Citation Nr: 21071940 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 09-44 739 DATE: December 1, 2021 ORDER Entitlement to an increased rating in excess of 40 percent for the service-connected lumbosacral strain disability (hereinafter referred to as a lumbar spine disability) from March 20, 2008 is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. From March 20, 2008, the service-connected lumbar spine disability did not manifest in ankylosis of the spine. 2. The Veteran is unable to maintain (follow) substantially gainful employment due to the service-connected disabilities from March 20, 2008. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 40 percent for the lumbar spine disability from March 20, 2008 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for TDIU have been met from March 20, 2008. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to July 1969. This matter is on appeal from an April 2009 rating decision issued by the Regional Office (RO). These issues were first brought before the Board in August 2016. The Board remanded in order to schedule a Board hearing in accordance with the Veteran's request in the substantive appeal (VA Form 9). The Veteran testified in Waco, Texas, at a Board videoconference hearing in May 2017. The hearing transcript has been associated with the record. These issues were brought before the Board again in August 2018. The Board remanded in order to obtain an updated VA examination to assist in determining whether the Veteran was entitled to an increased rating in excess of 40 percent for the lumbar spine disability. The TDIU issue was remanded as inextricably intertwined with the lumbar spine issue. A VA examination was conducted in August 2019. A supplemental statement of the case (SSOC) was issued in August 2019. In November 2019, the Board remanded the lumbar spine issue in order to obtain an addendum opinion. The TDIU issue was remanded for referral to the VA's Director of Compensation Service. In May 2021, the Director of Compensation Service found that the Veteran is not unable to obtain or maintain gainful employment due to the service-connected disabilities. A SSOC was issued in June 2021. In a September 2021 notification, the Veteran was advised that the Veterans Law Judge who held the May 2017 Board videoconference hearing is no longer with the Board. Pursuant to 38 C.F.R. § 20.707, the Veteran was informed of the right to a second Board hearing before another Veterans Law Judge. The notification instructed the Veteran to respond with 30 days of the date of the letter to let VA know whether he wanted a second hearing. As the Veteran never responded, the right to a second hearing is deemed waived. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The Veteran has appealed from the initial rating assigned for the service-connected lumbar spine DDD. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the Court addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Disabilities of the spine are rated under the General Rating Formula for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula 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 provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 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. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is provided for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is provided for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lumbar 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. The IVDS Rating Formula provides a 10 percent rating when there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; a 60 percent rating when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1) provides that for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is 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. As of February 7, 2021, the musculoskeletal rating criteria (38 C.F.R. §§ 4.71a and 4.73) were revised. The only change to the General Rating Formula was to state that Diagnostic Code 5242 is for "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either D[iagnostic] C[ode] 5003 or 5010)." Intervertebral disc syndrome (Diagnostic Code 5243) was clarified to state: "Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5243). 1. Rating the Lumbar Spine Disability from March 20, 2008 The Veteran is in receipt of a 40 percent disability rating for the lumbar spine disability from March 20, 2008 under DC 5242. After a review of all the lay and medical evidence in this case, the Board finds that the weight of the evidence shows that the service-connected lumbar spine disability did not manifest in unfavorable ankylosis at any time during the rating period. The weight of the evidence is against finding that the Veteran had ankylosis in the spine. The Veteran submitted to numerous VA examinations during the period on appeal, all of which indicated that the Veteran did not have ankylosis. See June 2008 VA Examination; October 2008 VA Examination; July 2011 VA Examination; May 2012 VA Examination; August 2019 VA Examination; April 2021 VA Examination. The VA and private treatment records of record also do not indicate ankylosis in the thoracolumbar spine. The Veteran has provided lay evidence about the functional loss he experienced due to the lumbar spine disability, including that he modified his daily activities to deal