Citation Nr: 21020745 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-00 790 DATE: April 8, 2021 ORDER Entitlement to service-connection for a left knee degenerative joint disease (DJD) condition is dismissed. Entitlement to a disability rating in excess of 20 percent for the Veteran’s service connected DJD of the lumbar spine is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. An October 2020 rating decision granted service connection for left knee DJD. 2. For the period on appeal, the Veteran’s lumbar spine condition is manifested by, at worst, range of motion of forward flexion to 60 degrees, extension of 20 degrees, right and left lateral flexion of 20 degrees, and right and left rotation to 20 degrees; no ankylosis or guarding; muscle spasms that did not result in abnormal gait or spinal contour; pain on range of motion; and IVDS with no prescribed periods of bedrest. 3. The evidence of record does not show that the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. There is no question of law or fact involving the claim of entitlement to service connection for left knee DJD, therefore, the appeal must be dismissed as moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 19.55. 2. The criteria for establishing entitlement to a disability rating in excess of 20 percent for the Veteran’s service connected DJD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242. 3. The criteria for establishing entitlement to a TDIU have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1966 to March 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in September 2020, it was remanded for additional development. Specifically, the RO was instructed to obtain adequate medical opinions regarding the Veteran’s claimed disabilities. Appropriate VA examinations were obtained. As such, the Board finds that the AOJ substantially complied with the directives in the September 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Left Knee The Board has jurisdiction in all matters where there is a question of law or fact necessary for a decision by the Secretary of Veterans Affairs under a law that affects the provision of benefits by the Secretary to veterans or their dependents or survivors. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In an October 2020 rating decision, the RO granted the relief sought, namely, entitlement to service connection for left knee DJD. As such, the Veteran’s appeal for entitlement to service connection for left knee DJD is moot, as the benefits sought on appeal have already been granted. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991), see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). Because there remains no case or controversy concerning whether the Veteran is entitled to the benefits sought, as the issue has been granted, this appeal is dismissed. 38 U.S.C. § 7105(d)(5). Increased Rating—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Lumbar Spine—Legal Criteria The Veteran’s lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. As relevant to the lumbar spine, under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine 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 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 rating requires forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Intervertebral disc syndrome is evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher evaluation. In relevant part, the Veteran’s IVDS can be rated at 20 percent disabling with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the last 12 months. A 40 percent rating with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under DC 5243 an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Analysis The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran’s claims. The Veteran contends that he is entitled to an increased disability rating for his lumbar spine condition. He is currently rated 20 percent disabling for his lumbar spine DJD under Diagnostic Code 5010-5242. For the reasons below, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for his service-connected condition. In response to the Veteran’s increased rating claim, he was afforded multiple VA examinations, which include: August 2010, January 2019, and October 2020 VA Back examinations. The August 2010 examiner reported that the Veteran’s range of motion was as follows: forward flexion of the thoracolumbar spine of 60 degrees, extension of 25 degrees, right and left lateral flexion of 20 degrees, and right and left rotation to 30 degrees. No ankylosis was reported. However, this examination did not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, the Veteran was provided with a new examination. The January 2019 examiner indicated that the Veteran’s range or motion was as follows: forward flexion of the thoracolumbar spine of 90 degrees, extension of 10 degrees, right and left lateral flexion of 20 degrees, and right and left rotation to 20 degrees. During this examination the Veteran did not report flare ups, there was no evidence of pain with weightbearing, no objective evidence of radiculopathy, no limitations on functional ability after repeated use overtime. No ankylosis was reported. No guarding or muscle spasms were indicated. The examiner found that the Veteran had IVDS but indicated that he had experienced no episodes of acute symptoms which required bedrest prescribed by a physician. However, this examination also did not fulfil the requirements of Correia, and the