Citation Nr: 21010870 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 13-10 025 DATE: February 25, 2021 ORDER A 20 percent rating for a back disability from July 21, 2010 is granted, subject to the laws and regulations governing the award of monetary benefits. A 40 percent rating for a back disability from May 22, 2014 is granted, subject to the laws and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The evidence shows that, after considering the pain, the Veteran’s back disability caused forward flexion being functionally limited to no greater than 60 degrees during the appeal period, and no greater than 30 degrees from May 22, 2014. 2. The evidence does not show that the Veteran has Intervertebral Disc Syndrome (IVDS) or ankylosis of the lumbar spine. 3. The evidence is in relative equipoise as to whether the Veteran’s service-connected disabilities were of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for a back disability have been met prior to May 22, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237. 2. The criteria for a 40 percent rating for a back disability from May 22, 2014 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237. 3. The criteria for TDIU have been met. 38 U.S.C. §§ 501; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1999 to December 2003. He filed a service connection claim for his back disability which was received by VA on July 21, 2010. A rating decision in May 2011 granted the service connection for a back disability and assigned a 10 percent rating from July 21, 2010 (the date his claim was received by VA). A rating decision in March 2016 increased the back rating to 20 percent from April 11, 2014. The Veteran is seeking a higher rating for his back. In addition, he filed a TDIU claim in November 2012 and again in April 2013 and July 2014, which was denied by the Agency of the Original Jurisdiction (AOJ). A June 2018 Board decision remanded the increased rating claim for the back and TDIU claim for further development. The Veteran was afforded a Board hearing in March 2018 held by a Veterans Law Judge who is no longer with the Board. The Veteran initially declined a new hearing, but subsequently requested a hearing. A second Board hearing was held in December 2020 by the undersigned Veterans Law Judge. 1. Increased Rating - Back Back disability may be rated under either the General Rating Formula for Diseases and Injuries of the Spine, or the Formula for Rating Intervertebral Disc Syndrome (IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. In this case, as the evidence does not show the Veteran has IVDS, his back disability will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine, which provides the following: A 10 percent rating when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; when, muscle spasm, guarding, or localized tenderness is present but does not result in an abnormal gait or abnormal spinal contour; or, when there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned 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. 38 C.F.R. § 4.71, Plate V. A December 2010 VA examination diagnosed the Veteran with degenerative disk disease L5-S1, arthritis of L1-L2 and deformity of L2, consistent with known prior trauma. On examination, the lumbar spine demonstrated forward flexion to 70 degrees, minus 20 degrees due to pain, extension to 30 degrees with increased pain, right and left lateral flexion to 40 degrees with increase pain; right and left lateral rotation to 30 degrees. A June 2011 VA examination noted radicular complaints of the left leg. A VA examination conducted on May 22, 2014 showed the range of motion of the Veteran’s lumbar spine as follows: forward flexion to 50 degrees with pain starting at 30 degrees; extension to 30 degrees (no pain); right lateral flexion to 15 degrees (pain starting at 10 degrees); left lateral flexion to 20 degrees (pain starting at 10 degrees); right lateral rotation to 15 degrees (pain starting at 15 degrees); left lateral rotation to15 degrees (pain starting at 15 degrees), with a combined rating of 110 degrees. The examiner found no IVDS, ankylosis, muscle atrophy or other neurologic abnormalities such as bowel or bladder problems. However, the examiner found radiculopathy in both legs. (Of note, the Veteran’s bilateral radiculopathy is rated separately from his back disability and is not an issue on appeal.) A December 2016 VA examination showed the range of motion of the Veteran’s lumbar spine as follows: forward flexion to 80; extension to 20 degrees; right and left lateral flexion to 30 degrees; right and left lateral flexion to 30 degrees, with combined range of motion of 220 degrees. The examiner indicated that painful motion did not cause functional loss. The examiner found no IVDS, ankylosis, muscle atrophy or other neurologic abnormalities, such as bowel or bladder problems. VA treatment records show that the Veteran was provided a cane in October 2016. A March 2019 treatment note showed that the back flexion was limited to 10 degrees with pain, and the Veteran was wearing a back brace, ambulating with a cane. Private treatment records from OSPTA in April 