with the back pain. See June 2008 Private Treatment Records. During the June 2008 VA examination, the Veteran explained that he experienced back pain at work, for which he received accommodations by the employer, but he was eventually discharged and collected Social Security Disability. See also Social Security Records (sent as a fax cover sheet in August 2008). The Veteran reported experiencing daily chronic pain and using assistive devices. See August 2009 Notice of Disagreement; July 2011 VA Examination; May 2012 VA Examination; May 2013 Lay Statements. The Veteran reported pain, stiffness, difficulties sitting, standing, and walking, inability to lift or bend, weakness and numbness. See August 2019 VA Examination; April 2021 VA Examination; see also May 2017 Transcript. Evidence that attempts to quantify the functional loss is predominantly recorded in VA examination reports. During the October 2008 VA examination, the VA examiner found no incoordination, weakness, decreased endurance, or fatigue. In May 2012, the VA examiner found decreased range of motion, less movement than normal, excess fatiguability, pain on movement, and interference with sitting/standing/weight-bearing after observed repetitive use testing. During the August 2019 VA examination, the Veteran declined to participate in functional loss testing due to fear of pain. In April 2021, the VA examiner found no functional loss after observed repetitive use testing and pain with repetitive use over time testing with no decreased range of motion; the VA examiner also assessed that there would be pain and decreased range of motion during flareups. Based on the foregoing, the preponderance of the evidence is against finding that the lumbar spine disability manifested in unfavorable ankylosis at any time during the rating period. As the criteria for an increased rating in excess of 40 percent for the lumbar spine disability from March 20, 2008 have not been met, the appeal for higher rating than 40 percent for the back disability must be denied. Legal Authority for TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). 2. TDIU from March 20, 2008 The Veteran contends that he has been unable to maintain substantially gainful employment because of the service-connected disabilities, especially the lumbar spine disability. See May 2017 Transcript After a review of the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran has been unable to maintain (follow) substantially gainful employment due to the service-connected disabilities from March 20, 2008. The instant TDIU claim arises from an underlying claim for increased rating for the lumbar spine disability, which was filed on March 20, 2008. According to the April 2008 application for increased compensation based on unemployability, the Veteran reported that he worked as a skilled tradesman for Chevrolet Metal from 1977 to 1983 when he became too disabled to work. The Veteran completed high school and two years of college. He reported that he did not have any education or training since he became too disabled to work in 1983. During the instant rating period on appeal, from March 20, 2008, the Veteran is service connected for the lumbar spine disability rated at 40 percent (from February 23, 1990), radiculopathy in the right lower extremity rated at 10 percent from August 7, 2019, and radiculopathy in the left lower extremity rated at 10 percent from April 26, 2021. The service-connected disabilities do not meet the threshold requirements under 38 C.F.R. § 4.16(a) for TDIU consideration from March 20, 2008. During the June 2008 VA examination, the Veteran reported experiencing back pain after a work-related injury aggravated the lumbar spine disability. The Veteran's employer tried to arrange accommodations for the Veteran, but the Veteran was eventually discharged and collected Social Security Disability for the lumbar spine injury. During the July 2011 VA examination, the Veteran reported that he was still unable to work and could only perform light work around the house; he also claimed that the prescribed muscle relaxants do not work. In May 2012, a VA examiner assessed that the lumbar spine disability affected the Veteran's ability to work because it prohibited him from engaging in manual labor and prolonged standing, walking, bending, and lifting. During the August 2019 VA examination, the VA examiner assessed that the lumbar spine disability affected the Veteran's ability to work due to difficulty with prolonged periods of standing, sitting, and climbing and descending stairs. In an August 2019 individual unemployability statement, the VA examiner opined that the Veteran is only capable of light work that included, for example, "exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects." A job is rated as light work "(1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible." In April 2021, a VA examiner assessed that the lumbar spine and radiculopathy disabilities affected the Veteran's ability to work because he is limited to 15 pounds of lifting, pushing or pulling, limited to 10 minutes of standing, and a quarter of a mile walking. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the service-connected disabilities have rendered the Veteran unable to maintain substantially gainful employment from March 20, 2008. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.