Citation Nr: 21061261 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-50 042A DATE: October 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for lumbar strain prior to August 5, 2020 and in excess of 40 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability is denied. FINDINGS OF FACT 1. Prior to August 5, 2020, the Veteran's lumbar strain was primarily manifested by pain. 2. At no time from August 5, 2020 has the Veteran's lumbar strain resulted in ankylosis, functional or actual, of the thoracolumbar spine, nor is there a finding of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks. 3. The Veteran has not been shown to be unable to obtain substantially gainful employment due solely to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbar strain prior to August 5, 2020 and in excess of 40 percent thereafter have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5237. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 3.1000, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to April 2004. In May 2019, the Board remanded the issues for further development to include a VA examination. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. 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 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. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent for lumbar strain prior to August 5, 2020 and in excess of 40 percent thereafter The Veteran has been in receipt of a 10 percent rating prior to August 5, 2020 and 40 percent since then under Diagnostic Code (DC) 5237. 38 C.F.R. § 4.71a. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019). The provisions of 38 C.F.R. §§ 4.40 and 38 C.F.R. §§ 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Under the former rating criteria for DC 5242, the General rating Formula for Diseases and Injuries of the Spine provides a 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine is 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 rating is warranted for ankylosis of the entire spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees; extension from 0 to 30 degrees; lateral flexion bilaterally from 0 to 30 degrees; and rotation bilaterally from 0 to 30 degrees. 38 C.F.R. § 4.71a , Plate V. Prior to August 5, 2020 An August 2017 VA back examination reflects a diagnosis of lumbar strain. The Veteran reported his current symptom as pain, precipitated by sitting or standing more than 30-45 minutes. The Veteran denied flare-ups. The Veteran had forward flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, left and right lateral rotation to 30 degrees. Pain was noted on forward flexion and extension but did not result in or cause functional loss. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with no additional limitation in range of motion. There was no guarding or muscle spasm. Muscle strength testing was normal and there was no muscle atrophy or lumbar spine ankylosis. The Veteran did not have IVDS. He stated he did not use any assistive devices. The Veteran described the functional impact of his lumbar disability as increased pain when sitting or standing more than 30-45 minutes and stated he has not worked since October 2010. A November 2017 VA back examination reflects a diagnosis of lumbosacral strain. The Veteran reported back pain that he described as a 6/10 on the pain scale. He stated that he has had continued back pain since service but only started seeking treatment in 2017. The Veteran reported treatment of steroid injections, stretching exercises, and chiropractic treatments. The Veteran reported flare-ups, stating the pain gets worse with prolonged walking and standing in certain positions. Functional loss was described by the Veteran as he is unable to drive because when he hits a pothole it jars his back, and he is unable to walk very far. The Veteran had forward flexion to 80 degrees, extension to 25 degrees, left and right lateral flexion to 25 degrees, left and right lateral rotation to 30 degrees or greater. The examiner noted the abnormal range of motion was due to pain which limits the Veteran's ability to bend, twist, and turn his body. Pain was noted and caused functional loss in forward flexion, extension, and right and left lateral flexion. There was no evidence of pain with weight bearing, in non-weight bearing, or on passive range of motion testing. The examiner noted there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue that was mild/moderate in the lower lumbar area. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner stated that pain and lack of endurance significantly limited functional ability with repeated use over time and with flare-ups but was unable to describe in terms of range of motion. There was no guarding or muscle spasm. Additional factors contributing to disability were noted as limited movement due to pain. Muscle strength testing was normal and there was no muscle atrophy or lumbar spine ankylosis. The Veteran did not have IVDS. He stated he used a cane occasionally for his back. The examiner described the functional impact of his back disability as being limited in his ability to perform tasks requiring prolonged standing and walking. The examiner noted the Veteran could only perform light physical and sedentary tasks due to his diagnosis. Treatment records associated with the claims file reflect ongoing complaints of low back pain and treatment to include prescription pain medications. After reviewing all the evidence in light of the above criteria, the Board finds that prior to August 5, 2020, a rating in excess of 10 percent is not warranted. During this time period, the Veteran had forward flexion of at least 80 degrees. The Board notes that although the November 2017 VA examiner was unable to describe range of motion during flare-ups, there is no evidence in the treatment records that would reflect range of motion less than 60 degrees forward flexion. During this time period, the Veteran has not had forward flexion of greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where 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 degrees or less, or ankylosis of the entire thoracolumbar spine that would warrant a rating higher than 10 percent. Moreover, additional compensation based on functional loss due to pain and other factors is not warranted. 38 C.F.R. §§ 4.40, 4.45 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). The 10 percent evaluation is based on compensation for functional loss due to painful movement, and the evidence does not show that there is additional functional loss that is not compensated already in the assignment of a 10 percent evaluation. In determining the Veteran's overall functioning, the Board has considered the DeLuca factors noted above, the Veteran's reported symptoms, the clinical records, and the VA examination reports. In sum, the medical and lay evidence of record does not more nearly approximate the criteria for a rating in excess of 10 percent prior to August 5, 2020 and the claim must therefore be denied. From August 5, 2020 On VA examination in August 2020, the Veteran reported his back pain is worsening. He stated he has constant pain that is 8/10 on the pain scale. The Veteran reported he doesn't take pain medication for his back pain, but he uses a can and a back brace. He stated that at least 15 times a month he needs to lie down due to pain until the pain subsides. The Veteran reported that any physical activity such as bending, squatting, walking, lifting, carrying more than 10 pounds, prolonged sitting, or prolonged driving can aggravate his back pain. He reported flare-ups described as a 10/10 on the pain scale, usually lasting for a few hours. The Veteran described functional loss or impairment as limitations on his physical activities such as bending, squatting, walking, lifting, carrying more than 10 pounds, prolonged sitting, or prolonged driving. He also stated he has difficulty getting in and out of the car. The Veteran had forward flexion to 62 degrees, extension to 10 degrees, left lateral flexion to 35 degrees, right lateral flexion to 31 degrees, left lateral rotation to 15 degrees, and right lateral rotation to 12 degrees. The examiner stated pain was noted on examination and caused functional loss on all ranges of motion. There was evidence of pain with weight-bearing, non-weight bearing, and on passive range of motion testing. There was objective evidence of tenderness and pain on palpation of the lumbar spine. The Veteran was able to perform repetitive use testing with additional loss of function or range of motion after three repetitions due to pain and lack of endurance. Range of motion after three repetitions was forward flexion to 32 degrees, extension to 8 degrees, left lateral flexion to 14 degrees, right lateral flexion to 12 degrees, and left and right lateral rotation to 5 degrees. The examiner noted that pain, fatigue, and lack of endurance limited functional ability with flare-ups. Range of motion with flare-ups was described as forward flexion to 10 degrees, extension to 5 degrees, left and right 7 degrees, and left and right lateral rotation to 3 degrees. The Veteran had muscle spasm resulting in abnormal gait or abnormal spinal contour and guarding not resulting in abnormal gait or abnormal spinal contour. Additional factors contributing to disability were disturbance of locomotion and interference with sitting and standing. Muscle strength testing was normal and there was no muscle atrophy or lumbar spine ankylosis. The Veteran had IVDS but had no episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran reported regular use of a brace for his back and a walking stick for his back, knees, and feet conditions. The examiner described the functional impact of the Veteran's back disability as limits on physical activities including bending, squatting, walking, lifting, carrying more than 10 pounds, prolonged sitting, or prolonged driving. Treatment records associated with the claims file reflect ongoing complaints of back pain. As for a rating in excess of 40 percent, the evidence is against that finding. None of the aforementioned evidence indicates that the Veteran has ankylosis of the lumbar spine; on the contrary, the evidence shows the Veteran has maintained range of motion in his spine, albeit limited, throughout the appeal period. Additionally, there is no evidence that the Veteran's spine disability results in the functional equivalent of ankylosis during flare-ups