Citation Nr: 21007426 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-08 508 DATE: February 9, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for lumbosacral strain prior to October 6, 2015 is denied. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain from October 6, 2015 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to October 1, 2015 is denied. FINDINGS OF FACT 1. Prior to October 6, 2015, the Veteran’s low back disability has been manifested by, at worst, forward flexion to 75 degrees and a combined range of motion of 205 degrees, with no evidence of muscle spasm or guarding severe enough to result in abnormal fait or abnormal spinal contour, no ankylosis, no incapacitating episodes of intervertebral disc syndrome (IVDS) requiring bed rest prescribed by a physician and treatment by a physician, and no objective evidence of neurologic abnormalities.   2. From October 6, 2015, the Veteran’s low back disability has been manifested by, at worst, forward flexion to 40 degrees, with no evidence of ankylosis, no incapacitating episodes of intervertebral disc syndrome (IVDS) requiring bed rest prescribed by a physician and treatment by a physician, and no objective evidence of neurologic abnormalities. 3. The Veteran failed to complete a VA Form 21-8940 as requested in January 2020 and the evidence is insufficient to establish that he was unemployable as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to October 6, 2015 and 20 percent thereafter for a lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to a TDIU have not been met for the period prior to October 1, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to July 1981. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The case was last before the Board in April 2018, when it was remanded for further development. 1. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain prior to October 6, 2015 is denied. 2. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain from October 6, 2015 is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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). Service connection for lumbosacral strain was established in an April 2013 rating decision with a 10 percent disability rating assigned, effective August 17, 2011. Thereafter, the RO increased the disability rating for the Veteran’s service-connected lumbosacral strain to 20 percent disability, effective October 6, 2015. During the December 2014 Board hearing, the Veteran testified that his lumbar spine disability was worsening and has caused him to develop a curvature of the spine due to his inability to straighten. He also testified that his medication dosage had been increased and his symptoms have been so severe that he requires bed rest. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour. 38 C.F.R. § 4.71a, General Rating Formula. A 40 percent rating is warranted where forward flexion of the thoraco-lumbar spine limited to 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id. at Note (1). Alternatively, IVDS can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 40 percent rating for IVDS with 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 for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is 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. See 38 C.F.R. § 4.71a, Note (1). The Veteran underwent VA examinations in March 2013, October 2015, and February 2020. During the March 2013 VA examination, range of motion testing revealed a combined range of motion of 205 degrees, with forward flexion to 75 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and left and right lateral rotation to 25 degrees, with no additional limitation after repetition. During the October 2015 VA examination, the Veteran reported having chronic mid and low back pain, associated with pain down his right leg. Range of motion testing revealed a combined range of motion of 190 degrees, with forward flexion to 40 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees, with no additional limitation after repetition. Additionally, there was no evidence of pain with weight bearing, muscle spasm, guarding, or ankylosis. Range of motion testing conducted during the February 2020 VA examination revealed a combined range of motion of 181 degrees, with forward flexion to 65 degrees, extension to 10 degrees, right and left lateral flexion to 27 degrees, and left and right lateral rotation to 26 degrees. Although pain was noted on forward flexion and extension, it did not result in additional limitation of motion, and there was no additional limitation after repetition. Furthermore, there was no evidence of ankylosis. A review of the Veteran’s VA treatment records throughout the period under review do not reflect symptoms more severe than those noted during the VA examinations. Accordingly, the Board finds that a rating in excess of 10 percent prior to October 6, 2015 is not warranted, and a rating in excess of 20 percent is not warranted at any point after October 6, 2015. The Board has reviewed and considered the Veteran’s assertions concerning the symptoms he experiences as a result of his low back disability during the course of the claim. However, the objective medical evidence of record is of greater probative value as the Veteran’s level of impairment than his assertions. Even considering his subjective complaints of pain and other symptoms described in Deluca, forward flexion of the thoracolumbar spine of 60 degrees or less; or a combined range of motion of the thoracolumbar spine of 120 degrees or less; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, has not been shown prior to October 6, 2015, such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). Furthermore, forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine has not been shown after October 6, 2015. Id. Additionally, the Board finds that a higher rating is not warranted under the IVDS formula. For a higher rating to be warranted under the IVDS formula, the evidence of record must demonstrate incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, the evidence of record does not show a diagnosis of IVDS or incapacitating episodes requiring prescribed bedrest and treatment by a physician at any point during the period under review. Accordingly, a higher rating is not warranted under the IVDS formula. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). The Board acknowledges the Veteran’s testimony that he experiences back pain that radiates to his leg and has considered whether the Veteran’s service-connected low back disability manifests any associated objective neurologic abnormalities at any time during the appeal period. While the Veteran complained of pain radiating to the right lower leg during his March 2013 VA examination, the examiner found that there was no evidence of radiculopathy on physical examination. Moreover, the October 2015 and February 2020 VA examiners indicated that the Veteran did not have any signs or symptoms due or radiculopathy nor did he have any other neurologic findings, such as bowel or bladder problems and pathologic reflexes, related to his low back condition. Accordingly, the Board finds that a separate rating for an associated neurological disability is not warranted. In sum, the preponderance of the evidence is against a finding that ratings in excess of 10 percent prior to October 6, 2015, and 20 percent thereafter are warranted for the Veteran’s low back disability. For the reasons set forth above, the appeal is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 3. Entitlement to a TDIU prior to October 1, 2015 VA will grant TDIU when the evidence shows the 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. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. The central question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A total disability rating may be assigned when the schedular rating is less than total, when, in the judgement of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one disability, the disability is rated 60 percent or more, or if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, prior to October 1, 2015, the Veteran’s service connected disabilities were adjustment disorder to include major depressive disorder, rated as 70 percent disabling; and lumbosacral back strain, rated as 10 percent disabling. Thus, the schedular requirements for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) are met. Upon review of the record, the Board finds that the preponderance of the evidence is against the claim. To date, the Veteran has not completed the VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, as requested in a January 2020 letter. While failure to complete the form is not fatal to a TDIU claim in and of itself, the Veteran’s failure to do so deprives the Board of information pertinent to his employment history, educational history, and income information necessary to address a claim for TDIU. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). The Board notes that the Veteran’s March 2013 VA examination noted his report of being unemployed; however, the Veteran indicated that he stopped working because of the economy. The Veteran’s failure to complete the VA Form 21-8940 leaves the Board without the ability to request relevant information from his prior employers and leaves the Board without information as the whether the Veteran had obtained some form of gainful employment during the period on appeal. In sum, the preponderance of the probative evidence is against finding that the Veteran is unemployable due solely to his service-connected disabilities, and the claim for entitlement to a TDIU is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of evidence is against the Veteran’s claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 55-57. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, Law Clerk 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.