Citation Nr: 21007702 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-15 927A DATE: February 10, 2021 ORDER Entitlement to a rating in excess of 20 percent for lumbar spine with degenerative arthritis and intervertebral disc syndrome (IVDS) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The range of motion in the Veteran’s lumbar spine with degenerative arthritis and IVDS has not been shown to be functionally limited to 30 degrees or less; there is no showing or allegation of ankylosis in the spine; and prescribed bed rest has not been shown. 2. The evidence fails to establish that the Veteran was precluded from engaging in substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbar spine with degenerative arthritis and IVDS for any period are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for TDIU have not been met. 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 in the United States Navy from September 1977 to April 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. This matter was previously before the Board in December 2017 where it was remanded for additional evidentiary development. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a rating in excess of 20 percent for lumbar spine with degenerative arthritis and IVDS. The Veteran filed a claim for increased rating in June 2012, which was denied by rating action of July 2013. The Veteran continues to disagree with the currently assigned 20 percent evaluation for his lumbar spine with degenerative arthritis and IVDS. The Veteran’s lumbar spine with degenerative arthritis and IVDS is evaluated under Diagnostic Code 5242. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2), see also Plate V. In addition, VA’s regulation contains a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Although the January 2018 VA examiner indicated IVDS, there was no incapacitating episodes due to IVDS that required bed rest during the past 12 months indicated. Further, there was no IVDS indicated in the June 2015 VA examination. Thus, there is no evidence demonstrating that bed rest was prescribed by a physician to treat the Veteran’s lumbar spine disability and he has not presented any evidence to the contrary. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on incapacitating episodes is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s lumbar spine disability based on limitation of motion under the General Rating Formula for Diseases and Injuries of the Spine. Upon review of the evidence of record, the Board finds that the Veteran is adequately compensated by the assigned 20 percent evaluation based on limitation of motion. Medical records do not demonstrate findings consistent with a higher 40 percent evaluation under Diagnostic Code 5242. The Veteran was afforded a VA examination in June 2015. On range of motion testing, the Veteran demonstrated forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion 15 degrees, left lateral flexion to 20 degrees, and rotation to 40 degrees, bilaterally. Pain was noted on exam and causes functional loss. The Veteran retained normal 5/5 strength with normal sensory testing of the lower extremities. There was no ankylosis of the spine observed and no neurologic abnormalities indicated. See Back Conditions Disability Benefits Questionnaire (DBQ) dated June 2015. In compliance with the Board’s December 2017 remand, the Veteran was afforded another VA examination in January 2018. On examination, the Veteran demonstrated forward flexion to 50 degrees; extension to 5 degrees; right lateral flexion to 15 degrees; left lateral flexion to 10 degrees; and rotation to 20 degrees, bilaterally. Pain was noted on exam and causes functional loss. The Veteran retained normal 5/5 strength with normal sensory testing of the lower extremities. There was no ankylosis of the spine observed and no neurologic abnormalities indicated. See Back Conditions DBQ dated January 2018. Upon review of the evidence of record, the Board finds that a higher rating is not warranted. In this case, absent a showing of forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, as required for a 40 percent rating, a higher evaluation is not supported. As such, a rating in excess of 20 percent is not warranted under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Additionally, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, even if flexion was limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Here, despite the Veteran’s complaints, pain did not result in limitation of flexion to 30 degrees or less, or ankylosis of the lumbar spine, at any time during the period on appeal. At his 2015 and 2018 VA examinations, the Veteran was able to demonstrate, at worst, 45 degrees of forward flexion, which again exceeds the 30 degrees limit required for a higher rating. In this regard, medical evidence and examination reports of record do not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, that is not already contemplated by the assigned 20 percent rating. 38 C.F.R. § 4.59. Thus, a higher rating is not warranted for the Veteran’s lumbar spine with degenerative arthritis and IVDS even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. Accordingly, a rating in excess of 20 percent for lumbar spine with degenerative arthritis and IVDS is not warranted. As such, the claim is denied. 2. TDIU The Veteran contends that his service-connected disabilities, particularly his bilateral hip, low back, and left foot disabilities, prevent him from securing or following substantially gainful employment since 2011. See Form VA 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability received January 2015. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when 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 such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). As explained below, the Board finds that the competent evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. Initially, the Board notes that the Veteran met the schedular criteria for TDIU. The Veteran’s service-connected disabilities are status post total right hip replacement at 30 percent disabling, excluding period of temporary total evaluation; left hip replacement at 30 percent disabling, excluding period of temporary total evaluation; major depressive disorder at 30 percent disabling; left foot injury at 30 percent disabling; lumbar spine with arthritis at 20 percent disabling; tinnitus at 10 percent and bilateral hearing loss at noncompensable ratings; with a combined evaluation for compensation of 80 percent from September 2013, excluding period of temporary total evaluation. Thus, the schedular criteria for TDIU are met. 38 C.F.R. § 4.16(a). With that said, however, the Board finds that the preponderance of the evidence is against the finding that the Veteran is precluded from engaging in substantially gainful employment solely as a result of his service-connected disabilities. Meaning, the Veteran’s service-connected disabilities, alone or the combined effects of all service-connected disabilities, do not render him unemployable. VA will grant entitlement to a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). The Board observes that the record contains sufficient information of the Veteran’s employment and medical history. In his formal application (VA Form VA 21-8940), the Veteran indicated his dates of employment with the U.S. Postal Service as supervisor from January 2005 to May 2011. However, a response from the Veteran’s previous employer indicates that he worked full-time for the U.S. Postal Service from June 1988 to May 2011, most recently as a Business Mail Entry Supervisor, and “retired” with no concessions made by reason of disability. See Form VA 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits received August 2012. The record shows a June 2015 VA examiner finding degenerative changes status post bilateral total hip replacement since surgery January 2009. The examiner noted residuals as “mild to moderate residual weakness pain or limitation of motion” and indicated functional impact on occupational task. The examiner added that although the veteran would not be suited for labor-intensive employment which requires squatting and climbing or carrying type activities, he “would be able to perform light to sedentary employment given bilateral hip objective findings today.” See Hip and Thigh Conditions DBQ dated June 2015. The same examiner provided a similar opinion for the Veteran’s left foot disability, indicating that although not well suited for “labor-intensive employment that requires prolonged standing walking or carrying type activities”, the veteran “would be able to perform light sedentary employment given left foot objective findings today.” See Foot Conditions DBQ dated June 2015. Likewise, a similar opinion was provided by the June 2015 examiner for the Veteran’s service-connected degenerative arthritis of the spine. The examiner indicated that although not well suited for “labor-intensive employment that requires repetitive bending twisting lifting type activities”, the veteran “would be able to perform light sedentary employment given lumbar spine objective findings today.” See Back Conditions DBQ dated June 2015. An April 2016 VA clinical psychologist remarked that the Veteran’s depression causes “mild to moderate social and occupational impairment.” See Mental disorders DBQ dated April 2016. A June 2018 VA examiner described functional impact of the Veteran’s back as “no labor lifting carrying expected to be tilerated [sic] and is retired.” See Back Conditions DBQ dated January 2018. Records from the Social Security Administration (SSA) show that the Veteran receives disability benefits the day after retirement. See SSA records received August 2020. Here, a review of the evidence of record, taken in total, does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities or based on a single disability. The Board finds VA examinations and findings weigh against the Veteran’s claim and are found to have great probative value. The medical professionals from June 2015, April 2016, and January 2018 consistently opined that the Veteran’s service-connected disabilities did not appear to be of such severity to render him unable to obtain or maintain substantially gainful employment. While the Veteran has been awarded SSA disability benefits, this does not demonstrate that he is precluded from work entirely. In fact, the Veteran’s reports of symptoms and objective findings on clinical examinations, including mild functional limitations, were specifically considered by VA medical professionals. But the examiners indicated, at most, moderate occupational impairment, finding the Veteran “able to perform light sedentary employment”. Thus, based on the VA examinations of in June 2015, April 2016, and January 2018, combined, the Board finds the evidence does not demonstrate that the Veteran would not be able to secure or follow a substantially gainful occupation as a result of the cumulative functional limitations caused by his service-connected disabilities. The evidence does not establish that the Veteran’s service-connected disabilities alone results in unemployability. As such, TDIU is not warranted in this case. The Board acknowledges that the Veteran is competent to report symptoms of his service-connected disabilities and how such conditions affect his employability as presented at his Board hearing. Additionally, he is credible in his reports during clinical evaluations of symptoms and their effect on his activities. Layno v. Brown, 6 Vet. App. 465 (1994). But as a lay person he is not competent to identify a specific level of disability according to the appropriate diagnostic code or to assess whether the symptoms preclude employment. Such competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities, and in particular his ability to work, have been provided by the VA medical professional who examined him. As such, the Board finds the Veteran’s subjective complaints not competent medical evidence for this purpose. Thus, his assertions standing alone have little probative value and the Board assigns more weight to the medical opinions provided by the June 2015, April 2016, and January 2018 VA medical professionals. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. 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. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran is rendered unemployable due to his service-connected disabilities. Even though the Veteran met the applicable percentage standards, the Board nevertheless finds that the criteria under 38 C.F.R. § 4.16(a) have not been met and TDIU is not warranted. Accordingly, the claim must be denied.] KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, Associate 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.