Citation Nr: 21022948 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-27 239 DATE: April 19, 2021 ORDER An evaluation in excess of 20 percent for a thoracolumbar spine disability, from November 19, 2019, is denied. An evaluation in excess of 10 percent for a left shoulder disability, from November 19, 2019, is denied. A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. From November 19, 2019, the Veteran’s thoracolumbar spine disability is not productive of ankylosis, incapacitating episodes, forward flexion limited to 30 degrees or less, or the functional equivalent thereof. 2. From November 19, 2019, the Veteran’s left shoulder disability is not productive of ankylosis, impairment of the humerus, malunion or nonunion of the clavicle or scapula, flexion or abduction limited to 90 degrees or less, or the functional equivalent thereof. 3. The Veteran’s service-connected disabilities have not rendered him unemployable or unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for a thoracolumbar spine disability, from November 19, 2019, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2020). 2. The criteria for an evaluation in excess of 10 percent for a left shoulder disability, from November 19, 2019, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020). 3. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2020).. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to December 1991. This appeal is before the Board of Veterans’ Appeals (Board) from July 2012 and April 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. On November 19, 2019, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In April 2020 the Board decided ten issues, including entitlement to increased ratings for a spine disability and left shoulder disability prior to November 19, 2019. The Board remanded the issues decided herein with instruction to obtain current VA treatment records and provide VA examinations. The appropriate records were obtained, and the Veteran underwent VA examinations in December 2020. The April 2020 decision also remanded the issues of entitlement to service connection for neurological impairment of the bilateral lower extremities and to an increased rating for major depressive disorder. A January 2021 rating decision awarded service connection for radiculopathy of the bilateral lower extremities, constituting a full grant of these issues which are thus no longer before the Board. In March 2021, the Veteran opted into the modernized appeal system with respect to his appeal for an increased rating for major depressive disorder, requesting another hearing before the Board. This issue will thus be addressed in a separate decision after his hearing is held. The Board is therefore satisfied that the instructions in its April 2020 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 1. Entitlement to an evaluation in excess of 20 percent for a thoracolumbar spine disability, from November 19, 2019 The Veteran claims an increased rating for his thoracolumbar spine disability. The Veteran is currently in receipt of a 20 percent disability rating for his service-connected lumbar spine disability under 38 C.F.R. § 4.71a, Diagnostic Code 5243, degenerative arthritis of the spine. This disability is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine (“General Formula”), or as intervertebral disc syndrome (IVDS) under the Formula for Rating IVDS Based on Incapacitating Episodes (“IVDS Formula”), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See VBA Training Letter 02-04 (October 24, 2002). Under the General Formula, a 20 percent rating is assigned for 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. The next higher rating of 40 percent is assignable for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Also under the General Formula, any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. The Veteran is currently in receipt of 20 percent ratings for radiculopathy of each of the lower extremities, manifested by neuralgia of the sciatic nerve, evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8720. Under this code, with any neuralgia analyzed as paralysis, an evaluation of 10 percent is warranted for mild incomplete paralysis, an evaluation of 20 percent is warranted for moderate incomplete paralysis, an evaluation of 40 percent is warranted for moderately severe incomplete paralysis, an evaluation of 60 percent is warranted for severe incomplete paralysis with marked muscular atrophy, and an evaluation of 80 percent is warranted for complete paralysis. Complete paralysis of the sciatic nerve causes the foot to dangle and drop, with no active movement possible of the muscles below the knee, and with flexion of the knee weakened or (very rarely) lost. When involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating the peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. His current 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. With respect to disabilities of the lumbar spine, the February 2021 changes limited the circumstances under which a code for IVDS could be assigned and limited alternative criteria to degenerative or traumatic arthritis. The Board finds that there is no scenario under which the amended criteria could be more favorable to the Veteran, and as such will analyze his appeal under the criteria in effect prior to February 7, 2021. At his November 2019 hearing, the Veteran reported use of a back brace prescribed by VA. He reported loss of sensation in his lower extremities. At the time, his back disability was rated at 10 percent. His representative argued that a rating of at least 20 percent was warranted. VA treatment records reflect that in December 2019 the Veteran requested treatment for back pain. The Veteran underwent a VA examination in December 2020. He reported working in construction and facility maintenance were both very hard due to pain. He reported back pain radiating