Citation Nr: 21021463 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-52 277 DATE: April 13, 2021 ORDER Entitlement to a rating higher than 40 percent for degenerative disc disease of the lumbar spine at L4-L5 and L5-S1 (a back disability) is denied. Entitlement to a total rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence showed that the back disability is not manifested by adverse symptomatology that equates to at least unfavorable ankylosis of the entire thoracolumbar spine even when considering the Veteran’s complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 6 weeks during any 12-month period at any time during the pendency of the appeal. 2. The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5235 to 5243. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from October 1967 to October 1971. In July 2015 the Board of Veterans’ Appeal (Board), among other things, remanded the claim for an increased rating for a back disability for additional development. In a December 2018 decision by a Veterans’ Law Judge other than the undersigned, the Board denied the claim for an increased rating for a back disability. The Veteran appealed the December 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent December 2019 order, that incorporated the parties of Joint Motion for Remand (JMR), the Court vacated and remanded the December 2018 Board decision to the extent that it denied the Veteran’s claim for an increased rating for a back disability and did not adjudicate a claim for a TDIU. In April 2020, the Board remanded the appeal for additional development. Initially, the Board notes that the record shows that it complied with the Veteran’s October 2020 information request. See, e.g., Board letter dated in November 2020. Moreover, the Board finds that even if it had not complied with the information request it may nonetheless adjudicate the appeal at this time because the Veteran will not be prejudiced by this adjudication. The Board has reached this conclusion because it finds that it is in the best interest of this Veteran to not further delay adjudication of a claim that has been pending for six years when the below decision grants him a TDIU and because, as explained in more detail below, the record is negative for showing he has unfavorable ankylosis of the entire thoracolumbar spine and/or at least 6 weeks of incapacitating episodes. Post-JMR and Remand Compliance Initially, in adjudicating below whether the Veteran meets the criteria for a higher evaluation for his back disability the Board has specifically considered the JMR’s direction to consider whether his adverse symptomatology includes unfavorable ankylosis of the entire thoracolumbar spine or an equivalent functional loss given the November 2015 VA examiner’s statement that he was “‘unable to bend or twist without significant pain … [and] … he had ‘less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-ups, contracted scars, etc.)” nor has it overlooked the Court’s holdings Sharp v. Shulkin, 29 Vet. App. 26 (2017) (issued after the RO addressed this case); Correia v. McDonald, 28 Vet. App. 158 (2016). Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases. In this regard, the Board finds that the post-Remand development both addressed the concerns raised in the JMR and complied with the Remand because the October 2020 VA examiner’s opinion along with the April 2014 and November 2015 VA examiners opinion provided, collectively, VA with medical evidence adequate to rate the Veteran’s back disability, to include whether he has ankylosis when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups because the examiners provided sufficient findings to addressed each of these concerns. See Owens, supra; Also see 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-Remand development complied with the Remand because while the appeal was in Remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or obtain additional treatment records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). There is no basis to remand this issue. The Rating Claim The Veteran contends that his back disability is more severely disabling than represented by the rating assigned at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran’s back disability is rated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Initially, the Board notes that since the appeal was last before the Board VA amended some of its’ criteria for rating musculoskeletal disabilities including the back under 38 C.F.R. § 4.71a, effective February 7, 2012. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). However, the Board finds that a Remand is not required to provide the appellant with notice of the new musculoskeletal rating criteria and for the RO to adjudicates the claim applying the new criteria. The Board has reached this conclusion because it finds that nothing in the new criteria changes how this Veteran’s back disability is rated and, therefore, he will not be prejudiced by it adjudicating this claim at this time. See Sabonis, supra. Under the old and new rating criteria, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, 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 if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Moreover, under the old and new rating criteria, the Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. As to a rating in excess of 40 percent for the back disability under the General Rating Formula for Disease and Injuries of the Spine, the Board finds that even when considering the Veteran’s complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court’s holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 50 percent, rating under the General Rating Formula for Disease and Injuries of the Spine because the record is negative for a diagnosis of unfavorable ankylosis of the entire thoracolumbar spine at any time during the appeal. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; VA examinations dated in April 2014, November 2015, and October 2020. In reaching the above conclusion, the Board as directed by the JMR has specifically considered the November 2015 VA examiner’s statement that the Veteran was “‘unable to bend or twist without significant pain … [and] … he had ‘less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-ups, contracted scars, etc.).” However, the Court in Lewis v. Derwinski, 3 Vet. App. 259 (1992) defined ankylosis as immobility and consolidation of a joint due to disease, injury, or surgical procedure and at all times during the appeal, while reduced, the back nonetheless had motion. See, e.g., VA examinations dated in April 2014, November 2015, and October 2020. The Board also notes that the Court has said that in the absence of ankylosis the Board may not rate a disability as ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). Additionally, the Board notes that the November 2015 VA examiner as well as the October 2020 VA examiner specifically opined that the Veteran did not have back ankylosis despite also reporting that he had painful as well as limited back motion and these specific medical opinions are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Furthermore, the Board finds that the Veteran is not competent or credible to provide the missing diagnosis of ankylosis because this is a medical finding and he does not have the required expertise. See Davidson, supra. Given the above, the Board finds that the most probative evidence of record are the November 2015 and October 2020 VA examiners express opinions that the Veteran does not have ankylosis of the back because they are supported by examinations of the Veteran and because they specifically consider the appellant’s lost motion as well as his pain with motion as directed by the JMR. See Owens, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Accordingly, the Board finds that the most probative evidence of record shows that the Veteran does not have unfavorable ankylosis of the entire thoracolumbar or adverse back symptomatology that equates to unfavorable ankylosis of the entire thoracolumbar despite the November 2015 VA examiner’s statement that the appellant was “‘unable to bend or twist without significant pain … [and] … he had ‘less movement than normal….” See Owens, supra. Therefore, the Board finds that a rating in excess of 40 percent for the back disability under the General Rating Formula for Disease and Injuries of the Spine is denied because the record is negative for a diagnosis of unfavorable ankylosis of the entire thoracolumbar spine or symptoms that equate to unfavorable ankylosis of the entire thoracolumbar spine at any time during the appeal. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra. The Board also finds that the Veteran does not meet the criteria for a rating in excess of 40 percent for his back disability under the Formula for Rating Intervertebral Disc Syndrome at any time during the appeal. The Board has reached this conclusion because, while the record documents the Veteran’s complaints and treatment for his back disability, it does not show he ever had a total of at least 6 weeks of incapacitating episodes during any 12-month period at any time during the appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243; Fenderson, supra; Hart, supra; VA examinations dated in April 2014, November 2015, and October 2020. In fact, the April 2014 VA examiner reported that he did not have any weeks of incapacitating episodes in a 12-month period and this medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. The Board also notes that, while treatment records document a few instances of the Veteran having bedrest, they are negative for evidence showing that he had at least 6 weeks of incapacitating episodes during any 12-month period at any time during the appeal. The Board also finds that the Veteran as a lay person is not competent to provide this medical finding because he does not have the required training. See Davidson, supra; Colvin, supra. Therefore, the Board finds that a rating in excess of 40 percent for the back disability under the Formula for Rating Intervertebral Disc Syndrome is denied because the most probative evidence of record in the form of the VA examination reports and treatment records show that he did not have at least at least 6 weeks of incapacitating episodes during any 12-month period at any time during the appeal. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra. In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. The TDIU Claim The Veteran claims he is entitled to a TDIU because his service-connected disabilities prevent him from working. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record shows that the Veteran is service-connected for the following disabilities: • a back disability rated as 20 percent disabling; • right leg radiculopathy rated as 20 percent disabling; • left leg radiculopathy rated as 10 percent disabling; • a left knee disorder rated as 10 percent disabling; • tinnitus rated as 10 percent disabling; and • bilateral hearing loss rated as noncompensable. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher when his back disability along with his right and left leg radiculopathy are treated as one disability and he has a combined rating of 70 percent or higher. The next question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the Veteran’s VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), dated October 2015, reported that he had not worked full-time and became too disabled to work in May 2002 because of his service-connected disabilities. As to his work history, the Veteran reported that he used to work at Red River Army Depot as a “Leader” for 40 hours a week. As to his education, the Veteran reported that he had 2-years of college. As to the Veteran’s being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment as a “Leader” at Red River Army Depot as well as other possible employment that could make use of his work experience and 2-years of college, the Board finds that the medical records show that the problems caused by his service-connected back disability, right and left leg radiculopathy, left knee disorder, tinnitus, and bilateral hearing loss adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment because of musculoskeletal and neurological pain, and interact effectively with co-workers and/or customers due to his audiological problems. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected back disability, right and left leg radiculopathy, left knee disorder, tinnitus, and bilateral hearing loss would make it dangerous for the Veteran and his co-workers for him to work in most non-sedentary employments. Id. Similarly, the Board finds that that the pain caused his service-connected back disability, right and left leg radiculopathy, and left knee disorder as well as the problems caused by his tinnitus and bilateral hearing loss would make it very difficult to learn the new skills needed to work in most sedentary employments and thereafter interact with his co-workers as well as any customers and carry out the duties required by such employment. Id. Given the above, the Board finds that the Veteran’s service-connected disabilities prevent him from securing or following a “substantially gainful” occupation given his prior vocational history, work experience, and the impact his service-connected back disability, right and left leg radiculopathy, left knee disorder, tinnitus, and bilateral hearing loss have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment in as a “Leader” at Red River Army Depot, because of the problems they would cause in any work environment. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.