such that he is unable to move. Chavis v. McDonough, U.S. Vet. App. No. 18-2928 (April 16, 2021). To the contrary, even during flare-ups the, albeit in a reduced fashion. As such, there is no functional loss severe enough to implicate Chavis, and a rating in excess of 40 percent under the General Rating Formula is not warranted. Additionally, an increased rating is not warranted due to pain, weakness, fatigability, or incoordination with flare-ups as the Veteran's primary symptom, pain, has been considered in the 40 percent disability rating assigned. Based on the Veteran's statements and the medical evidence of record, consideration of a higher rating under DC 5243, which pertains to IVDS is also not warranted as no examiner found incapacitating episodes due to IVDS. In sum, the medical and lay evidence of record does not more nearly approximate the criteria for a rating in excess of 40 percent from August 5, 2020 and the claim therefore be denied. 2. Entitlement to a total disability rating based on individual unemployability The Veteran contends that he is unable to work due to his service-connected disabilities. In the May 2019 Board remand, the AOJ was instructed to notify and assist the Veteran regarding how to substantiate a claim for entitlement to total disability evaluation based on individual unemployability (TDIU) to include providing him with a VA Form 21-8940 to complete and return. In correspondence dated March 5, 2020, the Veteran was sent and asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. To date the VA has not received a completed VA Form 21-8940, which is required to consider the claim for TDIU. The Board notes that while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). As the Veteran has not submitted a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, certain information regarding the Veteran's employment history and current employment status is not available. Nonetheless, the Board will consider the Veteran's TDIU claim based on the evidence of record. The Board notes that initially, the schedular requirements for TDIU under 38 C.F.R. § 4.16 (a) are met. The Veteran is currently service-connected for lumbar strain (40 percent), radiculopathy, right lower extremity (40 percent), radiculopathy, left lower extremity (40 percent), right ankle sprain (10 percent), left ankle sprain and achilles tendonitis (10 percent), left shoulder impingement (10 percent), plantar fasciitis, bilateral (10 percent), and degenerative arthritis of the cervical spine (10 percent). The Veteran's combined rating is 90 percent from August 5, 2020. At the Veteran's most recent August 2020 VA examination, for his back disability, the examiner stated the Veteran's back disability limits his physical activities including bending, squatting, walking, lifting, carrying more than 10 pounds, prolonged sitting, and prolonged driving. The examiner did not say whether the Veteran would be precluded from all types of employment. A January 2013 VA primary care note shows the Veteran stated he lost his job in October 2011 and had been unable to find another job. He also stated that he was receiving unemployment but was no longer receiving it. A February 2014 VA treatment note reflects that the Veteran reported he was terminated from his job working in construction in 2011 and since then he has had difficulty obtaining work. The Veteran did not say why he was terminated or why it was difficult for him to find work. An April 2016 social work note reflects that the Veteran was attending school and had two years left before he received a bachelor's degree in Business Management. The treating clinician noted that the Veteran was not yet ready to return to work nor was it pressing for him at that time. The clinician also noted that the school program he is due to complete in two years will go a long way toward helping him get a job. On March 3, 2017, a community employment coordinator noted the Veteran was not ready for employment assistance at the time because he was attending school. An August 2017 VA ankle examination report shows the functional impact of the Veteran's ankle was not being able to walk more than 1/4 mile. At the examination the Veteran reported he had not worked since October 2010. He stated from 2004 to 2010 he did insulation/asbestos installation and removal and was an electrical helper. The Veteran also stated he was not collecting social security disability. An August 2018 homeless program assessment shows the Veteran reported he was not receiving Social Security. The Veteran also stated given his medical and mental health conditions he was unable to work. A November 2018 mental health treatment note shows the Veteran reported he was not working; he was using GI Bill money to attend online classes. The Board has considered the Veteran's statements regarding his difficulty finding a job or not being able to work because of his medical issues; however, there is no objective evidence of record to support the contention that he is unable to obtain substantially gainful employment due solely to his service-connected disabilities. Accordingly, as the preponderance of the evidence is against the claim for TDIU, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.