Veteran was again provided with a new examination. The October 2020 examiner indicated that the Veteran’s range of motion, at its worst during a flare up, was as follows: forward flexion of the thoracolumbar spine to 65 degrees, extension of 20 degrees, right and left lateral flexion of 20 degrees, and right and left rotation to 20 degrees. The examiner noted that functional loss was due to pain and that the Veteran experienced pain on weightbearing. The examiner indicated that the Veteran experienced muscle spasms that did not result in abnormal gait or spinal contour. No ankylosis or guarding was noted. The examiner reported that the Veteran did not have IVDS. No pain was noted on non-weightbearing and the Veteran’s passive range of motion was noted to be the same as his active range of motion. The Board has considered the evidence of record. The Board notes that the VA examiners are medical professionals, competent to measure motion, determine physical characteristics and deformities, and opine as to the severity of the Veteran’s lumbar spine. There is no evidence that the examiners are not credible. Moreover, the examiners provided an analysis based upon both subjective and objective information to form an opinion based upon medical expertise. As such, the Board affords the examinations significant probative weight. Specifically, the October 2020 examination which complied with the requirements of Correia and Sharp. The Veteran’s VA treatment records indicated that he sought treatment for his lower back pain. However, the treatment records do not contain information which differs significantly from the above noted VA examinations. Further, the Board has considered the Veteran’s lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that his current disabilities entitles him to a higher disability rating, such statements are inconsistent with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Thus, upon careful consideration of the evidence, the Board determines that a disability rating in excess of 20 percent for the Veteran’s lower back disability for the period on appeal, is not warranted. The 20 percent rating contemplates the Veteran’s limitation of motion do to pain. A rating in excess of 20 percent would require forward flexion less than 30 degrees, ankylosis of the Veteran’s spine, or IVDS with incapacitating episodes having a total duration of at least 4 weeks during the last 12 months. Ankylosis of the Veteran’s spine was not observed at any point during the appeal period and the Veteran’s treatment records do not document any incapacitating episodes due to IVDS. For these reasons, the Board finds that a disability rating in excess of 20 percent for the Veteran’s lumbar spine DJD disability is not warranted. Therefore, the claim must be denied. The evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. TDIU—Legal Criteria Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities of one or both upper extremities or one or both lower extremities including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as “one disability” for these purposes. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see, e.g., Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). A veteran’s age and/or impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Marginal employment or employment in a protected environment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In a recent precedential decision, the Court found that there was no mention or definition of “sedentary work” in the applicable statutes or regulations, and therefore, “the concept of ‘sedentary work’ is not necessarily part of a proper TDIU analysis.” Withers v. Wilkie, 30 Vet. App. 139 (2018). The Court declined to define the term. If the Board relies on the term “sedentary work” in making a determination of entitlement to TDIU, the Board must explain the meaning derived from that concept. Where a veteran’s ability to perform sedentary work is a basis for the Board’s decision, the meaning of sedentary work must be determined from the particulars of the medical opinion in which it is used. That is, the Board must explain this meaning to the extent that it is not apparent from the Board’s overall discussion of the opinion as well as how the concept of sedentary work factors into the veteran’s overall disability picture and vocational history, and the veteran’s ability to secure or follow a substantially gainful occupation. The Board must consider the Veteran’s education, training, and work history. 38 C.F.R. § 4.16. The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran’s ability to obtain and maintain employment consistent with his or her education and experience. Analysis The Veteran contends that he is entitled to a TDIU as a result of his service-connected disabilities. The Board has reviewed all the evidence in the Veteran’s claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As an initial matter, the Board observes that the Veteran meets the schedular criteria for TDIU beginning November 22, 2019. The Veteran has a combined schedular rating of 70 percent disabling with left lower extremity radiculopathy at 40 percent disabling; Lumbar DJD at 20 percent disabling; right lower extremity radiculopathy at 20 percent disabling; pilonidal cyst with coccygodynia at 10 percent disabling; left knee DJD at 10 percent disabling; and left knee surgical scars with a 0 percent noncompensable rating. Although the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU, the