2014 showed that the Veteran could only bend his back so that his hands could reach his patellae. Private treatment records from Nova Care showed that in December 2016, the Veteran’s back forward flexion was limited to 15 degrees. In January 2017, the forward flexion of the back was shown to be limited to 15 degrees. In April 2018, the forward flexion of the back was shown to be limited to 24 degrees. Prior to May 22, 2014 Prior to May 22, 2014, the evidence supports a 20 percent rating for the Veteran’s back disability, as the VA examination in December 2010 showed forward flexion was limited to 50 degrees after considering the limitations imposed by pain. Considering the functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement, the Board finds the Veteran’s back flexion was effectively functionally limited to 50 degrees. 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202(1995). However, higher rating is not warranted because a 40 percent rating would require forward flexion was functionally limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Here, ankylosis has not been identified by medical records. The range of flexion was shown to be functionally limited to 50 degrees after considering the pain by the December 2010 VA examination. As such, a rating in excess of 20 percent is not warranted. Accordingly, a 20 percent rating is granted from July 21, 2010, the date that VA received the service connection claim for the back disability. From May 22, 2014 From May 22, 2014, the evidence of record supports a 40 percent rating for the Veteran’s back disability as the evidence shows that the range of flexions was functionally limited to 30 degree or less after considering the painful motion. Although the December 2016 VA examination indicated the Veteran’s back forward flexion was limited to 80 degrees and pain did not cause additional functional loss, the May 2014 VA examination showed that the forward flexion was limited to 50 degrees with pain starting at 30 degrees. Private treatment records from Nova Care showed that the forward flexion was limited to 15 degrees in December 2016 and January 2017, and was limited to 24 degrees in April 2018. As such the evidence supports a 40 percent rating from May 22, 2014 (the date of the VA examination). However, higher rating is not warranted because a 50 percent rating would require unfavorable ankylosis of the entire thoracolumbar spine. Here, ankylosis has not been identified by medical records. Likewise, prescribed bed rest has not been shown or alleged that would provide for a higher rating. Accordingly, a rating in excess of 40 percent is not warranted. 2. TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Here, the Veteran is currently rated at 50 percent for PTSD, 20 percent for his back disability, and 10 percent each for his bilateral radiculopathy in the lower extremities with a combined rating of 70 percent. This decision will increase his back disparity to 40 percent and thus increase the combined rating to more than 70 percent. Accordingly, he meets the threshold criteria for TDIU under 38 C.F.R. § 4.16(a). The next question will be whether the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation, in other words, incapable of performing the physical and mental acts required by the employment, regardless whether the Veteran can find employment or not. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Records from the Social Security Administration (SSA) showed that the Veteran applied for Social Security disability benefits in 2010, 2013, 2014 and 2016 for his back and psychiatric disabilities. He worked as a laborer from May 2004 to June 2005, a correction officer from July 2005 to June 2010, a security van driver from January to October 2015, and a security officer from April to September 2016. He had not worked after September 2016. A SSA Administrative Judge (ALJ) made a decision in January 2019 that that the Veteran was not disabled under the SSA standard. The ALJ found that the Veteran had graduated from high school; his back, knee and psychiatric disability rendered him unable to perform his past relevant work as a correction officer or security guard, but he had residual functional capacity to perform certain sedentary work that required no more than occasional postural, that did not involve ladders or use of foot controls, that accommodated the use of a cane and limited to simple, routine work, and that did not require greater than occasional integration with supervisors, co-workers or general public. SSA records include the following medical evidence: • Psychological Evaluation dated July 2010 by Dr. Crabtree indicated that the Veteran had strongly increased suicidal tendencies, and his Asperger’s disorder made him vulnerable to preoccupation with criminal behavior. Dr. Crabtree indicated that the Veteran needed to be watched carefully and be treated with appropriate therapeutic intervention to help him stem from the depression. • SSA Consultant Dr. Santili opinion in November 2016 showed that the Veteran had moderate difficulties in maintaining social functioning, concentration, persistence or pace, mild