Citation Nr: 21006499 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 06-24 766 DATE: February 4, 2021 ORDER From February 28, 2008 to July 1, 2010, a 40 percent rating, but no higher, for a lumbar spine disorder is granted. From April 15, 2008 to November 7, 2018, an extraschedular total disability rating based on individual unemployability (TDIU) is granted.   FINDINGS OF FACT 1. From February 28, 2008 to July 1, 2010, the Veteran’s lumbar spine disorder approximates forward flexion to 30 degrees or less when considering functional loss, including pain, and difficulty walking, standing, sitting and bending; but there is no ankylosis of the spine and no intervertebral disc syndrome (IVDS) requiring bedrest of at least 6 weeks within any 12 months during the rating period. 2. From April 15, 2008, the Veteran’s service-connected disabilities precluded him from securing or following a substantially gainful occupation consistent with his occupational experience and education. CONCLUSIONS OF LAW 1. From February 28, 2008 to July 1, 2010, a 40 percent rating for a lumbar spine disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. From April 15, 2008 to November 7, 2018, the criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to November 1973. The case is on appeal from a June 2008 rating decision. Most recently in July 2020, the claims were remanded by the Board for further development. In this decision, the Board also denied a rating in excess of 40 percent for the lumbar spine disorder from July 2, 2010. While the case was in remand status, in a June 2008 rating decision, the RO increased the rating for the low back disability to 20 percent, effective February 28, 2008. Although a higher rating has been assigned for the low back disability, the increased rating matter remains in appellate status as the maximum rating has not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. From February 28, 2008 to July 1, 2010, a rating in excess of 20 percent for the lumbar spine disorder. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 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 two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 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. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Facts The Veteran seeks entitlement to a rating in excess of 20 percent for his low back disability for the period from February 28, 2008 to July 1, 2010. The Veteran’s representative submitted a December 2020 statement which indicated the Veteran’s back disability warrants at least a 40 percent rating from February 2008. The Veteran submitted a February 2008 statement in which he reported a worsening of his back disorder. Thereafter, the Veteran was afforded a March 2008 VA examination in which he reported severe back pain that had continued to worsen, and which required medication. He indicated he had weakness in his lower back after walking, requiring the assistance of a cane, walker, or crutches, and had trouble getting out of bed. He stated he had approximately three falls due to being unsteady and the more active he was, the more pain he experienced. He indicated after walking approximately 300 feet, he would get a burning sensation in his lower back and had to rest. He noted that he called out of work about 30 days in the year prior due to back pain. He stated he could still do yard work but noticed that he would be sore afterwards. Physical examination showed forward flexion limited to 60 degrees, along with extension to 15 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, left lateral rotation to 20 degrees and right lateral rotation to 20 degrees. The Veteran’s gait was normal. There were no obvious deformities of the spine, it was non-tender to palpation and there were paravertebral spasms. The Veteran was able to complete repetitive movements with complaints of increased pain; however, there were no complaints of weakness, incoordination, or fatigue. Radiographic testing revealed degenerative arthritis and disc disease at L5-S1. The Veteran was afforded a September 2009 VA examination in which he reported pain and stiffness in his lower back, along with flare-ups which included hard throbbing pain across his back, reported as very severe. He stated when he wakes up in the morning, ater a half hour his pain worsens and when he moves the pain becomes severe. He reported riding in cars and driving increased his symptoms and rest and medication improved such symptoms. Physical examination showed the Veteran’s gait was abnormal, characterized by a limp right leg. Testing revealed forward flexion limited to 50 degrees, as well as extension to 15 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, left lateral rotation to 22 degrees and right lateral rotation to 22 degrees. Pain, fatigue, weakness, lack of endurance, incoordination, muscle spasm, and tenderness were observed. The examiner diagnosed lumbar spine spondylosis with degenerative arthritis and lumbar spine IVDS with saphenous vein involvement. No ankylosis was found. The Veteran received VA treatment for his back disorder during the rating period on appeal. Pertinent to this period, an October 2007 VA treatment record indicated the Veteran reported worsening back pain, radicular in nature and an x-ray showed severe degenerative joint disease (DJD). A December 2007 VA record reported the Veteran has chronic back pain which increased during exacerbations, including during walking, climbing into his truck or coughing. The examiner noted the Veteran’s back pain has slowly progressed over the years. Further, an October 2008 treatment record indicated the Veteran