Citation Nr: 21020851 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 13-12 564 DATE: April 8, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to August 26, 2019, and in excess of 20 percent as of August 26, 2019, for a thoracolumbar spine disability is denied. REMANDED Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT 1. Prior to August 26, 2019, the evidence did not show limitation of thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a 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 2. As of August 26, 2019, the evidence does not show that a lumbar spine disability manifested with forward flexion of the thoracolumbar spine to 30 degrees or less; or ankylosis. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent prior to August 26, 2019, and in excess of 20 percent as of August 26, 2019, for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5235- 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1988 to September 1991 and from June 1995 to April 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In April 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In June 2015, May 2017, and January 2020, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to an initial rating in excess of 10 percent prior to August 26, 2019, and in excess of 20 percent as of August 26, 2019, for a thoracolumbar spine disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period for which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Consideration must be given as to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim. When the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (Diagnostic Code 5235), sacroiliac injury and weakness (Diagnostic Code 5236), lumbosacral or cervical strain (Diagnostic Code 5237), spinal stenosis (Diagnostic Code 5238), unfavorable or segmental instability (Diagnostic Code 5239), ankylosing spondylitis (Diagnostic Code 5240), spinal fusion (Diagnostic Code 5241), and degenerative arthritis of the spine (Diagnostic Code 5242). Degenerative arthritis of the spine can also be rated using Diagnostic Code 5003. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a 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. 38 C.F.R. § 4.71a. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 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. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). 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. Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). 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 (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either 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 the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a , Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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. 38 C.F.R. § 4.71a , Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). The Veteran’s thoracolumbar spine spondylosis with strain, status post discectomy, has been rated under Diagnostic Codes 5237 as 10 percent disabling prior to August 26, 2019, and 20 percent disabling as of August 26, 2019. As an initial matter, the Board notes that the Veteran underwent VA back examination in December 2011, August 2015, September 2017, and August 2019. The Board has found and finds the December 2011, August 2015, September 2017, and August 2019 back examinations to be incomplete as the examiner did not provide an opinion as to functional loss of range of motion during flare-ups and/or after repeated use over time because the Veteran was not examiner during a flare-up or after repeated use. The Board notes that an opinion is speculative when it is based on the absence of procurable information or an examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion. Case law and VA guidelines anticipate that examiners will offer flare up opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).  Accordingly, the Board finds the December 2011, August 2015, September 2017, and August 2019 VA back examination reports to be incomplete for rating purposes and they will not be considered in adjudication of this claim. A September 2012 MRI revealed mild lumbar spondylosis worse at L5-S1, where there was moderate bilateral neural foraminal narrowing. A September 2013 VA examination diagnosed with spine strain and spondylosis. During the examination, the Veteran reported experiencing flare ups of pain at least three days a week, lasting two hours, with no known causes. On physical examination, at worst, the Veteran had forward flexion of the thoracolumbar spine to 80 degrees. Extension was to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. The Veteran did not have guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. The Veteran also did not have loss of strength, lumbar ankylosis, spasms, atrophy, tenderness, IVDS, or weakness. The Veteran also did not use any assistive devices to aid in locomotion. In a February 2014 addendum opinion, the same examiner from the September 2013 examination, stated that the Veteran’s estimated range of motion during a flare-up would be to 70 degrees of flexion. An August 2014 MRI of the lumbosacral spine found stable changes at the L5-S1 level. Susceptibility artifact at that level limited evaluation of the spinal canal. Grossly no significant thecal sac compression was seen. There was stable mild to moderate bilateral neural foramina narrowing. There was stable mild indentation on the ventral thecal sac at the L3-L4 and L4-L5 levels, with minimal bilateral neural foramina narrowing at the L4-L5 level. During an April 2015 Board hearing, the Veteran stated that he was receiving injections in the back every six months and was prescribed medication for pain. The Veteran also complained of leg numbness, and difficulty standing, sitting, and bending. The Veteran also noted use of a cane to aid in ambulation. In a January 2018 physical medicine rehabilitation consultation, the Veteran was noted as complaining of low back pain radiating to the buttocks. The pain was aggravated by repeated bending, but improved with pain meds. The Veteran did not experience loss of bowel or bladder control. The examiner did not find kyphosis, scoliosis, redness, swelling, or warmth. The examiner stated that the lumbar paraspinals were tender at L5-S1 and range of motion was limited at the end range. At a July 2020 VA examination, the Veteran reported experiencing moderate/severe flare-ups of the back daily, lasting several minutes. The flare-ups were precipitated by certain movements and alleviated with time, heat, and a TENS unit. On physical examination, at worst, the Veteran had forward flexion of the thoracolumbar spine to 60 degrees. Extension was to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. The Veteran did not experience additional loss of function or range of motion after repetitive use over time or during a flare-up. The Veteran did not have guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. The Veteran also did not have loss of strength, lumbar ankylosis, spasms, atrophy, tenderness, IVDS, or weakness. The Veteran also did not use any assistive devices to aid in locomotion. The Veteran’s condition was found to impact the ability to sit or stand for a long time or lift heavy. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The record currently contains no other examinations that are valid for rating purposes. Initially, the Board notes that there has been no medical evidence of ankylosis of the thoracolumbar spine during the course of the appeal. Thus, a higher rating cannot be assigned on that basis. The Board also notes that the Veteran has been rated separately for neurological deficits associated with the thoracolumbar spine disability. Thus, any issues pertaining to neurologic deficits associated with the lumbar disability are not currently before the Board and will not be addressed in this decision. Prior to August 26, 2019, the Board finds that the evidence did not show limitation of lumbar spine flexion to be not greater than 60 degrees. The evidence also did not show a 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. Therefore, a rating higher than 10 percent is not warranted prior to August 26, 2019. The Board has considered any additional limitation of function due to pain and other factors, but the evidence does not show any additional limitation of function that would support the assignment of a rating greater than 10 percent. As of August 26, 2019, a higher rating is not warranted because the evidence of record does not show the Veteran has ever had ankylosis or forward flexion of the thoracolumbar spine limited to 30 degrees or less. Pursuant to Diagnostic Code 5237, that level of impairment is consistent with a 20 percent rating. The Board has considered any additional functional loss due to pain or other factors, but finds that the objective evidence does not show additional functional loss that would warrant elevation to any higher ratings. The Board has also considered whether a higher rating could be assigned under the intervertebral disc syndrome formula based on incapacitating episodes. However, to date, the Veteran has not been shown to have incapacitating episodes of intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician of any duration. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for a lumbar spine disability prior to August 26, 2019. Thus, the claim for an increased rating prior to August 26, 2019, is denied. Additionally, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 20 percent for a lumbar spine disability as of August 26, 2019. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher ratings and the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16.  A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340(a)(1), 4.15.  Substantially gainful employment is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).  TDIU may be assigned, if the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one service-connected disability it is ratable at 60 percent or more; or if there are two or more service-connected disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more.  38 C.F.R. § 4.16 (a).  A claim for a total disability rating based upon individual unemployability, presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider.  Vettese v. Brown, 7 Vet. App. 31 (1994).  In evaluating a Veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  The central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The fact that a Veteran is unemployed or has difficulty finding employment is not enough, as a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The Veteran’s combined service-connected rating is 70 percent, effective April 8, 2015, with orthopedic disabilities that combined rate at least 40 percent. Therefore, the Veteran meets the schedular criteria for consideration of the assignment of TDIU effective April 8, 2015. The Board’s consideration turns to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities.  In April 2015 hearing testimony, the Veteran reported that he last worked in 2012, when he retired from service. During a September 2019 mental disorders examination, the Veteran reported that he worked part-time. As the record currently stands, it is unclear, at best, whether the Veteran is unable to secure or follow substantially gainful employment. In April 2019, January 2020, and March 2020, VA notified the Veteran that he needed to complete and return VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. To date, the Veteran has not responded. During July 2020 VA examination, the examiner stated that due to a back condition, the Veteran was unable to work for an employer which would require him to sit or stand for longer than 30 minutes. The examiner further stated that the Veteran would not be able to lift anything more than 10 pounds at a job. On completion of the examination, the examiner also stated that the Veteran was not capable of gaining and maintaining employment due to previously described limitations. In light of the changes that have occurred during the course of the appeal, and to avoid any prejudice to the Veteran, the Board finds that the Veteran should be given a final opportunity to file a formal claim for a TDIU through submission of a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that information regarding the Veteran’s employment history, such as when he was employed, and whether it was full time employment, is needed prior to adjudication of the claim for TDIU. The Board wants to make clear to the Veteran that, while VA has a statutory duty to assist in developing evidence pertinent to a claim, a Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist a Veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). The Veteran is notified that it is his responsibility to cooperate in the development of the claim. The Veteran is placed on notice that pursuant to 38 C.F.R. § 3.655 failure to cooperate may result in an adverse determination. Connolly v. Derwinski, 1 Vet. App. 566 (1991). The matters are REMANDED for the following action: 1. Send the Veteran and representative a letter requesting that the Veteran furnish any additional information or evidence pertinent to the claim for TDIU. The letter should specifically notify the Veteran of the criteria to establish entitlement to TDIU and supply a form to apply for TDIU. Take all appropriate action needed to develop employment information related to the TDIU claim, to include the nature, hours, and income relating to any part time work, to include at Ace Hardware. 2. Obtain all VA treatment records not already of record and associate them with the claims file. 3. Then, review the evidence associated with the record since issuance of the August 2020 supplemental statement of the case for the claim for TDIU. After a review of the additional evidence, conduct any other development deemed necessary and readjudicate the claim for TDIU. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.