Citation Nr: 21014543 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-20 406A DATE: March 12, 2021 ORDER Entitlement to an initial rating in excess of 10 percent, prior to June 6, 2019, for a service-connected back disability is denied. Entitlement to a disability rating of 40 percent, but no higher, effective June 6, 2019, for a service-connected back disability, is granted. REMANDED Entitlement to extraschedular consideration for a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to June 6, 2019, the Veteran’s forward flexion of the thoracolumbar spine was limited to 80 degrees, with no objective evidence of pain; evidence of favorable ankylosis and guarding severe enough to result in an abnormal gait and spinal contour is not persuasive. 2. Since June 6, 2019 (although the Veteran was not tested immediately after repetitive use over time or during a flare-up), the Veteran’s forward flexion after repetitive use over time was described as limited to 30 degrees, and to 25 degrees during a flare-up; there was no evidence of unfavorable ankylosis. CONCLUSIONS OF LAW 1. The criteria for an entitlement to an initial rating in excess of 10 percent, prior to June 6, 2019, for a service-connected back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for an entitlement to a disability rating of 40 percent, but no higher, effective June 6, 2019, for a service-connected back disability, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1961 through April 1965. The Veteran testified before the undersigned Veterans Law Judge in a March 2018 videoconference hearing. A transcript has been associated with the claims file. Having reviewed the record, the Board finds that there has been substantial compliance with its November 2020 Board remand directives as an adequate medical addendum opinion has been obtained. Stegall v. West, Vet. App. 268, 270-71 (1998). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. Also, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, at Note 1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If two disability ratings are potentially applicable, the higher rating 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. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In addition, when VA cannot differentiate between the effects of a service-connected and nonservice-connected disorder, it must apply the benefit of the doubt doctrine and attribute the effects to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). 1. Entitlement to an initial rating in excess of 10 percent, prior to June 6, 2019, for a service-connected back disability is denied The Veteran seeks a higher disability rating for his back disability. The Veteran is currently in receipt of a 10 percent disability rating for his back condition, effective June 4, 2011, under the diagnostic code (DC) 5237. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Pertinent regulations for consideration were provided to the Veteran in the June 2014 Statement of the Case (SOC) and will not be repeated here in full. As an initial matter, the Board notes that in addition to the Veteran’s service-connected lumbar strain (see July 2011 VA examination, noted to be at least as likely as not caused by the Veteran’s military service), the Veteran also has non-service-connected lumbar spine degenerative disc disease (DDD) and lumbar spine degenerative arthritis (see June 2019 VA examination, noted to be not related to the Veteran’s in-service accident). In November 2020, the Board remanded for a medical addendum opinion to ascertain which of the Veteran’s back symptoms/functional impairments are due to his non-service-connected lumbar spine degenerative disc disease and lumbar spine degenerative arthritis, as opposed to those associated with his service-connected lumbar strain disability. The November 2020 VA examiner opined that it was not possible to differentiate such without resorting to speculation, as there are overlapping presentations of both conditions. Thus, the entirety of the Veteran’s symptomatology from both his non-service connected and service-connected back disabilities must be considered. See Mittleider, supra. In July 2011, the Veteran first underwent a VA examination, during which time he was diagnosed with a low back strain. His thoracolumbar spine range of motion (ROM) for flexion was limited to 80 degrees, extension to 15 degrees, lateral flexion to 25 degrees, and lateral rotation to 20 degrees, with no objective evidence of pain. There was no additional limitation after three repetitions, and his gait was noted as unremarkable. His muscle tone and strength, sensation to touch/pinprick, and deep tendon reflexes were all within normal limits, and there was no evidence of muscle atrophy. The Veteran submitted a private March 2018 Disability Benefits Questionnaire (DBQ) examination, during which time he was diagnosed with various back conditions, to include radiculopathy, degenerative scoliosis, foraminal lateral recess/central stenosis, mechanical back pain syndrome, facet joint arthropathy, and DDD. However, this examination was inadequate, as this examination failed to accurately depict the Veteran’s level of disability (i.e. internally inconsistent by stating that the Veteran has “favorable ankylosis of the entire thoracolumbar spine” but also has ROM of forward flexion to 50 degrees after repetition, and a combined range of motion of 155 degrees). In addition, while the Veteran was noted to have guarding of the thoracolumbar spine resulting in abnormal gait and spinal contour, as well as radiculopathy (mild intermittent/dull pain in the right lower extremity that is mild in its extremity) during the March 2018 DBQ examination, the contemporaneous VA treatment records provide otherwise (see July 2019 and December 2019 VA treatment records, showing normal gait; see July 2017, June 2018, December 2019, and July 2020 VA treatment records, showing no numbness; see July 2011 and June 2019 VA examinations, showing no radiculopathy associated with the Veteran’s back condition). Thus, the Board will give no probative value to this DBQ, as it is internally inconsistent and also inconsistent with contemporaneous medical evidence. In June 2019, the