had stenosis in his lumbar spine which was exacerbated over the past several years. The examiner stated the Veteran’s pain was constant with movement and went away with sitting. Thereafter, the Veteran was afforded a VA examination in July 2010 in which he reported flare-ups which are severe and occur weekly. He stated he had difficulty walking during flare-ups due to pain. He described his low back pain as a dull ache that increases to sharp with movement. Forward flexion was limited to 15 degrees, with extension to 10 degrees. There was no additional loss of motion with repetition and no ankylosis was found. The claim was denied in a January 2018 Board decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and pursuant to an October 2018 joint motion for partial remand (JMR), and October 2018 Court order, the Board’s decision was vacated. The JMR noted the March 2008 and September 2009 examiners did not specifically address at what point during the range of motion testing pain occurred for the Veteran. The examiners also did not adequately discuss the functional impact of the Veteran’s flare-ups. Following July 2019 Board remand, the Veteran was afforded an October 2019 VA examination in which the examiner indicated she could not provide an opinion as to the prior period and no member of the medical community at large could provide such an opinion without resorting to speculation. The claim was remanded again by the Board in July 2020 for a VA opinion to determine the amount in degrees of range of motion lost due to pain and during flare-ups at the time of the March 2008 and September 2009 VA examinations. A September 2020 VA opinion was provided in which the examiner indicated the amount in degrees of range of motion lost due to pain in both weight bearing and non-weight bearing and on both active and passive motion at the time of the March 2008 and September 2009 VA examinations, is “none” from the baseline testing at that time. The examiner opined the Veteran had repetitive testing and there was no change with repetition indicating that it was unlikely that testing in weight bearing, non-weight bearing, and passive or active range of motion would yield different results. An October 2020 VA opinion was submitted in which the examiner stated with regard to the March 2008 VA examination, the Veteran’s range of motion during flare-ups, including worsening pain with walking or doing heavy lifting, went away with rest. She stated consequently, though there was pain with flare-ups, there was no change in range of motion. The examiner noted with regard to the September 2009 VA examination and the reported flare-ups at that time, while there was pain during flare-ups and the need to sit with feelings of weakness, there was no change in range of motion during flare-ups. As noted, the Veteran’s representative submitted a December 2020 statement in which he disagreed with the conclusions offered by the examiner in her September 2020 and October 2020 opinions. He reported the medical evidence during the period on appeal supports that the Veteran experienced flare-ups with any movement of his back, including while standing, walking, climbing into his truck or even coughing. The representative indicated there was objective evidence of pain which interfered with the normal excursion, strength and endurance of the Veteran’s body, as he suffered from pain on movement that interfered with sitting, standing, walking and weight-bearing. He stated a back rating of at least 40 percent is warranted for the appeal period beginning in February 2008. Analysis After a careful review of the evidence, the Board finds that the Veteran’s service-connected low back disability most closely approximates a 40 percent rating from February 28, 2008 to July 1, 2010. See 38 C.F.R. § 4.7. His symptoms support that throughout the appeal period forward flexion approximated limitation to 30 degrees or less, when accounting for functional loss, including significant pain, and difficulty walking, standing, sitting and bending. Thus, the Board determines the Veteran’s low back disability most closely approximates an increased rating to 40 percent from February 28, 2008, particularly when affording him the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. While an increased initial rating to 40 percent is warranted for the Veteran’s back disability during the appeal period, an increase in excess of 40 percent is not supported. Accordingly, the rating criteria do not warrant an increase in excess of 40 percent, as the record does not show, and the Veteran and his representative do not contend, that he experienced unfavorable ankylosis of the entire thoracolumbar spine at any point. In addition, a higher rating in excess of 40 percent based on IVDS is not warranted as the evidence does not show and the Veteran does not claim that his back disability caused IVDS with incapacitating episodes having a total duration of at least six weeks during a 12 month period. 38 C.F.R. § 4.71a, DC 5243. The Board notes that the evidence during the rating period, including the two VA examination reports and the VA treatment records, supports severe back pain which caused the Veteran trouble walking, standing, sitting and bending. Additionally, the September 2009 VA examination showed forward flexion limited to 50 degrees with pain, fatigue, lack of endurance, incoordination, muscle spasm, weakness, and tenderness observed. Moreover, the July 2010 VA examiner found forward flexion limited to 15 degrees. The Board acknowledges the post-remand September 2020 and October 2020 VA opinions which indicated no further reduced motion during the period due to pain or flare-ups. However, due to the severity of the symptoms, including his functional impairment, and when affording him all reasonable doubt, the Board finds an increased rating to 40 percent is warranted from February 28, 2008. 