Citation Nr: 21002556 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-01 562 DATE: January 14, 2021 ORDER A 20 percent rating, but not higher, for DDD of the lumbar spine is granted, subject to the laws and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability was shown to result in forward flexion functionally limited to 60 degrees. 2. At no time during the period on appeal has the Veteran’s lumbar spine disability been shown to functionally limit the forward flexion in his thoracolumbar spine to 30 degrees or less; and there has been no showing that he has IVDS or spinal ankylosis. 3. The Veteran does not meet the schedular requirements for a TDIU, nor does the weight of the evidence suggest that he is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but not higher, for DDD of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5237. 2. The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to September 1978 and from December 1980 to April 1982. VA received the Veteran’s claim for service connection on September 29, 2011. A subsequent April 2013 rating decision granted the Veteran’s claim and assigned a 10 percent rating, effective the date of claim. VA received the Veteran’s claim for a TDIU on April 25, 2013 and it appears that the regional office (RO) construed this application as both an application seeking a TDIU rating, as well as an increased rating claim regarding his lumbar spine disability. However, the Veteran did not explicitly disagree with the assignment of a 10 percent rating and did not provide new and material evidence within a year of the April 2013 rating decision. Thus, the April 2013 rating decision became final. As such, the Board finds that the April 25, 2013 TDIU application functions as both a claim for a TDIU and an increased rating claim for a lumbar spine disability. This appeal was previously before the Board in September 2018. The increased rating and the TDIU claims were remanded for further development. The Board found that the April 2014 VA examination was inadequate because it was not in compliance with the later issued decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board also found that the claim for a TDIU was inextricably intertwined. The increased rating claim was remanded so that the Veteran’s lumbar spine could be tested in both active and passive motion and in weight-bearing and non-weight-bearing. Id. The Veteran was afforded a VA examination for his low back in June 2019. The examiner addressed the provisions of Sharp and opined that flare-ups could potentially cause further limitation in range of motion and an increase in pain. The examiner also addressed the question of whether the Veteran’s low back condition impacted his ability to work. As such, the Board finds that there has been substantial compliance with the September 2018 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Increased Rating A rating of 20 percent, but not higher, for DDD of the lumbar spine is granted. The Veteran asserts that he is entitled to a 100 percent rating for his low back disability because he is on bed rest and in a wheelchair. See NOD received December 19, 2014; Form 9 received November 17, 2015. Back disabilities are currently rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has experienced any IVDS. The April 2014 and June 2019 VA examiners both reported that the Veteran did not have IVDS. Moreover, a note from his private treatment records shows that his physician actually advised against bed rest lasting more than 4 days. See Private Treatment Record dated September 19, 2016. There is otherwise no medical evidence indicating that he was ever prescribed bed rest. While the Veteran suggested that he has been prescribed bed rest, the evidence of record has not corroborated it. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s thoracic spine disability and lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine 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; if there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is 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. A 40 percent evaluation is warranted 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 evaluation is warranted if there is 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. The Veteran was afforded a VA examination in April 2014. The Veteran reported that he has continuous back pain that is unbearable and uses a wheelchair. He reported having flare-ups, stating that his back never stopped hurting even when using the tens unit, or heating pad. He estimated that the pain every day was 9/10, adding that he did not do anything but lay down and eat and sleep, as his pain increased with movement. However, on physical examination, the Veteran demonstrated full range of motion, even after repetitive motion testing. The examiner reported that the Veteran was able to ambulate unaided, with a steady gait. On examination, he showed forward flexion to 90 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The Veteran was able to perform repetitive use testing and did not result in additional loss of range of motion. The examiner reported that the Veteran had guarding and muscle spasms of the thoracolumbar spine, but neither resulted in abnormal gait of abnormal spinal contour. Muscle strength testing showed full strength in all areas. No muscle atrophy was observed. The examiner reported that the Veteran did not have IVDS or ankylosis of the spine. The Veteran was noted to occasionally use a wheelchair. The Veteran reported that he cannot lift or sit up without pain, that his back hurts