Citation Nr: 21003162 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 13-22 964 DATE: January 19, 2021 ORDER A schedular rating in excess of 40 percent for a lumbar spine disability is denied. A total disability rating based on individual unemployability as a result of service-connected disabilities is denied. FINDINGS OF FACT 1. Ankylosis of the thoracolumbar spine is not shown, and the Veteran is not prescribed bed rest to treat her lumbar spine disability. 2. The Veteran’s service-connected disabilities are not shown to preclude the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a schedular rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242-43. 2. The criteria for a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training (ACDUTRA) from January 2008 to August 2008, May 12, 2010, to May 21, 2010, and May 24, 2010, to May 25, 2010, with periods of inactive duty for training (INACDUTRA). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran filed a service connection claim for a lumbar spine disability in August 2010. A March 2011 rating decision granted service connection and assigned an initial rating of 40 percent effective August 27, 2010, the date her service connection claim was received by VA. She disagreed with the initial assigned rating and asserts that she is entitled to a higher rating. She reported having incapacitating episodes, being unable to do things around the house, and being unable to have a bowel movement due to intense back pain. In August 2017 and October 2019 Board decisions, the claim was remanded for further development. Back disabilities are 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 appear to show that the Veteran has experienced any IVDS in her lumbar spine. The February 2011 VA examiner reported that the Veteran did not have any signs of IVDS. An April 2011 Medical Evaluation Board physician reported that the Veteran did not have IVDS. While an August 2018 VA examiner indicated that the Veteran had IVDS, the examiner reported that IVDS was described by the Veteran only without any documentation in the claims file. A January 2020 VA examiner indicated that the Veteran had IVDS but did not require bedrest by a physician during the previous 12 months. Indeed, the Veteran’s medical records show that pool exercises were recommended. In addition, despite the Veteran’s reports that she experiences incapacitating episodes of lumbar spine pain, there is no evidence showing that the Veteran has been prescribed any bed rest to treat her lumbar spine disability. 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 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 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. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran’s medical records show that she treated for back pain but do not contain findings consistent with ankylosis of the thoracolumbar spine. The February 2011, August 2018, and January 2020 VA examiners indicated that the Veteran did not have any ankylosis of the spine. The Veteran’s medical records show that she denied having any incontinence in July 2010, October 2010, November 2010, April 2011, June 2011, September 2011, and August 2014. Furthermore, the February 2011, August 2018, and January 2020 VA examiners indicated that the Veteran did not have a history of bowel or bladder incontinence. After a complete review of the entire claims file, the medical evidence does not show ankylosis of the spine or any bladder or bowel dysfunction. As such, a rating in excess of 40 percent is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Veteran is in receipt of the maximum rating allowed based on range of motion. The only higher ratings available contemplate ankylosis of the spine. Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Accordingly, the criteria for a schedular rating in excess of 40 percent for a lumbar spine disability have not been met, and the claim is denied. TDIU 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), she still may receive a TDIU on an extraschedular basis if it is determined that she is unable to secure or follow a substantially gainful occupation by reason of her 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 nonservice-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) (citing 38 C.F.R. §§ 4.1, 4.15). 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. In December 2013, the Veteran reported that her lumbar spine disability caused “severe employment handicaps.” In an August 2017 Board decision, the Board found that the Veteran raised the question of a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). In August 2017, the Board remanded the TDIU claim for further development. An August 2019 rating decision denied entitlement to a TDIU. In an October 2019 Board decision, the Board once again remanded the claim for a TDIU so that the Veteran could be provided VA Form 21-8940 – Veteran’s Application for Increased Compensation Based on Unemployability. In November 2019, the RO provided the required notice regarding a claim for a TDIU. The RO also provided VA Form 21-8940 and requested that the Veteran complete, sign, and return VA Form 21-8940. The Veteran has not submitted a completed copy of VA Form 21-8940. In addition, the claims file does not show that the Veteran is unemployed and unable to obtain or maintain substantially gainful employment. In pursuing a claim, a claimant has a responsibility to cooperate in developing all facts pertinent to the claim, VA’s duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board cannot be sure of the circumstances surrounding Veteran’s employment status. The mere fact that a veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough to warrant a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Furthermore, at the most recent January 2020 VA examination, she reported that her lumbar spine disability resulted in her losing time at work, indicating that she was still employed. In addition, the evidence of record does not establish that the Veteran is actually unable to obtain or maintain substantially gainful employment. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, a TDIU is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.