Citation Nr: 21062051 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-21 939 DATE: October 6, 2021 ORDER A disability rating greater than 40 percent for degenerative disc disease of lumbar spine with spondylosis is denied. For the period prior to November 10, 2020, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. As of November 10, 2020, entitlement to a TDIU is dismissed. FINDINGS OF FACT 1. Throughout the rating period, the Veteran's degenerative disc disease of lumbar spine with spondylosis is shown to be manifested, at worse, by forward flexion of the thoracolumbar spine to 25 degrees. Ankylosis, incapacitating episodes, and doctor-prescribed bed rest are not shown. 2. For the period prior to November 10, 2020, the Veteran's service-connected disabilities are not shown to be of such a nature or severity to prevent him from obtaining or retaining substantially gainful employment. 3. As of November 10, 2020, the claim of entitlement to TDIU has been rendered moot by award of a 100 percent schedular evaluation for a single disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 40 percent for degenerative disc disease of lumbar spine with spondylosis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 2. The criteria for TDIU prior to November 10, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.7, 4.15, 4.16. 3. As of November 10, 2020, the criteria for dismissal of TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marines from August 2005 to July 2013, to include service in Iraq; and his decorations include the Iraq Campaign Medal (with 2 stars). He timely appealed these matters from a March 2015 rating decision. The Veteran currently is pro se in this appeal. Correspondence submitted by the Veteran's attorney in November 2020 has been accepted by the Board as a motion to withdraw representation. In February 2021, the Veteran acknowledged mutual agreement to the withdrawal. In February 2021, the Veteran testified during a virtual hearing before the undersigned; a transcript of the hearing is associated with the claims file. All available records identified by the Veteran as relating to each of his claims have been obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. There is no evidence indicating a material change in severity of disability since last examination. Examination reports and opinions are thorough and adequate for the Board to render the following decisions in the Veteran's appeal. 38 U.S.C. § 5103A (a)(2). Rating Lumbar Disability Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). VA revised criteria for evaluation of musculoskeletal system and muscle injuries, effective February 7, 2021. 85 Fed. Reg. 76,453-76,469 (Nov. 30, 2020). VA has a duty to adjudicate the claim under the former criteria during the entire appeal period, and to consider the revised criteria for the period beginning on the effective date of the new provisionsthat is, from February 7, 2021. DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); see also VAOPGCPREC 3-2000 (2000) and 7-2003 (2003). However, the applicable General Rating Formula for Diseases and Injuries of the Spine was unchanged in substance by the amendments. In this case, the service-connected degenerative disc disease of lumbar spine with spondylosis is assigned a 40 percent rating under Diagnostic Code 5243. Spinal disabilities are primarily evaluated under a general rating formula (which provides criteria for rating orthopedic disability, and authorizes separate evaluations of its chronic neurologic manifestations). The current 40 percent evaluation contemplates pain on motion. Also, it is consistent with the functional equivalent of forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability evaluation is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Alternatively, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either based on incapacitating episodes over the past 12 months, or under the general rating formula for spinal disabilitieswhichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. A maximum, 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (Note 1). In general, the rating criteria for spinal disabilities take into account pain and other symptoms. Pain is often the primary factor limiting motion and is almost always present when there is muscle spasm. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule. Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51,454 (Aug. 27, 2003) (See also 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243). In this case, the Veteran's sciatic pain has been separately rated and not considered as a factor for increased evaluation for degenerative disc disease of lumbar spine with spondylosis. The pre-discharge examination report in February 2013 reveals that the Veteran reported moderate pain in the lumbar spine, exacerbated by physical activity. He reported flare-ups occurring three times monthly and lasting for a day. Ranges of motion of the thoracolumbar spine were to 50 degrees on flexion, with pain from 15 degrees; to 25 degrees on extension, with pain from 20 degrees; to 25 degrees on bending to the right and to the left, with pain from 20 degrees; and to 15 degrees on rotation to the right and to the left. There was no additional decrease in ranges of motion following repetitive-use testing. There was no ankylosis. Muscle strength testing was normal, and there was no atrophy. The February 2015 VA (contract) examination report reveals that the Veteran reported sharp pain in the lumbar spine, and reported flare-ups. Ranges of motion of the thoracolumbar spine were to 45 degrees on flexion, with pain from 40 degrees; to 10 degrees on extension, with pain from 5 degrees; to 15 degrees on bending to the right and to the left, with pain from 10 degrees; and to 15 degrees on rotation to the right and to the left, with pain from 10 degrees. There was no additional decrease in ranges of motion following repetitive-use testing. There was no ankylosis. Muscle strength testing was normal, and there was no atrophy. In February 2021, the Veteran testified that he used a TENS unit and received a couple sessions of epidurals and facet injections into the spine, which provided temporary relief. Ultimately, the pain always came back. It affected his everyday life; he must go through a stretch routine when getting up out of bed. He cannot bend over. When he sat up to go to the bathroom in the middle of the night, he had sharp pains which were almost immobilizing. He also testified that he had no option but to "bear down and push through" the pain; he had to work to provide for his family. He is the owner of an HVAC company, and required a helper with him for lifting and maneuvering around some joists and framing. The June 2021 VA (contract) examination report reveals that the Veteran reported using muscle relaxants, medications, physical therapy, and a nerve block; his symptoms have progressed and worsened. He reported flare-ups occurring six-to-seven times monthly on average, which were