Citation Nr: 21012847 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 11-34 379 DATE: March 5, 2021 ORDER An initial rating in excess of 10 percent prior to February 3, 2020 and a rating in excess of 20 percent thereafter for lumbar spine disability is denied. For the period prior to February 3, 2020, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to February 3, 2020, the Veteran’s lumbar spine disability, even with consideration of painful motion, was not manifested by forward flexion of the thoracolumbar spine that was limited to greater than 30 degrees but not greater than 60 degrees. 2. From February 3, 2020, the Veteran’s lumbar spine disability has not been shown to be functionally limited to 30 degrees or less; there is no showing or allegation of ankylosis in the spine; and prescribed bed rest has not been shown. 3. For the period prior to February 3, 2020, the evidence fails to establish that the Veteran was precluded from engaging in substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to February 3, 2020, the criteria for an initial rating in excess of 10 percent for lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243.  2. From February 3, 2020, the criteria for an initial rating in excess of 10 percent for lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243.  3. For the period prior to February 3, 2020, the criteria for TDIU 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 in the United States Army from September 1965 to September 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board in July 2020 where it was remanded for additional evidentiary development. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. With the initial rating assigned with the award of service connection for a disability, “staged” ratings to reflect distinct periods when different levels of impairment were shown are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. Entitlement to an initial rating in excess of 10 percent prior to February 3, 2020 and a rating in excess of 20 percent thereafter for lumbar spine disability. By a September 2018 decision, the Board granted service connection for a lumber spine disability. By rating action of November 2018, the RO implemented the Board’s grant of service connection for lumbosacral strain with degenerative arthritis of the spine with intervertebral disc syndrome (IVDS), and assigned an initial rating of 10 percent effective April 21, 2011, the original date of receipt of claim. While on remand for additional development, by rating action of September 2020, the RO increased the evaluation for lumbar spine disability to 20 percent disabling effective February 3, 2020. The Veteran disagrees and seeks higher ratings. During the appeal period, changes were made to certain Diagnostic Codes under 38 C.F.R. § 4.71a. Effective February 7, 2021, VA amended its regulations governing spine disabilities. VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. However, the criteria for the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes and the General Rating Formula for Diseases and Injuries of the Spine were not changed. Diagnostic Code 5244 regarding complete traumatic paralysis was added. However, as the Veteran’s claims file does not show complete traumatic paralysis, this Diagnostic Code is not applicable and will not be discussed further. The Veteran’s lumbar spine disability is evaluated under Diagnostic Code 5243. 38 C.F.R. § 4.71a. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Here, although VA examiners indicated IVDS, there was no incapacitating episodes due to IVDS that required bed rest during the past 12 months indicated. See VA examinations of March 2018, February 2020, August 2020 and November 2020. Further, there is no evidence demonstrating that bed rest was prescribed by a physician to treat the Veteran’s lumbar spine disability. Thus, the absence of any prescribed bed rest precludes a rating from being assigned under a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, and it is therefore more beneficial to evaluate the Veteran’s lumbar spine disability based on limitation of motion under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is 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. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2), see also Plate V. Private treatment records submitted by the Veteran show reports of low back pain and treatment for lumbar spine. However, on lumbar spine evaluations, the Veteran’s treating physician consistently indicated “normal” range of motion for flexion, extension, lateral flexion, and rotation, with “no pain with motion.” See private medical records from M.J.S., M.D. of January 2017, April 2017 and January 2018. The Veteran was afforded a VA examination in March 2018. The examiner indicated all “normal” range of motion. Pain was noted for forward flexion but does not cause functional loss. The Veteran retained normal 5/5 strength with normal sensory testing of the lower extremities. There was no ankylosis of the spine observed and no neurologic abnormalities indicated. See VA examination of March 2018. The Veteran was afforded another VA examination in February 2020. On range of motion testing, he demonstrated forward flexion to 90 degrees; extension to 25 degrees; lateral flexion 30 degrees, bilaterally; and rotation to 25 degrees, bilaterally. Pain was noted on exam but examiner indicated does not cause functional loss. The Veteran retained normal 5/5 strength with normal sensory testing of the lower extremities. There was no ankylosis of the spine observed and no neurologic abnormalities indicated. See VA examination of February 2020. In compliance with the Board’s July 2020 remand, the Veteran was afforded a VA contract examination in August 2020. The Veteran reported worsening of pain in lower back and described functional loss due to flare-ups as difficulty to run, sit/stand/walk, to climb and to bend, lift or carry. On examination, the Veteran demonstrated forward flexion to 60 degrees; extension to 20 degrees; lateral flexion to 20 degrees, bilaterally; and