Citation Nr: 21007383 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-33 778 DATE: February 9, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for lumbar degenerative disc disease for the period to August 7, 2014 is denied. Entitlement to an evaluation in excess of 20 percent for lumbar degenerative disc disease for the period to July 12, 2017 is denied. Entitlement to an evaluation in excess of 40 percent for lumbar degenerative disc disease for the period from July 12, 2017 is denied. Entitlement to a total disability rating based on unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability for the period prior to August 7, 2014 is manifest by forward flexion of 90 degrees, and combined range of motion of 285 degrees, no muscle spasm, no guarding or localized tenderness. 2. The Veteran’s lumbar spine disability for the period prior to July 12, 2017 is not manifested by ankylosis of the thoracolumbar spine or IVDS. 3. The Veteran’s lumbar spine disability for the period from July 12, 2017 is not manifested by ankylosis of the thoracolumbar spine or IVDS productive of physician-prescribed bed rest. 4. The preponderance of the evidence reflects that the Veteran was not prevented from securing and maintaining substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a lumbar spine disability for the period prior to August 7, 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 a rating in excess of 20 percent for a lumbar spine disability for the period prior to July 12, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. 3. The criteria for a rating in excess of 40 percent for a lumbar spine disability for the period from July 12, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5242. 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1976 to July 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2018, the Board remanded the appeal for further development. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. The Veteran did not respond to the request nor submit the private treatment records requested – nor did the Veteran submit a VA form 21-8940. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 1. Entitlement to an evaluation in excess of 10 percent for lumbar degenerative disc disease for the period prior to August 7, 2014 2. Entitlement to an evaluation in excess of 20 percent for lumbar degenerative disc disease for the period prior to July 12, 2017 3. Entitlement to an evaluation in excess of 40 percent for lumbar degenerative disc disease for the period from July 12, 2017 The Veteran contends that he is entitled to higher disability evaluations for his lumbar spine disability. The Veteran’s lumbar degenerative disc disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 for the period prior to August 7, 2014; DC 5242-5237 for the period prior to July 12, 2017; and DC 5237-5242 for the period thereafter. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. However, in this case, the identified diagnostic codes are all evaluated based on the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran was afforded a VA examination in April 2009. He complained of intermittent back pain, which comes and goes every other day, and is worse with prolonged driving and sleeping in certain positions. Range of motion testing revealed full flexion to 90 degrees. Extension was to 15 degrees. Right and left lateral flexion was to 45 degrees and right and left lateral rotation was to 45 degrees. Range of motion was noted not to be limited by pain, weakness, incoordination, fatigability, lack of endurance or repetitive motions or flares. Further, bilateral lower extremity testing, including motor strength, hip and knee flexion and extension, sensory and reflex examinations were normal. The Veteran was afforded another VA examination in August 2014. His diagnosis was confirmed as degenerative arthritis of the spine. He reported his back disability had significantly deteriorated since his last examination. He reported flare-ups, including significant back spasms which prevent him from carrying on activities of daily living. Range of motion testing revealed flexion to 45 degrees. Extension was to 20 degrees. Right and left lateral flexion was to 20 degrees and right and left lateral rotation was to 30 degrees. Pain was noted on examination. The Veteran was able to perform repetitive use testing. After three repetitions, there was no additional functional loss/impairment. However, the Veteran did have functional loss as a result of his spine disability, contributed to by restricted movement, pain on movement, instability of station, and interference with sitting, standing and/or weight bearing. Though the Veteran was noted to have localized tenderness to palpation of the superior lumbar paraspinal musculature, he did not have muscle spasms, guarding, abnormal gait or abnormal spinal contour. Muscle strength testing was noted to be 3/5 on all panes, though no atrophy was reported. Reflexes in the lower extremities were hypoactive. A sensory examination was normal. The Veteran presented signs of radiculopathy, including mild bilateral lower extremity paresthesias and/or dysesthesias. IVDS was not present. There was no ankylosis. In terms of functional impact, the Veteran was noted to experience significant difficulty with bending, twisting or heavy lifting – requiring frequent rest and time off of feet. Finally, the examiner noted that the Veteran has increased pain during flare ups, which would likely decrease range of motion significantly – though he would have to be examined during a flare up to properly estimate range of motion loss. The Veteran was afforded the latest VA examination in January 2019. His diagnosis was confirmed as degenerative arthritis of the spine. He reported his back disability has worsened and that he is no longer able to work. He reported flare-ups productive of severe back pain and spasms, and functional loss and impairment including limited bending, stooping and heavy lifting. Range of motion testing revealed flexion to 15 