Citation Nr: 21076452
Decision Date: 12/23/21	Archive Date: 12/23/21

DOCKET NO. 08-30 119A
DATE: December 23, 2021

ORDER

Entitlement to a 40 percent rating, but no higher, from August 1, 2005 through December 2, 2008, for lumbosacral strain with degenerative disc disease of the lumbar spine, is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from August 1, 2005 through September 30, 2008, is denied.

FINDINGS OF FACT

1. The evidence is at least evenly balanced as to whether, from August 1, 2005 through December 2, 2008, the Veteran's lumbosacral strain with degenerative disc disease of the lumbar spine was manifested by limitation of forward flexion of the thoracolumbar spine to 80 degrees, with additional significant limitation of motion during flare ups, and to the extent that medication ameliorated these symptoms, such amelioration cannot be considered; there was no spinal ankylosis, functional equivalent of ankylosis, or incapacitating episodes due to intervertebral disc syndrome (IVDS) having a total duration of at least 6 weeks during a 12-month period.

2. From August 1, 2005 through September 30, 2008, the Veteran was service-connected for the following disabilities: lumbosacral strain with degenerative disc disease of the lumbar spine, now rated 40 percent disabling; degenerative changes of the right acromioclavicular joint, rated 10 percent disabling; tinea pedis with onychomycosis, rated 10 percent disabling; tinnitus, rated 10 percent disabling; high frequency hearing loss, rated noncompensable; and post-operative residuals, basal cell carcinoma, right clavicular area, rated noncompensable; his combined disability rating was 60 percent.

3. From August 1, 2005 through September 30, 2008, the Veteran's service-connected disabilities did not preclude all substantially gainful employment for which his education and occupational experience would have otherwise qualified him. 

CONCLUSIONS OF LAW

1. With reasonable doubt resolved in favor of the Veteran, the criteria for a 40 percent rating, but no higher, from August 1, 2005 through December 2, 2008, for lumbosacral strain with degenerative disc disease of the lumbar spine, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code (DC) 5243.

2. The criteria for a TDIU due to service-connected disabilities, from August 1, 2005 through September 30, 2008, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1963 to February 1985. These matters initially came before the Board of Veterans' Appeals (Board) from a November 2005 rating decision, in which the agency of original jurisdiction (AOJ) denied entitlement to a rating in excess of 10 percent for lumbosacral strain.

In June 2009, the AOJ awarded a temporary 100 percent rating for the Veteran's service-connected back disability due to surgical or other treatment requiring convalescence, from December 3, 2008 through March 31, 2009. An increased (40 percent) rating was awarded from April 1, 2009. 

In June 2011, the AOJ awarded a temporary 100 percent rating for the Veteran's service-connected back disability due to surgical or other treatment requiring convalescence, from October 27, 2010 through January 31, 2011. A 40 percent rating was resumed from February 1, 2011. 

In October 2012, the AOJ awarded an increased (60 percent) rating for the service-connected back disability, from September 10, 2012 and awarded a TDIU, from October 28, 2010.

In August 2013, the Board remanded the issue of entitlement to an increased rating for the service-connected back disability for further development.

In September 2016, the Board expanded the appeal to include the issue of entitlement to a TDIU prior to October 28, 2010, as part and parcel of the claim for an increased rating for the service-connected back disability. See Harper v. Shinseki, 30 Vet. App. 345 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue, as well as the issue of entitlement to an increased rating for the service-connected back disability, for further development.

In April 2019, a Decision Review Officer (DRO) found that there was clear and unmistakable error (CUE) in the assignment of a 60 percent rating for the service-connected back disability, and assigned a retroactive 40 percent rating, from September 10, 2012. The DRO also awarded an August 28, 2009 effective date for the award of a TDIU.

In November 2019, the Board denied entitlement to a rating in excess of 10 percent for the service-connected back disability, prior to December 3, 2008, and a rating in excess of 40 percent for the service-connected back disability, from April 1, 2009 to October 26, 2010 and from February 1, 2011. The Board also remanded the issue of entitlement to a TDIU, prior to August 28, 2009, for further development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).

