Citation Nr: 21005046 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-43 544 DATE: January 28, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for a lumbosacral strain is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s lumbosacral strain has been characterized by complaints of pain, but has not resulted in forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 2. The Veteran has been granted service connection for a single disability, a lumbosacral strain, with a 20 percent rating. 3. The Veteran’s service-connected disability does not render him incapable of obtaining and maintaining gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 20 percent for a lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-43. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1-4.14, 4.21, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to July 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Thereafter, the Veteran initiated an appeal in the legacy VA appeals system. These issues were previously presented to the Board in May 2018 and November 2019, at which time they were remanded for additional development. They have now been returned to the Board. 1. Entitlement to an initial rating in excess of 20 percent for a lumbosacral strain The Veteran seeks an initial rating in excess of 20 percent for his strain of the lumbosacral spine. He asserts this disability has worsened in severity, and an increased initial rating is therefore warranted. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 required for that rating. 38 C.F.R. § 4.7. With any form of arthritis or other orthopedic disorders, painful motion is an important factor of disability. Joints that are actually painful, unstable, or misaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). While pain alone does not constitute functional loss, the Court has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body. Mitchell, 25 Vet. App at 44 (noting that although “pain itself does not rise to the level of functional loss,” pain which “affects some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” may constitute functional loss). Additionally, the Board must consider pain on both active and passive motion of the affected joint, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran’s lumbosacral spine disability is rated under Diagnostic Code (DC) 5237, for a lumbosacral strain. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides the following: 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 Unfavorable ankylosis of the entire spine 100 Unfavorable ankylosis of the entire thoracolumbar spine 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 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, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. Spinal disabilities may also be rated under DC 5243, for intervertebral disc syndrome (IVDS). Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warranted a 60 percent rating. With incapacitating episodes having a total duration of at least 4 weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted. With incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months, a 10 percent rating is warranted. 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. Upon receipt of the Veteran’s claim, a July 2012 VA examination was performed. A history of a lumbosacral ligament strain in service was noted. Post-service, he reported motor vehicle accident in 1977 and 1978, with further injuries to his back and neck. He also reported a lumbar fracture in 2006. Currently, his symptoms included chronic pain at a level of 5-6/10, with flare-ups characterized by pain at 10/10 and muscle spasm. These episodes lasted from a week up to a month, and occurred approximately three times per year, according to the Veteran. He stated he occasionally wore a back brace. On range of motion testing, he had forward flexion to 60 degrees, extension to 20 degrees, lateral flexion to 30 degrees bilaterally, and lateral rotation to 30 degrees bilaterally. Pain was reported at the ends of all ranges of motion. After repetitive motion, his forward flexion was to 75 degrees, extension to 25 degrees, and lateral extension and rotation to 30 degrees bilaterally. On objective examination, the Veteran’s left paraspinal musculature was tight and tender to palpation, but was not in spasm. An abnormal gait and spinal contour, along with guarding and/or muscle spasm, were also present. Muscle strength was 5/5, reflexes were 2+, and sensory responses were within normal limits at all points in the lower extremities. Straight leg raising was positive on the left and negative on the right. The examiner did not diagnose radiculopathy or ankylosis. Intervertebral disc syndrome was diagnosed, but the examiner found no evidence of incapacitating episodes. Regarding any effect on the Veteran’s employability, the examiner noted the Veteran was unable to perform heavy physical labor, including lifting more than twenty-five pounds, bending or standing for more than 30-60 minutes, sitting for more than two hours, walking more than one mile, running more than 100 feet, and driving more than an hour before a break. The Veteran was, however, independent in all activities of daily living. The Veteran was afforded another VA orthopedic examination in January 2019. The claims file was reviewed in conjunction with the examination. His history of a lumbosacral strain was noted. Symptoms included chronic low back pain, with occasional episodes of spasm of the muscles of the low back, severely limiting his mobility and activities, according to the Veteran. He reported regular use of a back brace. On initial range of motion testing, he had forward flexion to 40 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 10 degrees on the right and 20 degrees on the left, with or without weight-bearing. With repetitive motion and during flareups, forward flexion was to 35 degrees, extension to 15 degrees, lateral flexion to 25 degrees on the right and 20 degrees on the left, and lateral rotation to 20 degrees bilaterally. No additional limitation of motion was noted to result from fatigue, weakness, lack of endurance, or incoordination. The examiner noted objective evidence of localized pain and tenderness of the lumbosacral spine; however, no pain with weightbearing was observed. Due to guarding, the Veteran had an antalgic gait, characterized by a lean to the right. His back pain was also noted to interfere with sitting and standing. Muscle strength, reflexes, and sensory response were all within normal limits, with the exception of muscle strength of 4/5 on extension of the left knee, and decreased sensory response of the left lower leg and ankle. The examiner found no evidence of radiculopathy, ankylosis, or intervertebral disc syndrome. Regarding any impact on employability, the examiner noted the Veteran could not sit still for more than an hour, lift anything more than 10-15 pounds, and could not, by his own report, stand or sit in one position for any length of time more than 5-15 minutes. After considering the totality of the record, the