Board finds that the evidence establishes that his service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation during the pendency of the claim. The Veteran was last employed working as an auto insurance claims appraiser in 2008. See April 2010 VA Form 21-8940 Application for Increased Compensation Based on Unemployability; see also August 2010 VA Spine examination (detailing the Veteran’s employment history). The Veteran is currently unemployed and indicated that he left his last job due to being laid off. See November 2017 Board Hearing. Additionally, evidence of the record indicates that the Veteran has completed 4 years of high school, 2 years of college, and has denied any additional education or training after becoming disabled. The Veteran submitted an April 2010 lay statement where he claims he cannot work due to back pain and a stomach condition. During his November 2017 Board hearing, the Veteran testified that his leg and back conditions did not really affect him in terms of his employment, as he could make his own appointments, and that his office was his home. He stated that he “worked in my head and used a pen.” When asked if his work appointments were dwindling due to his pain, the Veteran again stated that even though he had back problems they did not affect him. The Veteran attributed cancelling some appointments to his old age. The Veteran indicated that he did not leave his employment because of his disabilities but that he was laid off because his workplace wanted him to move to a different location, but he did not want to move. Specifically, the Veteran stated “they wanted me to move, but yet they wouldn’t pay to transfer me and they wouldn’t buy my trailer and I says you guys just lay me off then. I says, I’m old enough. And they did.” During the Veteran’s January 2019 VA Back examination, the examiner reported that the Veteran’s back condition would have no impact on his ability to secure and/or maintain substantially gainful employment. The examiner noted that he would need to sit on a cushion/cushioned seat to alleviate his symptoms. The January 2019 VA Knee examiner noted that the Veteran experiences no functional impairment as a result of his knee disability. A January 2020 peripheral nerves examiner noted that the Veteran reported that he retired approximately 10 years ago and that he had been able to do his job without his disabilities affecting him. The examiner further noted that the Veteran said that he does not think he would be able to work now because of his low back pain and the shooting pains into his legs. However, the examiner does not offer an opinion regarding the Veteran’s functional impairment or employability. The Veteran’s October 2020 Knee examiner indicated that the Veteran has difficulty walking and standing for long periods of time, but his knee condition does not impact his ability to perform any type of occupational tasks. The October 2020 Back examiner indicated that the Veteran has difficulty bending, constant back pain, and an inability to sit for prolonged periods of time. The examiner further noted that if the Veteran’s occupational tasks required frequent bending or sitting it may be difficult to complete the task. Medical examiners are responsible for providing a full description of the effects of disability upon the person’s ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Here, the VA examiners provided opinions as to the impact of all the Veteran’s service-connected conditions; additionally, the Board assigns great probative value to the fact that none of the VA examiners opined that the Veteran would be unable to perform work. Furthermore, while the examiners agreed that the Veteran’s disabilities would impact his ability to work, namely the Veteran should avoid prolonged walking, frequent bending, standing, and should sit on a cushioned surface, they did not indicate that they would prohibit all physical employment. The Board finds that the VA examiners did consider the full record, to include the Veteran’s lay statements regarding his symptoms and complaints regarding the impact of his various disabilities on his ability to perform different actions. Moreover, the examiners offered clear conclusions consistent with the Veteran’s reports and physical findings documented at each examination and explained that neither the Veteran nor the evidence identified any work prohibitive functional limitations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The Board has carefully considered the Veteran’s statements regarding the effects of his disabilities on his employability. Although he experiences pain and some physical difficulties, the evidence does not show that he is precluded from obtaining or maintaining substantially gainful employment consistent with his education and history. In fact, as stated before, when the Veteran left his previous employment, he indicated that it was not due to his disabilities and that his disabilities rarely affected his ability to work in his field. In this regard, the critical question is whether the Veteran’s service-connected disabilities would cause him to be unable to work, notwithstanding his age or other nonservice-connected problems. For the reasons discussed above, the preponderance of the evidence is against the claim of entitlement to TDIU. The benefit-of-the-doubt doctrine is therefore not for application, and the appeal is denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.