38 C.F.R. § 4.3. As noted, there is no other basis to assign a disability rating higher than 40 percent for the service-connected back disability. The Board finds without a showing of ankylosis, a rating in excess of 40 percent is not warranted and additional consideration of functional loss is also not warranted. See 38 C.F.R. § 4.71a, DC 5237; see also Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). To the extent that any of the range of motion findings do not comport with the holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), as well as the mandates of 38 C.F.R. § 4.59, the Board finds it is harmless error. Here, such findings could not result in a higher rating for the Veteran’s lumbar spine disability as the Veteran is being awarded the maximum rating for limitation of motion for that disability for the entirety of the period on appeal, absent ankylosis. In sum, after resolving reasonable doubt in the Veteran’s favor, the evidence supports an increased rating to 40 percent, but not higher, for the Veteran’s low back disability from February 28, 2008 to July 1, 2010. The preponderance of the evidence is against an even greater increased rating. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. From April 15, 2008 to November 7, 2018, entitlement to an extraschedular TDIU. Legal Criteria A total disability rating for compensation may be assigned where the schedular rating is less than total and 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. 38 C.F.R. § 4.16(a). If there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more 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. Id. If the percentage requirements of 38 C.F.R. § 4.16(a) are not met, then a TDIU may still be granted on an extraschedular basis in cases 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). However, the Board cannot grant an award of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation Service (Director) for extraschedular consideration. See Wages v. McDonald, 27 Vet. App. 233 (2015). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran’s history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and; Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Facts The Veteran’s claim for a TDIU was granted by the RO in the April 2020 rating decision effective November 8, 2018. The Veteran seeks a TDIU prior to that date. His representative alleged in the December 2020 statement that the Veteran was unable to work due to his service-connected disabilities as early as April 2008, when he stopped full-time employment. In a November 2011 TDIU application, the Veteran reported working as a city driver. He stated he last worked full-time and became too disabled to work due to his service-connected disabilities on April 14, 2008. He reported completing high school with no additional training. As noted, the Veteran is currently in receipt of a schedular TDIU from November 8, 2018. Prior to that date, and in light of the current decision, the Veteran was service-connected for a lumbar spine disorder, rated 40 percent disabling from February 28, 2008; radiculopathy of the left lower extremity rated 10 percent disabling from March 22, 2008 to November 7, 2018, and 20 percent disabling thereafter; and radiculopathy of the right lower extremity, rated 10 percent disabling from January 12, 2012. Therefore, even with consideration of the current decision which increases the back rating, the Veteran was in receipt of a total combined disability rating no higher than 50 percent prior to November 8, 2018. Given that the Veteran’s service-connected disabilities did not result in a total combined evaluation of at least 60 percent at any point prior to November 8, 2018, the Board determines that he did not satisfy the schedular requirements for a TDIU during this portion of the appeal period. 38 C.F.R. § 4.16(a). However, as discussed, when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU on an extraschedular basis may be referred for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected impairments. 38 C.F.R. § 4.16(b). During the March 2008 VA examination, the Veteran reported that he called out of work about 30 days in the past year due to pain. He observed that he is unable to do as much as he once could. He noted he could at one time buy a 90-pound bag of salt for his home, but now can only buy a 40-pound bag. He stated he could still do yard work but noticed that he would be sore afterwards. During the September 2009 VA examination, the Veteran reported pain and stiffness in his lower back, along with flare-ups which included hard throbbing pain across his back that was very severe. He stated when he wakes up in the morning, after a half hour his pain worsens and when he moves the pain becomes severe. He reported riding in cars and driving increase his symptoms and rest and medication can improve such symptoms. The Veteran was afforded a July 2010 VA examination in which he reported he last worked on April 14, 2008 during which time he was working as a trucker. He stated he stopped working due to his worsening back pain. He was afforded a November 2018 VA examination in which the examiner indicated the Veteran’s back impacts his ability to work. She stated the Veteran cannot bend over to tie his shoes, cannot lift more than 20 pounds without triggering radicular symptoms and cannot walk more than 150 feet without intense pain. A May 