Veteran underwent another VA examination. He reported worsening back pain and identified his functional impairment as difficulties with or inability to do physical aspects of labor such as prolonged standing, prolonged walking, running, lifting heavy objects, climbing, bending, or stooping. He also reported feeling back pain after walking a few feet, as well as limited ability to stand more than a few minutes at most. During flare-ups, which he described as occurring about twice a week, with each episode lasting about the whole day, he reported being unable to do any physical or sedentary aspects of work due to the pain. His initial ROM of the thoracolumbar spine was forward flexion to 35 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. His ROM itself was found to contribute to functional loss (difficulty in bending forwards or backwards, sideways or rotational motions). Pain was noted on exam and found to cause functional loss, but there was no evidence of pain with weight bearing. He was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or ROM afterwards. While he was not examined immediately after repetitive use over time or during a flare-up, the examiner was able to estimate that post-repetitive use over time, the Veteran’s forward flexion was described to be limited to 30 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 5 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 25 degrees, and pain and weakness were identified as factors causing this functional loss. As for during flare-ups, the examiner described forward flexion to be limited to 25 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, left lateral flexion to 0 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 20 degrees, and pain and lack of endurance were found as factors causing this functional loss. There was no evidence of guarding or muscle spasm or muscle atrophy, and his muscle strength/sensory exam/reflex exam results were all normal. His straight leg raising test was negative, with no evidence of radiculopathy, ankylosis, intervertebral disc syndrome (IVDS), or other neurologic abnormalities. He was noted to occasionally use braces and regularly use a walker. While there are voluminous treatment records associated with the claims file, none of those records provide any pertinent information relating to ROM, but do show no evidence of numbness and normal gait. After reviewing all pertinent records, the Board finds that the Veteran is not warranted a rating in excess of 10 percent prior to June 6, 2019. The Veteran’s forward flexion of the thoracolumbar spine was to 80 degrees, with normal muscle strength/deep tendon reflexes, and there was no evidence of muscle atrophy. As briefly discussed earlier, although there is evidence suggestive of a higher rating prior to June 6, 2019 (ie. March 2018 DBQ examination, ROM of forward flexion to 50 degrees after repetition, and a combined range of motion of 155 degrees, guarding of thoracolumbar spine resulting in abnormal gait and spinal contour, favorable ankylosis), these findings are not persuasive as they are internally inconsistent (cannot have such range of motion findings and favorable ankylosis, which involves fixation of a spinal segment in neutral position (zero degrees)) and are contrary to other contemporaneous treatment records. Moreover, as noted earlier, the Veteran’s treatment records do not provide any pertinent information, other than findings of normal gait and no numbness. Thus, the Board finds that the Veteran is not warranted a rating in excess of 10 percent prior to June 6, 2019. The Board considered the possibility of awarding a higher rating with consideration of 38 C.F.R. §§ 4.40 and 4.45 and declines to do so. The Board acknowledges the Veteran’s lay reports of symptoms and that he has reduced ROM, increased fatigue with prolonged standing, and decreased ability to ambulate normally and sit/drive for a prolonged period. To the extent that the Veteran has experienced functional loss due to pain and pain on movement, these symptoms have been fully contemplated by the Veteran’s assigned schedular rating (ie. less movement than normal, weakened movement, and pain/movement). The DeLuca concepts of functional loss, painful motion, etc. are still used to apply the rating criteria found in the diagnostic codes. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016) and Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011). The Thompson court explained: “Section 4.40 also makes clear that functional loss may be due to pain and that pain may render a part seriously disabled. When evaluating a disability, § 4.40 provides a broad canvas. However, whatever the background, an applicant for disability benefits is rated based on the criteria set forth in § 4.71a.” Thompson, 815 F.3d at 786. So, in other words, pain alone without it resulting in any functional loss is not enough to warrant an increased rating. Here, the Veteran was able to perform after repetitive use testing, with no additional limitation of range of motion. As such, the current rating adequately compensates him for his pain with some limited motion, and a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). With regards to any associated neurological abnormalities, while the Veteran was noted to have mild intermittent/dull pain in the right lower extremity during the March 2018 DBQ examination, the Board reiterates that this finding is not persuasive, as the contemporaneous VA treatment records in fact provide otherwise (see July 2017, June 2018, December 2019, and July 2020 VA treatment records, showing no numbness; see July 2011 VA examination, showing no radiculopathy associated with the Veteran’s back condition). Thus, the Board concludes that a separate disability rating is not warranted for his alleged radiculopathy found during the March 2018 DBQ examination. The Board considered the Veteran’s lay assertion that he has extremely limited motion and is unable to do any repetitive forward bending. The Board finds these statements to be credible and competent to the extent that the relay the professing witness’s own experiences and personal observations. Layno v. Brown, 6 Vet. App. 465 (1994). However, since the degree of the Veteran’s impairment depends on the clinically significant symptoms and objectively measurable criteria under the rating schedule, the Board affords greater evidentiary weight to the contemporaneous medical records and objective examinations by medical professionals over the subjective lay statements offered by the Veteran. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a disability rating of 40 percent, but no higher, effective June 6, 2019, for a service-connected back disability is granted. After reviewing all pertinent records, the Board finds that the Veteran warrants a rating of 40 percent, but no higher, for his back disability effective June 6, 2019. Although not examined immediately after repetitive use over time/during a flare-up, the Veteran’s forward flexion after repetitive use over time was described as limited to 30 degrees and to 25 degrees during a flare-up. As forward flexion of the Veteran’s thoracolumbar spine was found to be 30 degrees or less with use, the Board finds that the Veteran warrants a 40 percent rating. As there is no evidence of unfavorable ankylosis, the Board notes that the Veteran is not warranted a rating in excess of 40 percent effective June 6, 2019. The Board also considered whether the Veteran would be entitled to a higher rating on the basis of 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016), Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011). While the Veteran reported functional loss of difficulties with or inability to do any physical activities, such as prolonged standing, prolonged walking, running, lifting heavy objects, climbing, bending, or stooping, these symptoms have been fully contemplated by the Veteran’s assigned schedular rating (ie. less movement than normal, weakened movement, and pain/movement). He was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or ROM afterwards. As such, the current rating adequately compensates him for his pain with some limited motion, and a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). In light of above, the Board finds that the Veteran warrants a 40 percent, but no higher, for his service-connected back disability. REASONS FOR REMAND 3. Entitlement to extraschedular consideration for a total disability rating based on individual unemployability (TDIU) is remanded The Veteran contends that he cannot work due to his service-connected disabilities. The Veteran has not provided any specific allegations in support of this claim. As noted in the previous Board remand, this claim is part and parcel of the increased rating claim for service-connected back disability. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Initially, the Board notes that the Veteran does not meet the schedular TDIU criteria under 38 C.F.R. § 4.16(a). However, 38 C.F.R. § 4.16(b) provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation and Pension Service, for consideration of an extraschedular rating of unemployability. The Board cannot consider entitlement to TDIU on an extraschedular basis in the first instance, but it is required to ensure that all cases where there is evidence of unemployability due to service-connected conditions are referred to the Director for initial consideration under 38 C.F.R. § 4.16 (b). See Bowling v. Principi, 15 Vet. App. 1 (2001). Whether the veteran can actually find employment is not determinative, as the focus of the inquiry is on “whether the veteran is capable of performing the physical and mental acts required by employment.” Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Recently, in Ray v. Wilkie, the court interpreted and defined the phrase “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to encompass two components: one economic and one noneconomic. The court defined the economic component as 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. As for the noneconomic component, the court provided that the inquiry should center on the individual claimant’s “ability to secure or follow that type of employment.” 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 non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. See Ray v. Wilkie, No. 17-0781, 16, 25 (Fed. Cir. 2019). 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 whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran’s education/employment history is not entirely clear, as the Veteran failed to provide a completed VA 21-8940 form. It appears that the Veteran’s employment history consists of laborer, drug company salesman, and real estate agent. While he has a relatively varying occupational background, his service-connected back disability was found to severely limit or render the Veteran unable to carry out physical activities such as prolonged standing/walking (can walk only a few feet before experiencing back pain and can stand only a few minutes at a time; uses a walker constantly), lifting heavy objects, climbing, bending, or stooping. The 2019 VA examiner indicated that during flare-ups, approximately two days per week, the Veteran would not be able to do the physical or sedentary aspects of work due to the pain and the effect of the Tramadol that he would take for his back pain. The March 2018 DBQ examination indicated the Veteran was forced to retire from his commercial real estate management and sales job as a result of exacerbation of his back condition related to driving and activities having to do with inspection of the property (bending, lifting, walking property boundaries and climbing into attics). Upon consideration, the Board finds extraschedular TDIU consideration is appropriate. There is enough objective medical evidence of record to refer the claim to VA’s Director of Compensation and Pension Service for extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran’s VA medical records for treatment from July 2020 to the present. 2. Refer this claim to the Director of Compensation and Pension Service, pursuant to 38 C.F.R. § 4.16(b), for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis. This referral is mandatory, although the decision of whether to actually award an extraschedular rating remains with the Director, Compensation and Pension Service. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.