Citation Nr: 21011397 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-07 311 DATE: March 1, 2021 ORDER Entitlement to an initial rating of 40 percent, but no higher, prior to April 27, 2012 for a lower back disability is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 23, 2012 is denied. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, his low back disability more nearly approximates forward flexion of 30 degrees due to functional limitations during flare-ups; neither ankylosis nor incapacitating episodes of a total duration of more than 6 weeks in the last 12 months due to IVDS are shown. 2. The Veteran’s service-connected disabilities did not preclude him from securing or maintaining substantially gainful employment prior to March 23, 2012. CONCLUSIONS OF LAW 1. The criteria for an initial 40 percent rating, but no higher, prior to April 27, 2012, for degenerative joint disease of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a TDIU prior to March 23, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1991 to September 1992 and from January 2000 to March 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2017 decision, the Board denied the lower back increased rating claim and declined to address the issue of entitlement to a TDIU prior to March 23, 2012. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2017 Order, the Court vacated and remanded the Board’s decision to the extent that it failed to address the TDIU issue and denied an increased rating for the low back for the period prior April 27, 2012, for development consistent with the parties’ Joint Motion for Partial Remand (JMPR). In September 2018, the Board remanded the claims on appeal for further development. With regards to the issue of entitlement to a TDIU, the Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). With regards to the issue of entitlement to an increased rating for a low back disability, the Board’s directives have not been substantially completed. However, as will be discussed in further detail below, the Board finds no prejudice in proceeding with a decision at this time. 1. Entitlement to an initial rating of 40 percent, but no higher, prior to April 27, 2012 for a lower back disability. The Veteran seeks a higher initial rating for his low back disability for the period prior to April 27, 2012. For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that a rating of 40 percent, but no higher, is warranted for the period prior to April 27, 2012. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 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 contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). “Although pain may cause a functional loss, pain itself does not constitute functional loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (emphasis in original). Painful motion is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. 38 C.F.R. § 4.59; Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board must also consider whether VA examiners have elicited information concerning the “severity, frequency, duration, or functional loss manifestations” of such flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The United States Court of Appeals for Veterans Claims (Court) also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. During the pendency of this appeal, applicable rating criteria for the Schedule for Rating Disabilities of the Musculoskeletal System and Muscle Injuries were revised effective February 7, 2021. 85 Fed. Reg. 76453 (November 30, 2020). When regulations are revised during the course of an appeal, the Board must consider the claim in light of both the former and revised schedular criteria and to apply the criteria that is more favorable to the Veteran. However, if an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the change, even though there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the period at issue is prior to April 27, 2012; the Veteran’s claim will be adjudicated under the former criteria. The Veteran’s low back disability is currently rated at 20 percent prior to April 27, 2012, under DC 5242. Disabilities of the spine (other than IVDS when evaluated on the basis of incapacitating episodes) are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DCs 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51, 454 (Aug. 27, 2003). Under the General Rating Formula, 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 assigned where forward flexion of the thoracolumbar spine is to 30 degrees or less, or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Additionally, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. Id. at Note (1). Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 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. 