aggravated by movement and radiated to the thighs, and his gait was limping. April 2011 VA treatment notes document the Veteran had constant pain in the back, with some days better than others, and increased pain with bending and lifting. On examination, the Veteran had slightly decreased lumbar range of motion and lower extremity pain, with poor posture and increased lumbar lordosis. A June 2011 VA treatment note documents the Veteran had tingling from the left buttocks down the thigh and leg and was unable to stand for long periods of time due to back pain. He also reported difficulty with prolonged sitting, and that he had to lean to the side. Additional VA treatment records generally document chronic back pain. The VA treatment records show the Veteran had back pain with increased lumbar lordosis and an antalgic gait. A May 2011 VA examiner documented symptoms of lower back pain that radiated to the left leg. The Veteran had normal posture but an antalgic gait. The Veteran was able to flex to 88 degrees and extend to 30 degrees, and the examiner did not report any pain on motion. The examiner did not comment on or describe flares of symptoms, or whether there was additional functional loss during flares or with repeated use over time. At the May 2018 hearing, the Veteran stated that his legs started to tingle if he sat too long, his range of motion was limited, and he could not bend to pick things up. He stated his back would lock up for days. He described a limited ability to walk for prolonged periods of time due to his back and reported a recent flare of symptoms that was so severe he was in bed for 3 days. His flares occurred 3 to 4 times per month. The Veteran underwent another VA examination in October 2019. At that time, he described daily flares of symptoms with back tightness, pain, and left leg/foot tingling. On examination the Veteran was able to flex to 80 degrees and extend to 30 degrees but had pain with movement. The Veteran was able to perform 3 repetitions without additional loss of range of motion. The examiner concluded pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examiner stated they were unable to provide an opinion on the additional degree of limitation experienced by the Veteran during flares without resort to mere speculation because the Veteran was not experiencing a flare at the time of the examination and the Veteran was only able to verbalize the description already given. The VA treatment records from 2011 include findings consistent with the 20 percent criteria, including severe back symptoms with abnormal spinal curvature and an antalgic gait, but only slightly decreased range of motion. The VA examination reports show less severe symptoms, but those examiners did not adequately document or comment on the additional degree of functional impairment experienced by the Veteran during flares. The Veteran has reported flares of symptoms with increased stiffness and pain, and described flares severe enough that back would “lock up” for days. Considering the lay testimony of decreased movement during flares and the inadequacy of the VA examination reports in this regard, the Board finds that overall the Veteran’s lumbar spine disorder is manifest by range of motion findings more nearly approximating flexion from 30 to 60 degrees; but not flexion limited to 30 degrees or less. Thus, for the period prior to July 23, 2020 the criteria for a 20 percent evaluation are met, but no higher. On and after July 23, 2020 the criteria for an evaluation higher than 40 percent for the lumbar spine disorder are not met because the evidence does not show unfavorable ankylosis of the thoracolumbar spine. Even when considering the functional limitation during a flare-up, the Veteran’s symptoms do not more nearly approximate the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. A July 2020 VA examiner provided an adequate opinion of the decreased function experienced by the Veteran during flares, which is flexion less than 30 degrees but not complete fixation of the spine. The examiner reported the Veteran did not have ankylosis of the spine. There is no other evidence of ankylosis of the spine. Thus, the criteria for an evaluation higher than 40 percent on and after July 23, 2020 are not met. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Thus, the criteria for an evaluation higher than 40 percent on and after July 23, 2020 are not met and to that extent the claim is denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to separate evaluations for right and left lower extremity radiculopathy is granted. Entitlement to a separate evaluation for right and left lower extremity radiculopathy is warranted as neurological manifestations of the service-connected lumbar spine disorder. May 2011 private records document the Veteran’s complaints of left sided sciatic pain for 3 months, and an MRI showed spinal narrowing and a disc bulge. The assessment was lumbar radiculopathy. The May 2011 VA examiner documented back pain that radiated to the left lower extremity and decreased sensation of the left lower extremity, although the examiner did not comment on the presence of lumbar radiculopathy. The October 2019 VA examiner identified mild left lower extremity radiculopathy, and the July 2020 VA examiner identified bilateral lower extremity radiculopathy due to degenerative disc disease. The 2020 examiner stated the lumbar radiculopathy was not due to service-connected lumbar strain, however the service-connected disability has been recharacterized as lumbar spine degenerative joint and disc disease. Thus, entitlement to a separate evaluation for the associated right and left lower extremity radiculopathy is granted. 