Citation Nr: 21005538 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-34 548 DATE: February 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for degenerative arthritis of the lumbar spine with scoliosis (lumbar spine disability) prior to May 2, 2014, is denied. Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability from May 2, 2014, through June 27, 2019, is denied. Entitlement to a disability rating in excess of 40 percent for a lumbar spine disability from June 28, 2019, is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) prior to June 28, 2019, is granted. FINDINGS OF FACT 1. Prior to May 2, 2014, the Veteran’s lumbar spine disability manifested in painful motion with forward flexion limited to no less than 70 degrees and a combined range of motion of no less than 150 degrees. 2. From May 2, 2014, through June 27, 2019, the Veteran’s lumbar spine disability manifested in painful motion with forward flexion limited to no less than 60 degrees. 3. From June 27, 2019, the Veteran’s lumbar spine disability has manifested in painful motion with forward flexion limited to no less than 20 degrees, with no evidence of ankylosis. 4. Prior to June 28, 2019, the evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a lumbar spine disability prior to May 2, 2014, 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. The criteria for entitlement to a disability rating in excess of 20 percent for a lumbar spine disability from May 2, 2014, through June 27, 2019, 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. 3. The criteria for entitlement to a disability rating in excess of 40 percent for a lumbar spine disability from June 28, 2019 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. 4. The criteria for entitlement to a TDIU prior to June 28, 2019, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1971 to May 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 decision by a Department of Veterans Affairs (VA) regional office and were remanded by the Board in November 2019. The Veteran testified before the undersigned Veterans Law Judge in June 2019. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. A 10 percent rating is also assigned with muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or spinal contour. A 20 percent disability rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is 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 assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, IVDS is not shown or alleged, nor are incapacitating episodes. 1. 10 percent prior to May 2, 2014. The Veteran first underwent VA examination in connection with this claim in January 2012. Range of motion testing was performed and showed, at worst, forward flexion to 70 degrees, with pain beginning at 60 degrees, and a combined range of motion no less than 150 degrees, with no additional limitation upon repetitive-use testing. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that he has reduced motion in his spine, he has not described a range of motion which would warrant a higher rating. In this regard, during the examination he did report flare-ups but described the flare-ups as consisting of increased pain. Upon review, the Board finds that the evidence, specifically including the Veteran’s statements, does not show the requisite limitation of motion necessary for a higher rating. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Given that the evidence shows flexion was limited to no less than 70 degrees during this time period, a higher rating than 10 percent is not warranted based on limitation of motion during the period prior to May 2, 2014. A higher rating is also not warranted based on having muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour as the VA examiner found there was no guarding or muscle spasm of the thoracolumbar spine. 2. 20 percent from May 2, 2014, through June 27, 2019. The Veteran again underwent VA examination in May 2014. Range of motion testing was performed and showed, at worst, forward flexion to 60 degrees and a combined range of motion no less than 205 degrees, with no change upon repetitive-use testing. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that he has reduced motion in his spine, he has not described a range of motion which would warrant a higher rating. In this regard, the Veteran did not report flare-ups during this examination. Upon review, the Board finds that the evidence, specifically including the Veteran’s statements, does not show the requisite limitation of motion necessary for a higher rating during this period, nor do treatment records show greater limitation of motion than the examination findings. Against, absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time, there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Given the fact that forward flexion during this time period was shown to be no less than 60 degrees, a higher rating than the currently assigned 20 percent is not warranted based. 3. 40 percent from June 28, 2019. The Veteran next underwent VA examination in September 2019. Range of motion testing was performed and showed, at worst, forward flexion to 40 degrees and a combined range of motion no less than 145 degrees. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. During the examination the Veteran reported flare-ups consisting of severe pain. The examiner estimated that, during flare-ups, forward flexion would be limited to 20 degrees, with a combined range of motion limited to approximately 70 degrees. Upon review, during the period from June 28, 2019, the evidence demonstrates that the Veteran’s range of motion would be limited to 30 degrees or less during flare-ups. In consideration of this fact, the Veteran has been assigned a 40 percent rating. Since a 40 percent disability rating is the highest evaluation possible for limitation of motion, further consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995) is not required. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In order to warrant a higher rating, the evidence would need to demonstrate unfavorable ankylosis of the entire spine or the entire thoracolumbar spine. As no ankylosis has been demonstrated, a higher rating is not warranted. Regarding relevant neurological findings throughout the entire period on appeal, the Board notes that the Veteran is already in receipt of service connection and appropriate ratings for radiculopathy of the bilateral upper and lower extremities. There is no other evidence in significant conflict with these findings or to suggest additional impairment. Therefore, the Board finds there are no other symptoms which should be addressed by a separately assigned disability rating at this time. TDIU prior to June 28, 2019. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Preliminarily, the Board finds that the Veteran meets the threshold schedular disability percentage requirement for TDIU consideration. 38 C.F.R. § 4.16(a). In that regard, throughout the period on appeal the Veteran has a combined disability rating of at least 80 percent. While he does not have a single service-connected disability that has been assigned a rating of 40 percent or more, 38 C.F.R. § 4.16(a) provides that multiple disabilities may be considered as one for these purposes if, for example, they are disabilities of one or both upper or lower extremities, disabilities resulting from a common etiology, or disabilities affecting a single body system. The Veteran meets the criteria of a single disability rated at 40 percent or more when considering these provisions. Military personnel records reflect the Veteran’s military occupation specialty was that of a light weapons infantryman. On his most recent application for unemployability, dated June 2019, he reported that his service-connected cervical and lumbar spine disabilities prevent him from following a substantially gainful occupation. The Veteran reported completing an associate degree in criminal justice. He reported he last worked full-time in December 2003 in construction. He later clarified that he primarily worked as a tile layer and, prior to that, as a dealer at a casino. The record reflects that the Veteran’s service-connected disabilities severely limit his ability to sit or stand for prolonged periods, or to do any tasks involving bending, stooping, or lifting. He has reported significant difficulty walking and particularly performing repetitive bending at the waist or rotational movements of the trunk. Additionally, he is unable to hyperextend his neck or to do overhead work for any prolonged period of time. Taken as a whole, the Veteran’s symptoms suggest he was unable to obtain and maintain employment similar to jobs he has performed in the past as a result of his service-connected disabilities. In that regard, while the Veteran has an associate degree, his work history is primarily in construction, specifically tile laying, which requires frequent bending and stooping. The evidence reflects that the Veteran has significant difficulty performing these movements. Further, the Veteran has also worked in a casino, which requires prolonged sitting and/or standing, both of which are difficult for the Veteran. In addition to his physical limitations, he is also service-connected for posttraumatic stress disorder with depression. Given the Veteran’s education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers the Board finds that the evidence is at least in relative equipoise as to whether this level of impairment would preclude appropriate employment. Accordingly, entitlement to a TDIU prior to June 28, 2019, is granted. The Veteran’s claim for TDIU is tied to his claim for an increased rating filed in December 2011. Rice v. Shinseki, 22 Vet. App. 447 (2009). The October 2019 rating decision which awarded TDIU incorrectly considered the claim as being filed on June 28, 2019 and did not consider entitlement to TDIU prior to that date. Here, the Board finds that TDIU is warranted prior to that date. The RO should initially address when TDIU should be assigned, considering the proper date of claim, so as to provide the Veteran with one review by the Secretary should he disagree with the assigned effective date. See 38 U.S.C. § 7104(a). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.