Citation Nr: 21022989 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 13-32 462 DATE: April 19, 2021 ORDER An initial rating in excess of 20 percent for lumbosacral degenerative disc disease (DDD) is denied. A total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from December 2003 to May 2004, December 2005 to November 2006, and May 2008 to May 2009. 2. A low back disability has been manifested by, at worst, forward flexion to 50 degrees, extension to 20 degrees, and right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, and bilateral rotation to 30 degrees; guarding or localized tenderness without abnormal gait or abnormal spinal contour. Intervertebral disc syndrome (IVDS) has not resulted in chronic symptoms of radiculopathy or physician-prescribed bedrest lasting at least 4 weeks during a 12-month period 3. The Veteran was not unable to obtain or maintain substantially gainful employment due solely to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbosacral DDD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (2020). 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for lumbar sprain was granted in a July 2011 rating decision and a 10 percent rating was assigned. The Veteran appealed the initially assigned rating. A February 2018 rating decision granted a 20 percent rating for the entire appeal period; however, as this rating is less than the maximum rating available, the appeal is still pending. The appeal was previously before the Board in August 2014, June 2017, and May 2018 at which time it was remanded for further development. It has now returned to the Board for appellate review. Increased Rating for a Low Back Disability Turning to the applicable laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While this appeal was pending, the rating criteria for musculoskeletal disabilities was amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). If the amended criteria are more favorable, the implementation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of the change. If the pre-amended criteria are more favorable, VA can apply the pre-amended criteria 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 appeals under the pre-amended criteria prior to February 7, 2021, and both the pre-amended and amended criteria since February 7, 2021. The criteria that is more favorable will be applied. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (Spine Formula). 38 C.F.R. § 4.71a, DCs 5237-5243. Intervertebral disc syndrome (IVDS) is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The amended regulations clarify that DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. No other changes were made to the rating criteria for the spine. The Veteran’s lumbar spine disability has been rated at 20 percent throughout the entire appeal period. The Board will consider all relevant diagnostic codes. A rating in excess of 20 percent will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine to 30 degrees or less (40% under DC 5237); • favorable ankylosis of the entire thoracolumbar spine (40% under DC 5237); or • incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40% under DC 5243). Turning to the evidence, in an October 2010 VA examination, the examiner diagnosed lumbar sprain and noted that an April 2010 MRI showed a minimal disc bulge at L5-S1 but no other abnormalities. The Veteran reported moderate pain that was daily and constant, as well as stiffness, fatigability, and lack of endurance. He indicated that he had flare-ups with standing and sitting too long and had pain with push-ups, pulling objects, moving a table, and lifting young children. He denied radicular symptoms and incapacitating episodes. Range of motion testing revealed forward flexion to 70 degrees with pain at 65 degrees and extension to 20 degrees with pain at 20 degrees. Bilateral flexion and bilateral rotation were each to 30 degrees with no finding of pain with movement specified. Repetition resulted in increased pain at 65 degrees flexion but no other impairment. Straight leg raise was negative. The examiner noted that the Veteran ambulated unassisted and that his gait was normal. A January 2016 VA examiner diagnosed lumbar sprain, as well as minimal disc desiccation at L3-L4 and L4-L5, and mild disc bulge L4 -S1 based on an April 2010 MRI and March 2012 X-rays. Arthritis was also noted. The Veteran described low back pain with pushing, pulling, and lifting and increased stiffness. He indicated that he used a cane and brace most days when out of the house. He reported experiencing flare-ups every six weeks without specific triggers and that could last up to two days. The flare-ups resulted in difficulty getting out of bed and standing upright and needing assistance from his wife with daily activities. Range of motion testing revealed forward flexion to 10 degrees, extension to 25 degrees, and bilateral flexion and rotation each to 20 degrees. There was pain with forward flexion. Repetition was not performed because the Veteran refused due to pain. The examiner could not comment without speculation as to the effect of pain, weakness, fatigability, and incoordination with repeated use over time because the Veteran would not bend forward and Waddell’s signs. Additionally, the examiner could not comment as to the effect of pain, weakness, fatigability, and incoordination with flare-ups because there was no current flare. The examiner observed localized tenderness but reported that it did not result in abnormal gait or spinal contour. There was no muscle spasm or guarding. Strength and reflexes were normal, and there were no signs of radiculopathy. The examiner found no IVDS or ankylosis. The examiner indicated that the Veteran’s complaints and reluctance to perform range of motion exercises were not consistent with the relatively benign MRI findings. A July 2017 VA examiner diagnosed DDD of the lumbar spine at the L3-L4 and L5-S1 levels with a small HNP at L4-L5. The Veteran reported flare-ups with lifting, bending, and ambulating one block. He indicated that he wore a brace regularly and especially when lifting. Range of motion testing revealed forward flexion to 50 degrees, extension to 20 degrees, and bilateral flexion and bilateral rotation each to 30 degrees with pain on each movement. Repetition resulted in no additional functional loss. There was guarding without abnormal spinal contour or gait, and no muscle spasm was observed. Strength, reflexes, and sensation were normal, and straight leg raise was negative. There were no other signs of radiculopathy. The examiner