2019 statement was submitted by the Veteran in which he reported his work history and limitations. He stated he worked as a trucker for 30 years, explaining that this job required him to regularly lift packages weighing 30 or 40 pounds; he indicated that, though he was rarely required to do so, he was expected to be able to lift up to 75 pounds. The Veteran stated that he would have to pause while loading and unloading his truck and was given more time to complete tasks. His supervisor also assigned him light work. Despite taking opioid pain medications to alleviate his back condition, the Veteran’s doctor told him in early 2008 that, if he continued putting strain on his back at work, he could lose the ability to walk within a year. Because of this, the Veteran reported that he retired in April 2008 and has not worked in any meaningful capacity since. The Board notes Social Security Administration (SSA) records associated with the claims file confirm that the Veteran has no reported earnings since 2008. In March 2019, a private vocational consultant conducted an evaluation of the Veteran. The report indicates that he completed high school and received additional training in electronics during his time in the military. The Veteran described his computer skills as “basic,” stating that he was able to enter and retrieve information. He worked as a truck driver for many years until April 2008. According to the Dictionary of Occupational Titles, truck driver is defined as work at the medium exertional level, requiring constant sitting, frequent reaching and handling, and occasional standing, walking, twisting, climbing, bending, kneeling, crouching, and crawling. The examiner stated that, given the Veteran’s service-connected lumbar spine disorder and radiculopathy, he would be unable to return to this line of work. It was also found that the Veteran would not be able to perform work at the sedentary exertional level. Although sedentary work requires sitting most of the time, the examiner pointed out that the Veteran is unable to sit longer than about 15 minutes before he would need to rise to stretch his back. These frequent interruptions would prevent him from sustaining adequate pace and productivity, which are requirements of employment at every exertional level. Similarly, the Veteran’s service-connected lumbar spine disorder and radiculopathy would cause more unscheduled absences than employers are willing to permit. As such, the examiner opined that the Veteran’s service-connected disabilities have rendered him unable to secure and follow substantially gainful employment since at least April 2008. The claim came before the Board in July 2020 and was remanded for further development, including consideration of a TDIU on an extraschedular basis for the period on appeal prior to November 8, 2018. The Board referred the claim to the Director for consideration of an extraschedular TDIU from April 2008. A November 2020 opinion was submitted from the Director, which determined although it is conceded that the Veteran’s service-connected disabilities cause some functional limitations, the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected conditions, prior to November 8, 2018. She determined the overall evidence fails to support that any of the service-connected disabilities or a combination of the effects of those disabilities prevents employment. The December 2020 representative’s statement indicated with regard to the economic component of a TDIU, the evidence shows the Veteran has been unable to maintain substantially gainful employment since April 2008, when he stopped working as a truck driver. He stated the Veteran missed approximately 30 days of work in his last full year due to his service-connected back disability. He reported with regard to physical limitations, the Veteran has restrictions related to lifting, bending, sitting, standing and walking. Further, these restrictions, along with the Veteran’s education and experience, are incompatible with even sedentary work. He noted and discussed the May 2019 opinion vocational assessment in support, which suggests a TDIU is warranted from April 2008. Analysis The Board finds the Veteran’s service-connected back and bilateral lower extremity disabilities prevent all substantially gainful employment from April 15, 2008, the date following when he last maintained full-time employment. As such, the evidence shows he is entitled to an award of an extraschedular TDIU rating effective April 15, 2008. The Board notes the Veteran has a high school education and exclusive experience working in physical jobs. As addressed above, he experienced worsening low back symptoms in early 2008, including severe pain, which forced him to stop work, as he missed approximately 30 days during his last year of employment. The Board acknowledges the restrictions provided by the VA examination reports of record, along with the March 2019 vocational report which opined that the Veteran’s service-connected disabilities rendered him unable to secure and follow substantially gainful employment since April 2008. In sum, after resolving any doubt in the Veteran’s favor, the Board finds that his service-connected disabilities prevented him from securing and following substantially gainful employment since April 15, 2008, the date after he stopped working. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, an extraschedular TDIU is warranted as of April 15, 2008. See 38 C.F.R. § 4.16(b); Wages, 27 Vet. App. at 233. The Board considers this grant of a TDIU a full grant of the benefit sought on appeal. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.