In May 2020, a DRO assigned an effective date of October 1, 2008 for the award of a TDIU.

In August 2020, the Court set aside the Board's November 2019 decision, in part, and remanded to the Board the issue of entitlement to a rating in excess of 10 percent for the service-connected back disability, prior to December 3, 2008, for readjudication in compliance with directives specified in a July 2020 Joint Motion filed by counsel for the Veteran and VA.

In April 2021, the Board remanded the remaining matters currently on appeal for further development.

In the August 2013, September 2016, November 2019, and April 2021 remands, the Board instructed the AOJ to, among other things, obtain all outstanding relevant private treatment records, refer the issue of entitlement to a TDIU prior to August 28, 2009 to the Director of Compensation (Director) for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16 (b) during this period, and obtain a retrospective medical opinion as to the severity of the Veteran's service-connected back disability during the period prior to December 3, 2008.

Pursuant to the Board's remands, all outstanding relevant treatment records were obtained and associated with the claims file and a retrospective medical opinion pertaining to the severity of the Veteran's service-connected back disability prior to December 3, 2008 was obtained in July 2021. Also, the issue of entitlement to a TDIU prior to August 28, 2009 was referred to the Director, and the Director issued a decision in May 2020. Therefore, the AOJ substantially complied with the Board's pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

I. Increased Rating

Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155.

If two ratings are potentially applicable, 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. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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).

Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. § 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); 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.

The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71A were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. In this case, the only remaining period on appeal with respect to the rating assigned for the service-connected back disability is prior to February 7, 2021. Therefore, the Board may only consider the Veteran's claim under the earlier version of the rating criteria in effect prior to February 7, 2021.

Entitlement to a rating in excess of 10 percent, from August 1, 2005 through December 2, 2008, for lumbosacral strain with degenerative disc disease of the lumbar spine

The Veteran's service-connected back disability is rated under 38 C.F.R. § 4.71A, DC 5243 as IVDS. Under DC 5243 prior to the regulatory change, IVDS (preoperatively or postoperatively) is rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71A, DC 5243.

Under the General Rating Formula prior to the regulatory change, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply:

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, if there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or if there is vertebral body fracture with loss of 50 percent or more of the height. Id.

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, if 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. Id.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id.

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Id.

Note (2) provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees and extension and left and right lateral flexion and rotation of the thoracolumbar spine are all 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 thoracolumbar spine is 240 degrees. Each range of motion measurement is to be rounded to the nearest five degrees.

The rating criteria provide that 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. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Court has held that a veteran may be entitled to a rating higher than 40 percent under the General Rating Formula if he experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021).

Under the criteria for rating IVDS, the following ratings apply: a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71A, DC 5243.

For purposes of ratings under DC 5243, 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, DC 5243, Note (1).

Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the Veteran manifested thoracolumbar spine symptoms of the type and extent, frequency, and/or severity, as appropriate, to warrant a 40 percent rating, but no higher, during the entire claim period from August 1, 2005 through December 2, 2008.

The Veteran's claim for an increased rating for the service-connected back disability was received on August 1, 2005.

The Veteran reported during a September 2005 VA back examination that he experienced progressively worsening low back disability, but that he had not experienced any episodes of incapacitation or being bedridden during the previous 12 months. He took medication (Celebrex) on a daily basis for his back symptoms and his symptoms had good response to this treatment. There was no history of hospitalization or surgery, trauma to the spine, or neoplasm, and the Veteran did not experience any urinary incontinence, urinary frequency, urinary urgency, fecal incontinence, leg or foot weakness, numbness, paresthesias, falls, unsteadiness, urinary retention, or constipation. Severe flare ups of back pain occurred on a weekly basis, lasted for 2 to 3 days at a time, were caused by overexertion, were alleviated by medication, and prevented the Veteran from doing anything until the pain was reduced. Also, the Veteran experienced mild fatigue, decreased motion, and weakness, moderate stiffness, and constant moderate low back pain which was aching in nature and radiated to the left hip and foot (the radiating pain was sharp and shooting in nature). There were no muscle spasms. The Veteran used a brace and was only able to walk 14 mile.

