Citation Nr: 21009998 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-40 899A DATE: February 23, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to June 13, 2016, for degenerative changes of the lumbar spine, in excess of 40 percent from June 13, 2016 to May 14, 2019, and in excess of 40 percent from August 1, 2019, is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to March 5, 2016, is denied. FINDINGS OF FACT 1. Prior to June 13, 2016, the Veteran’s lumbar spine disability did not exhibit forward flexion of 30 degrees or less, or ankylosis. 2. The preponderance of the evidence is against a finding that the Veteran’s lumbar spine disability manifested by unfavorable ankylosis of the entire thoracolumbar spine from June 13, 2016 to May 14, 2019, and from August 1, 2019; or incapacitating episodes that required 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. 3. The more probative and competent evidence of record preponderates against a finding that the Veteran’s disabilities were of such a nature and severity as to prevent him from securing or following substantially gainful employment prior to March 5, 2016. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to June 13, 2016, for degenerative changes of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2019). 2. The rating criteria for a rating in excess of 40 percent from June 13, 2016 to May 14, 2019, and from August 1, 2019, for degenerative changes of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Codes 5242 (2019). 3. The criteria for entitlement to a TDIU rating prior to March 5, 2016, 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 from September 1983 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In October 2018, the Veteran testified at a Travel Board hearing conducted with the undersigned Veterans Law Judge. A transcript of the hearing is of record. This claim was previously before the Board in June 2019, at which time it was remanded for further development. The RO granted entitlement to a temporary total evaluation based on surgical or other treatment necessitating convalescence for the Veteran’s lumbar spine disability from May 15, 2019. An evaluation of 40 percent was then assigned, effective August 1, 2019. The Board has recharacterized the Veteran’s lumbar spine claim in light of this development. The RO granted entitlement to TDIU in October 2020 and assigned an effective date of March 5, 2016. The Board has recharacterized the Veteran’s TDIU claim in light of this development. The Schedule for Rating Disabilities was amended to revise the portion of the schedule that addresses the musculoskeletal system, and the final rule went into effect on February 7, 2021. The Board notes that there were no changes to the rating criteria that effect the instant decision. Increased Ratings The Veteran contends that his lumbar spine disability is worse than rated and warrants an increased rating. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that 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). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lumbar Spine The Veteran’s lumbar spine disability was rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242 prior to June 13, 2016, and as 40 percent disabling from June 13, 2016, to May 14, 2019, and from August 1, 2019. Disabilities that fall under Diagnostic Code 5242 require application of a General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitation Episodes, as follows: 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; Forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71. There are several notes set out after the applicable diagnostic criteria. First, associated objective neurologic abnormalities are to be rated separately under an appropriate Diagnostic Code. Second, for purposes of VA compensation, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that particular individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Finally, for VA purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficult walking because of a limited line of vision, restricted opening of the veteran’s mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or the existence of dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 1. Entitlement to a rating in excess of 20 percent prior to June 13, 2016, for degenerative changes of the lumbar spine The Veteran received a VA examination in April 2014 and the examiner noted a diagnosis of degenerative arthritis of the spine and lumbar spine degenerative joint disease. Initial range of motion testing found forward flexion to 45 degrees, extension to 30 degrees or greater, bilateral lateral flexion to 30 degrees or greater, and bilateral lateral rotation to 30 degrees. There was no objective evidence of painful motion noted. The Veteran did not report flare-ups and there was no additional limitation in range of motion following repetitive use testing. There was no guarding or muscle spasm or muscle atrophy, no evidence of intervertebral disc syndrome (IVDS) or incapacitating episodes, and no ankylosis of the spine. Pursuant to the June 2019 Board decision, a VA addendum opinion was submitted in October 2020 to determine whether the Veteran’s range of motion results from the April 2014 VA examination would have been reduced if there had been testing in both active and passive motion, and in weight-bearing and nonweight-bearing. The examiner was also asked to provide an opinion regarding the extent of any functional loss described in the April 2014 VA examination and pertinent lay statements from the October 2018 Travel Board hearing. Based on this information, the examiner was asked to describe any additional range of motion loss in degrees to the best of her ability. Following a review of the record, the examiner noted that the standard medical practice for movement testing of the back was assessed in standing-weight bearing. Such testing was completed at the April 2014 VA examination, and passive and nonweight-bearing range of motion testing for the back were not performed in accordance with accepted medical practice. The Board’s interpretation of the examiner’s comments was that if the findings with weight-bearing did not exhibit sufficient limited movement to warrant a higher rating, nonweight-bearing would have resulted in even less restricted motion and that there was otherwise no evidence that demonstrated more severe disability. The Board concludes that the Veteran’s lumbar spine disability did not warrant an increased rating for the period prior to June 13, 2016. More specifically, forward