rotation to 20 degrees, bilaterally. Pain was noted on exam and causes functional loss. The Veteran retained normal 5/5 strength with normal sensory testing of the lower extremities. There was no ankylosis of the spine observed and no neurologic abnormalities indicated. See VA contract examination of August 2020. The Veteran was afforded another VA contract examination of November 2020. On range of motion testing, the Veteran demonstrated forward flexion to 70 degrees; extension to 10 degrees; lateral flexion to 25 degrees, bilaterally; and rotation to 25 degrees, bilaterally. Pain was noted on exam and causes functional loss. The Veteran retained normal 5/5 strength with normal sensory testing of the lower extremities. There was no ankylosis of the spine observed and no neurologic abnormalities indicated. See VA contract examination of August 2020. Upon review of the evidence of record, the Board finds that the Veteran is adequately compensated by the assigned evaluations based on limitation of motion, and higher ratings are not warranted. For the period prior to February 3, 2020, medical records do not demonstrate findings consistent with a higher 20 percent evaluation. In fact, private treatment records of January 2018 and a March 2018 VA examination show the Veteran had all “normal” range of motion. Without a showing of limitation of flexion to 60 degrees, a higher rating is simply not supported. The Board is not aware of any other evidence that shows the severity of the Veteran’s lumbar spine disability during this period on appeal. As such, for the period prior to February 3, 2020, a rating in excess of 10 percent is not warranted under the General Rating Formula. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Likewise, from February 3, 2020, medical records do not demonstrate findings consistent with a higher 40 percent evaluation. Absent a showing of forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, as required for a 40 percent rating, a higher evaluation is not supported. In fact, he had flexion to 90 degrees on February 2020 VA examination which is consistent with a 10 percent evaluation. But, demonstrated flexion to 60 degrees in August 2020 VA examination, with slight improvement of flexion to 70 degrees in November 2020 VA examination. As such, a rating in excess of 20 percent is simply not warranted under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Further, although private treatment records of October 2020 and on VA examinations in August and November 2020 show report of chronic lumbar spine pain, the evidence does not show that pain resulted in limitation of flexion to 30 degrees or less, or ankylosis of the lumbar spine, at any time during the period on appeal. In this regard, medical evidence of record does not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, that is not already contemplated by the now assigned 20 percent rating. 38 C.F.R. § 4.59. Thus, a higher rating is not warranted for the Veteran’s lumbar spine disability even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Thus, a higher rating is not warranted for the Veteran’s lumbosacral strain with degenerative arthritis of the spine with IVDS even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. Accordingly, from February 3, 2020, a rating in excess of 20 percent for lumbar spine disability is not warranted. As such, the claim is denied. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has radiculopathy or any other neurological abnormalities including bladder impairment or bowel impairment as a result of his service-connected lumbar spine disability. Thus, there is no basis for separate neurological evaluations. 2. Entitlement to TDIU for the period prior to February 3, 2020. While on remand for further development, by rating action of January 2021, TDIU was granted effective February 3, 2020, date entitlement was established from VA contract examination. The Veteran contends his service-connected disabilities, in particular PTSD and lower back, prevent him from securing any substantial gainful occupation since 2011. As explained below, for the period prior to February 3, 2020, the Board finds that the competent evidence of record does not show that the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. Total disability will be considered to exist when there is present any impairment of mind or body which 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 for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). Initially, the Board notes that the Veteran met the schedular criteria for TDIU. For the period prior to February 3, 2020, the Veteran’s service-connected disabilities are posttraumatic stress disorder (PTSD) at 50 percent; obstructive sleep apnea at 50 percent; lumbar spine disability at 10 percent; tinnitus at 10 percent; acid reflux at 10 percent; noncompensable for bilateral hearing loss, hypertension and erectile dysfunction; with a combined evaluation for compensation of 80 percent from September 2011. Thus, prior to February 3, 2020, the schedular criteria for TDIU are met. 38 C.F.R. § 4.16(a). With that said, however, the Board finds the preponderance of the evidence is against finding that the Veteran is precluded from engaging in substantially gainful employment solely as a result of his service-connected disabilities, for the period prior to February 3, 2020. Meaning, the Veteran’s service-connected disabilities, alone or the combined effects of all service-connected disabilities, do not render him unemployable. VA will grant entitlement to a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). The Board observes that the record contains sufficient information of the Veteran’s employment and medical history. In his formal application (VA Form VA 21-8940), the Veteran reported his previous employment was a resort promoter, developer, manager in towing and checking services, and recently taxi driver; he indicated he became too disabled to work in February 2011. A March 2018 VA examiner indicated that the Veteran’s lumbar spine disability had no impact on his