severe. Ranges of motion of the thoracolumbar spine were to 25 degrees on flexion; to 15 degrees on extension; to 15 degrees on bending to the right and to the left; and to 15 degrees on rotation to the right and to the left. Pain was noted in flexion, extension, lateral bending, and rotation. There was no additional decrease in ranges of motion following repetitive-use testing. There was no ankylosis. Muscle strength testing was normal, and there was no atrophy. Here, the Veteran's lumbar disability has been assigned the maximum evaluation based upon limited motion and functional impairment. Throughout the rating period prior to June 2021, the evidence shows that the Veteran can flex his thoracolumbar spine beyond 30 degrees. As of the June 2021 examination, flexion was limited to 30 degrees or less, which warrants the currently assigned 40 percent rating. Higher evaluations may be assigned for ankylosis, but the Veteran retains lower back motion, and thus does not have ankylosis. He, therefore, does not meet the criteria for a disability rating greater than 40 percent under the general rating formula. 38 C.F.R. §§ 4.7, 4.21. Nor do spinal disabilities have an undamaged joint for comparison purposes. See Correia, 28 Vet. App. at 170. Alternatively, the Veteran did report at the February 2013 examination that he had incapacitating episodes for a duration of two days in July 2012; bed rest was prescribed. Such evidence does not meet criteria for a disability rating greater than the currently assigned 40 percent rating. Specifically, there is no evidence of doctor-prescribed bed rest or incapacitating episodes having a total duration of at least six weeks during a 12-month period at any time to warrant an increased disability rating. Under the general rating formula, the orthopedic component of the Veteran's degenerative disc disease of lumbar spine with spondylosis warrants no more than the currently assigned 40 percent evaluation. The evidence reflects that the Veteran described functional loss in prolonged standing, bending, squatting, and lifting. While he indicated that symptomatology associated with his service-connected disability is severe, the objective findings consistently fail to show that his disability meets the criteria for a disability rating greater than 40 percent at any time; and the Board concludes that those findings outweigh his lay assertions regarding severity. Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring referral for consideration of an extra-schedular evaluation for an exceptional or unusual disability picture. 38 C.F.R. § 3.321 (b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of assignment of an extraschedular rating; otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds the schedular evaluation in this case is adequate. Ratings in excess of the 40 percent assigned are provided for certain manifestations of the service-connected disability; the medical evidence reflects that those manifestations are not present. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability. The criteria contemplate limits in motion and functional limitations caused by DeLuca factors, which fully encompass the Veteran's complaints. Hence, no referral is warranted. TDIU 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. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16 (a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a). For the period prior to November 10, 2020, a finding of entitlement to TDIU is dependent upon consideration of the impact of each of the Veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as his work history, education, and vocational training. 38 C.F.R. §§ 4.16. Age is not a factor. 38 C.F.R. § 4.19. Private records show that the Veteran was working in July 2014. His duties, however, were modified due to low back pain. The Veteran was using a brace constantly for back support in 2015. A VA examination report in February 2015 reveals that the Veteran was unable to lift heavy objects and was unable to sit or stand for extended periods of time. In April 2017, the Veteran's wife reported that the Veteran sought emergency treatment because he could hardly walk at all. He dealt with the pain and went to work because his family relied on the employment income. Also in April 2017, the Veteran reported that his back pain was excruciating to the point where he needed assistance with normal daily activities; he was then out of work. Since the start of the appeal period on July 30, 2014, the Veteran has met the schedular eligibility criteria for TDIU. A combined 80 percent evaluation was assigned from July 30, 2014, which included both a 40 percent rating for degenerative disc disease of lumbar spine with spondylosis and a 10 percent rating for associated radiculopathy. The combined rating increased to 100 percent effective November 10, 2020. As noted above, the Veteran testified that he currently owned an HVAC company; and that he required having a helper with him for lifting and maneuvering around some joists and framing. The Veteran worked five days a week, on average; the number of hours varied daily, and totaled between 20-to-25 hours weekly. Prior to November 10, 2020, the Veteran had completed over two years of college credits toward a bachelor's degree. He was taking classes in criminal administration and environmental studies. He also had received training and certification as a technician. As noted above, manual labor was restricted. Regarding sedentary labor, the Veteran was unable to sit or stand for extended periods of time. The Board finds the Veteran's reports of continuing to work, while painful, to be credible. In this case, prior to November 10, 2020, the evidence does not support a finding of unemployability due to service-connected disabilities; his degenerative disc disease of lumbar spine with spondylosis, rated 40 percent disabling, is not sufficient to preclude all forms of substantially gainful employment; less strenuous, non-physical work was not proscribed, and the Veteran was attending college studying for a bachelor's degree in criminal administration and environmental studies. His continuing studies at the time suggest the Veteran has the educational background for more sedentary-type employment. Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). Further, no examiner has found significant detrimental effect on function, occupational or otherwise, prior to November 10, 2020, for any service-connected disability. As of November 10, 2020, the Veteran's claim of entitlement to TDIU was rendered moot by the award of a 100 percent schedular evaluation for Meniere's Disease. There is no additional benefit to be gained through TDIU; TDIU would be duplicative of the combined schedular rating. The Board notes that entitlement to special monthly compensation based on statutory housebound status has already been awarded effective November 10, 2010. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary C. Suffoletta 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.