Examination revealed that the Veteran had scoliosis (but no other abnormal spinal curvatures), but that his head position was normal and that there was symmetry in appearance. His gait was normal, there was no thoracolumbar spine ankylosis, and there were no indications of unfavorable ankylosis.  There was moderate pain with motion, moderate tenderness, and mild weakness of the lumbar sacrospinalis muscles bilaterally, but there was no muscle spasm, atrophy, or guarding and no symptoms of the thoracic sacrospinalis muscles bilaterally. Muscle spasms, localized tenderness, or guarding were not severe enough to be responsible for an abnormal gait or abnormal spinal contour. The active ranges of motion of the thoracolumbar spine were recorded as being flexion to 80 degrees (with pain beginning at 50 degrees), extension to 15 degrees (with pain throughout the entire range of motion), and left and right lateral flexion and rotation all to 30 degrees (with pain throughout the entire ranges of motion). The passive ranges of spinal motion were also recorded and there was pain with the passive ranges of motion. There was no additional loss of motion on repetitive use of the spine due to pain, fatigue, weakness, or lack of endurance.

Moreover, lower extremity muscle strength was normal (5/5) bilaterally, lower extremity sensation was normal bilaterally, lower extremity reflexes were all normal (2+) bilaterally, and Lasegue's sign was not positive. There was pain on motion and an increase in pain, weakness, fatigue, and lack of endurance after repetitive motion, but there was no increase in incoordination or additional range of motion loss after repetitive motion. The Veteran was diagnosed as degenerative joint disease of the lumbosacral spine. This disability did not have any significant occupational effects, had mild to moderate effects on some activities of daily living, and prevented exercise and recreation.

A September 2008 examination report from J. Martinez, M.D. indicates that the Veteran experienced constant pain, which was mainly localized across the lumbosacral region, but radiated to the hips (worse on the left). The pain was aggravated by sitting, walking, lying down, and prolonged standing, was alleviated by standing for a short period of time, and disrupted the Veteran's sleep. He tried different alternatives of treatment, including analgesics and anti-inflammatory medications. Examination revealed that the ranges of motion of the lumbosacral spine elicited pain across the lumbosacral region, the pain seemed to be worse on extension, and the ranges of motion elicited paresthesias in both lower extremities. Muscle strength was normal in the lower extremities bilaterally, sensation was normal, deep tendon reflexes were normal (2+) and symmetrical bilaterally, and coordination was normal. An MRI revealed central disc herniation at L4-5 associated with spinal canal stenosis bilaterally, severe degenerative disc disease at L5-S1 associated with collapsed disc and neural foraminal canal stenosis bilaterally, mild spinal canal stenosis at L2-3 associated with partial collapsed disc, and axial pain.

The report of a VA back examination dated in March 2009 indicates, in pertinent part, that the Veteran used medication (Celebrex) to treat his back symptoms and that he would not be able to get out of bed without the use of Celebrex. Flare ups of increased back pain (8-9/10) occurred, which varied in duration. There was additional limitation of motion and functional impairment during flare ups, in that back pain would become so severe that the Veteran was only able "to do very little" during flare ups. Examination revealed that the ranges of motion of the thoracolumbar spine were flexion to 25 degrees, extension and left and right lateral flexion all to 10 degrees, and left and right lateral rotation both to 8 degrees. Repetitive motion caused increased pain, but no additional limitation of motion (motion was very limited to begin with). There was weakness and fatigability, but no incoordination.

The Veteran reported in statements dated in August 2009 and May 2010 that he had "suffered with a great deal of pain and limited mobility since [his] initial [back] injury." His back disability had "always been very bad," and his quality of life, as well as the quality of life of his family members, had greatly suffered. His injury had cost him multiple job opportunities and income, and had limited his activities in sports and all other activities that require physical exertion. The Veteran believed that a 40 percent rating for his back disability was warranted all the way back to the time that he left service "because [his] back condition was the same."

