Citation Nr: 21008152 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-46 158 DATE: February 11, 2021 ORDER Entitlement to an increased rating for a back disability rated 20 percent prior to December 5, 2016, and in excess of 40 percent as of December 5, 2016, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Prior to December 5, 2016, a back disability exhibited forward flexion to 75 degrees with no ankylosis of the spine; the evidence does not show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 2. As of December 5, 2016, the Veteran’s back disability did not exhibit unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 3. The Veteran does not meet the schedular requirements for entitlement to service connection for TDIU and has not asserted a disability picture that would warrant consideration pursuant to 38 C.F.R. § 4.16(b) as the evidence does not show that the service-connected disabilities prevent the Veteran from securing or following substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess 20 percent prior to December 5, 2016, and in excess of 40 percent as of December 5, 2016, for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5235. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1995 to December 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. A December 2016 rating decision increased the rating from 20 percent to 40 percent, effective December 5, 2016. Despite the assignment of an increased rating, the full benefits sought have not been granted and the claim for increase remains on appeal. AB v. Brown, 6Vet. App.35 (1993). In April 2018, the Veteran participated in a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. 1. Entitlement to an increased rating for a back disability rated 20 percent prior to December 5, 2016, and 40 percent as of December 5, 2016 The Veteran contends that he is entitled to a rating in excess of 20 percent prior to December 5, 2016, and a rating in excess of 40 percent as of December 5, 2016, because the symptoms are worse than what is contemplated by the currently assigned ratings. The Veteran filed a claim for increased rating in September 2014. The Veteran’s anterior wedge deformity, T-12, post-op with healed scar is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5235. 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Unfavorable ankylosis is defined as “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.” Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, VA must consider functional loss caused by pain or other factors that could occur during flare-ups or after repeated use and, therefore, not be shown on range of motion testing. VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nonetheless, even when the background factors listed in 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are relevant when rating 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 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 itself is not appropriate. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016) (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). Painful motion is a factor to be considered with any form of arthritis, and disabilities not involving arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). At a February 2015 VA examination, the examiner noted a diagnosis of post-operative anterior wedge deformity of T-12, with healed scar. The Veteran reported that about a year prior to the examination, he began to experience progressive back pain. He complained of severe pain and difficulty in moving the back. He stated that he stayed in bed for three to four hours and took Tramadol to help with flare-ups. The Veteran complained of constant mild to moderate low and mid back pain, aggravated by prolonged standing, sitting, and walking. There was no radiating pain to the lower extremities, and no numbness in the lower extremities. The Veteran exhibited ranges of motion of flexion to 75 degrees, extension to 10 degrees, left lateral flexion to 10 degrees, left lateral rotation to 15 degrees, right lateral flexion to 15 degrees, and right lateral rotation to 20 degrees. The pain noted on examination caused functional loss. The Veteran exhibited pain on all ranges of motion. There was evidence of pain with weight bearing on examination. The examiner noted slight tenderness on the vertebral areas and paravertebral areas. Following repetitive us testing, the Veteran exhibited reduced range of motion. The Veteran then exhibited flexion to 70 degrees, extension to 5 degrees, left lateral flexion to 5 degrees, left lateral rotation to 10 degrees, right lateral flexion to 10 degrees, and right lateral rotation to 15 degrees. Pain and lack of endurance limited functional ability with repeated use over a period of time. The Veteran reported severe weekly flare-ups that lasted three to four hours. The Veteran had localized tenderness and muscle spasm that resulted in an abnormal gait or abnormal spinal contour. There was no radiculopathy, ankylosis, or intervertebral disc syndrome (IVDS) on examination. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a back disability prior to December 5, 2016. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, repetitive use, lack of endurance, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation indicated by the statements that he experienced severe flare-ups three to four times a week would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The evidence also does not show 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. Therefore, the Board finds that a rating in excess of 20 percent was not warranted prior to December 5, 2016. At a December 2016 VA examination, the Veteran reported terrible back pain that had gotten worse. The Veteran stated that the back pain made it difficult for him to sit or stand for extended periods of time and difficult for him to pick up and carry his child. The Veteran also reported that he woke up every hour because of back pain. The pain was usually between 7 and 10 on a scale of 1 to 10. Flare-ups and functional loss was noted on examination. The Veteran exhibited ranges of motion of flexion to 20 degrees, extension to 5 degrees, left lateral flexion to 10 degrees, left lateral rotation to 20 degrees, right lateral flexion to 10 degrees, and right lateral rotation to 20 degrees. The limitation