flexion of the thoracolumbar spine to 30 degrees or less was still not approximated and there was otherwise no additional manifested disability that warranted a higher or separate rating, or that can be considered at this time. Moreover, the Veteran has demonstrated flexion that is limited to not less than 45 degrees and thus, there is no additional noncompensable limitation of motion that can serve as a predicate for an even higher rating under DeLuca v. Brown, 8 Vet. App. 202 (1995) and 38 C.F.R. §§ 4.40, 4.45. The Veteran did not experience any flare-ups or functional loss for this time period, so there is additionally no basis to assign a higher rating pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, the evidence also does not support higher staged ratings for any time period on appeal, and for no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. Consequently, the Board concludes that the preponderance of the evidence is against the claim for an increased rating for the Veteran’s service-connected degenerative arthritis of the lumbar spine for any period of time on appeal. The benefit of the doubt rule enunciated in 38 U.S.C. § 5107 (b) is not applicable as there is no approximate balance of evidence. Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to a rating in excess of 40 percent from June 13, 2016, to May 14, 2019, for degenerative changes of the lumbar spine, and in excess of 40 percent from August 1, 2019 The Veteran has consistently reported significant pain and functional loss with respect to his back. See June 2016 VA examination, October 2018 Board hearing, and September 2020 VA examination. The Board notes that the Veteran is considered competent to speak to certain symptoms of his disability, such as pain. However, the Veteran is not considered competent to speak to the severity of his lumbar spine disability, as that requires medical knowledge and expertise that the veteran has not been shown to possess. Jandreau v. Nicholson, 492. F.3d 1372 (Fed. Cir. 2007). The clinical records also do not show evidence of spinal ankylosis. See June 2016 VA examination, September 2020 VA examination, and post-service treatment records. The June 2016 and September 2020 VA examiners specifically opined that there was no ankylosis of the spine and these opinions are not contradicted by another medical opinion of record. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran’s degenerative changes of the lumbar spine due to ankylosis. 38 C.F.R. § 4.71a. The Board also notes that the Veteran has been diagnosed with intervertebral disc syndrome (IVDS). See June 2016 VA examination. However, the examiner opined that the Veteran had not had any episodes of acute signs and symptoms attributable to IVDS that required bed rest prescribed by a physician and treatment by a physician in the last 12 months. Therefore, a higher rating for IVDS is not warranted. The Board further notes that the Veteran is currently service connected for bilateral lower extremity radiculopathy and he has not expressed disagreement with the currently assigned ratings. Furthermore, the provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis, as is the scenario in the present case. Johnston v. Brown, 10 Vet. App. 80 (1997). Therefore, a higher rating based on functional impairment is not warranted. Accordingly, the Board finds that a rating in excess of 40 percent for the Veteran’s lumbar spine disability is not warranted from June 13, 2016, to May 14, 2019, and from August 1, 2019. TDIU Generally, total disability will be considered to exist when there is present any impairment of mind or body that 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 are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is considered to be 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, if the percentage ratings of 38 C.F.R. § 4.16(a) are not met but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability or disabilities, an “extraschedular TDIU” may be assigned and the case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. In reaching such a determination, 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). In the process of determining whether unemployability exists for TDIU, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by any nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes his case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A TDIU will be assigned where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Marginal employment is not considered substantially gainful employment, and a veteran can establish marginal employment either by demonstrating an earned annual income less than the poverty threshold established by the U.S. Census Bureau or on a facts-found basis. Id.; Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Marginal employment on a facts-found basis includes, but is not limited to, employment in a protected environment when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a); see Cantrell v. Shulkin, 28 Vet. App. 382 (2017) (discussing a protected work environment in the TDIU context). Prior to March 5, 2016, the Veteran’s service-connected disabilities included: (i) generalized anxiety disorder (50 percent); (ii) degenerative arthritis of the lumbar spine (40 percent); (iii) tinnitus (10 percent); (iv) hypertension (10 percent); (v) degenerative changes of the left shoulder (10 percent); (vi) residuals of hemorrhoids (10 percent); and (vii) erectile dysfunction (zero percent). The Veteran’s combined rating for his service-connected disabilities is 70 percent for this period. Thus, he met the schedular percentage requirements for TDIU prior to March 5, 2016. The Veteran submitted his Application for Increased Compensation Based on Unemployability, VA Form 21-8940 in January 2016 and at that time indicated that his back and mental health conditions prevented him from securing or following any substantially gainful occupation. He last worked full time in August 2015 as an analyst but had not tried to obtain employment since becoming too disabled to work. The Veteran completed four years of college but had not had any education or training since becoming too disabled to work. The Veteran received a VA Mental Disorders examination in February 2016 and indicated that he medically retired from work as a computer analyst in August 2015. He was attending college and also working part-time at a college as a teacher. The examiner concluded that the Veteran would be able to function in an occupational environment, given that he was functioning part-time as