Citation Nr: 21003135 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 05-08 686 DATE: January 19, 2021 ORDER Prior to January 12, 2018, an increased disability rating of 20 percent (but not higher) for a low back condition is granted. From January 12, 2018, an increased disability rating in excess of 40 percent for a low back condition is denied. From September 23, 2011 to January 11, 2018, a total disability rating based on individual unemployability (a TDIU rating), on an extraschedular basis, is granted. REMANDED Service connection for sigmoid diverticulitis is remanded. FINDINGS OF FACT 1. Prior to January 12, 2018, the Veteran’s symptoms more nearly approximate the criteria for a 20 percent disability rating. 2. From January 12, 2018, the Veteran displayed no unfavorable ankylosis of the spine (as noted, for example, at November 2019 VA examination). 2. From September 23, 2011 (the date the Veteran ceased substantially gainful employment during the period under consideration), the Veteran’s service-connected migraine and low back disabilities were severe enough to preclude him from securing or following substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. Prior to January 12, 2018, the criteria have been met for an increased disability rating of 20 percent (but not higher) for a low back condition. 38 U.S.C. § §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. From January 12, 2018, the criteria have not been met for a disability rating in excess of 40 percent for a low back condition. 38 U.S.C. § §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. From September 23, 2011 to January 11, 2018, the criteria have been met for a TDIU rating on an extraschedular basis. 38 U.S.C. § § 38 U.S.C. § § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 3.400, 4.1, 4.3 4.16(b), 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1975 to December 1975, from August 1977 to December 1980, and from October 1982 to November 1996. Service in Southwest Asia is indicated by the record. Procedural History These matters come before the Board of Veterans’ Appeals (Board) on appeal from a decision of a Veterans Affairs (VA) Regional Office (RO) in January 2004, which, in pertinent part, denied a disability rating in excess of 10 percent for the low back condition and denied service connection for sigmoid diverticulitis. The appeal for service connection for diverticulitis was previously before the Board in June 2007 when it was remanded for further development. In February 2016, the Board denied service connection for diverticulitis and denied a disability rating in excess of 10 percent for the low back condition. The Veteran appealed the Board’s February 2016 decision to the United States Court of Appeals for Veterans Claims (Veterans Court), which granted the parties’ joint motion for partial remand (JMPR), vacating and remanding that portion of the February 2016 decision that denied service connection for sigmoid diverticulitis and a disability rating in excess of 10 percent for the low back condition. In April 2017, the Board found that entitlement to a TDIU rating was raised and remanded that issue (as inextricably intertwined) with the other appeals to the RO for additional development. In September 2018, the RO assigned a 40 percent disability rating for the low back condition, effective January 12, 2018. In March 2019, the Board denied service connection for diverticulitis and remanded the matters of a TDIU rating and an increased disability rating for the low back condition (in excess of 10 percent prior to January 12, 2018 and in excess of 40 percent since that date) for further development. The Veteran appealed the Board’s March 2019 denial of service connection for diverticulitis to the Veterans Court, which issued a February 2020 JMPR vacating the denial and remanding the matter to the Board with instructions to obtain an adequate medical examination and opinion that addressed the specific facts of the Veteran’s situation. In an April 2020 rating decision, the RO granted a TDIU rating, effective January 12, 2018 (the date the Veteran became eligible for a TDIU rating under the schedular criteria). However, that grant does not bifurcate the issue and a TDIU rating remains on appeal for the entire period. See Payne v. Wilkie, 31 Vet. App. 373 (2019); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). [continued on next page] Increased Ratings for a Low Back Condition Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran’s low back condition has been rated under Diagnostic Code (DC) 5242, for degenerative arthritis of the spine which provides the criteria for rating the disability with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71(a), DC 5242. 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. 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, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, for 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Back conditions may also be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (“General Rating Formula”) or under the Formula for Rating IVDS based on incapacitating episodes (“IVDS Formula”), whichever method results in the higher level of compensation. 38 C.F.R. § 4.71a. 1. Prior to January 12, 2018, an increased disability rating of 20 percent (but not greater) for a low back condition is granted Factual Background On March 24, 2003, the Veteran filed a claim for a rating in excess of 10 percent for his low back disability. The relevant medical evidence during the period on appeal shows that a higher rating was not warranted because the Veteran did not display a moderate limitation of motion of the lumbar spine, or demonstrable deformity of a vertebral body from fracture with slight limitation of motion. In June 2015 the Veteran was afforded a VA back examination. The Veteran reported a long history of back pain worsening in recent years, with flare-ups at times that made it difficult for him to function. The pain in the Veteran’s lower back was dull and intermittent and radiated into both lower extremities. The Veteran reported that back pain limited his ability to stand and bend. The physician conducting the examination reported 0-70 degrees of forward flexion of the lumbar spine with moderate radiculopathy in both lower extremities and a combined range of motion of 205. See June 2015 C&P Examination. In June 2016 the Veteran’s private physical therapist administered a back examination after the