constant and has no relief. He stated that that the only time his back does not hurt is when he is asleep. He added that he did not work and had not worked since 1982. The examiner found that the Veteran’s reports of chronic pain were subjective at all times. The examiner acknowledged that the Veteran might have difficulty with physical duties including lifting, twisting, turning, bending, and other repetitive motions physically, but felt that these limitations would not impact or prevent him from a job that did not have such requirements. VA treatment records in April 2014 note that the Veteran has been positive for marijuana multiple times in violation of pain contract and urine is positive for opioids today which is a red flag as patient should not have narcotics and does not have an active prescription on file. The Veteran was noted to have changed several clinics in search of narcotics. A review of the Veteran’s private medical records shows that his physician took regular measurements for the range of motion for his lumbar spine from September 2015 to September 2016. See Medical Treatment Record received January 16, 2017. The Veteran showed forward flexion to 70 degrees in September 2015 and November 2015. However, the Veteran showed forward flexion limited to 60 degrees, a finding consistent with a 20 percent rating, in October 2015, January 2016, March 2016, May 2016, July 2016, and September 2016. The Veteran was afforded a VA examination in June 2019. The Veteran reported severe pain in his lower back. He reported flare-ups and that his back pain is so bad, he can hardly sleep and tossed and turned all night and day and cannot get into a comfortable position. On examination, he showed forward flexion to 70 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees and right and left lateral rotation to 30 degrees. Pain was noted on examination and caused functional loss. There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner indicated that the examination was conducted during a flare-up and the range of motion in his spine was noted to be the same as the initial measurements. However, the examiner did report that flare-ups could potentially cause an increase in pain during a flare-up; and after an in-person examination and a review of the Veteran’s claims file, additional loss would be expressed as additional loss in degrees, as described by the Veteran. The examiner indicated that the Veteran did not have guarding or muscle spasms of the lumbar spine. Muscle strength testing showed full strength in all areas. There was no evidence of ankylosis or IVDS. The examiner indicated that the Veteran used a wheelchair on a regular basis and constantly used a back brace and a TENS unit. The examiner reported that the provisions of Sharp could not be clearly delineated, but reported that when the Veteran returned to his usual day to day activities, could potentially have further limitation in range of motion and increased pain, especially during flare-ups. Here, the weight of the evidence demonstrates that the Veteran’s forward flexion is consistent with a 20 percent rating. The Veteran’s private treatment records reveal that he consistently showed forward flexion limited to 60 degrees from October 8, 2015, forward. See Medical Treatment Record received January 16, 2017. The Board acknowledges that the Veteran showed forward flexion limited to 70 degrees at the 2019 VA examination; however, the examiner did indicate that a flare-up could potentially cause an additional loss in terms of range of motion. As such, the Board will resolve reasonable doubt on the Veteran’s behalf and award a 20 percent rating to take into account additional impairment during flare-ups. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Board acknowledges that the Veteran has been noted to use a wheelchair and is one of the reasons he believes he is entitled to a total schedular rating for his lumbar spine disability. However, the exact reason he utilizes a wheelchair is not clear. The Board notes that the Veteran is not a paraplegic and does not appear to be permanently wheelchair bound; his VA treatment records show that he had a normal gait in April 2018 and there was no indication at the June 2019 VA examination that he was unable to walk or needed to use a wheelchair. See VA Treatment Record received March 16, 2019. Further, the evidence of record does not indicate that the Veteran’s use of a wheelchair is due solely to his service-connected low back disability. For example, he reported in September 2016 that he used a wheelchair because he had an upper back injury. Id. Further, he reported in January 2017 that he was a “spinal cord patient” and was bedridden and in a wheelchair. Id. In October 2018 he reported that he was bedridden and described that he had spinal cord injuries and was advised not to move around too much, which was the reason he used a wheelchair. Id. As such, although it is unclear as to the exact reason the Veteran uses a wheelchair, it appears that a spinal cord injury is the primary reason the Veteran regularly uses a wheelchair. The Board notes that the Veteran has DDD of the lumbar spine; however, the Board does not consider such a disability to be considered a “spinal cord injury.” The Board recognizes that the Veteran has reported experiencing severe pain in his lower back; however, the Board finds that based on the Veteran’s lay statements and his medical treatment records, his service-connected lumbar spine disability is not the primary reason he uses a wheelchair. Moreover, the Veteran’s actions, such as drug