ability to work. In fact, the examiner added that the Veteran reported “he retired in 2013” and indicated that his back did not interfere with his work when he was working. See VA examination dated March 2018. A January 2019 VA contract examiner rendered a medical opinion specifically addressing how the Veteran’s lumbar spine disability impacted physical and sedentary employment. The examiner described the functional limitations on exertional and physically demanding employment tasks that require lifting and carrying 20 lbs., climbing ramps/stairs, kneeling, crouching or crawling. But found the “veteran would be able to do sedentary functions such as sitting for short periods of time, talking, listening, and triage of information.” See VA contract medical opinion dated January 2019. A similar opinion was rendered by a different VA contract examiner in January 2019 finding the “veteran capable of performing moderate work” such as lifting less than 50 lbs. and occasional run/carry/climb. A January 2019 VA contract examiner found the Veteran’s obstructive sleep apnea had no impact on his ability to work. The examiner emphasized, “there are no functional impairments, no effect on employability.” See VA contract medical opinion dated January 2019. A January 2019 VA contract examination shows that the Veteran “reported he last worked in 2016 as a boat captain.” The examiner indicated the Veteran’s PTSD impacted his “occupational and social impairment with reduced reliability and productivity.” A February 2020 VA examiner found the Veteran’s lumbar spine disability had no impact on his ability to work. Notably, the examiner documented VA treatment record of December 2019 where the Veteran indicated his plan to sail “around the world for a 13 month stretch time. Prior to that he is going to move to Florida. He sold his fishing boat in Alaska and has retired from that business.” The examiner specifically rendered a statement on occupational impairment that, “Veteran is living independently, performing all activities necessary for daily living thereby demonstrating adequate physical capabilities for appropriate gainful employment if so desired.” See VA examination of February 2020. Here, a review of the objective evidence of record, taken in total, does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities PTSD, sleep apnea, low back disability and GERD or based on a single disability.. For the period prior to February 3, 2020, the Board finds the medical and lay evidence of record, including lay reports made by the Veteran, weigh against the claim and are found to have great probative value. Notably, the record shows the Veteran’s own report that he “retired in 2013” or that he “sold his fishing boat” and “retired from that business”. In fact, during a mental examination, the Veteran reported he last worked in 2016, which is inconsistent with the date of February 2011 reported on his formal application. Further, by the Veteran’s own admission during a March 2018 VA back examination, he stated his back did not interfere with his work when he was working. Additionally, the Board finds probative the findings made by the medical professionals from March 2018, January 2019 and February 2020 who consistently opined that the Veteran’s service-connected disabilities did not appear to be of such severity to render him unable to obtain or maintain substantially gainful employment. Moreover, the Veteran’s reports of symptoms and objective findings on clinical examinations, including mild functional limitations, were specifically considered by the VA medical professionals. But the examiners indicated “no functional impairment” and “no impact on ability to work” or at most, moderate occupational impairment. A January 2019 VA examiner specifically stated that the “veteran would be able to do sedentary functions such as sitting for short periods of time, talking, listening, and triage of information.” Thus, based on the findings of the March 2018, January 2019 and February 2020 medical professionals, combined, the Board finds the evidence does not demonstrate that the Veteran would not be able to secure or follow a substantially gainful occupation as a result of the cumulative functional limitations caused by his service-connected disabilities. For the period prior to February 3, 2020, the evidence does not establish that the Veteran’s service-connected disabilities of PTSD, sleep apnea, low back disability and GERD results in unemployability. As such, TDIU is not warranted in this case. The Board acknowledges that the Veteran is competent to report symptoms of his service-connected disabilities and how such conditions affect his employability as presented at his Board hearing. Additionally, he is credible in his reports during clinical evaluations of symptoms and their effect on his activities. Layno v. Brown, 6 Vet. App. 465 (1994). But as a lay person he is not competent to identify a specific level of disability according to the appropriate diagnostic code or to assess whether the symptoms preclude employment. Such competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities, and in particular his ability to work, have been provided by the VA medical professional who examined him. As such, the Board finds the Veteran’s subjective complaints not competent medical evidence for this purpose. Thus, his assertions standing alone have little probative value and the Board assigns more weight to the medical opinions provided by the March 2018, January 2019 and February 2020 medical professionals. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. 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. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran is rendered unemployable due to his service-connected disabilities. Even though the Veteran met the applicable percentage standards, the Board nevertheless finds that the criteria under 38 C.F.R. § 4.16(a) have not been met and, for the period prior to February 3, 2020, TDIU is not warranted. Accordingly, the claim must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.