Citation Nr: 21022187 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-34 633A DATE: April 15, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for degenerative changes, lumbar spine with spinal and neuroforaminal stenosis, for the period prior to October 26, 2011 is denied. Entitlement to an evaluation in excess of 20 percent for degenerative changes, lumbar spine with spinal and neuroforaminal stenosis, for the period from October 26, 2011 March 20, 2014 Entitlement to an evaluation in excess of 20 percent for degenerative changes, lumbar spine with spinal and neuroforaminal stenosis for the period beginning July 1, 2014, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to March 21, 2014 is denied. FINDINGS OF FACT 1. For the period prior to September 23, 2002, the Veteran’s lumbar spine disability did not result in lumbosacral strain with muscle spasm on extreme forward bending, or loss of lateral spine motion or unilateral in a standing position. 2. For the period prior to October 26, 2011, the record does not contain evidence that suggests that the Veteran’s lumbar spine disability resulted in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 3. For the period from October 26, 2011 to March 20, 2014 and the for the period beginning July 1, 2014, the evidence of record does not show the Veteran’s IVDS resulted in incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Also, the evidence does not show that the Veteran has had forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine for the entire period on appeal. 4. The preponderance of the evidence is against a finding that the Veteran’s full-time employment that he had maintained until March 21, 2014 was less than a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for degenerative changes, lumbar spine with spinal and neuroforaminal stenosis, for the period prior to October 26, 2011, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5295 (2002), Diagnostic Code 5237 (2020). 2. The criteria for an evaluation in excess of 20 percent for degenerative changes, lumbar spine with spinal and neuroforaminal stenosis, for the period from October 26, 2011 March 20, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2020). 3. The criteria for an evaluation in excess of 20 percent for degenerative changes, lumbar spine with spinal and neuroforaminal stenosis, for the period beginning July 1, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2020). 4. The criteria for entitlement to TDIU for the period prior to March 21, 2014 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to August 1984. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was granted service connection for degenerative changes, lumbar spine with spinal and neuroforaminal stenosis, and was assigned a 10 percent disability rating from October 29, 2001 and a 20 percent rating from October 26, 2011. See December 2011 Rating Decision; see also September 2014 Rating Decision (a 100 percent rating for necessary convalescence for after a back surgery was granted, effective March 21, 2014). Subsequently, a September 2014 rating decision assigned a 20 percent rating for the back disability, effective July 1, 2014. In March 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic claims file. As for the Veteran’s TDIU claim, a January 2018 rating decision granted entitlement to TDIU from August 12, 2016. Subsequently, in March 2018, the Board’s decision granted a TDIU from July 1, 2014 to August 12, 2016, and remanded the issues regarding the Veteran’s increased rating claims for his back disability, and the TDIU claim for the period prior to March 21, 2014. Now the matters are returned to the Board. INCREASED RATINGS The Veteran is seeking higher evaluation for his service-connected lumbar spine disability. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Also, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2020). The intent of Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2020). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2020). Otherwise, it will assign the lower rating. Id. 1. Initial evaluation in excess of 10 percent for lumbar spine disability for the period prior to October 26, 2011 As stated above, the Veteran was initially assigned a 10 percent evaluation for his lumbar spine disability from October 29, 2001. It was increased to 20 percent from October 26, 2011; thus, the first issue before the Board is whether the Veteran was entitled to an initial evaluation in excess of 10 percent for the period from October 29, 2001 to October 26, 2011. The Board notes that the record does not show the Veteran’s IVDS diagnosis until the VA examination conducted in October 2011. As such, it is appropriate to evaluate the Veteran’s lumbar spine disability as lumbar strain rather than IVDS for the period prior to October 26, 2011. Since October 2001, VA promulgated new regulations for the evaluation of disabilities of the spine twice, effective September 23, 2002 and September 26, 2003. See 67 Fed. Reg. 54345-54349 (August 22, 2002), 68 Fed. Reg. 51454 (Aug. 27, 2003). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g) (2012); VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to September 23, 2002, under Diagnostic Code 5295, lumbosacral strain with characteristic pain on motion warranted a 10 percent evaluation. A 20 percent evaluation was warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral in a standing position, and a 40 percent evaluation was warranted when the disability was severe with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). A June 2001 private treatment record shows the Veteran’s low back pain. However, August 2001 record indicates his low back pain was then resolved. See also October 15, 2001 Interim Evaluation (resolved low back pain noted). On August 2002 VA examination, the examiner noted the appearance of an increased lordosis at L3 through S1, and that palpation elicits tenderness over L4-5 and some mild pain and increase in radiculopathy noted at the sacroiliac joints. The Veteran’s range of motion was measured at: flexion to 100 degrees; extension to 35 degrees; rotational motion to 45 degrees; and lateral movement to 45 degrees. Deep tendon reflexes were intact at 2/2 at the knee and ankle, and motor was 5/5 at the hip and knee. The examiner reported chronic lumbar spine strain with painful range of motion as the Veteran’s final diagnosis. Based on above, the Board finds that the Veteran’s lumbar spine disability did not result in lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral in a standing position for the period prior to September 23, 2002. Thus, the Board concludes that the Veteran’s symptomatology of his lumbar strain did not warrant a 20 percent disability rating even when the rating criteria for Diagnostic Code 5295 before the regulation changes were applied. During an evaluation of a shoulder surgery in August 2007, the physician noted that the Veteran had normal contours for his back and good lumbar range of motion without painful motion. For the period prior to October 26, 2011, the record does not contain any further evidence that suggests that the Veteran’s lumbar strain resulted in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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, which is required for a 20 percent evaluation under the General Formula for Diseases and Injuries of the Spine (General Formula). See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2020). Consequently, the Veteran’s entitlement to an initial evaluation in excess of 10 percent for his service-connected lumbar spine disability for the period prior to October 26, 2011 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5295 (2002), Diagnostic Code 5237 (2020). 2. Evaluation in excess of 20 percent for the period from October 26, 2011 March 20, 2014 Under Diagnostic Code 5243, in pertinent part, a 40 percent evaluation is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a maximum of 60 percent evaluation is warranted for IVDS with incapacitating episodes having a total duration of 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). For purposes of evaluations under Diagnostic Code 5243, 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. Id., at Note 1. Evaluation for IVDS under General Formula is also available if that method results in the higher rating. Under General Formula, in pertinent part, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a maximum 100 percent evaluation is warranted for unfavorable ankylosis of the spine. 38 C.F.R. § 4.71a, General Formula (2020). On October 2011 VA examination for back conditions, the Veteran’s diagnoses of degenerative disc disease and spinal and neuroforaminal stenosis were noted. The Veteran reported that he has flare-ups and it requires bedrest for 2 days and a visit to an emergency room for pain medication or analgesics. He stated that each flare-up episode requires another 2 days of activity restriction and he usually misses the first 2 days of the flare-up. He provided that he has markedly limited back movement during a flare-up and the pain level increase from a usual 2 out of 10 to an 8 to 9 out of 10. The Veteran thoracolumbar spine range of motion was measured at: forward flexion to 50 degrees with painful motion beginning at 45 degrees; extension to 25 degrees with painful motion; right lateral flexion to 25 degrees with painful motion; left lateral flexion to 30 degrees or greater with painful motion; right lateral rotation to 30 degrees or greater with painful motion; and left lateral rotation to 30 degrees or greater with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing without additional limitation in range of motion afterwards. The examiner noted less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing as contributing factors of the Veteran’s lumbar spine disability. There was no localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The Veteran’s muscle strengths were normal, and no muscle atrophy was found. The examiner noted that the Veteran has IVDS of the thoracolumbar spine and had at least 1 week but less than 2 weeks of incapacitating episodes over the past 12 months. The examiner provided that the Veteran’s thoracolumbar spine condition impacts his ability to work as he misses work for 2 days at the onset of each flare-up. On February 2013 VA examination, the examiner noted the Veteran’s diagnoses of degenerative joint disease and degenerative disc disease of