Citation Nr: 21009963 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 10-36 479A DATE: February 23, 2021 ORDER A rating in excess of 40 percent for service-connected chronic lumbosacral back strain with degenerative joint disease, degenerative disc disease L4-5 and LS-S1, and deformity of the facets bilaterally at L4-5 (lumbar spine disability), is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 21, 2012, is denied. FINDINGS OF FACT 1. The Veteran’s service-connected lumbar spine disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least six weeks during any twelve-month period. 2. Prior to June 21, 2012, the Veteran was employed on a full-time basis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for a service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.27, 4.71a, Diagnostic Codes (DCs) 5237, 5243. 2. Prior to June 21, 2012, the criteria for a TDIU were not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1996 to May 2000. The Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) in January 2015. A transcript of the hearing has been associated with the claims file. In February 2019, the Board remanded the issues to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). First, the Board must determine whether the evidence comes from a competent source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). Then, the Board weighs the probative value of the evidence in light of the entirety of the record. Reasonable doubt is resolved in favor of the claimant when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has considered the Veteran’s claims and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Entitlement to a rating in excess of 40 percent for a service-connected lumbar spine disability. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations 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. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran’s service-connected lumbar spine disability has been rated under 38 C.F.R. § 4.71a, DC 5243-5237, which pertains to intervertebral disc syndrome (IVDS) and lumbosacral strain, respectively. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an increased rating claim, as is the case here, is from one year before the claim was filed; in this case, November 20, 2007, one year prior to the Veteran’s November 20, 2008, claim, until VA makes a final decision on the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). The appeal period, as noted, related to the present claim, is effective November 20, 2007. VA’s schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Prior to February 7, 2021, the old rating criteria solely applies. From February 7, 2021, the most favorable rating criteria of the two applies. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The rating schedule provides for the evaluation of all disabilities of the spine under a General Rating Formula for Diseases and Injuries of the Spine. In pertinent part, a 40 percent rating is assigned forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where unfavorable ankylosis of the entire spine is demonstrated. Id. The revisions to the General Rating Formula for Diseases and Injuries of the Spine, effective February 7, 2021, do not include changes to DC 5237, contemplating lumbosacral strain, the criteria under which the Veteran’s service-connected lumbar spine disability, in part, is rated. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, DC 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as “a condition in which the entire thoracolumbar spine is fixed in flexion or extension.” Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent (“flare-ups”) due to the extent of any pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine at any time. His VA and private treatment records are silent for unfavorable ankylosis of the entire thoracolumbar spine. No party asserts otherwise. The Veteran exhibited range of motion of his spine during all six of his VA examinations conducted during the course of the appeal. On VA examinations in December 2008 and June 2009, he had flexion to 70 degrees, extension to 20 degrees, and left and right lateral flexion and left and right lateral rotation each to 30 degrees on both occasions. While the VA examiner, in June 2012, did not specifically note that the Veteran did not have ankylosis, he exhibited range of motion of his spine with flexion to 45 degrees, extension to 20 degrees, and left and right lateral flexion and left and right lateral rotation each to 30 degrees. On VA examination in November 2017, he had flexion to 50 degrees, extension to 20 degrees, right lateral flexion to 10 degrees, and left lateral flexion and left and right lateral rotation each to 20 degrees, and on VA examination in June 2019, he had flexion to 70 degrees and extension, left and right lateral flexion, and left and right lateral rotation each to 20 degrees. On VA examination in February 2020, he had flexion to 60 degrees and extension, left and right lateral flexion, and left and right lateral rotation each to 15 degrees Each of the VA examiners, save for the examiner in June 2012, noted above, specifically found that there was no ankylosis of the Veteran’s lumbar spine. Accordingly, the Veteran’s service-connected lumbar spine disability has not met or more nearly approximated the criteria for a rating higher than 40 percent under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, DC 5242. Because 40 percent is the maximum schedular rating available for limitation of motion of the thoracolumbar spine, there is no need to consider functional loss, including flare-ups, or any inadequacy in the VA examinations as to not addressing flare-ups. See 38 C.F.R. §§ 4.40, 4.45; Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (A higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code pertaining to range of motion.). For similar reasons, despite the Board’s remand in February 2019 for a VA examination that specifically complied with such, the United States Court of Appeals for Veterans Claims (Court)’s holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) are not for application, as range of motion findings cannot result in a higher rating. Further, the criteria for a rating in excess of 40 percent under DC 5243, contemplating IVDS, have not been satisfied during the pendency of this claim. To assign a rating in excess of 40 percent, the 60 percent maximum rating, under DC 5243, there must be incapacitating episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during the past twelve months. See 38 C.F.R. § 4.71a, Formula for Rating IVDS, Note (1). The revised schedule, in effect as of February 7, 2021, contemplating IVDS under DC 5243, provides that such criteria shall be used only when there is disc herniation with compression and/or irritation of the adjacent nerve root; in all other cases, DC 5242 should be used for all other disc diagnoses. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243). IVDS shall be evaluated, preoperatively or postoperatively, either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. The revisions to the General Rating Formula for Diseases and Injuries of the Spine do not include changes to DC 5242, contemplating degenerative arthritis, save for its inclusion of degenerative disc disease other than IVDS. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5242). Regardless of whether the Veteran has had any disc herniation with compression and/or irritation of the adjacent nerve root as of February 7, 2021, requiring that his disability be rated under the Formula for Rating IVDS or the General Rating Formula for Diseases and Injuries of the Spine, whichever results in the higher rating, he has not been shown to have incapacitating episodes of spine disease requiring bed rest prescribed by a physician having a total duration of at least six weeks during any twelve-month period during the entire appeal. His VA and private treatment records are silent for such; no party asserts otherwise. The VA examiners, in December 2008 and June 2009, reported that there were no incapacitating episodes due to IVDS, the VA examiner, in June 2012, reported that the Veteran had incapacitating episodes due to IVDS having a total duration of less than one week during the past twelve months. The VA examiners, in November 2017, June 2019, and February 2020, each reported that there was no IVDS. Accordingly, the criteria for a rating in excess of 40 percent under DC 5243 are not more nearly approximated. 38 C.F.R. § 4.71a, Formula for Rating IVDS. The Board emphasizes that the cited revisions do not contain any outcome-determinative changes that impact the Veteran’s service-connected lumbar spine disability, as there is no evidence or assertion of incapacitating episodes of spine disease requiring bed rest prescribed by a physician having a total duration of at least six weeks during any twelve-month period during the entire appeal such that any change to DC 5243 must be considered. As such, the Board finds there is no prejudice to the Veteran in the Board’s consideration of the amended regulations in this appeal. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); 38 C.F.R. § 20.904(d)(2). In sum, the Veteran’s service-connected lumbar spine disability did not meet or more nearly approximate the criteria for a rating higher than 40 percent at any point during the pendency of the claim. See Hart, 21 Vet. App. 505, 509-10; Fenderson, 12 Vet. App. 119, 126; Kuzma, 341 F.3d 1327. Because the preponderance of the evidence weighs against a higher rating, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim of entitlement to a rating in excess of 40 percent for a service-connected lumbar spine disability is denied. 2. Entitlement to a TDIU prior to June 21, 2012. By an August 2020 rating decision of a Decision Review Officer (DRO) of the RO, the Veteran was granted a TDIU, effective June 21, 2012. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a Veteran’s earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. 38 C.F.R. § 4.16(a). Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. As of January 14, 2009, the Veteran’s lumbar spine disability was rated as 40 percent disabling and his combined rating was 70 percent. He thus met the criteria for a TDIU on a schedular basis from January 14, 2009 to June 20, 2012. However, prior to January 14, 2009, his combined rating was not 70 percent; he may only be granted a TDIU on an extraschedular basis prior to January 14, 2009. If there is a finding of unemployability due to service-connected disability in cases where the percentage requirements for schedular consideration are not met, entitlement to TDIU may still be awarded by referring the case to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Here, the Veteran’s case was referred to the Director of the Compensation Service for extraschedular consideration, and in November 2020 an unfavorable opinion was received. On his April 2015 VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, the Veteran reported that he last worked full time in August 2012, however, he also reported that he worked from August 2006 through July 2012 as a surgical technician at V.E.S. making $45,000. On his February 2020 VA Form 21-8940, he reported that he last worked full time on April 12, 2012, and that he worked as a surgical technician from September 1, 2006, through April 12, 2012, at V.E.S. making $55,000. In a February 2020 letter, V.E.S. reported that the Veteran’s last day of employment was June 20, 2012; the letter was signed by the Director of Nursing. As noted above, by an August 2020 rating decision of a Decision Review Officer (DRO) of the RO, the Veteran was granted a TDIU, effective June 21, 2012, the day after the last day of his full-time employment, June 20, 2012, as reported by his employer. The Veteran has not disagreed with the date assigned to his TDIU or otherwise discussed the discrepancy between his recollection of his last day of full-time employment as reported on his April 2015 and February 2020 VA Forms 21-8940, August 2012 and April 12, 2012, respectively, and the date confirmed by his employer in February 2020, June 21, 2012. The Veteran has not offered any statements, and there is no evidence, that his full-time employment as a surgical technician at V.E.S. was not substantially gainful. The Board finds that the most probative evidence as to the date of the Veteran’s last full-time employment, is the February 2020 letter from his employer, V.E.S., reporting that his last day of employment was June 20, 2012. It is significant that the February 2020 letter was signed by the Director of Nursing and appears on the facility’s letterhead. Significantly, the Veteran, in his April 2015 and February 2020 VA Forms 21-8940, offered two different dates upon which he asserted that he last worked full-time, two different beginning dates of employment with the named employer and two different salaries. It is entirely possible that the Veteran completed his April 2015 and February 2020 VA Forms 21-8940 and misremembered the details requested. Where the evidence establishes that a Veteran is substantially gainfully employed on a full-time basis, a TDIU cannot be granted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); see also Faust v. West, 13 Vet. App. 342, 356 (2000); 38 C.F.R. § 4.16 (b) (reflecting that, 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 disability shall be rated totally disabled). As the most probative evidence of record demonstrates that the Veteran was gainfully employed on a full-time basis prior to June 21, 2012, a TDIU prior to that time may not be granted. Id. Accordingly, the benefit-of-the-doubt rule does not apply, and entitlement to a TDIU prior to June 21, 2012, is denied. See id. See also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO 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.