restriction of activities of daily living; his ability to understand and remember complex or detailed instruction was limited. He would be expected to understand and remember simple, one and two step instructions. He was able to carry out very short and simple instructions. • Mental status evaluation in November 2016 by Dr. Seines showed that the Veteran had moderate restriction on interaction appropriately with the public, supervisors or co-workers, or respond appropriately to usual work situations. • A psychiatric assessment dated March 2017 by his treating physician Dr. Mehta showed that the Veteran had extreme limitations related to social interaction and coping with stress and anxiety. His PTSD caused him to experience nightmare, flashbacks, and memory loss daily. He avoided leaving the house and had removed himself from social situations. Depression was daily and severe, with suicidal thoughts at times. Dr. Mehta opined that the Veteran was permanently disabled and would require continuing treatment throughout his life. • A Disability Benefit Questionnaire (DBQ) dated March 2018 by his treating physician Dr. Tracy opined that the Veteran’s psychiatric conditions caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking or mood. • SSA consultant Dr. Jones opinion in November 2016 that the Veteran’s had physical capacity to conduct light exertional job with avoidance of concentrated exposure to extreme coldness or heat or humidity or fumes, odors or dusts. • Statement from the Veteran’s treating chiropractor (Dr. Braun) dated February 2018 indicated that Veteran was in a state of severe and substantial inability to function in daily living and major life activities. Dr. Braun stated that as a 39 year old man, it was concerning that the Veteran required frequent use of a cane for ambulation and had frequent falls, his pain limits his daily life activities to an extreme level. • Functional Capacity Evaluation dated April 2018 by Nova Care that the Veteran had ability to push or pull 10 lbs, could not lift any weights; he could do frequent sitting, occasional standing, occasional walking, occasional stair climbing and was unable to knell, crouch, or squat. He reported pain with all activities. Pain limited all functional activities. His functional mobility was limited via use of straight cane. VA back examinations in May 2014 and December 2016 did not show that the Veteran’s back conditions impact his ability to work. VA psychiatric examination in June 2019 showed that the Veteran’s psychiatric conditions caused occupational and social impairment with reduced reliability and productivity. The Veteran reported to the examiner that he worked as a part-time security stuff for six months in 2016 but he quitted the job due to difficulty standing because of his back pain and poor sleep related to nightmares. In addition to PTSD, the examiner also diagnosed him with autism spectrum disorder (a condition not service connected). The examiner indicated that symptoms from autism spectrum disorder could be differentiated from symptoms of PTSD and the examiner attributed most the psychiatric symptoms to PTSD, such as daily upsetting memories of the stressor, five times per week nightmare about the stressor, depression, difficulty concentrating, heightened startle reaction, etc. A July 2020 VA PTSD examination also show that the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity. An opinion from the Veteran’s private treating psychiatrist Dr. Tracy in June 2020 showed that the Veteran had severe PTSD, recurrent and severe MDD (major depressive disorder), severe GAD (generalized anxiety disorder), and severe panic disorder. Dr. Tracy indicated that the Veteran had behavioral health counselling and psychiatric medication management for the previous 10 years without much change in progression; that all life domains of the Veteran were impaired, that there was occupational and social impairment greater than 50 percent as evidenced by a flattened affect, depressed mood, daily panic attacks, difficult in following instructions, poor insight and judgement and absence of abstract thinking. Dr. Tracy concluded that the Veteran was a loner and was unable to sustain meaningful social or work relationships. While the VA examiners and SSA findings suggest that the Veteran may have had residual capacity to obtain or maintain certain type of sedentary work during the course of this appeal despite his service connected physical and psychiatric conditions, his treating psychiatrists and physicians seem to opine that his physical and mental deficits currently render him unable to obtain or and maintain substantially gainful employment. Considering the evidence as whole, including the Veteran’s education and previous job experience, and SSA finding that the Veteran was unable to perform his past relevant work as a correction officer or security guard, the Board finds that the evidence is in relative equipoise as to whether Veteran’s service-connected disabilities have caused him to be unable to obtain or maintain substantially gainful employment. A TDIU is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.