degrees. Extension was to 5 degrees. Right and left lateral flexion was to 10 degrees and right and left lateral rotation was to 15 degrees. Pain productive of functional loss was noted on examination. There was also evidence of pain on weight bearing and localized tenderness or pain to palpation of the back. The Veteran was able to perform repetitive use testing. After three repetitions, there was no additional functional loss/impairment. With repeated use over time, though the examiner indicated the examination is medically consistent with the Veteran’s statements describing functional loss, the Veteran was not examined after repeated use over time and the examiner explained that he could not state without resort to mere speculation whether pain, weakness, fatigability or incoordination limit functional ability. The examiner reasoned that the current examination shows only pain during range of motion testing and no significant additional loss during repetitive use. The examination was conducted during a flare up, and the examiner indicated that pain, fatigue, weakness and lack of endurance contributed to functional loss. Range of motion testing showed flexion to 15 degrees; extension to 5 degrees; right and left lateral flexion was to 10 degrees and right and left lateral rotation was to 15 degrees. The Veteran had guarding or muscle spasm, though it did not result in abnormal gait or spinal contour. Additional contributing factors were indicated as restricted movement due to ankylosis, limitation or blocking, adhesions, etc. Muscle strength testing was normal. Reflex examination was normal. Sensory examinations were normal with the exception of lower legs and feet, which presented decreased sensation. Straight leg raising tests were positive bilaterally. The Veteran had radicular signs involving the sciatic nerve. There was no ankylosis of the spine. The Veteran was noted to have IVDS, with episodes of bed rest having a total duration of at least six weeks during the previous 12 months. Supportive evidence included the Veteran’s description of severe low back pain. Assistive devices were noted to include constant use of a brace and occasional use of crutches. In terms of functional impact, the Veteran was noted to experience significant difficulty with bending, stooping and heavy lifting – but he is able to perform physical and sedentary employment with noted limitations. VA medical records document treatment for lumbar pain in July 2006, when the Veteran reported right side paraspinal pain. The Veteran had full flexion to 90 degrees; extension to 40 degrees; and lateral flexion bilaterally to 18 degrees. The Veteran underwent physical therapy. Additionally, private physical therapy records from December 2016 to March 2017 are of record, indicating that the Veteran experienced muscle spasms, low back pain and inability to lift. He further reported difficulty with prolonged sitting, standing and walking. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s lumbar spine disability for the period prior to August 7, 2014; in excess of 20 percent for the period prior to July 12, 2017; and in excess of 40 percent for the period thereafter. For the period prior to August 7, 2014, The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. The United States Court of Appeals for Veterans Claims specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially “absurd results.” Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran has intermittent pain which is aggravated with prolonged driving and certain sleeping positions would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, during this period, the Veteran did not have muscle spasm or guarding or localized tenderness. In fact, the Veteran’s April 2009 examination was largely normal, with range of motion testing showing full forward flexion, and combined range of motion of 285 degrees. Contemporaneous VA treatment records showed similar findings as those reported in the VA examination – including full flexion. As such, the criteria for a higher rating is not met during this appellate period. Turning to the period prior to July 12, 2017, the Board notes the Veteran’s lay reports of pain, flare ups, back spasms and restricted movement. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that the Veteran’s flare ups cause significant spasm and great difficulty with activities of daily living, would not result in forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The most probative evidence of record regarding the Veteran’s functional limitations is the August 2014 VA examination, which indicated the Veteran’s specific range of motion limitations via physical examination. Forward flexion was limited to 45 degrees, even after repetitive use testing – and there is no finding of record during this appellate period reflective of ankylosis of the spine. In fact, the August 2014 VA examiner specifically noted that the Veteran dis not have ankylosis. As such, the criteria for a higher rating is not met during this appellate period. Finally, the Board turns to the period from July 12, 2017 to the present, for which the Veteran’s lumbar spine disability is evaluated as 40 percent disabling. The Board notes that in order to be assigned a higher rating during this period, the Veteran must be shown to have either unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. Additionally, the Veteran may be evaluated under the formula for the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. The Veteran would have to be shown to have IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months in order to get a higher evaluation. In this regard, the Board notes that at no time during prior appellate periods has the Veteran been diagnosed with IVDS. However, he was first diagnosed with IVDS during the latest January 2019 VA examination. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board acknowledges the January 2019 VA examiner’s diagnosis of IVDS, with episodes of bed rest having a total duration of at least 6 weeks during the past 12 months. However, when the examiner was requested to support this contention, rather than provide any medical documentation showing bed rest prescribed by a physician due to a lumbar spine disability, only the Veteran’s reported history of low back pain was referenced. Furthermore, contemporaneous medical evidence, including physical therapy records in 2016 and 2017 are silent for any prescription of bed rest by a physician. Therefore, entitlement to a higher rating based on IVDS symptoms is not warranted. The Board acknowledges the Veteran’s lay reports of severe pain, flare ups, back spasms and restricted movement including limited bending, stooping and heavy lifting. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that the Veteran’s flare ups cause significant spasm and great difficulty with activities of daily living, would not result in favorable ankylosis of the entire thoracolumbar spine. The most probative evidence of record regarding the Veteran’s functional limitations during this period is the January 2019 VA examination, which specifically indicated that the Veteran does not have any ankylosis of the spine. Therefore, the Veteran is assigned the highest rating for his lumbar spine symptoms, and a higher evaluation during this period is not warranted. In this respect, the Court in Johnston v. Brown, 10 Vet. App. 80 (1997), indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Johnston, 10 Vet. App. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). Thus, in this case, as the Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis or other symptoms unrelated to limitation of motion, 38 C.F.R. §§ 4.40 and 4.45 are not for application. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for the Veteran’s lumbar spine disability for the period prior to August 7, 2014; in excess of 20 percent for the period prior to July 12, 2017; and in excess of 40 percent for the period thereafter. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to a total disability rating based on unemployability (TDIU) is Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. The central inquiry is “whether a veteran’s service- connected disabilities alone are of sufficient severity to produce unemployability.” See 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 or her 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 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. In a December 2016 statement, the Veteran indicated that his back pain and leg pain had gotten worse in the previous two years, that he could no longer perform the work full time he had been doing for 30 years because it was interfering with sitting and standing. He also indicated that his muscle spasms had increased in frequency and render him “seriously disabled” for days or even weeks at a time. The Veteran meets the schedular requirements for a TDIU as of July 12, 2017. The Veteran is service connected for lumbar degenerative disc disease, evaluated as 40 percent disabling; radiculopathy of the left lower extremity, evaluated as 20 percent disabling; radiculopathy of the right lower extremity, evaluated as 10 percent disabling; and tinnitus, evaluated as 10 percent disabling. The lumbar spine disability and associated radiculopathies are counted as a single disability for the purposes of TDIU adjudication, as they stem from the same disease process. Thus, the Veteran meets the schedular criteria of having a single disability evaluated as 60 percent or more disabling. Unfortunately, the evidence of record including statements provided by the Veteran weigh against the claim that a TDIU is warranted due to the Veteran’s service-connected disabilities. Particularly, the Board notes that the Veteran was afforded VA examinations for his lumbar spine and associated peripheral nerve disabilities in January 2019 to assess the severity of his disabilities. The examiner concluded pertinently that while his lumbar spine disability and peripheral neuropathy impact the Veteran’s ability to work, limiting prolonged standing and walking, climbing at ladders, frequent bending, stooping and heavy lifting, and working at heights or hazards – he is able to perform both physical and sedentary activities of employment with the noted limitations. The Board notes that review of the Veteran’s claims file shows he has pursued higher education in the form of a college degree in business administration. It is unclear whether said degree was completed. It is also unclear whether the Veteran has stopped working at all, and what his current pay and employment status are. In this regard, the Board notes that in June 2020, the Veteran was sent a VA From 21-8940 to complete and return. This form, which would have contained information critical to the claim of TDIU, was not returned. The Board notes that the Veteran has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA’s duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). Furthermore, the Board notes that review of the Veteran’s VA medical records shows that in a July 2017 treatment note, the Veteran reported being ambidextrous, and stated he types for work. Additionally, in an October 2018 treatment note, the Veteran reported he was working in his attic on his AC unit. The aforementioned suggests both that the Veteran is currently employed and that he is capable of substantial gainful employment. Indeed, even in the Veteran’s December 2016 statement, the Veteran did not state he could not work – but rather – that his physical limitations prevented full time work at his job of 30 years. (Continued on the next page)   The Board finds that the weight of the competent evidence of record indicates that the Veteran is not unable to secure or follow a substantially gainful occupation, despite his service-connected disabilities. In short, the Board finds that the preponderance of the evidence is against the claim for TDIU; therefore, entitlement to TDIU must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 49. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.