38 C.F.R. § 4.71a, DC 5242, Note (2). Intervertebral disc syndrome (IVDS) is evaluated under either the General Rating Formula or under the IVDS Formula, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1), Formula for Rating IVDS Based on Incapacitating Episodes. Under the IVDS Formula for intervertebral disc syndrome, a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. Turning to the evidence of record, a February 2009 private treatment record shows that the Veteran’s flexion, extension, and lateral bending were to 45 degrees and rotation was to 80 degrees. Painful active range of motion (ROM) was noted. A March 2009 private treatment record shows that the Veteran’s lateral flexion was to 25 degrees, flexion was to 55 degrees, and extension was to 20 degrees. Again, painful active ROM was noted. An April 2009 private treatment record noted similar findings. The Veteran underwent a VA examination in January 2010. At the examination, the Veteran reported that his back pain was sharp, constant, dull, and achy. The examiner noted that the Veteran experienced fatigue, decreased motion, stiffness, weakness, and pain. The Veteran also reported flare-ups. They were described as severe, occurring weekly, and lasting approximately one to two days. The Veteran reported that they were triggered by prolonged walking, bending, standing, and lifting. Alleviating factors included rest, morphine, and ice. The Veteran’s ROM was as follows: flexion to 70 degrees, extension to 20 degrees, left lateral flexion and rotation to 20 degrees, and right lateral flexion and rotation to 25 degrees. The examiner noted objective evidence of pain on active range of motion. Following repetitive use, the Veteran’s extension and left lateral flexion and rotation were further limited by 5 degrees. The examiner noted no incapacitating episodes or ankylosis of the thoracolumbar spine. In the December 2017 JMPR, the parties agreed that the January 2010 examination did not adequately address the requirements of Correia or functional loss during flares as required by Mitchell and Sharp. Thus, in its September 2018 remand, the Board requested a retrospective opinion that addressed such requirements. Pursuant to the September 2018 remand, opinions were obtained in September 2019 and July 2020. The opinion provided in September 2019 did not address the requirements of Correia or additional functional loss during flares for the period prior to April 27, 2012. Thus, an addendum opinion was obtained in July 2020. Reading the July 2020 opinion as a whole, the Board finds it is unclear whether the examiner provided the requested opinions. While the examiner initially provides estimated ROM measurements for active motion, passive motion, in weight-bearing and nonweight-bearing, as well as during flares, the ROM measurements are the same measurements the examiner noted in a September 2019 examination and are higher than some of the ROM measurements noted on the January 2010 VA fee-based back conditions examination. After providing the estimated measurements, the examiner then indicated that she is unable to provide the requested retrospective opinions without resort to mere speculation and indicated that the need for speculation would be due to the fact that she did not perform the prior VA exams. In light of the foregoing, the Board finds that the opinion is inadequate and of no probative value. VA and private treatment records during the relevant period generally show complaints of chronic low back pain. Based on the foregoing, after resolving all reasonable doubt in favor of the Veteran and considering additional functional loss during flare-ups, the Board finds that a 40 percent rating is warranted for the period prior to April 23, 2012. Although there are no ROM measurements during the appeal period that warrant a rating of 40 percent, the Veteran did report experiencing severe flare-ups on a weekly basis that lasted one to two days. The examiner also noted that the Veteran experienced fatigue, weakness, and pain. Moreover, while the Veteran’s forward flexion was to 70 degrees at the January 2010 exam, private treatment records show that the Veteran’s forward flexion had been limited to as little as 45 degrees. The Board finds it reasonable to conclude that based on the Veteran’s description of his flares’ severity, frequency, and duration, his forward flexion could reasonably be limited to 30 degrees or less. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that the functional limitations caused by the DeLuca factors during flare-ups warrant a finding that the Veteran’s low back disability has more nearly approximated forward flexion to 30 degrees or less for the period prior to April 27, 2012. This warrants the assignment of a 40 percent rating. The Board declines to grant an even higher rating of 50 percent. This is because there is no clinical evidence of ankylosis per the VA examiner or the medical records. Even with consideration of additional functional loss, the competent evidence does not reflect lumbar spine motion that approximates ankylosis. The Veteran has not asserted otherwise. Moreover, a higher rating is also not warranted under the IVDS Formula as there is no evidence of incapacitating episodes having a total duration of at least 6 weeks in the past 12 months. While the Board acknowledges that the July 2020 opinion is inadequate and therefore does not substantially comply with the Board’s September 2018 remand directives, the purpose of the opinion was solely to address the findings required by Correia, Sharp, and Mitchell. However, a rating higher than 40 percent requires ankylosis, and the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca, Sharp, and Correia do not apply. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (finding that where a Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis, the regulations pertaining to functional impairment are not for application). Thus, as the Veteran is now in receipt of the maximum schedular rating for lost range of motion and any higher rating would require ankylosis, the Board finds no prejudice to the Veteran proceeding with a decision at this time. In sum, after resolving all reasonable doubt in favor of the Veteran, the Board finds that a rating of 40 percent for the Veteran’s low back disability is warranted for the period prior to April 27, 2012. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.71a, DC 5237; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a TDIU prior to March 23, 2012 The Veteran seeks entitlement to a TDIU. His claim was raised by the record and is considered part-and-parcel of the higher rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). In a September 2015 rating decision, the RO granted entitlement to a TDIU effective March 23, 2012. Therefore, from that date forward, the claim is moot. However, as agreed to by the parties in the December 2017 JMPR, because the claim for a TDIU is part-and-parcel of the higher rating claim on appeal, consideration must still be given to whether a TDIU is warranted prior to March 23, 2012. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In the Court’s March 2019 Panel Decision, it explained that “substantially gainful employment” contains economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one such disability, this disability shall be ratable at 60 percent or more; 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 or more. Id. For the purpose of one 60 percent disability or one 40 percent disability, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. Id. Where a Veteran does not meet the percentage requirements, but there is evidence that the Veteran is unable to obtain or maintain substantially gainful employment, the claim for TDIU will be referred to the Director of VA’s Compensation and Pension Service. 38 C.F.R. § 4.16(b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first ensure that the TDIU claim is referred to the Director of Compensation and Pension for adjudication. Bowling v. Principi, 15 Vet. App. 1 (2001); see also Christensen v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 1907 (explaining that the 2018 amendment to 38 C.F.R. § 3.321(b) did not alter the requirement that the Board refer a claim for an extraschedular TDIU to the Director of Compensation Service in the first instance). The appeal period begins on October 8, 2009, the date service connection for a low back disability was effectuated. Accordingly, the Board will discuss entitlement to a TDIU from October 8, 2009 to March 23, 2012. Prior to March 23, 2012, the Veteran was service-connected for: (1) a left ankle disability, rated 20 percent disabling from March 7, 2000; (2) degenerative joint disease of the lumbar spine associated with the left ankle disability, now rated 40 percent disabling from October 8, 2009; and (3) radiculopathy of the left lower extremity associated with the low back disability, rated 10 percent from October 8, 2009. In light of the above grant of a 40 percent rating for the low back disability for the period prior to March 23, 2012, the Veteran’s combined rating is now, in relevant part, 60 percent from October 8, 2009. Based on the foregoing, the Veteran does not meet the schedular requirements at any point during the appeal period, even with consideration of the provisions allowing for multiple disabilities to be counted as one disability. However, as explained above, a TDIU may still be granted on an extraschedular basis when a veteran does not meet the schedular requirements but is nonetheless unemployable. Accordingly, the Board must still consider whether the Veteran’s service-connected disabilities rendered him unable to obtain or maintain a substantially gainful occupation prior to March 23, 2012. For the reasons that follow, the Board finds that entitlement to a TDIU prior to March 23, 2012, is not warranted. Preliminarily, the Board notes that the Veteran has not contended, and the evidence of record does not indicate, that his service-connected left lower extremity radiculopathy impacted his ability to work. A review of the record shows that after his active duty service, the Veteran primarily worked in the automobile industry as a mechanic as well as a parts/sales manager. See January 2010 Veterans Application for Increased Compensation Based on Unemployability (application). The Veteran has reported that he last worked in April 2008. Id.; October 2009 Income Net Worth and Employment Statement. The Veteran also completed two years of college and a year of automotive training. See January 2010 application. The Veteran has primarily contended that his left ankle and low back disabilities prevented him from obtaining and maintaining a substantially gainful occupation. A May 2009 evaluation from the Social Security Administration (SSA) noted that the Veteran could lift 20 pounds occasionally, 10 pounds frequently, and could sit, stand, or walk with normal breaks for a total of six hours in an eight-hour workday. An August 2009 VA treatment record shows that the Veteran reported he was unable to continue his job as a mechanic. In a December 2009 Statement in Support of Claim, the Veteran reported that he could not work due to his back pain and headaches. He