of range of motion contributed to functional loss. The Veteran experienced pain on motion in all directions, and with non-movement. There was evidence of pain with weight bearing, but no objective evidence of localized tenderness or pain on palpation. Following repetitive use testing, the Veteran exhibited ranges of motion of flexion to 20 degrees, extension to 0 degrees, left lateral flexion to 10 degrees, left lateral rotation to 15 degrees, right lateral flexion to 10 degrees, and right lateral rotation to 15 degrees. The examiner provided additional ranges of motion caused by pain, weakness, fatigability or incoordination. The Veteran exhibited ranges of motion of flexion to 15 degrees, extension to 15 degrees, left lateral flexion to 15 degrees, left lateral rotation to 0 degrees, right lateral flexion to 15 degrees, and right lateral rotation to 0 degrees. On examination there was no guarding, muscle spasm, radiculopathy, ankylosis, or IVDS. At an October 2020 VA examination, the Veteran reported ongoing back pain that increased over the years. Reported symptoms included constant pain and stiffness. The examiner noted daily flare-ups with sharp pain that makes it difficult for the Veteran to move. The Veteran reported pain as a 10 on a scale of 1 to 10 that can lasted for hours or days. The Veteran exhibited ranges of motion of flexion to 20 degrees, extension to 10 degrees, left lateral flexion to 10 degrees, left lateral rotation to 20 degrees, right lateral flexion to 10 degrees, and right lateral rotation to 20 degrees. The examiner opined that the range of motion itself did not contribute to functional loss, but noted pain exhibited on all ranges of motion that causes functional loss. There was evidence of pain with weight bearing. The examiner indicated that there was no additional loss of function or range of motion following repetitive-use testing. Pain, fatigue, weakness, lack of endurance, and incoordination were all factors that caused functional loss. Additional functional loss caused by those factors resulted in the examiner exhibiting flexion to 10 degrees, extension to 5 degrees, left lateral flexion to 5 degrees, left lateral rotation to 15 degrees, right lateral flexion to 5 degrees, and right lateral rotation to 15 degrees. There were no signs of radiculopathy, ankylosis, neurologic abnormalities, or IVDS on examination. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for a back disability as of December 5, 2016. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, fatigue, weakness, lack of endurance, incoordination, and pain during flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation indicated by the statements that he experiences severe daily flare-ups would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The December 2016 and the October 2020 examiners noted that there was no ankylosis on examination. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS and 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 for the period on appeal. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with the spine disability during the period on appeal. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 20 percent prior to December 5, 2016, and in excess of 40 percent as of December 5, 2016, for a back disability. Therefore, the claim for increased ratings must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to TDIU TDIU may be assigned, if 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The February 2015 VA examiner found that the Veteran’s back disability would impact the ability to work. The examiner opined that it would cause “moderate to severe functional restriction in his ability to perform sedentary and physical activities.” The December 2016 VA examiner found that the back disability would impact the Veteran’s ability to work. It would cause a “moderate impact on prolonged sitting, walking, standing, and carrying heavy loads.” The October 2020 VA examiner indicated that the Veteran’s back disability would impact the ability to work. More specifically, the Veteran would be unable to stand for extended periods of time, walk for prolonged periods of time, sit for prolonged periods of time, or perform heavy lifting. The Veteran was employed at Rural King, and had missed one to two weeks of work time in the last twelve months. An October 2020 VA opinion found that despite the service-connected disabilities, the Veteran was able to perform medium work, exerting 20 to 50 pounds of force occasionally; and/or 10 to 25 pounds of force frequently; and/or negligible up to 10 pounds of force constantly to move objects. The Veteran was felt capable of meeting physical demands in excess of those for light work. The Veteran has established service connection for a back disability, rated 40 percent; a right knee disability, rated 10 percent; hypertension, rated 0 percent; and a surgical scar, rated 0 percent. The Veteran has a current combined total rating of 50 percent. Prior to December 5, 2016, the back disability was rated 20 percent, and the combine rating was 30 percent. During the period under consideration, Veteran has not met the minimum percentage requirements for consideration of entitlement to individual unemployability. The Veteran has not provided evidence to show that it is at least as likely as not that he is unable to secure or follow a substantially gainful occupation due to service-connected disability. It is noted that the Veteran reported working for Rural King during a VA examination and had lost only one to two weeks of work in the last twelve months. The Board also acknowledges that the Veteran stated he missed two weeks of work as a result of the back disability. However, the issue is whether the Veteran is capable of performing the physical and mental tasks required by employment, and to obtain and retain employment, not those required by a particular job. The Board has considered the evidence of record which shows that the Veteran has maintained employment despite the service-connected disability. There is no evidence or suggestion in the record that the Veteran’s employment has been less than substantially gainful. Accordingly, the Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C. § 5107. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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.