Citation Nr: 21013433 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-46 411 DATE: March 9, 2021 ORDER 1. Entitlement to an initial rating in excess of 20 percent for degenerative arthritis with lumbosacral strain and spondylosis before December 29, 2020 is denied. 2. Entitlement to an initial rating in excess of 40 percent for degenerative arthritis with lumbosacral strain and spondylosis from December 29, 2020 is denied. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) based upon service-connected disabilities is denied. FINDINGS OF FACT 1. Prior to December 29, 2020, the Veteran’s degenerative arthritis with lumbosacral strain and spondylosis did not result in forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 2. From December 29, 2020, the Veteran’s degenerative arthritis with lumbosacral strain and spondylosis did not result in unfavorable ankylosis of the entire thoracolumbar spine. 3. The preponderance of the evidence is against a finding that the Veteran is precluded from obtaining and following a substantially gainful occupation due to service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to December 29, 2020, the criteria for a rating higher than 20 percent for degenerative arthritis with lumbosacral strain and spondylosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5242. 2. From to December 29, 2020, the criteria for a rating higher than 40 percent for degenerative arthritis with lumbosacral strain and spondylosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5242. 3. The criteria for a TDIU rating have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1958 to June 1960. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for degenerative arthritis with lumbosacral strain and spondylosis; a 20 percent rating was assigned from July 29, 2015. The Board previously remanded the claims in March 2018 and January 2021. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a December 2015 rating decision, the RO increased the assigned rating for the lumbosacral spine disability to 40 percent from December 29, 2020. The Veteran has not expressed satisfaction with the higher initial rating; this matter thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). A supplemental statement of the case (SSOC) was issued in January 2021. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. Initial Ratings 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. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable rating is warranted for painful limitation of motion. See 38 C.F.R. § 4.59. 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. The Veteran is currently rated at 20 percent prior to December 29, 2020 and 40 percent thereafter for degenerative arthritis with lumbosacral strain and spondylosis, pursuant to the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DCs 5237, 5242. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Notably, the Veteran’s service-connected degenerative arthritis with lumbosacral strain and spondylosis is rated under Diagnostic Codes 5237 and 5242, the criteria of these diagnostic codes did not change. The General Rating Formula for Diseases and Injuries of the Spine provides the following, in pertinent part: a 20 percent disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The Board acknowledges that intervertebral disc syndrome (IVDS) may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS). See 38 C.F.R. § 4.71a, DC 5243 (in effect prior to February 7, 2021). For the purposes of evaluations under the Formula for Rating IVDS, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The Board notes here that the provisions for evaluating IVDS do not warrant higher initial ratings for the Veteran’s lumbar spine disability for any period on appeal because although the probative evidence of record documents the presence of IVDS, such evidence does not document incapacitating episodes with bed rest prescribed by a physician for any period on appeal. The General Rating Formula for Diseases and Injuries of the Spine also provides further guidance in rating diseases or injuries of the spine. Relevant to the issue on appeal, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Additionally, Note (2) provides that, for VA compensation purposes, 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 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 thoracolumbar spine is 240 degrees. Id. Note (4) provides that each range of motion measurement is to be rounded to the nearest five degrees. Id. Entitlement to an initial rating in excess of 20 percent for degenerative arthritis with lumbosacral strain and spondylosis before December 29, 2020. As a way of history, the Veteran submitted his initial claim of service connection for his lumbosacral spine disability in July 2015. In November 2015, he was provided a VA examination. There, the Veteran was diagnosed with lumbar strain and lumbar spondylosis. He reported weekly flare ups, lasting hours. Initial range of motion testing found forward flexion to 40 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion 20 degrees and left lateral rotation 15 degrees. Repetitive use testing did not cause additional functional loss. The examiner stated that he could not say without speculation the functional loss of flare ups. Muscle spasms and guarding were found, but they did not result in