Citation Nr: 21016179 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-47 928 DATE: March 22, 2021 ORDER Entitlement to a disability rating in excess of 10 percent prior to January 4, 2019, and in excess of 20 percent thereafter for degenerative disc disease and osteoarthritis of the lumbar spine is denied. Entitlement to a TDIU is granted. FINDINGS OF FACT 1. Prior to January 4, 2019, the Veteran’s degenerative disc disease and osteoarthritis of the lumbar spine were characterized by forward flexion greater than 60 degrees and a combined range of motion greater than 120 degrees, without incapacitating episodes; muscle spasm or guarding severe enough to result in an abnormal gait; abnormal spinal contour such as scoliosis, reversed lordosis, or; abnormal kyphosis. 2. Effective January 4, 2019, the Veteran’s degenerative disc disease and osteoarthritis of the lumbar spine were characterized by forward flexion greater than 30 degrees, without favorable ankylosis or incapacitating episodes. 3. The Veteran has been granted service connection for posttraumatic stress disorder (PTSD), with a 70 percent rating; degenerative disc disease with osteoarthritis and spinal stenosis of the lumbosacral spine, with a 20 percent rating; radiculopathy of the sciatic nerve of the lower extremities, with separate 20 percent ratings; radiculopathy of the femoral nerve of the lower extremities, with separate 20 percent ratings; traumatic arthritis of the left middle foot, with a 10 percent rating, and; bilateral degenerative joint disease of knees, with noncompensable ratings. His combined rating is currently 90 percent effective January 4, 2019. 4. The Veteran’s service-connected disabilities result in a degree of functional impairment that precludes him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent prior to January 4, 2019, and in excess of 20 percent thereafter for degenerative disc disease and osteoarthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-43 2. The criteria for Entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1984 to February 1985, from September 2002 to July 2003, and from November 2007 to October 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in July 2019. A transcript of the hearing has been associated with the Veteran’s VA claims file. These issues were remanded by the Board in October 2019 for additional development. They have now been returned to the Board. 1. Entitlement to a disability rating in excess of 10 percent prior to January 4, 2019, and in excess of 20 percent thereafter for degenerative disc disease and osteoarthritis of the lumbar spine The Veteran seeks an increased rating for his degenerative disc disease with osteoarthritis of the lumbosacral spine. He asserts this disability has increased in severity, and an increased rating is therefore warranted. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.7. With any form of arthritis or other orthopedic disorders, painful motion is an important factor of disability. Joints that are actually painful, unstable, or misaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). While pain alone does not constitute functional loss, the U.S. Court of Appeals for Veterans Claims (Court) has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body. Mitchell, 25 Vet. App at 44 (noting that although “pain itself does not rise to the level of functional loss,” pain which “affects some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’“ may constitute functional loss). Additionally, the Board must consider pain on both active and passive motion of the affected joint, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). 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). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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 General Rating Formula for Diseases and Injuries of the Spine provides the following: 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 Unfavorable ankylosis of the entire spine 100 Unfavorable ankylosis of the entire thoracolumbar spine 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. Spinal disabilities may also be rated under DC 5243, for intervertebral disc syndrome. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warranted a 60 percent rating. With incapacitating episodes having a total duration of at least 4 weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted. With incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months, a 10 percent rating is warranted. An “incapacitating episode” is 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. As revised, Diagnostic Code 5243 provides that this Code may only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, Diagnostic Code 5242 is to be assigned for all other disc diagnoses The Veteran’s disability is currently rated under Diagnostic Codes 5242-43. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed in a way that would substantively affect the Veteran’s claim. Considering first the period prior to January 4, 2019, the Veteran has been granted a 10 percent rating for this period. During this period, he was afforded a December 2015 VA examination, as well as VA medical treatment. According to the December 2015 VA examination report, the Veteran had forward flexion to 80 degrees, extension to 15 degrees, lateral flexion to the right of 30 degrees and to the left of 25 degrees, and lateral rotation to 30 degrees bilaterally. Pain was reported with all motion. No additional limitation of motion was noted with repetitive motion, or due to such factors as pain, weakness, fatiguability, incoordination, or pain on motion. He was without muscle spasm or guarding, and while localized tenderness was reported, this did not result in an abnormal gait or abnormal spinal contour. No ankylosis was present. The examiner found intervertebral disc syndrome was present, but did not result in any incapacitating episodes. Concurrent VA medical treatment records are substantially consistent with these examination findings. Thus, based on this competent evidence, the Board finds the preponderance of the evidence prior to January 4, 2019, is against the award of a disability rating in excess of 10 percent, as the Veteran does not have 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, as would warrant the next higher rating of 20 percent. Additionally, the VA examiner did not find the Veteran experienced further limitation of motion in any direction following repetitive motion, with or without weightbearing, or due to such factors as pain, fatiguability, incoordination, weakness, or pain on motion. Therefore, even when considering pain, weakened movement, excess fatigability, and incoordination, including during flare-ups, the Board finds the preponderance of the evidence is against the grant of a higher rating based upon limitation of flexion of the lumbosacral spine. While the various VA examination and outpatient treatment reports reflected reported pain on motion, the December 2015 VA examiner specifically performed repetitive testing and found no additional functional loss which would support a higher rating. In this regard, the Court has clearly indicated that painful motion does not equate to limited motion. In fact, the Court considered the argument that pain throughout all ranges should warrant the maximum rating and found that the “Secretary has persuasively argued that such an interpretation would lead to absurd results.” Mitchell, 25 Vet. App. at 41, 43. Without any evidence of functional loss from the reported pain, an increased evaluation based solely on pain is not warranted. 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Codes 5235-43. Finally, the examination reports are negative for intervertebral disc syndrome of the lumbar spine for this period, and thus an increased initial rating on that basis is likewise not warranted. The Board has also considered whether separate ratings may be awarded for this period based on any objective neurological abnormalities resulting from the Veteran’s degenerative disc disease with osteoarthritis of the lumbosacral spine. See 38 C.F.R. § 4.71a, Note (1). Review of the record indicates that, in the present case, separate compensable ratings have already been awarded for each lower extremity based on radiculopathy. Considering next the period beginning January 4, 2019, he was afforded January 2019 and January 2020 VA examinations, as well as VA outpatient treatment for this period. According to the January 2019 VA examination report, he had forward flexion to 40 degrees, extension to 15 degrees, and both lateral flexion and rotation to 25 degrees bilaterally. Pain was reported with forward flexion, extension, and lateral flexion, and with weightbearing and palpation. No additional limitation of motion was reported with repetitive motion or due to such factors as pain, fatiguability, incoordination, weakness, or pain on motion. Muscle spasm and guarding were reported, and these were of sufficient severity to result in an abnormal gait or abnormal spinal contour. Muscle strength and sensory response were both diminished in the lower extremities. No ankylosis was present. The examiner found intervertebral disc syndrome was not present. On the January 2020 VA examination, the Veteran was noted to have degenerative disc disease, osteoarthritis, intervertebral disc syndrome, and spinal stenosis of the lumbosacral spine. Range of motion testing indicated forward flexion to 50 degrees, extension to 20 degrees, and lateral flexion and rotation to 20 degrees bilaterally. Pain was noted with motion and weight-bearing. With repetitive motion, forward flexion was reduced to 40 degrees and extension to 15 degrees. Muscle spasm and guarding, resulting in abnormal gait or abnormal spinal contour, were observed. Muscle strength and reflexes were within normal limits in the lower extremities, but sensory response was decreased in both lower extremities at the thighs, knees, lower legs, and ankles. Radiculopathy was present in both lower extremities. No ankylosis was present. While the examiner diagnosed intervertebral disc syndrome, this disability did not result in incapacitating episodes. Thus, based on the above, a disability rating in excess of 20 percent is not warranted on or after January 4, 2019, as forward flexion limited to 30 