Board finds the preponderance of the evidence to be against a disability rating in excess of 20 percent at any time during the pendency of the appeal. At no time has the Veteran’s lumbosacral strain resulted in forward flexion limited to 30 degrees or less, or favorable ankylosis of the lumbosacral spine. Even taking into account additional limitation of motion due to such factors as pain and lack of endurance during flare-ups, the 2019 VA examiner determined the Veteran had forward flexion to at least 35 degrees, and greater flexion was noted in 2012. No additional limitation of motion was found to result from such factors as weakness, incoordination, or fatiguability. While the VA examinations reflected reported pain on motion, the examiners specifically performed repetitive testing and found no additional functional loss which would support a higher disability rating. In this regard, the Court has clearly indicated that painful motion does not equate to limited motion. In fact, the Court considered the argument that pain throughout all ranges should warrant the maximum rating and found that the “Secretary has persuasively argued that such an interpretation would lead to absurd results.” Mitchell, 25 Vet. App. at 41, 43. Without any evidence of functional loss from the pain, an increased evaluation based solely on pain is not warranted. 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Codes 5235-43. The Board has also considered whether separate ratings may be awarded for any objective neurological abnormalities resulting from the Veteran’s lumbosacral strain. See 38 C.F.R. § 4.71a, Note (1). The 2019 VA examination was, however, negative for radiculopathy or loss of muscle strength, and bowel or bladder problems. Reflexes in the lower extremities were 2+ (normal) on the 2012 VA examination. According to the 2019 VA examination report, muscle strength, reflexes, and sensory response were all within normal limits, with the exception of muscle strength of 4/5 on extension of the left knee, and decreased sensory response of the left lower leg and ankle. Significantly, the examiner found no evidence of radiculopathy due to the lumbosacral strain, however. Muscle atrophy was also not present. Overall, the Board finds insufficient evidence of objective neurological impairment due to the lumbosacral strain to support separate compensable ratings. Evaluation of the Veteran’s lumbosacral spine disability under the criteria for intervertebral disc syndrome also would not result in a higher evaluation, as the 2019 VA examination was negative for intervertebral disc syndrome. The 2012 VA examiner did diagnose intervertebral disc syndrome, but found no incapacitating episodes resulting therefrom. Hence, this finding would not result in a higher rating. In conclusion, the preponderance of the evidence is against a disability rating in excess of 20 percent at any time during the appeal for the Veteran’s strain of the lumbosacral spine. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to a TDIU The Veteran seeks a TDIU. He asserts his service-connected disability renders him unable to obtain or maintain gainful employment, and a total rating is thus warranted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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). VA’s policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU rating. In the present case, the Veteran has been granted service connection for a single disability, a lumbosacral strain, with a 20 percent disability rating. As such, he does not meet the schedular criteria of 38 C.F.R. § 4.16(a). However, the Board must still determine whether referral to the Director, Compensation and Pension Service is appropriate for extraschedular TDIU consideration. Regarding the Veteran’s employment background, in November 2019, the Board remanded the Veteran’s claim, in part, for him to provide a detailed statement regarding his educational attainment, post-service work history, and any additional training via a VA Form 8940. Although the Veteran was incarcerated when the letter was mailed to his last known address, a September 2020 deferred rating decision documents that the Veteran was aware that the information had been requested and his representative had asked for 30 days to submit the information. Notwithstanding this request, the information was not provided. The evidence reflects that the Veteran previously worked as an automotive mechanic but is now unable to bend over to work on cars due to his low back disability. He has also reported employment in the construction industry. Outpatient treatment records document that the Veteran underwent a physical exam “for the firefighters” in 2006. He was incarcerated from June 2019 to April 2020. Prior to that, he was retired. The 2012 and 2019 VA examinations, discussed in greater detail above, noted that the Veteran’s lumbosacral spine disability would prevent him from performing such heavy labor as mechanical or construction work, and caused him chronic pain even with sitting and standing. Neither examiner, however, determined the Veteran was unemployable due to his lumbosacral strain. Both found him able to perform the activities of daily living, and neither concluded sedentary employment was prohibited. In this capacity the Board notes that the evidence indicates that the Veteran was working as recently as February 2016 when an outpatient treatment record documented that he travelled from Upstate New York to Chicago for a business meeting. This suggests that the Veteran’s work experience is not limited to physical labor. Moreover, an outpatient treatment record created in February 2019, one month after the VA examination, noted that the Veteran “has been working out most days of the week doing a mix of his inversion table with inverted arm exercises, as well as sit ups and 30-40 stairs a day.” While cognizant of the limitations noted by the examiners, these outpatient treatment records suggest that the Veteran would be physically capable of light clerical work or work in an office setting consistent with his experience of attending meetings. Again, the Board notes that the Veteran’s work history is unclear as the requested information has not been provided and the Board is basing its decision on the medical evidence of record documenting that the Veteran has a history of employment that was, at least in part, sedentary in nature. The Veteran has not otherwise presented any evidence, other than his own contentions, in support of his claim and the Board notes that this decision does not preclude him from filing a new claim with supporting evidence. In summary, the preponderance of the evidence is against a finding that the Veteran’s lumbosacral strain, in and of itself, prevents all forms of employment. Accordingly, the Board finds that referral to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU rating is not warranted, as the Board does not find that the disability for which the Veteran is awarded service-connection preclude employability. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.