In statements dated in July 2020, R.A. and J.L. reported that they had known the Veteran since prior to the current claim period and that they had witnessed the pain that the Veteran experienced in his back during the entire time they knew the Veteran. J.L. reported that he known the Veteran since service in the 1980s, that the Veteran's back pain was constant and debilitating following his injury in service, that his condition appeared to worsen in the years since his initial back injury, and that he had "been badly hurt the entire thirty years [J.L. had] known him." R.A. reported that, at times, the Veteran's back pain was so severe that it incapacitated him.

The nurse practitioner who conducted a July 2021 VA back examination reviewed the Veteran's claims file and explained that during the September 2005 VA back examination, it was noted that the Veteran had severe flare ups lasting 2 to 3 days on a weekly basis and that he was unable to do anything until the pain was reduced. His forward flexion was limited to 80 degrees, with pain beginning at 50 degrees. With a retrospective review, the Veteran's back disability was moderated with worsening conditions over time, which required surgical interventions in 2008, 2010, and 2012. He had a reduced capacity to perform sitting, bending, lifting, twisting, stooping, and turning. He was unable to stand and walk for prolonged periods of time without frequent breaks. Also, he had a limited ability to run, kneel, and climb stairs and ladders, and he was unable to lift heavy objects greater than 25 pounds.

The above evidence reflects that during the September 2005 VA back examination, forward flexion of the thoracolumbar spine was to 80 degrees, with pain beginning at 50 degrees. The Veteran reported during the examination that severe flare ups of back pain occurred on a weekly basis, lasted for 2 to 3 days at a time, and prevented him from doing anything until the pain was reduced. Also, he experienced fatigue, weakness, and stiffness, and there was an increase in pain, weakness, fatigue, and lack of endurance after repetitive motion. The examiner who conducted the September 2005 examination indicated that the ranges of spinal motion remained the same following repetitive use testing, but the examiner did not provide any opinion as to the extent of any additional functional loss during flare ups and with repeated use over time. R.A. and J.L. reported in their July 2020 statements that the Veteran's back pain was constant and debilitating following his injury in service, that his condition appeared to worsen in the years since his initial back injury, that he was badly hurt in the years since service, and that he was sometimes incapacitated by the severity of his back pain. Similarly, the Veteran has reported that his back disability has always been significant since his separation from service and that his current impairment is the same as it was immediately following his injury in service.

Although forward flexion of the spine was to 80 degrees during the September 2005 examination, the Board points out that the Veteran reported during that examination that he used medication (Celebrex) on a daily basis to treat his symptoms, and that his symptoms were responsive to the medication. Also, he reported during the March 2009 examination that he would not be able to get out of bed without the use of Celebrex. The Board points out that it "may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In other words, the Board cannot consider the ameliorative effects of medication unless medication is referenced in the applicable diagnostic code. That is precisely the situation in this case. The Veteran's medication has occasionally ameliorated the effects of his back disability. 

The parties to the Joint Motion agreed that the Board did not adequately consider the functional loss caused by the Veteran's back disability during the claim period prior to December 3, 2008, to include during flare ups. In light of the range of motion measurements that were recorded during the September 2005 examination, the fact that pain began at 50 degrees of flexion during that examination, the Veteran's reports of flare ups of back symptoms which significantly impaired his ability to move and function, and not taking into account the ameliorative effects of the Veteran's medication, the Board finds that the evidence is at least evenly balanced as to whether the symptoms of the Veteran's service-connected back disability most closely approximated the criteria for a 40 percent rating under the General Rating Formula (which contemplates limitation of flexion of the thoracolumbar spine to 30 degrees or less) during the entire claim period from August 1, 2005 through December 2, 2008. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a 40 percent rating is warranted during this period.