lumbar spine. The Veteran reported that he experiences slowed function and difficulty with movement after periods of irritability. The range of motion was measured at: forward flexion to 85 with painful motion; extension to 20 with painful motion; right lateral flexion to 25 degrees with painful motion; left lateral flexion to 30 degrees or greater with painful motion; and both right and left lateral rotations to 30 degrees with painful motion. The Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. The examiner noted less movement than normal and pain on movement as the contributing factors of the disability. The Veteran did not have localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine, or guarding or muscle spasm of the thoracolumbar spine. The Veteran’s muscle strengths were all normal without muscle atrophy. The examiner noted that the Veteran has IVDS of the thoracolumbar spine, and had at least 2 weeks but less than 4 weeks of incapacitating episodes due to IVDS over the past 12 months. The examiner provided that the Veteran’s slowed function and occasional irritability impacts his ability to work. A January 2014 lumber spine CT scan revealed multilevel degenerative changes in the lumbar spine and tissue neural foraminal stenosis at multiple levels in the lumbar spine. Based on above, the Board finds that the evidence of record for the period from October 26, 2011 March 20, 2014 does not show the Veteran’s IVDS resulting in incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Also, the evidence does not show that the Veteran has had forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine for the same period. Thus, the Veteran’s entitlement to an evaluation in excess of 20 percent for degenerative changes, lumbar spine with spinal and neuroforaminal stenosis, for the period from October 26, 2011 March 20, 2014, is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2020). 3. Evaluation in excess of 20 percent for the period beginning July 1, 2014 On December 2016 VA examination, the examiner noted the Veteran’s diagnosis of changes of the lumbar spine with spinal and neuroforaminal stenosis. The Veteran reported that flare-ups occur periodically about 3 times a month, and he is also in constant pain. The examiner also noted the following functional impairments reported by the Veteran: limited range of motion, difficulty in bending, walking a long distance, standing for more than 15 minutes on soft ground and no more than 5 minutes on concrete, lifting anything over 20 pounds, climbing stairs, and inability to sit for a long time. The range of motion was measured at: forward flexion to 40 degrees with painful motion; extension to 10 degrees with painful motion; both right and left lateral flexions to 30 degrees; and both right and left lateral rotation to 30 degrees. The Veteran was able to perform repetitive-use testing with at least 3 repetitions, and the range of motion after the testing was measured at: forward flexion to 35 degrees; extension to 10 degrees; both right and left lateral flexions to 30 degrees; and both right and left lateral rotation to 30 degrees. The examiner noted pain caused the additional functional loss after the repetitive-use testing due to pain. The examiner noted less movement than normal and pain on movement as the contributing factors of the disability. The Veteran did not have localized tenderness or muscle spasm. The examiner noted that the Veteran had guarding resulting in abnormal gait or abnormal spine contour. The examiner reported less movement than normal, disturbance of locomotion, and interference with sitting and standing as contributing factors of the disability. The Veteran did not have ankylosis of the spine. The examiner noted that the Veteran has had episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months, but did not provide the total duration. The Veteran reported that he had more than 15 emergency room visits in the past 12 months for back pain for which he was given bed rest for less than one week. The examiner provided that the Veteran’s thoracolumbar spine condition impacts his ability to work due to the functional loss provided above. During the March 2017 hearing, the Veteran testified that he was told by his doctor that he may have to have another back surgery. The Board observes that the evidence of record does not show any additional back surgery other than the one in March 2014, for which the Veteran received a 100 percent temporary rating for the necessary convalescence from March 21, 2014 to July 1, 2014. See September 2014 Rating Decision. On June 2017 VA examination, the examiner noted the Veteran’s diagnosis of degenerative joint disease of lumbar spine and neuroforaminal stenosis. The reported that his pain level was 5 out of 10 on the examination, and described the pain as stabbing and numbing pain. The Veteran stated that his sleep has been disturbed due to severe pain, the last flare-up was the past week where he woke up for unknown reasons and it lasted 2 days. The Veteran also reported that his back disability prevents him from running, exercising, getting in and out of his car, and causes difficulty with prolong walking or sitting. The Veteran’s thoracolumbar spine range of