reported he could not stand for any period of time without extreme pain and was not able to lift, stoop, bend, or walk for more than 10 minutes due to his back pain. At the January 2010 VA examination, the examiner noted that the Veteran’s low back disability was a severe limitation to his employment. The examiner noted that the Veteran’s low back disability prevented him from doing his usual and customary job as a mechanic which required bending, crawling, and prolonged standing. The examiner noted that the Veteran’s left ankle would cause limitation with walking and standing. In his March 2011 notice of disagreement, the Veteran reported that he had to resign from his last employer due to his back pain and headaches. He reported he was unable to bend, stoop, or pick up items over 30-35 pounds due to his back. He also reported that he would sometimes fall due ot his left ankle pain. He further noted that he was not able to work due to the medication he takes to deal with the pain. At an April 2012 VA examination, the Veteran reported that he could no longer work as a parts manager due to excessive standing and lifting. In a June 2013 statement, the Veteran’s spouse reported that in 2007 the Veteran was working with difficulty and after several months he lost his job after having to call out due to severe headaches and pain. She reported that he tried to open his own automotive shop but could not continue the work due to his headaches and severe back pain. Pursuant to the Board’s September 2018 remand, an opinion addressing how the Veteran’s low back condition impacted his ability to work prior to March 23, 2012, was obtained. The examiner opined that the Veteran was able to interact with others, sit, stand, and move about. She noted he could lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently in a work setting. In July 2020, the RO referred the Veteran’s claim for TDIU on an extraschedular basis to the Director of Compensation Service for consideration. In so doing, the RO recommended granting a TDIU on an extraschedular basis prior to March 23, 2012. In a September 2020 advisory opinion, the Director of Compensation Service declined to award a TDIU on extraschedular basis prior to March 23, 2012. Based on a review of all the evidence of record, the Board finds that the Veteran’s service-connected disabilities did not preclude him from being able to secure and maintain substantially gainful employment prior to March 23, 2012. As a preliminary matter, the Board notes that prior to March 23, 2012, the Veteran was not service connected for a headache condition. As such, in determining whether the Veteran was unemployable, the Board will not consider any impairments related to the Veteran’s headaches. While the Veteran would not have been able to function in any role requiring physical labor, to include working as a mechanic, the Veteran completed two years of college and has managerial experience. Thus, he would not have been precluded from performing a position where physical labor is not required consistent with his level of education and experience, such as in an office, call center, or similar setting. While the evidence of record shows that the Veteran would have difficulty with prolonged standing and sitting, a job in an office environment performing administrative tasks would likely allow the Veteran the ability to change positions, rest, and take breaks as needed to relieve his back and ankle pain. Additionally, while the Veteran experienced difficulty with excessive walking due to his back and left ankle disabilities, a job in an office-like setting would likely not involve excessive walking. While the Board acknowledges that the January 2010 VA examiner noted that the Veteran’s low back disability was a severe limitation and that he could no longer work in his usual job as a mechanic, the focus of a TDIU analysis is not whether the Veteran can perform his usual job but whether he can perform a job that is consistent with his work history and education. Here, while the Board agrees that the Veteran would not have been able to work as a mechanic prior to March 23, 2012, as explained above, the Veteran would be able to perform other positions that are consistent with his education and work history. The Board also acknowledges that the Veteran reported that the medications he took for his back and ankle pain precluded him from working. However, the Veteran did not explain how his medications affected his ability to work, and the evidence of record does not otherwise demonstrate that they caused any occupational impairments that would preclude work in an office-like setting. The Board also acknowledges that the RO recommended to the Director of Compensation Service that a TDIU be awarded prior to March 23, 2012 on an extraschedular basis. However, the Board is not bound by such a recommendation, and for the reasons explained above, it finds that a TDIU is not warranted prior to March 23, 2012. In sum, the evidence of record does not show that the Veteran’s service-connected disabilities precluded employment in an office-like setting prior to March 23, 2012. The preponderance of the evidence is against the claim for a TDIU. As such, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, a TDIU is not warranted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.