seeking behavior, demonstrate his willingness to attempt to manipulate situations for his benefit. Such behavior greatly undermines the credibility of his assertions, and requires the Board to place greater weight on the objective evidence. Here, although the Veteran’s low back disability may not be the primary reason he uses a wheelchair or is bedridden, he may nonetheless use the wheelchair and/or stay in bed most of the time to mitigate some of his back pain symptoms. However, even considering such a finding, the Board does not believe that the Veteran’s lumbar spine disability is the primary reason he uses a wheelchair or causes him to be bedridden. At the June 2019 VA examination, on examination, the Veteran did not show any pain with weight-bearing; was able to perform repetitive use testing, without additional loss of function or range of motion; and he was not shown to have guarding or muscle spasm of the thoracolumbar spine. There was objective evidence of localized tenderness or pain on palpation, but the examiner described that there was only moderate pain on palpation to the lumbar spine and with range of motion testing. Further, muscle strength testing showed the Veteran had normal strength in his low back. The findings of the June 2019 VA examination showed that the Veteran does experience back pain; however, there was only moderate pain noted and the Veteran was able to perform all of the testing required to adequately assess the functioning of his lumbar spine. The Board points out that if the Veteran’s low back pain or weakness was so severe to require the use of a wheelchair or to be bedridden, he would probably not be able to perform range of motion testing, or findings of significant pain or weakness would be noted in the examination report. However, the Veteran was never reported to be unable to perform any part of a VA spine examination, nor was he ever reported to have severe pain or weakness. As such, the Board finds that although the Veteran may use a wheelchair and/or bed rest to mitigate his low back pain, his service-connected lumbar spine disability does not require the use of a wheelchair or cause him to be bedridden and will not consider his use of a wheelchair or assertion of being bedridden to support ratings higher than those assigned. In reaching this conclusion, the Board has considered whether higher ratings are warranted. The Board acknowledges the Veteran’s complaints of severe back pain and his assertions that he cannot do anything but lay down, eat and sleep. As noted, the Board has found that the Veteran’s assertions lack credibility. Thus, even considering flare-ups, the objective evidence has failed to suggest the Veteran’s range of motion would be so severely limited to cause his forward flexion to be functionally limited to 30 degrees or less, a finding consistent with a 40 percent rating. Further, there has been no evidence showing ankylosis of the spine. Here, although he believes that he is entitled to a total schedular rating, he has not met the criteria for a rating in excess of 20 percent for a low back disability. Accordingly, a 20 percent rating, but no higher, for a low back disability, is granted. TDIU The Veteran asserts that he was last employed in April 1982, as an infantryman in the Army. He indicated that he completed one year of college for “heating and cooling.” He reported that he could no longer work because of his lumbar spine and an acquired psychiatric condition (APD). 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16 (a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability 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. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Veteran’s service-connected disabilities are DDD of the lumbar spine, rated at 20 percent; and radiculopathy of the lower extremities, each rated at 10 percent. The Veteran has a combined disability rating of 40 percent. 38 C.F.R. § 4.25. Therefore, the Veteran does not have a single disability rated at 60 percent or more, nor does he have two more disabilities where at least one disability was rated at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). As the Veteran does not meet the schedular criteria for a TDIU, the Board must consider whether the Veteran has nevertheless demonstrated that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16 (b). After a review of the competent evidence of record, the Board finds that referral for extraschedular consideration of a TDIU rating is not warranted. A review of the evidence of record, which includes the Veteran’s VA treatment records, his lay statements, and his VA examination reports, when taken in total, does not suggest that the Veteran is unable obtain or maintain substantially gainful employment as a result of his service-connected disabilities. The Veteran was afforded a VA examination in April 2014. The VA examiner indicated that the Veteran’s low back condition impacted his ability to work. The examiner reported that the Veteran may have difficulty with physical duties like lifting, twisting, turning, and bending. The examiner opined that although the Veteran would have difficulty with physical duties, he would not be precluded from all types of employment. The Veteran was afforded a VA examination in June 2019. The VA examiner indicated that the Veteran’s low back disability would impact his ability to work. The examiner noted that the Veteran described difficulty with cleaning the house and yard cleaning. While it is ultimately a rating consideration as to whether the Veteran is able to obtain or maintain substantially