The Board also finds that a rating higher than 40 percent is not warranted at any time during the claim period from August 1, 2005 through December 2, 2008. Specifically, there was no showing of any actual ankylosis at any time during this period. As for the functional equivalent of ankylosis, the Board acknowledges the Veteran's reports of functional impairment during flare ups and with repeated use over time, he is competent to report the symptoms associated with his service-connected back disability and the extent of his impairment during flare ups of symptoms and following repetitive use, and the Board has no reason to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Regardless of the competent and credible reports of flare ups, pain, and other functional impairments, and despite the fact that painful motion was documented, the evidence nonetheless supports the conclusion that the Veteran's back symptoms more closely approximated the criteria for at most a 40 percent rating for limitation of spinal motion under the General Rating Formula during the entire claim period from August 1, 2005 through December 2, 2008. Specifically, the above evidence reflects that the flare ups and other functional impairments were not so severe, frequent and/or prolonged to warrant the next higher percent rating at any time during this period. The evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's back symptoms were not shown to be so disabling to actually or effectively result in fixation of the entire thoracolumbar spine in flexion or extension with any of the additional symptoms or limitations listed in Note (5) of the General Rating Formula.

Moreover, although the Veteran reported severe flare ups of back pain during which he was unable to perform any activities, he did not experience any symptoms of IVDS of the thoracolumbar spine that required bed rest prescribed by a physician and treatment by a physician at any point during the period from August 1, 2005 through December 2, 2008. Therefore, a rating higher than 40 percent is not warranted on the basis of ankylosis or IVDS.

In sum, a 40 percent rating, but no higher, from August 1, 2005 through December 2, 2008 for lumbosacral strain with degenerative disc disease of the lumbar spine is warranted.  For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a rating higher than 40 percent is warranted.  Rather, the evidence persuasively weighs against such a rating.  The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, is therefore not for application in this regard.  Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

The Board notes that the parties to the Joint Motion agreed that the Board did not adequately discuss whether separate compensation was warranted for sleep difficulties due to the Veteran's service-connected back disability. In April 2021, the Board remanded the issue of entitlement to an increased rating for the service-connected back disability prior to December 3, 2008, to include consideration of whether separate compensation was warranted for sleep difficulties. In October 2021, the AOJ awarded service connection and a separate initial rating for insomnia, as related to the service-connected back disability, and thereby resolved the appeal as to this matter. 

As a final point, the Board notes that in conjunction with the claim for an increased rating for the service-connected back disability during the period from August 1, 2005 through December 2, 2008, other than the issue of entitlement to a TDIU prior to October 1, 2008 which is addressed below, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

II. TDIU

VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).

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, 529 (1993).

The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Among other things, disabilities of one or both lower extremities, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system (e.g., orthopedic) will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a).

However, even when the percentage requirements under 38 C.F.R. § 4.16 (a) are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b).

The Board points out that although it is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. The Board conducts a de novo review of the Director's decision denying extraschedular consideration under 38 C.F.R. § 4.16 (b) and the Director's decision is in essence the decision of the AOJ and not evidence. Wages v. McDonald, 27 Vet. App. 233, 236-39 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)). In this case, the issue of entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) has already been referred to the Director and the Director has issued a decision. Therefore, the TDIU issue is now before the Board and can be addressed on the merits. Cf. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) ("[T]here is no restriction on the Board's ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321 (b)(1)] on appeal").

The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non- service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be 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, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a).

In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.

Entitlement to TDIU due to service-connected disabilities, from August 1, 2005 through September 30, 2008

Considering the pertinent evidence in light of the considerations delineated above, the Board finds, for the following reasons, that, during the period from August 1, 2005 through September 30, 2008, the Veteran's service-connected disabilities did not preclude all substantially gainful employment for which his education and occupational experience would have otherwise qualified him.

From August 1, 2005 through September 30, 2008, the Veteran was service-connected for the following disabilities: lumbosacral strain with degenerative disc disease of the lumbar spine, now rated 40 percent disabling; degenerative changes of the right acromioclavicular joint, rated 10 percent disabling; tinea pedis with onychomycosis, rated 10 percent disabling; tinnitus, rated 10 percent disabling; high frequency hearing loss, rated noncompensable; and post-operative residuals, basal cell carcinoma, right clavicular area, rated noncompensable. His combined disability rating was 60 percent. Hence, he did not meet the percentage requirements for a TDIU during this period. See Id. The remaining question is whether his service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him.

