Citation Nr: 21076183 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-11 198 DATE: December 22, 2021 ORDER For the period from June 8, 2011 to September 5, 2013, a 20 percent evaluation, but no higher, for service-connected lumbosacral strain (back disability) is granted. Effective March 17, 2015, entitlement to a total disability rating based on individual unemployability (TDIU) on a schedular basis is granted. REMANDED Entitlement to a TDIU prior to March 17, 2015, on an extraschedular basis, is remanded. FINDINGS OF FACT 1. From June 8, 2011 to September 5, 2013, the service-connected back disability manifested with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis for the period on appeal. 2. The Veteran met the schedular requirements for a TDIU beginning March 17, 2015. 3. The Veteran is unable to secure or maintain substantially gainful employment as a result of his service-connected anxiety disorder, back disability, right bialteral ankle, and bilateral lower extremity radiculopathy disabilities. CONCLUSIONS OF LAW 1. From June 8, 2011 to September 5, 2013, the criteria for a disability rating of 20 percent, but no higher, for the service-connected back disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 2. The criteria for a TDIU have been met beginning March 17, 2015. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1966 to August 1975. He was awarded the Vietnam Service Medal and Combat Infantryman Badge, among other decorations, for this service. These matters come before the Board of Veterans Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In a September 2020 decision, in pertinent part, the Board denied an evaluation in excess of 10 percent for a service-connected back disability prior to September 5, 2013. The Veteran appealed the September 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 Order of the Court granting a Joint Motion for Remand (JMR), the parties agreed to vacate the pertinent portion of the September 2020 Board decision and remand the matter for further development and readjudication based on the terms of the JMR. The case has been properly returned to the Board for adjudication. 1. Increased Evaluation Prior to September 5, 2013. The Veteran contends that for the period prior to September 5, 2013, the service-connected back disability is more severe than the is reflected by the currently assigned 10 percent evaluation. After review of the lay and medical evidence, the Board finds that the service-connected back disability more closely approximated the 20 percent evaluation criteria, but no higher for the period on appeal from June 8, 2011 to September 5, 2013. The Veteran's service-connected back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. A 20 percent rating is warranted 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 rating is warranted for forward flexion of the thoracolumbar spine to 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 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The Board notes the Veteran is separately evaluated for bilateral lower extremity radiculopathy. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In June 2011, the Veteran's private physician submitted a letter documenting the symptoms and treatment for the service-connected back disability. He indicated the Veteran experienced moderate to severe back pain and was treated with medication and limited activity. He further indicated in May 2011 the Veteran presented with urinary difficulty and was refereed for assessment for possible neurogenic bladder. In July 2011, the Veteran underwent a VA examination to determine the severity of the service-connected back disability. He reported daily constant moderate pain in the low back with shooting pain down the left lower extremity every couple of days. The Veteran denied flare-ups of the back or bowel or bladder issues. On examination the Veteran indicated that his doctor and physical therapist told him not to do the motion required by range of motion testing. The VA examiner indicated that the Veteran was able to dress and undress without apparent difficulty and perform heel to toe walking. The Board notes the October 2011 addendum to the July 2011 examination and has fully considered the Veteran's concerns. While addendums opinions are common practices where an examiner is asked to review a prior examination and provide additional information, here, the Board finds the addendum inadequate for rating purposes. Specifically, it is recorded on a Knee DBQ and contains no rationale as to how flexion was recorded or estimated when the Veteran did not undergo range of motion testing during the original exam. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board further assures the Veteran that the addendum does not indicate that he physically reported for examination in October 2011 and that addendums are often obtained without the need for the Veteran to report in person. However, as noted, this addendum is of no probative value and the Board has not considered its findings in this decision. In December 2011, the Veteran submitted a letter in support of the claim. He indicated that on the advice of his surgeon and physical therapist he did not want to unnecessarily risk additional injury by performing range of motion testing during the July 2011 exam. He further indicated he ambulated with a cane, limped, and had guarding of the service-connected back. The Veteran further indicated his bladder issues had resolved. In July 2013, the Veteran underwent a private orthopedic consult. He reported moderate pain of an 8/10 that was made worse by standing, walking, lifting, bending, and sitting, and made better with rest. On examination, the private examiner indicated that range of motion was markedly limited because of pain with full flexion and hyperextension, and sensation was intact. VA and private treatment records are consistent throughout the appeal period. The Veteran has continually reported back pain. A June 2011 podiatry noted the Veteran was guarded on the left due to back pain. The Board finds, resolving all doubt in the Veteran's favor that a 20 percent for the service-connected back disability is warranted. Specifically, the private examiner described marked limitation and guarding. However, a rating higher than 20 percent is not warranted for this period. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, spasm, and guarding. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. To be sure, the Board has no range of motion reading for the entire period on appeal. To the extent that examination findings of record relative to the low back are not completely in compliance with Barr, the Board finds that remand for additional examination would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Current examination findings would not be useful in adjudicating the ratings assigned for the rating period prior to September 5, 2013 and any retrospective opinion would merely impose additional burdens on VA with no benefit flowing to the Veteran, as VA would be asking an examiner to resort to speculation as to what motion was prior to 2013. Here, the Board must rely on the treatment records and lay reports to determine the functional impact of the service- connected back, as well as the medical records following the appeal period. As Dr. A.C. indicated in his June 2011 letter, the Veteran experienced moderate to severe low back pain, but there is no indication of an ankylosed spine. Similarly, the July 2013 private physician indicated range of motion was markedly limited because of pain with full flexion and hyperextension, which supports that there was not favorable ankylosis of the spine as limited motion, even if markedly limited, indicates the spine retained some flexion. Neither the Veteran nor his representative contend, and the record does not support that at any point during the period on appeal, that the Veteran's symptoms of pain, spasm, and guarding approximated favorable ankylosis in the lumbar spine. Even when considering the functional limitation of the reported symptoms based on the Veteran's lay statements, the statements of his treating physician, and VA treatment records, the back disability does not more nearly approximate fixation of a spinal segment in neutral position (zero degrees). Consideration has also been given to assigning a higher evaluation under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating at any point during the appeal period. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Here, a total duration of at least 4 weeks but less than 6 weeks of incapacitating episodes would be required for a higher evaluation. During the period on appeal, the record does not support that the Veteran was prescribed physician ordered bed rest at any point. Regarding neurological impairment, the Veteran has already been granted service connection for bialteral lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The Board noted the June 2011 referral for assessment for possible neurogenic bladder and the Veteran's December 2011 report that the issue had resolved. No other reports of bowel or bladder issues are noted during the appeal period. Based on the foregoing, the evidence supports a finding that the service-connected back more closely approximated the criteria for a 20 percent, but no higher, for the entire appeal period. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. As such, a 20 percent evaluation, but no higher is granted from June 8, 2011 to September 5, 2013. 2. Entitlement to a TDIU is Granted on a Schedular Basis from March 17, 2015. 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) (2017). 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). A TDIU may be assigned when the disabled veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 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). 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 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 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. The Veteran contends that he is unable to secure or maintain employment due to his service-connected disabilities. The Veteran is currently service-connected for (1) generalized anxiety disorder, evaluated at 50 percent, (2) intervertebral disc syndrome, evaluated at 40 percent, (3) right ankle disability, evaluated at 20 percent, (4) left ankle disability, evaluated at 20 percent, (5) left lower extremity radiculopathy, evaluated at 20 percent, (6) bilateral hearing loss, evaluated at 10 percent, (7) tinnitus, evaluated at 10 percent, (8) right lower extremity radiculopathy, evaluated at 10 percent, and (9) a scar on the back, evaluated at 0 percent. The Veteran's combined rating is 90 percent, and the Veteran has met the schedular requirements for a TDIU rating under 38 C.F.R. § 4.16(a) since March 17, 2015. The Veteran indicated his service-connected disabilities prevented him from working in June 2011. He has further indicated he was last employed as a US Marshall in 1999 and he has completed four years of college with no additional education or training. A February 2015 private treatment note indicated the Veteran was not safe going out with a cane and he was experiencing stiffness and discomfort in a flexed position. An April 2015 VA mental health examination indicated the Veteran had difficulty in adapting to stressful circumstances, including work or a worklike setting, difficulty in establishing and maintaining effective work and social relationships, and neglected personal appearance and hygiene. The VA examiner indicated the service-connected anxiety disorder would impair his work efficiency. A July 2018 foot and ankle progress note indicated the Veteran had difficulty with weight bearing. The ankle disability was aggravated by weight bearing, flexing the ankle, turning the ankle, and pressure. In August 2018, the Veteran provided testimony in support of the claims. He reported constant back pain with shooting nerve pain down the leg that caused him to fall. The Veteran further reported poor sleep because of pain, depression, and that any heavy lifting would result in him suffering for days. In August 2018, the Veteran's spouse submitted a letter in support of the claims. She indicated the Veteran's service-connected disabilities prevented him from performing simple tasks and that she helped him put on his ankle braces daily. A June 2019 back examination indicated the Veteran's service-connected back limited sitting and standing for long periods and bending or lifting. In April 2020, the Veteran submitted a letter in support of the claim indicated the service-connected disabilities prevented him from maintaining substantially gainful employment. Specifically, the medical professional indicated the severity of the Veteran's service-connected mental health disability and physical limitation from the back disability combined prevented substantially gainful employment. Based on the above, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Specifically, the lay and medical evidence of record supports a finding that the Veteran's anxiety disorder, back disability with bialteral lower extremity radiculopathy, and bialteral ankle disability, severely impact his ability to maintain substantially gainful employment. The Veteran has reported difficulties with walking, standing, bending, lifting, and sitting because of the service-connected disabilities. Furthermore, both VA and private examiners have indicated that the Veteran's service-connected disabilities impact his ability to maintain substantially gainful employment. Considering the entire record in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports the assignment of a TDIU due to service-connected disabilities on a schedular basis, effective March 17, 2015. 38 C.F.R. § 4.16(a). REASONS FOR REMAND 1. Entitlement to a TDIU Prior to March 17, 2015, is Remanded. Above, the Board granted a TDIU beginning March 17, 2015, when the Veteran met the schedular requirements for its award. However, the Board notes, that the lay and medical evidence indicates that the Veteran's service-connected disabilities potentially prevented him from maintaining substantially gainful employment prior to meeting the schedular requirements. In such situations, the Board may only refer the case to the Director of Compensation Service (Director) for consideration of an extraschedular TDIU. 38 C.F.R. § 4.16(b); see also Cantrell v. Shulkin, 28 Vet. App. 382, 387 (2017). Upon review of the record, the Board finds such referral is warranted. The matters are REMANDED for the following action: Refer the application for a TDIU to the Director of Compensation Service for a determination as to whether the Veteran is entitled to a TDIU prior to March 17, 2015, on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). A full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be provided. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.