degrees or less, or favorable ankylosis of any type of the lumbosacral spine has not been demonstrated, and thus the criteria for a 40 percent rating are not met. Even when considering pain, weakened movement, excess fatigability, and incoordination, including during flare-ups, the Board finds the preponderance of the evidence is against the grant of a higher rating based upon ankylosis or overall limitation of motion of the lumbosacral spine. While the various VA examination reports reflected reported pain on motion, the examiners specifically performed repetitive testing and did not find the functional equivalent of ankylosis which would support a higher rating. While the January 2020 VA examination report indicated forward flexion reduced to 40 degrees with repetitive motion, this finding is still greater than the 30 degrees required for a 40 percent disability rating. Without any evidence of functional loss from the reported pain, an increased evaluation based solely on pain is not warranted. 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Codes 5235-43. Considering next an increased rating under DC 5243, for intervertebral disc syndrome, the various VA examination reports were negative for any incapacitating episodes resulting therefrom. Thus, the preponderance of the evidence is against a disability rating in excess of 20 percent under DC 5243 at this time. The Board has also considered whether separate ratings may be awarded for any objective neurological abnormalities resulting from the Veteran’s lumbosacral spine. See 38 C.F.R. § 4.71a, Note (1). Review of the record indicates the Veteran has been granted, as noted above, separate ratings for radiculopathy of both lower extremities. In conclusion, the preponderance of the evidence is against a disability rating in excess of 10 percent prior to January 4, 2019 or in excess of 20 percent thereafter for the Veteran’s lumbosacral spine disability. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to a TDIU The Veteran seeks a TDIU. He asserts his service-connected disabilities prevent him from obtaining or maintaining gainful employment. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 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 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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. 38 C.F.R. § 4.16(a). VA’s policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU rating. In the present case, the Veteran has been granted service connection for posttraumatic stress disorder (PTSD), with a 70 percent rating; degenerative disc disease with osteoarthritis and spinal stenosis of the lumbosacral spine, with a 20 percent rating; radiculopathy of the sciatic nerve of the lower extremities, with separate 20 percent ratings; radiculopathy of the femoral nerve of the lower extremities, with separate 20 percent ratings; traumatic arthritis of the left middle foot, with a 10 percent rating, and; bilateral degenerative joint disease of knees, with noncompensable ratings. His combined rating has been at least 80 percent since August 28, 2012, and is currently 90 percent effective January 4, 2019. Based on these awards, the Veteran meets the 38 C.F.R. § 4.16(a) schedular criteria. The Veteran last worked fulltime in July 2018, as a custodian. He previously worked as a maintenance man, performing basic cleaning and repair. During service, he was trained as an artillery crewmember. Regarding his education, he obtained his GED. No college education or specialized skills or training were noted. Review of the record indicates the Veteran has not been afforded an opinion or assessment regarding the cumulative effect of the impairment resulting from his service-connected disabilities. As noted above, however, the Veteran has reported chronic pain of the low back and knees resulting from his degenerative arthritis of those joints. He has testified that this pain impairs his mobility and causes discomfort with sitting, standing, and walking. On VA psychiatric examination in January 2019, the VA examiner noted the Veteran’s PTSD resulted in impairment in his ability to maintain concentration and focus on the task at hand, especially over time. He was also found to have significant difficulty remembering instructions and details of work assignments, as well as in functioning around other people, serving a team member, and feeling comfortable around others. No VA examiner has opined that the Veteran remains employable despite the totality of his service-connected disabilities. The Board further notes the Veteran has been granted service connection for multiple disabilities affecting several body systems, including his lower extremities and spine, as well as a psychiatric disability. His service-connected disabilities have resulted in a combined rating of 90 percent, indicative of a severe level of overall impairment. His education and work experience are also limited. Thus, affording him the full benefit of the doubt, the Board concludes that the Veteran’s service-connected disabilities render him unemployable, and the appeal is therefore granted. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.