motion was measured at: forward flexion to 50 degrees; extension to 20 degrees; both right and left lateral flexions to 20 degrees; and both right and left lateral rotations to 20 degrees. The examiner indicated that no pain was noted on range of motion examination, but there was report of pain to lower back on palpation. The Veteran was able to perform repetitive-use testing with at least 3 repetitions without additional loss of function or range of motion afterwards. The Veteran had all normal muscle strength without muscle atrophy. The Veteran did not have ankylosis of the spine. The examiner noted that the Veteran has IVDS of the thoracolumbar spine with no episodes of bed rest during the past 12 months. The examiner provided that the Veteran has difficulty with employment that requires bending, lifting, and prolonged walking. Based on above, the Board finds that the evidence of record does not show that the Veteran’s lumbar spine disability resulted in incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months for the period beginning July 1, 2014. The Board acknowledges the Veteran’s report during the December 2016 examination on visiting the emergency room more than 15 times in the past year due to IVDS. The Board does not doubt that the Veteran had emergency room visits for IVDS episodes, but unable to find that the visits and the physician prescribed bed rest due to IVDS amounted to a period of at least 4 weeks in that year as the record does not reflect the details of those visits or the doctors’ prescriptions for bed rests. The evidence for the period beginning July 1, 2014 also does not show the Veteran’s forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Consequently, the Veteran’s entitlement to an evaluation in excess of 20 percent for degenerative changes, lumbar spine with spinal and neuroforaminal stenosis, for the period beginning July 1, 2014, is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2020). TDIU A TDIU may be assigned to a veteran who meets certain disability percentage standards and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a) (2020). To qualify for a schedular TDIU, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board notes that the earliest date that the Veteran met the schedular criteria for TDIU was from October 16, 2008 with his service-connected asthma evaluated at 60 percent and the combined disability rating of 80 percent. See March 2010 Rating Decision. Thus, the issue before the Board is whether the Veteran was entitled to TDIU from October 16, 2008 to March 21, 2014. In regard to the Veteran’s service-connected asthma, the Board notes that an October 2008 VA examiner provided that the Veteran’s asthma did not have a significant occupational effect. See October 2008 C & P Examination Note, at 4. The Board notes that the Veteran reported that he has worked as a program manager/counselor at his last employment from June 1997 to March 2014. March 2017 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability; see also March 2017 Hearing transcript, at 22-23. Therefore, the Veteran is not disputing the fact that he was employed during the period at issue. Thus, the Board needs to determine whether the Veteran’s employment during the period from October 16, 2008 to March 21, 2014 was less than a substantially gainful occupation. Substantially gainful occupation is an 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, 358 (1991). Also, marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16(a) (2020). During the March 2017 hearing, the Veteran testified that he had to start working part time due to his back condition, and eventually had to quit his job. See March 2017 Hearing Transcript, at 11. However, the Board notes that the Veteran also reported that his last employment was a full-time employment and he worked 50 hours per week in that job without indicating a period where it was reduced to a part-time employment. See March 2017 VA Form 21-8940. The record does not show any other evidence that suggests that the Veteran’s last full-time employment was less than a substantially gainful occupation. The Board also notes that the Veteran’s absence from work prior to March 2014 was largely due to four surgeries and extensive treatments for his non-service-connected left shoulder condition. March 2009 Surgery H & P Note (the Veteran injured his left shoulder at work in August 2008); June 2010 Physical Therapy Consult (had work-related left shoulder injury in 2008); May 2013 Discharge Summary (left shoulder surgery in May 2013); May 2013 Disability Status Note (allowed for office work with arm in sling, able to return to work on May 29, 2013); November 2013 Workers Compensation Follow-up Note (had a left shoulder surgery in March 2014); March 2014 Letter from Dr. M.G. Based on above, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s full-time employment that he had maintained until March 21, 2014 was less than a substantially gainful occupation. Consequently, the Veteran’s entitlement to TDIU for the period prior to March 21, 2014 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16, 4.19 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, Associate 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.