abnormal gait or spinal contour. No ankylosis or IVDS was found. The functional loss of the Veteran’s disability was loss of standing and ambulation tolerance, without impact on the Veteran’s ability to work. See November 2015 C&P Exam. Another VA examination was provided in October 2019. There, degenerative arthritis of the spine was diagnosed, with weekly flare ups that lasted 9 to 10 hours reported. Initial range of motion testing showed forward flexion to 35 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 15 degrees and left lateral rotation to 15 degrees. The examiner found that the Veteran’s examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. Muscle spasm and guarding were indicated, but they did not result in abnormal gait or spinal contour. No ankylosis or IVDS was found. The functional loss of the Veteran’s disability was loss of standing and ambulation tolerance, without impact on the Veteran’s ability to work. See October 2019 C&P Exam. A review of the Veteran’s medical records shows continual back pain; however, these records do not include medical testing that contradicts the findings of the aforementioned VA examinations. The Board finds that prior to December 29, 2020, the medical evidence showed that the Veteran’s forward flexion of the spine was greater than 30 degrees but not greater than 60 degrees, without either muscle spasms or guarding that caused abnormal gait or contour, and without ankylosis of the spine. The Board acknowledges that the VA treatment records show that the Veteran has received treatment for his back condition and that his condition has consistently caused pain. However, such records do not document specific range of motion findings as measured in degrees by the use of a goniometer; therefore, they are less probative as to the severity of the Veteran’s limited range of motion than the VA examinations of record and do not permit application of the rating criteria. Additionally, the Veteran’s subjective complaints of pain are adequately contemplated by his compensable disability rating during the applicable rating period. See Mitchell, 25 Vet. App. 32. Moreover, the Board notes that the Veteran has reported pain including flare-ups as a result of his lumbosacral spine disability. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1996). These symptoms were considered by the 20 percent assigned rating prior to December 29, 2020. Critically, as detailed above, there is no evidence to corroborate additional functional limitations such as would warrant evaluations in excess of 20 percent. While the Board is required to consider the effect of the Veteran’s pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the Veteran is already being adequately compensated for pain and the resulting functional loss. Therefore, a rating in excess of the assigned rating is not warranted under the schedular criteria. The Board additionally notes that, as indicated above, Note 1 of the General Rating Formula for Disease and Injuries of the Spine instructs to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. However, the medical evidence does not indicate that the Veteran suffers from any neurological impairment due to his service-connected lumbosacral spine disability. Accordingly, the probative evidence of record does not support a finding that a rating in excess of 20 percent is warranted for the Veteran’s service-connected lumbosacral spine disability prior to December 29, 2020. The preponderance of the evidence is against the Veteran’s claim for a higher initial rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Entitlement to an initial rating in excess of 40 percent for degenerative arthritis with lumbosacral strain and spondylosis from December 29, 2020. As indicated above, the Veteran has been assigned a 40 percent rating for his service-connected lumbosacral spine disability from December 29, 2020. See the rating decision dated January 2021. The Board has therefore considered whether a rating in excess of 40 percent rating is warranted from December 29, 2020. In December 2020, the Board issued remand orders for the Veteran to receive a new examination. Later in December 2020, the Veteran was afforded a new VA examination. He reported flare-ups of lumbosacral spine symptomatology that took place while walking and in a standing position or when he rises from his bed, with the functional impairment being difficulty walking. Range of motion testing showed forward flexion to 30 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees and left lateral rotation to 15 degrees. Repetitive use testing and flare ups showed forward flexion to 5 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees and left lateral rotation to 5 degrees. Muscle spasms and guarding were found, but they did not result in abnormal gait or spinal contour. No ankylosis or IVDS was found. The examiner found that the Veteran’s disability impacts his ability to work, as the Veteran had difficulty walking, difficulty lifting, and difficulty with repetitive movement of the spine. See December 2020 C&P Exam. Critically, the medical evidence of record dating from December 29, 2020 does not show that the Veteran suffers from unfavorable ankylosis of the entire thoracolumbar spine, which is required for a 50 percent rating. See 38 C.F.R. §§ 4.40, 4.45, and 4.59 and the Court’s holding in DeLuca v. Brown, supra. The Board notes that a 40 percent rating is the highest schedular rating available for the lumbar spine that involves limitation of motion. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). In addition, the medical evidence of record does not demonstrate that the Veteran suffers from any neurological impairment due to his service-connected lumbosacral spine disability from December 29, 2020. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. As the probative evidence of record does not show unfavorable ankylosis of the entire thoracolumbar spine, an initial rating in excess of 40 percent is not warranted from December 29, 2020. The Board finds that the benefit-of-the-doubt rule does not apply, so the claim must be denied. See 38 U.S.C. § 5107 (b); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Entitlement to a TDIU. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If the veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age which would justify a TDIU rating. See 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The critical question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). With respect to his claim of TDIU, the Board notes that the Veteran is assigned a 20 percent rating for his lumbosacral spine disability from July 29, 2015 and a 40 percent rating from December 29, 2020. He is also service-connected for bilateral hearing loss, which is assigned a noncompensable (zero percent) rating from July 29, 2015. As such, the Veteran does not meet the statutory requirements for a TDIU. The question before the Board is therefore whether the Veteran’s TDIU claim should be referred to the Director of Compensation Service for extraschedular consideration. In October 2015, the Veteran submitted a claim for TDIU. In his application for benefits, the Veteran reported that he worked as a plumber from 1970 to January 2000, working 40 hours a week. See October 2015 VA 21-8940. In August 2016, the Veteran stated that he stopped working as a plumber in 2000 because he began receiving social security benefits due to his age, and that when he was working, he did not lose any time from work due to his disabilities. See August 2016 VA 21-0820. A review of the record does not show any lay statements from the Veteran explaining how his service-connected disabilities alone are of sufficient severity to produce unemployability. Likewise, the record does not indicate that the Veteran’s disabilities have made him unable to obtain or maintain substantial employment. Rather, the November 2015 and October 2019 VA examiners found that the Veteran’s back disability did not impact his ability to work. The December 2020 VA examiner found that the Veteran’s back disability impacted hs ability to work but did not opine that it made the Veteran unable to obtain or maintain substantial employment. Moreover, VA examination findings do not indicate that the Veteran’s bilateral hearing loss impacts ordinary conditions of his daily life including the ability to work. See, e.g., the VA examination dated November 2015. In accordance with the Court’s holding in Ray, the Board has also considered the economic and noneconomic components of the Veteran’s TDIU claim. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Notably, the Veteran has remained fully capable of performing activities of daily living. Although the Board acknowledges the functional impairment resulting from the Veteran’s lumbosacral spine and hearing loss disabilities, the evidence does not demonstrate that said service-connected disabilities resulted in the Veteran’s inability to secure and follow gainful employment. The December 2020 VA examiner found that the Veteran’s lumbosacral spine disability impacts his ability to work, as the Veteran had difficulty walking, difficulty lifting, and difficulty with repetitive movement of the spine. See December 2020 C&P Exam. However, the December 2020 VA examiner did not indicate that the Veteran was unable to work as a result of this functional impairment. Moreover, neither the November 2015 nor October 2019 VA examiners reported that the Veteran’s lumbosacral spine disability has any impact on the Veteran’s ability to work. The evidence does not indicate that the Veteran was unable to obtain and maintain gainful employment due solely to his service-connected disabilities. Significantly, the evidence of record does not reflect that the Veteran’s service-connected disabilities manifested in symptoms of such severity as to impact his employability beyond what is contemplated by the assigned schedular ratings. The severity of the Veteran’s service-connected symptomatology was specifically contemplated by assigned evaluations. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Critically, for the above reasons, the evidence of record does not support a conclusion that his service-connected disabilities alone made him unemployable; thus, there is no basis to refer the Veteran’s case for consideration of an extraschedular evaluation. Id. at 1354 (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). In short, the Board finds insufficient evidence to substantiate a reasonable possibility that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities; thus, referral for extraschedular consideration is not warranted. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.