a college instructor and as a part-time student. The Veteran submitted a Notice of Disagreement in May 2016 and asserted at that time that his part time work as a college instructor was not gainful employment. Furthermore, he was no longer employed by the college. On his April 2017 Substantive Appeal, VA Form 9, the Veteran indicated that any attempt to state that $1,563 per month would qualify as gainful employment was “just wrong even when adding in VA compensation.” Furthermore, he did the part time work just to see if he could do it. He was unable to take his pain medication and work, so he did not pursue any further adjunct teaching opportunities. At the October 2018 Board hearing, the Veteran testified that he retired from work in July 2015 due to his back. He worked part time in 2016 doing similar work but had to stop for the same reasons. The Veteran described complications such as being unable to sit too long to be able to do the work that he did for 10 years. He would have to “get up every 15-20 minutes to take a walk.” The Veteran also asserted that his part-time work as a college instructor following his retirement should not be considered gainful employment. The Veteran essentially maintains that his employment as a college instructor prior to March 5, 2016, was not substantially gainful employment. See May 2016 Notice of Disagreement. As a result, it should be considered marginal employment. A veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). In this regard, work that is less than on a full-time basis is not necessarily considered marginal. Faust v. West, 13 Vet. App. 342 (2000) The Board further notes that the Veteran reported that the total monthly income earned from his part time job was $1,563, which was considerably higher than the federal poverty threshold for one person. The federal poverty threshold for a family size of one, under 65 years old, in 2016 was $12,486, or $1,040.50 per month. See, Poverty Thresholds, U.S. Census Bureau, http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited January 28, 2021). Consequently, the Veteran must establish marginal employment on a facts-found basis. See 38 C.F.R. § 4.16(a). Here, the Veteran has not alleged that his job as a college instructor was employment in a protected environment nor was it a sheltered workshop. The Board has adopted the definition of a protected environment as one that is designed to rehabilitate, train, and provide employment for those with disabilities, which is simply not the case here. Cantrell v. Shulkin, 28 Vet. App. 382 (2000) (concerning the meaning of the term “in a protected environment” in 38 C.F.R. § 4.16 (a)). The term “sheltered workshop” is not defined in Title 38 of the Code of Federal Regulations. However, several state codes define “sheltered work shop” as “a facility designed to provide gainful employment for individuals with severe disabilities who cannot be absorbed into the competitive labor market or to provide interim employment for such individuals when employment opportunities for them in the competitive labor market do not exist” (Louisiana); “a facility, or any portion thereof, operated by a nonprofit organization, corporation, partnership, limited liability company or association whose purpose is to provide meaningful work or training activities to individuals with developmental disabilities...” (Oklahoma); “an occupation-oriented facility operated by a not-for-profit corporation, which, except for its staff, employs only persons with disabilities” (Missouri); “an occupation oriented facility operated by a nonprofit agency, public or private, which except for its staff, employs only handicapped persons” (New Jersey). La. R.S. § 39:1604.4; 63 Okl. St. § 1-865.2; § 178.900 R.S. Mo.; N.J. Stat. § 34:16-40 The Board also observes that the Wage and Hour Division of the United States Department of Labor uses the terms “sheltered workshop” and “work center” interchangeably to mean a place that has “historically provided rehabilitation services, day treatment, training, and/or employment opportunities to individuals with disabilities.” Wage and Hour Division Field Operations Handbook, U.S. Dep’t of Labor, https://www.dol.gov/whd/FOH/ch64/64k00.htm (last visited June 29, 2018). Thus, the definition entails an environment that is not a competitive employment environment, but one whose purpose is, at least in part, to train, rehabilitate, or treat persons with disabilities. The Social Security Administration which, as the Court indicated in Faust, is the most closely analogous legal context, uses the similar terms “sheltered or special environment” and “sheltered employment.” These are also not precisely defined in Title 20 of the Code of Federal Regulations. However, 20 C.F.R. § 404.1574 (a)(3), which the Code describes as an evaluation guide for employees for determining whether a worker is involved in substantially gainful activity, states: “If you are working in a sheltered workshop, you may or may not be earning the amounts you are being paid. The fact that the sheltered workshop or similar facility is operating at a loss or is receiving some charitable contributions or government aid does not establish that you are not earning all you are being paid...” A Social Security Administration policy statement on determining whether work constitutes “substantial gainful activity” gives the following definition for sheltered employment: “Sheltered employment is employment provided for handicapped individuals in a protected environment under an institutional program.” SSR 83-33, 1983 SSR LEXIS 34, *17. In applying the above principles to the facts of this case, the Board finds that the Veteran’s employment as a college instructor would not be considered “employment in a protected environment” as the term is used in 38 C.F.R. § 4.16(a). This is so because there is no evidence that his employer’s purpose is to provide employment to disabled workers. This is also because it is not designed to rehabilitate, train, and provide employment for those with disabilities. For the reasons set forth above, the Board finds that the Veteran’s employment as a college instructor prior to March 5, 2016, is not considered protected or sheltered. Accordingly, based on all of the foregoing, his part-time employment as an instructor is not considered marginal, and entitlement to TDIU prior to March 5, 2016, must therefore be denied. 38 C.F.R. § 4.16 (a). The Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim, and as such, it is not applicable. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.