4. Entitlement to an evaluation higher than 30 percent for service-connected left ankle disorder The Veteran seeks an evaluation higher than 30 percent for the service-connected left ankle disorder. The Veteran’s left ankle disorder is rated by analogy under 38 C.F.R. § 4.71a, DC 5271-5284, for other foot injuries. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to DC 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, DC 5284. The only other DC pertaining to the ankle that would yield an evaluation higher than 30 percent is DC 5270. Under DC 5270, a maximum 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, DC 5270. Throughout the appeal, none of the available records show loss of use of the left foot, or ankylosis of the left foot. At a May 2011 VA examination, the Veteran had painful limited motion of the foot, but no ankylosis or loss of use of the foot. At the May 2018 hearing, the Veteran described severe foot pain and very limited range of motion. An October 2019 VA examiner similarly documented reports of pain and objective evidence of limited range of motion of the ankle and instability, but no ankylosis or loss of use of the foot. The Veteran regularly used a brace. The Veteran has also described limitation walking and standing due to left foot symptoms, but has not described total loss of use of the foot. The available lay and medical evidence does not reflect symptoms that more nearly approximate ankylosis of the ankle or loss of use of the foot. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for the left ankle disorder. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to a TDIU is granted. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Service connection is in effect for sleep apnea, lumbar spine disorder, PTSD, left ankle disorder, bilateral plantar fasciitis, left foot pes planus, tinnitus, scars, right ear hearing loss, and headaches. For the period on appeal, the Veteran has met schedular requirements for a TDIU because sleep apnea has been rated at 50 percent and the Veteran’s combined disability rating is higher than 70 percent. The evidence demonstrates the Veteran’s educational background includes high school and some community college courses, and his employment history has been military or construction related. See October 2014 Social Security Administration (SSA) records. May 2007 VA Vocational Rehabilitation and Employment (VRE) records note the Veteran’s colleges courses would assist him in managing his day to day life better, but were insufficient for suitable employment. At the May 2018 hearing, the Veteran testified that he was only qualified for blue collar work and was unable to perform white collar work. He described significant difficulty with prolonged sitting and standing that impaired both sedentary and physical work. He reported he had attempted a sales position but was unable to make it through an entire work day due to his low back and ankle disabilities. See also October 2014 SSA records (noting the Veteran had attempted two less physical positions but was unable to maintain such employment due to the lumbar spine and left foot disorders). The Board also finds the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The SSA determined the Veteran was disabled due to the effects of his lumbar spine and left ankle disorders. See October 2014 SSA records. SSA found that the residual functional capacity of the Veteran was insufficient to perform in an occupation for which the Veteran had appropriate training. See id. VA VRE documents show the Veteran was denied VRE benefits because he was assessed as unemployable due to the lumbar spine and left foot disorders. See February 2011 VA VRE correspondence. The available medical and lay evidence demonstrate that due to sleep apnea, the Veteran is fatigued during the day and takes naps. See July 2020 VA examination report. Due to PTSD, he has some difficulty concentrating on work related tasks. See July 2020 VA examination. Due to headaches, the Veteran frequently missed his college classes. See December 2008 VA examination report. Currently, his headaches occur 1 or more times a week and he has to lie down in a dark room. See July 2020 VA examination report. Due to his lumbar spine disorder with radiculopathy, the Veteran is unable to lift anything more than 10 pounds, he has difficulty with both sitting and standing, and the pain is distracting. See July 2020 VA examination report. Due to the left ankle disorder, the Veteran is unable to ambulate for any prolonged period of time, and he experiences severe and distracting pain. See October 2019 VA examination report. The 2020 examiner concluded that overall the Veteran was capable of sedentary employment. In providing that opinion, the examiner did not discuss the Veteran’s difficulty with prolonged sitting, the frequency he would miss work due to headaches or fatigue, and did not discuss the distraction entailed by chronic and severe pain. Thus, the July 2020 VA examiner’s conclusion is not afforded probative weight. Resolving doubt in favor of the Veteran, it is at least as likely as not that the Veteran is unable to perform even sedentary employment due to the combined effects of his multiple service-connected disabilities. Thus, the criteria for a TDIU are met and the claim is granted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.