Veteran underwent L4-5 laminectomy in May 2016. The physical therapist reported that prior to surgery the Veteran was very active. He is currently having difficulty walking and balancing in standing. The Veteran reported that his pain increases with prolonged standing. The physical therapist reported that the Veteran is ambulating with a stiff knee pattern. The Veteran had lumbosacral flexion at 35 percent. See Medical Treatment Records added October 23, 2019. The Veteran was afforded a VA examination on January 12, 2018, which is the date on which VA has affixed the increased award of 40 percent disabling in this case. The January 2018 examiner reported that the Veteran’s range of motion testing revealed flexion to 80 degrees with pain observed at 70 degrees. The examiner also noted that the Veteran’s pain is increased with prolonged standing and walking and with bending and lifting. See January 2018 C&P Examination. Analysis As described above, there is no evidence that the Veteran’s low back condition caused limitation of motion warranting more than a 10 percent disability rating prior to January 12, 2018. However, while a review of the examination reports show that the Veteran does not strictly meet the criteria for an increased rating, the Board agrees with the arguments submitted by the Veteran and finds that the Veteran’s symptoms “nearly approximate” the next disability rating of 20 percent based on “weakened movement, excess fatigability, incoordination, and pain on movement, in addition to range of motion.” See English, 30 Vet. App. at 355 (emphasis added). Accordingly, an increased disability rating of 20 percent is warranted prior to January 12, 2018. [continued on next page] 2. From January 12, 2018, an increased disability rating (in excess of 40 percent) for a low back condition is denied Factual Background In November 2019, the Veteran was afforded a VA examination. The Veteran reported flare-ups twice a week that make him a lot slower and unable to bend much. Regarding functional loss, the Veteran reported that he cannot bend all the way down to the floor and cannot lift more than 3-5 pounds, walking is limited to three quarters of a block and standing is limited to 3-5 minutes. The physician conducting the examination reported 0-20 degrees, 0-10 degrees and 0-20 degrees of forward flexion of the lumbar spine on three separate attempts. There was mild pain with weight-bearing and tenderness and pain on palpation. The examination was conducted during a flare-up. The Veteran reported at the examination that he experienced flare-ups and that pain, fatigue and weakness significantly limit his functional ability. The physician reported guarding or muscle spasm of the thoracolumbar spine with muscle spasm resulting in abnormal gait or spinal contour. The physician reported no ankylosis of the spine. Analysis The Board finds that, from January 12, 2018, the preponderance of the evidence is against a finding that the Veteran’s back symptoms more nearly approximated a higher evaluation. A 50 percent rating is only warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. The November 2019 VA examination established that the Veteran did not have ankylosis of the thoracolumbar spine. Accordingly, the Veteran does not meet the criteria for a rating in excess of 40 percent for his service-connected low back condition during this period. 3. From September 23, 2011 to January 11, 2018, a TDIU rating is warranted (on an extraschedular basis) Legal Criteria It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment by reason of service-connected disabilities shall be rated totally disabled. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 (emphasis added). If a veteran does not meet the schedular rating criteria but the question of a TDIU rating has been raised, then an extraschedular rating must be considered. 38 C.F.R. § 4.16(a), (b). Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities alone are severe enough to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA may consider the Veteran’s level of education, special training, and previous work experience, but may not consider age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not substantially gainful employment and exists when earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also exist (on a facts-found basis) when earned annual income exceeds the poverty threshold but the applicant works in a protected environment such as a family business or sheltered workshop. A veteran may also be considered unemployable upon termination of employment in which special consideration was given on account of the veteran’s disabilities. See 38 C.F.R. § 4.18. Factual Background The Veteran has a Bachelors’ degree in English Literature and a Masters’ degree in Counseling and Psychology. After he separated from service in November 1996, he worked as a Foreign Service specialist for the United States Department of State from 1998 to 2011. In 2011, the Veteran stopped working as a Foreign Service specialist when the pain from his service-connected migraine headaches, back, and knee prevented him from doing the tasks required for the job. See February 2017 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In August 2013, the Veteran started working as a rehabilitation technician at a VA Medical Center (VAMC), assisting residents with activities of daily living. Eight months later, in April 2014, he resigned from this job because the pain from his service-connected migraines and low back condition meant he was physically unable to do the tasks of the job and had to rely on coworkers to assist him. In November 2016, the Veteran filed a formal application for a TDIU rating, stating that his migraine and low back disabilities made him unemployable since 2011. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In June 2019 the Veteran submitted a private Vocational Assessment by a vocational consultant regarding his claim for a TDIU rating. See June 2019 Vocational Assessment. The consultant provided a detailed assessment of the Veteran’s history of service-connected disabilities, military service record, work history and education. Prior to preparing the report, she reviewed the Veteran’s entire claims file and interviewed him about his work and education history. The Veteran reported that, due to his service-connected disabilities, he had not been gainfully employed since 2011. He indicated that, from at least 2011, his migraine headaches and back condition symptoms included near-daily headache pain, associated nausea, vomiting and sensitivity to light; daily back pain, flares of worsened back pain that lasted hours and limited his ability to stand, walk, and bend, inability to sit more than 30 minutes at a time due to back pain, the need for regular use of a cane and compression belt for back pain, and difficulty sustaining concentration and focus due to both headaches and back pain. His near-constant back and right knee pain caused difficulty with prolonged standing and walking. The vocational consultant opined that the Veteran was severely limited in his ability to stand and walk, and that he experienced instability and incoordination and his back condition required alternate positions to relieve the pain. She opined that the Veteran’s work at the VAMC in 2013 and 2014 was partly “sedentary” work in that it required sitting for long periods of time, which the Veteran was unable to do. In April 2020 the RO granted a TDIU rating on a schedular basis, effective January 12, 2018. It described the effective date as “the earliest the medical evidence supported unemployability and the veteran met the minimum criteria for entitlement.” Analysis There are two aspects of a TDIU rating: (1) the substantive question of unemployability and (2) whether the TDIU rating should be assigned on a schedular or extraschedular basis. In this case, the RO assigned the effective date of January 12, 2018, based on the earliest date the Veteran met the schedular criteria for entitlement to a TDIU rating. However, the RO failed to consider whether the evidence (both lay and medical) supported a TDIU rating for an earlier period on an extraschedular basis. As for the substantive question of unemployability, the record consistently reflects that the Veteran actually became unemployable in 2011 due to the pain and associated impairments caused by his service-connected migraine headaches and low back condition. Although he worked for approximately eight months from August 2013 to April 2014, the Veteran stated that, during this time, he was unable to complete his tasks due to pain from his service-connected disabilities, despite assistance from coworkers. He is competent to report his observable symptoms and the Board finds that his statements are credible and consistent throughout the record and are, therefore, assigned significant probative weight. The Board finds that the Veteran’s employment from 2013 to 2014 included substantial informal disability accommodations (in the form of assistance from his co-workers) and, therefore, constituted “sheltered” employment as opposed to “substantially gainful employment.” The vocational consultant opined that the Veteran had not been able to obtain or maintain substantially gainful employment since 2011. Based on her credentials and the thorough and well-explained nature of her conclusions, the Board finds the vocational assessment and opinion highly probative. From September 23, 2011 to January 12, 2018, the Veteran’s combined service-connected disabilities were at least 50 percent disabling. His brief employment during that time was terminated was not sustainable because he could not perform the core tasks of the job and his co-workers had to do part of his job for him; therefore, this work is considered marginal. Based on the evidence, the Veteran meets the criteria for a TDIU rating on an extraschedular basis from September 23, 2011 to January 11, 2018. REASONS FOR REMAND Service connection for sigmoid diverticulitis is remanded The Veteran seeks service connection for sigmoid diverticulitis. In February 2020, the United States Court of Appeals for Veterans Claims (Veterans Court), in a Joint Motion for Partial Remand (JMPR), vacated the Board’s denial of service connection for diverticulitis and remanded the matter so the Board could obtain a medical opinion addressing the specific facts of Veteran’s case. See Stewart v. Wilkie, 30 Vet. App. 383, 391 (2018) (holding that the determination of whether an illness is “medically unexplained” is particular to the claimant in each case). Thus, a new VA examination and nexus opinion must be provided. The matter is REMANDED for the following action: 1. Obtain any updated VA treatment records (and adequately identified private treatment records) for association with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of any digestive system symptoms, including (but not limited to) sigmoid diverticulitis. Please answer the following questions: (a.) Is it at least as likely as not (defined as a 50% or better probability) that any diagnosed digestive system disability (including sigmoid diverticulitis) is caused by or related to an in-service injury, event, or disease, including any exposures during service in Southwest Asia? (b.) Is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s digestive symptoms constitute an undiagnosed illness? [If you do conclude that the Veteran’s digestive symptoms constitute an undiagnosed illness then you do not need to opine about whether they are related to service.] (c.) Is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s digestive symptoms are part of a medically unexplained chronic multi-symptom illness (MUCMI)? [If you do conclude that the Veteran’s digestive symptoms constitute a MUCMI then you do not need to opine about whether they are related to service.] (An illness is a MUCMI where either the cause or the pathophysiology of the illness is inconclusive and is not a MUCMI where both the cause and the pathophysiology of the illness are partially understood. The determination of whether a condition is a MUCMI must be based on an individual Veteran’s circumstances rather than the illness as it is understood in the general public.) The Board recognizes that the complex and intertwined nature of the medical questions involved require significant work on the part of the medical examiner. Full and thoroughly explained answers to each of the questions will prevent delays in adjudication and are very much appreciated. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training). If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. Please note that the Veteran is able to report observable symptoms, and, for the purposes of this examination, please assume the Veteran’s reports to be credible and accurate. A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.J. Smith, 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.