down his legs and numbness in his feet. He reported that he could not walk or stand longer than 10 minutes and that he could not bend or lift heavy weight without increased pain. He reported daily moderate to severe flare-ups lasting hours to days and precipitated by standing, walking, bending, or lifting weight. Forward flexion was limited to 55 degrees. Extension was limited to 15 degrees. Lateral flexion was limited to 20 degrees in both directions. Lateral rotation was limited to 25 degrees in both directions. Pain causing functional loss was noted in all ranges. There was evidence of moderate tenderness. There was no evidence of pain with weight bearing. On repetitive testing, forward flexion was further reduced to 45 degrees by pain, weakness, and lack of endurance. The examiner estimated that pain, weakness, and lack of endurance resulted in forward flexion reduced to 45 degrees during flare-ups or after repeated use over time. There was no guarding or muscle spasm. Muscle strength was 4/5 in flexion and extension of the hips and otherwise full without atrophy. Reflexes were hyperactive without clonus in the right knee and hypoactive in the left knee and ankle. Light touch sensation was decreased in the bilateral feet and toes. Straight leg testing was positive bilaterally. The examiner noted severe intermittent pain, paresthesia, and numbness in the bilateral lower extremities. There were no other signs or symptoms of radiculopathy or any other neurologic abnormalities. There was no ankylosis. There was no IVDS. He was diagnosed with status post surgical thoracic fracture surgery with mild bilateral lower extremity radiculopathy affecting the sciatic nerves. The examiner noted functional impact on his ability to work through a need to alternate sitting and standing, no repeated bending, pulling, or pushing, and no lifting more than ten pounds. The Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran’s thoracolumbar spine disability from November 19, 2019. Higher ratings are available for ankylosis, incapacitating episodes, forward flexion limited to 30 degrees or less, or the functional equivalent thereof. The evidence weighs against such manifestations. There is no evidence in the record of incapacitating episodes or ankylosis. Since November 2019, his forward flexion has been measured as limited to 55 degrees, further reduced to 45 degrees on repetitive use, flare-ups, or repeated use over time. There is no evidence in the record to contradict the examiner’s findings. Furthermore, to the extent his ratings for radiculopathy are on appeal, higher ratings are available for complete paralysis or incomplete paralysis that is severe or moderately severe. Absent muscle atrophy, ratings higher than moderate are not warranted for radiculopathy. For these reasons, the Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran’s thoracolumbar spine disability from November 19, 2019. 2. Entitlement to an evaluation in excess of 10 percent for a left shoulder disability, from November 19, 2019 The Veteran claims an increased rating for his left shoulder disability. There is conflicting evidence as to whether the Veteran is right-handed or ambidextrous. Affording him all benefit of the doubt, the Board will consider his left shoulder as the dominant shoulder for the purposes of ratings criteria. See 38 C.F.R. § 4.69 (the injured extremity is considered dominant in ambidextrous individuals). The Veteran’s left shoulder disability is evaluated for limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under this code, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. Alternative and additional Diagnostic Codes for the shoulder and arm are available as described below. Under 38 C.F.R. § 4.71a, Diagnostic Code 5200, ankylosis of scapulohumeral articulation is rated at 30 percent for favorable, with abduction to 60 degrees and the ability to reach the mouth and head; at 40 percent for intermediate between favorable and unfavorable; and at 50 percent for unfavorable, with abduction limited to 25 degrees from the side. Under 38 C.F.R. § 4.71a, Diagnostic Code 5201, limitation of motion of the arm is rated at 20 percent when limited to shoulder level, at 30 percent when limited to midway between the side and shoulder level, and at 40 percent when limited to 25 degrees from the side. Under 38 C.F.R. § 4.71a, Diagnostic Code 5202, ratings are available for impairment of the humerus. A 20 percent rating is warranted for malunion of the humerus with moderate deformity or for infrequent episodes of dislocation of the humerus at the scapulohumeral joint with guarding at shoulder level. A 30 percent rating is warranted for malunion of the humerus with marked deformity or for frequent episodes of dislocation of the humerus at the scapulohumeral joint with guarding at all arm movements. A 50 percent rating is warranted for fibrous union of the humerus. A 60 percent rating is warranted for nonunion of the humerus (false flail joint). An 80 percent rating is warranted for loss of head of the humerus (flail shoulder). Under 38 C.F.R. § 4.71a, Diagnostic Code 5203, ratings are available for impairment of the clavicle or scapula. A 10 percent rating is warranted for malunion of the clavicle or scapula or for nonunion of the clavicle or scapula without loose movement. A 20 percent evaluation is warranted for nonunion of the clavicle or scapula with loose movement or for dislocation of the clavicle or scapula. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. With respect to disabilities of the shoulder, the February 2021 changes added parentheticals to clarify that limitation to “shoulder level” means 90 degrees from the spine, that midway between shoulder level and the side means 45 degrees, and that the limitation of motion described in Diagnostic Code 5201 is flexion and/or abduction. The Board finds that there is no scenario under which the amended criteria could be more favorable to the Veteran, and as such will analyze his appeal under the criteria in effect prior to February 7, 2021. At his November 2019 hearing, the Veteran reported pain in his left clavicle. He reported that he treated it with medication. At the time, his left shoulder disability was rated as noncompensable. His representative argued that a rating of at least 10 percent was warranted due to pain. The Veteran underwent a VA examination in December 2020. He reported inability to lift weight or raise his arm upward. He reported constant pain, increased by laying on his shoulder. He reported daily moderate to severe flare-ups caused by lifting weight, raising arms, pushing, or pulling. Flexion was limited to 110 degrees. Abduction was limited to 105 degrees. External and internal rotation were limited to 70 degrees. Pain was noted in all ranges in active and passive motion. There was no evidence of pain with weight bearing. There was evidence of crepitus and mild tenderness over the clavicle. Repetitive testing did not lead to further loss of range or function. The examiner noted that pain, fatigue, weakness, and lack of endurance limited functional ability during flare-ups and after repeated use over time but that such loss of function was not the equivalent of loss of range beyond the baseline. Muscle strength was full without atrophy. There was no ankylosis. A rotator cuff condition was suspected, and empty can and lift-off subscapularis tests were positive. A cross body adduction test was positive. There were no conditions of the humerus. He was diagnosed with a healed left clavicle fracture with scar. The examiner noted functional loss impacting his ability to work through an inability to lift weight, raise his arm above his head, or push or pull objects. The Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran’s left shoulder disability from November 19, 2019. Higher ratings are available for ankylosis, impairment of the humerus, malunion or nonunion of the clavicle or scapula, flexion or abduction limited to 90 degrees or less, or the functional equivalent thereof. The evidence weighs against such manifestations. There is no evidence of ankylosis, impairment of the humerus, or of malunion or nonunion of the clavicle or scapula. Flexion was not limited to less than 110 degrees, and abduction was not limited to less than 105 degrees. The examiner found that flare-ups and repeated use over time did not further reduce flexion or abduction. There is no evidence in the record to contradict the examiner’s findings. For these reasons, the Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran’s left shoulder disability from November 19, 2019. 3. Entitlement to a TDIU The Veteran seeks a TDIU. He contends that his service-connected disabilities, when considered in combination, render him unemployable. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service (“Director”) for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In determining whether a TDIU is warranted, VA 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. At his November 2019 hearing, the Veteran reported that he used to work in construction and driving, but he no longer could because the pain was too much. He reported that he was currently in school for vocational rehabilitation, but he was having trouble with the pain caused by prolonged sitting. In addition to the disabilities discussed above, the Veteran is service-connected for a mental health disability and residuals of fractured ribs. Prior to November 19, 2019 he was in receipt of a combined schedular rating of 30 percent increased to 50 percent in March 2016. He is thus ineligible for a schedular TDIU under 38 C.F.R. § 4.16(a) during that period. As of November 19, 2019, his combined schedular rating was 70 percent, and his thoracolumbar spine rating and radiculopathy together totaled 50 percent. He therefore meets the threshold of consideration for a schedular TDIU under 38 C.F.R. § 4.16(a) effective November 19, 2019. VA treatment records reflect that the Veteran is employed. At an August 2018 mental health evaluation, he reported that he was self-employed in the field of home remodeling. He reported that he got frustrated with his employees when they wasted time smoking. In January 2019 he reported that he had been a sole proprietor in contracting for many years and was ready to seek salaried employment. In February 2020 he reported that he was being hired in a salaried position as a facilities manager. The Board finds that the evidence weighs against a finding that the Veteran’s service-connected disabilities not rendered him unemployable or unable to secure and follow a substantially gainful occupation. In July 2012, during the pendency of this appeal, he was provided with notice on how to pursue a TDIU claim, including a blank Form 21-8940 to complete. He has not submitted the required information documenting recent employment. Nevertheless, his VA treatment records and examination reports indicate that he is, in fact, employed and able to maintain a living. He identified as a sole proprietor and employer of others, and just months after his November 2019 hearing he began a salaried position as a facilities manager. While his medical examinations show that his service-connected disabilities impact his employment, his continued work in construction and remodeling shows that he has not been rendered unemployable. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s service-connected disabilities not rendered him unemployable or unable to secure and follow a substantially gainful occupation. A schedular TDIU is therefore denied. Likewise, as the evidence indicates that the Veteran has been employed for years, referral for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16(b) prior to November 19, 2019 is not warranted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.