gainful employment, the medical evidence of record in this case does not suggest that the Veteran has been so functionally limited solely by his service-connected disabilities as to be unable to obtain or maintain substantially gainful employment. VA medical opinions that weigh against the Veteran’s claim for a TDIU are persuasive and found to have great probative value, as they were provided after the examiners had an opportunity to interview the Veteran, review his record, and conduct physical examinations of the Veteran. Although the VA examiners have acknowledged that the Veteran’s low back disability may impact his ability to work, there has been no indication that it would preclude work entirely. The Veteran has not submitted any medical opinion regarding any inability to sustain substantial gainful employment due to his service-connected disabilities. The Board also notes that the Veteran indicated in his TDIU application that he could no longer work because of his back disability and an APC (acquired psychiatric condition). However, the Veteran is not service connected for any psychiatric conditions. Further, the Veteran’s Social Security Administration (SSA) records show that he was receiving disability benefits based on schizophrenia, headaches, ruptured discs, scoliosis, and diabetes. However, the Veteran is not service connected for schizophrenia, headaches, scoliosis, or diabetes. The SSA records also show that the Veteran was involuntarily placed in a hospital in July 1985 for about four months, due to psychiatric problems. Further, the Veteran stated that he disagreed with the VA’s decision to deny his TDIU claim and reported that the SSA had his medical records which showed that he had a disability of paranoid schizophrenia and could not get a job because of it. See Statement in Support of Claim received October 1, 2014. Here, it appears that the Veteran’s psychiatric condition, which is not service connected, appears to be the substantial factor regarding his inability to work. The Board acknowledges that a lay person may be competent to report symptoms he experiences. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board must also weigh the credibility of those statements. Here, the Veteran has reported significant pain in his low back, that his legs give way and have caused him to fall, and an inability to do much besides laying down, eating and sleeping. However, he is not competent to identify a specific level of disability according to the appropriate Diagnostic Code or to assess whether the symptoms preclude employment. Moreover, his has demonstrated on multiple occasions his willingness to try to manipulate situations for personal gain. As such, the Board has found his reports not credible. The medical findings directly address criteria under which a TDIU is assigned. The Board finds the opinions of the VA examiners of record to be the only competent medical evidence of record, and therefore is afforded greater weight than the Veteran’s subjective complaints. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability picture, the evidence of record does not support his claim that his service-connected low back disability and bilateral lower extremity radiculopathy, in concert, are sufficient to render him unable to obtain or maintain substantially gainful employment. The Board also acknowledges the Veteran’s complaints of back pain and his assertion that he cannot do much besides lay down, eat and sleep. However, after an in-person examination and a review of the Veteran’s claims file, the June 2019 VA examiner reported that he would have difficulty with activities such as cleaning the yard or the house, not that he would be precluded from employment. The Veteran has also reported on multiple occasions that he is bedridden. However, the Board does not believe that his lumbar spine disability, which has been found to be productive of moderate pain, on examination, or his lower extremity radiculopathy is not the primary reason he is bedridden. The Board does not know which non-service-connected disabilities alone, or in concert would cause him to be bedridden, but the medical evidence of record regarding his service-connected disabilities does not suggest that he would be bedridden because of them. In addition, the Veteran has not identified or submitted any competent medical evidence or opinions demonstrating that his service-connected disabilities, individually or in concert, preclude him from securing and maintaining substantially gainful employment and entitle him to a TDIU on an extraschedular basis. The Board has also considered the Veteran’s use of a wheelchair in the context of his TDIU claim. However, as previously explained, although the wheelchair may be used to mitigate his back pain, it appears the primary use of a wheelchair is due to a spinal cord injury, for which he is not service connected for. As he is not service connected for a spinal cord injury, his use of a wheelchair will not be considered in the assignment of a TDIU. While the Veteran might have difficulty in performing physical jobs due to his service-connected back condition, a TDIU is only warranted when service-connected disabilities prevent obtaining or maintaining substantially gainful employment. Here, it simply is not shown that the Veteran’s service-connected lumbar spine disability and lower extremity radiculopathy prevent him from obtaining or maintaining substantially gainful employment. Accordingly, referral for a TDIU on an extraschedular basis is not warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.