In addition to the evidence set forth above, a May 1985 VA examination report, the reports of VA shoulder and audiological examinations dated in September 2005, the September 2008 examination report from Dr. Martinez, an October 2008 letter from the Veteran's employer, an October 2008 statement from the Veteran (VA Form 21-4138), the March 2009 VA back examination report, an October 2011 "Veteran's Application for Increased Compensation Based on Unemployability" form (VA Form 21-8940), statements from the Veteran dated in February 2012 and August 2012, and the Veteran's Social Security Administration (SSA) disability records indicate that he has a high school education and that following service he was employed in television repair, in marketing and sales for a beverage company, as a merchandiser with a tool company, in maintenance, and as a realtor. In approximately July 2008, his back symptoms became so severe that he was unable to work every day, but he continued to work until September 30, 2008, at which time he stopped working due to back and neck disabilities. He was only able to marginally work due to his back disability at the time of his October 2008 statement. 

In its October 2008 letter, the Veteran's employer reported that the Veteran had been a licensed realtor with the company since January 2005 and that he was always a diligent and dedicated agent and very good producer. However, his constant back pain affected his ability to do his job and maintain his performance levels, and his income had decreased significantly. During the March 2009 VA back examination, the Veteran reported that he had been "off work since October or September 2008 and had limited work prior to that time because of the severity of his back problems." His work had been limited during the previous 2 years.

As for the symptoms of the Veteran's service-connected disabilities (other than his service-connected back disability), he experienced right shoulder (the dominant shoulder) pain, giving way, stiffness, weakness, and limited motion, hearing loss, and tinnitus. Severe flare ups of right shoulder symptoms occurred on a daily basis, lasted for hours to 2 days at a time, and prevented the Veteran from lifting, pulling, reaching, and carrying until the pain subsided. Due to his hearing loss, he experienced difficulty understanding speech in noisy areas and hearing a telephone ring.

In May 2020, the Director reviewed the Veteran's claims file and concluded that entitlement to an extraschedular TDIU was warranted from October 1, 2008. In pertinent part, the medical evidence showed a worsening of the Veteran's low back disability, which the Veteran indicated led to an inability to work by the end of September 2008. By October 2008, treating physicians indicated to the Veteran that surgical intervention was required to improve the condition of his lower back. The Veteran reported that by October 2008, he was unable to walk or stand for any extended period of time without significant back pain, and that laying down also aggravated his back. He was only able to sleep for approximately one hour at a time without the back pain causing significant interruption in his sleep. His employer indicated that his income was drastically reduced by October 2008 due to his medical condition. Overall, the evidence showed that the Veteran's service-connected back disability caused significant interference in his ability to perform his job. Further, his disability would have affected any job that he would have attempted to pursue at that time (i.e., not solely the job he held as a real estate agent).

The Veteran is competent to report that his service-connected disabilities precluded him from working, as the question of whether a veteran can perform the physical and mental acts required by employment at a given time is one about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Nevertheless, the Board finds that the above evidence supports a finding that the Veteran's service-connected disabilities did not preclude him from securing and following substantially gainful employment during the period from August 1, 2005 through September 30, 2008. 

The Board acknowledges that his service-connected disabilities resulted in functional impairments which impacted his ability to perform physical activities and sit for prolonged periods, and his back symptoms increased in 2008 such that employment began to become more difficult. However, the evidence does not indicate that he was unemployed and unable to secure or follow any substantially gainful occupation due to service-connected disabilities during the claim period prior to October 1, 2008. Rather, the evidence reflects that he remained employed as a realtor until September 30, 2008. Hence, despite the occupational limitations and impairments caused by his service-connected disabilities, he maintained the ability to perform substantially gainful employment during the entire period from August 1, 2005 through September 30, 2008, and the earliest that it is factually ascertainable that he was unemployed and unable to secure and follow substantially gainful employment is October 1, 2008 (the day after his gainful employment ended).

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a TDIU during the period from August 1, 2005 through September 30, 2008 is warranted.  Rather, the evidence persuasively weighs against a  TDIU during this period.  The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, is therefore not for application as to this matter.  Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Elwood, 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.