Citation Nr: 21006898 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 16-10 186 DATE: February 5, 2021 ORDER Entitlement to a rating higher than 40 percent for post-operative residuals of lumbar laminectomy and discectomy is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) as of April 17, 2014 is granted. FINDINGS OF FACT 1. Post-operative residuals of lumbar laminectomy and discectomy is not manifested by unfavorable ankylosis of the entire thoracolumbar spine nor is there a showing of incapacitating episodes having a total duration of at least six weeks during the past 12 months. 2. It is as likely as not that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation as of April 17, 2014. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for post-operative residuals of lumbar laminectomy and discectomy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5243 (2020). 2. As of April 17, 2014, the criteria for entitlement to TDIU are satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from January 1974 to June 1980. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the ‘staging’ of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran appeals the denial of a rating higher than 40 percent for post-operative residuals of lumbar laminectomy and discectomy. The Veteran’s disability is rated under Diagnostic Codes 5242-5243. The Veteran’s disability is evaluated under Diagnostic Code 5242 which evaluates under the general rating formula for diseases and injuries of the spine, and Diagnostic Code 5243 which evaluates intervertebral disc syndrome. Under the general rating formula for diseases and injuries of the spine, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine that is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 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, Diagnostic Codes 5235-5243. Under Diagnostic Code 5243, the evaluation of intervertebral disc syndrome (preoperatively or postoperatively) is to be made on the total duration of incapacitating episodes over the past 12 months. When rating based on incapacitating episodes, if there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is warranted. 38 C.F.R. § 4.71a. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Here, the Veteran indicated in April 2014 that his back disability had increased in severity. During the January 2015 VA examination, the Veteran reported flare ups of back pain that came about two to four times a year. He reported functional loss during his flare ups in which his back locked and he was unable to bend/move. Examination revealed forward flexion of the back was to 50 degrees, extension to 0 degrees, right and left lateral flexion to 30 degrees, right lateral rotation to 20 degrees and left lateral rotation to 15 degrees. Pain was noted on examination but it did not result in/cause functional loss. There was no evidence of pain with weight bearing. There was no ankylosis of the spine. While the Veteran reported flare ups of back pain, the examiner was unable to determine without speculation if such caused significant limitations as the examination was not conducted during a flare up. The Veteran did not have any neurologic abnormalities or findings related to his thoracolumbar spine, and there was no showing of IVDS of the thoracolumbar spine. The examiner noted that the Veteran’s disability caused occupational difficulties that included repetitive bending and lifting more than 30-40 pounds. In April 2019, the Veteran reported that he hurt his back again and that he had shooting pains down his leg and numbness in his foot. The Veteran was afforded another VA examination in December 2019. The VA examiner stated that the Veteran did not have ankylosis of his spine in accordance with VA guidelines. It was noted, however, that the Veteran did have minimal mobility of the lumbar spine and there was no evidence of fusion of any of the spinal joints documented on most recent MRI from May 2019. The Veteran reported that his back was worse and getting stiffer and stiffer. He also reported numbness that traveled down his left leg. During the examination, the Veteran reported that when he has a flare or “pulled his back” he has to stop what he is doing and lay down and rest. These flare ups occur two to three times per year, are 10/10 in severity and lasts two to three days. Examination revealed forward flexion of the back was to 25 degrees, extension to 5 degrees, right lateral flexion to 25 degrees, left lateral flexion to 10 degrees, right lateral rotation to 25 degrees and left lateral rotation to 10 degrees. The Veteran reported that he gets a pressured discomfort on his lumbar spine when palpated. With repeated use over time and during flare ups, examination revealed forward flexion of the lumbar spine was to 10 degrees. There was no ankylosis of the spine. After review of the record, the Board finds against a rating higher than 40 percent disabling for post-operative residuals of lumbar laminectomy and discectomy under the general rating formula for diseases and injuries of the spine. To that end, the evidence of record is devoid of any lay or medical evidence showing unfavorable ankylosis of the entire thoracolumbar spine. Rather, even when accounting for pain and functional loss, forward flexion of the spine is shown to be at most limited to 10 degrees. For definitional purposes, ankylosis is a fixation of movement of the joint. Given the ranges of motion reported above and, in the record, a higher rating is not warranted on this basis. Even when considering the effects of pain and other factors of functional loss, there is no probative medical or lay evidence of record establishing that the Veteran’s range of motion findings are commensurate with anything akin to ankylosis. As such, the criteria for a rating higher than 40 percent are not met on this basis. With regard to neurologic abnormalities, the Board notes that the Veteran is service connected for right lower extremity radiculopathy, left lower extremity radiculopathy and fecal incontinence. The Veteran has not disagreed with the disability ratings assigned nor the effective date of awards. No other neurologic abnormalities related to the lumbar spine were identified on examination and/or in the record. To the extent that the Veteran has a lumbar laminectomy scar, the issue of entitlement to an increased rating for this disability is addressed in the remand section below. The Board also finds that a rating higher than 40 percent for post-operative residuals of lumbar laminectomy and discectomy is not warranted based on the criteria for rating incapacitating episodes. In this regard, the Veteran reported in March 2015 that he had between 5 and 10 incapacitating episodes in the past two years of over a duration of one to two weeks. During this time, he reported taking prescription medication versus going to the VA and taking up bed space. The Veteran reported a history of incapacitating episodes and indicated that his doctors have told him that there is nothing else they can do for him when he has back issues and for him to take medication rather than go to the VA when it happens. During his Board hearing, the Veteran testified to having 10 episodes of incapacitating episodes a year that last three to five days. He stated that he takes pain medications and just takes it easy for several days until the pain quits. Although the Veteran reports a history of incapacitating episodes, there is no evidence that bed rest was prescribed by a physician and treated by a physician during this time frame. As bed rest must be prescribed by a physician, the absence of objective evidence reflecting bed rest is given more probative weight than his statements as to the need to have bed rest. Furthermore, the Board notes that the January 2015 VA examination disclosed no showing of IVDS of the thoracolumbar spine. The December 2019 VA examination disclosed IVDS of the thoracolumbar spine. It was noted, however, that the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bedrest prescribed by a physician and treatment by a physician in the past 12 months. In light of the lack of evidence demonstrating any episodes requiring bedrest prescribed by a physician and treatment by a physician for IVDS, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted during this time. In reaching these conclusions, the Board has considered the requirements of 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Veteran credibly describes low back pain. However, as the maximum rating based on motion loss has now been assigned, further consideration of 38 C.F.R. §§ 4.40 and 4.45 is not warranted. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). To the extent there are any examination inadequacies in evaluating motion loss or functional loss, such inadequacies result in no prejudice to the Veteran. The Board acknowledges the Veteran’s assertions that his disability is more severe than evaluated to include his reports of pain and functional limitations. The Veteran is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board holds, however, that neither the lay nor the medical evidence demonstrates that the criteria for a higher rating have been met. The more probative evidence is that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned rating is warranted and no more. Accordingly, the claim is denied. TDIU Total disability ratings for compensation based on individual unemployability may be assigned where the scheduler rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment, and 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 (includes 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. A claim for TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420-21 (1999). Such a claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. The Court has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of 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 and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: 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. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). 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 work place stress, get along with coworkers, and demonstrate reliability and productivity.) To the extent that the record implies a claim for individual unemployability (TDIU) due to service-connected disability, the Board notes that in June 2020 the Veteran was granted TDIU, effective April 4, 2019. The issue of whether a grant of TDIU is warranted prior to April 4, 2019, however, remains. In light of the objective evidence of record and the Veteran’s lay statements, the Board finds that a TDIU claim is considered to have been raised by the record prior to April 4, 2019 and thus is a component of the increased rating claim on appeal before the Board. Accordingly, the Board has jurisdiction over this issue. Although TDIU was granted with an effective date of April 4, 2019 in June 2020, the Board notes that in August 2020 the RO granted the Veteran a rating of 40 percent for his post-operative residuals of lumbar laminectomy and discectomy. The 40 percent evaluation was given an effective date of April 17, 2014, which is the date of the Veteran’s claim for service connection. In doing so, as of April 17, 2014, the Veteran was service-connected for post-operative total right knee arthroplasty with history of medial meniscectomy, post-operative residuals of lumbar laminectomy and discectomy, post-operative right peroneal palsy, residual of surgical repair extensor tendon left ring finger and lumbar laminectomy scar. The combined evaluation was 70 percent disabling. As the Veteran had several service-connected disabilities to include his lumbar spine being rated at 40 percent and a combined rating of 70 percent, the Board finds that the percentage requirement for TDIU were met as of April 17, 2014. Based on the evidence presented, the Board also finds that a grant of TDIU is warranted as of April 17, 2014. In this regard, sufficient evidence has been presented showing that the Veteran’s service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment as of April 17, 2014. The evidence shows that the Veteran has worked various jobs and reports that he last worked full time in June 2014. In the January 2015 VA examination, the examiner found that the Veteran’s lumbar spine disability impacted his ability to work as he had difficulty with repetitive bending and lifting more than 30-40 pounds. In February 2019, the examiner expressed that the Veteran’s knee disability caused occupational limitations in sitting, standing, lifting, stairs, bending, squatting and locomotion. The Board also notes that the Veteran has presented credible and consistent statements regarding the severity of his disabilities and the impact on his employability. Given the evidence discussed in the VA compensation examinations, the VA treatment records and the lay statements, and in resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for TDIU are met as of April 17, 2014. The Board acknowledges that it is likely that when the Veteran’s service-connected disabilities are separately evaluated they may not be of such severity to prevent substantially gainful employment. The Board finds, however, that the cumulative effect of his service-connected disabilities, which include limitations of his lower body and neurologic, more likely than not prevented the Veteran from engaging in a substantially gainful occupation for which he was trained and skilled. Stated differently, there is nothing in this record that establishes that the Veteran can return to a substantially gainful occupation for which he is skilled and trained. Furthermore, it is his service-connected disabilities that precludes such substantially gainful employment. As such, the Board concludes that the criteria for a TDIU are met as of April 17, 2014 and the benefit sought on appeal is granted. REMANDED Entitlement to a compensable rating for lumbar laminectomy scar is remanded. REASONS FOR REMAND The Veteran appeals the denial of a compensable rating for lumbar laminectomy scar. In an August 2020 rating decision, the RO combined the Veteran’s scar of the lumbar spine with his right knee scar evaluation. A rating of 20 percent was assigned under Diagnostic Code 7804, effective April 4, 2019. The Board notes, however, that the most recent rating code sheet still reflects that the Veteran’s lumbar laminectomy scar is rated as 0 percent disabling, effective April 17, 2014. Consequently, two separate ratings for the same disability are currently in effect as of April 4, 2019. As there are conflicting ratings assigned for the lumbar laminectomy scar, a remand is required in order for the RO to provide clarification as to the rating assigned, the diagnostic code under which the ratings are assigned, and the date ranges in effect. The matters are REMANDED for the following action: 1. Review the record to provide clarification as to the ratings assigned for the Veteran's lumbar laminectomy scar. Specifically, the rating code sheet must clarify the period of time that each rating is effective and the diagnostic code under which rating is assigned. 2. Thereafter, readjudicate the issue. If complete benefits sought on appeal are not granted, furnish the appellant and his representative a supplemental statement of the case and an appropriate time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.