could not comment without speculation as to the effect of pain, weakness, and incoordination with repeated use over time or during a flare-up because there was no flare-up at examination. The examiner found IVDS and documented a few episodes of bedrest in the previous 12 months, each lasting one to two days until the low back pain subsided. In an October 2019 VA examination, the Veteran described low back pain at a 7-8 on 0-10 scale currently with pain aggravated by standing and reaching. He indicated that he avoiding lifting more than 20 lbs. Range of motion was forward flexion to 50 degrees, extension to 20 degrees, right later flexion to 25 degrees, left lateral flexion to 20 degrees, and bilateral rotation to 30 degrees each side. The examiner indicated that there was no additional loss of function with repetitions and that discussion of flare-ups was not applicable. There was no IVDS or ankylosis. Muscle strength, reflex, and sensation testing were all normal, and there were no other signs of radiculopathy, A review of treatment notes does not reflect lumbar spine findings more severe than reported upon VA examination. Accordingly, a rating in excess of 20 percent for the lumbosacral DDD is not supported by the evidence. A higher rating requires forward flexion to no greater than 30 degrees, ankylosis, or IVDS requiring physician-prescribed bedrest lasting at least 4 weeks during a 12-month period. In this case, the probative evidence reflects forward flexion to no less than 50 degrees and no ankylosis. The January 2016 VA examiner reported forward flexion to 10 degrees but indicated that the examination results were not consistent with MRI findings and reported the presence of Waddell signs, which suggest a non-organic cause, or magnification of, pain. Moreover, the January 2016 VA examination findings were significantly worse than the findings at any other VA examination – for example, forward flexion in 2010 was to 70 degrees, while forward flexion in 2017 and 2019 was to 50 degrees – which suggested they were not an accurate representation of the Veteran’s disability. At most, the Board views the January 2016 findings as a temporary flare-up of symptoms. Increased ratings are not assigned for temporary flare-ups but for permanent increases in severity of disability manifestations. Regarding the IVDS reported in July 2017, this finding is not consistent with the findings in subsequent VA examination or in treatment notes. Moreover, while the Veteran described a few episodes of bedrest lasting one to two days each, there was no indication that the periods of bedrest combined to equal at least 4 weeks in the prior 12 months. Further, as these findings were not consistent with treatment notes or the October 2019 VA examination, they at most, represent a temporary flare-up that did not reflect a permanent increase in severity that would support a higher rating. Finally, an April 2013 VA treatment note showed that care was established for lumbar radiculopathy and that such care was continued until at least March 2016 when a referral for acupuncture was given. Acupuncture treatment notes dated in 2018 show that the Veteran reported that back pain would intermittently radiate into right leg without numbness or tingling or weakness, although he described weakness when experiencing pain in his back. There were no bowel or bladder problems recorded. Acupuncture treatment was then discontinued due to the Veteran not reporting for three appointments in a row. Therefore, considering these findings and the consistent lack of radiculopathy found at VA examination, assignment of separate ratings for neurological symptoms is not warranted. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s lumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. TDIU 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 as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such 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). The central inquiry is whether the veteran’s 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). “Substantially gainful employment” is not currently defined in VA regulations; however, the term has been defined as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran’s history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In other words, the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). Service connection was in effect for posttraumatic stress disorder (PTSD) rated at 70 percent, lumbosacral DDD rated at 20 percent, two painful scar disabilities rated at 10 percent each, tinnitus rated at 10 percent, traumatic brain injury (TBI) rated at 10 percent, and bilateral inguinal hernia and tension headaches, both rated at 0 percent. Therefore, the threshold criteria are met for a TDIU. However, the evidence does not reflect that the Veteran is unable to obtain or maintain substantially gainful employment due solely to service-connected disabilities. He did not formally apply for a TDIU; rather, the issue was raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), which gives the Board jurisdiction over a TDIU when the evidence received during the course of an increased rating appeal indicated that the Veteran’s service-connected disabilities have rendered him or her unemployable. Here, while the evidence shows that in June 2017, the Veteran lost his job due to poor impulse control and interpersonal conflict, it also shows that he is currently employed. He completed the VA Vocational Rehabilitation program in 2016, and the October 2019 VA examination noted that he had been employed in an office for two years, working 25 to 30 years per week. Therefore, he was unemployed for at most a few months in 2017. Further, while this employment is not full-time, the evidence does not suggest it is not substantially gainful. The Veteran did not respond to a request for a completed TDIU application, on which he could have provided detailed information about his employment and income. Accordingly, further consideration of a TDIU is not warranted as the Veteran is substantially and gainfully employed. Next, the Veteran argued that the October 2019 VA examiner did not comply with the Board’s May 2018 Remand orders regarding a discussion of the effect of his service-connected disabilities on employability. However, the fact that he is employed renders any lack of compliance with the Board’s orders moot. In consideration of the above, the evidence does not show that the Veteran’s service-connected disabilities alone rendered him unable to obtain or maintain substantially gainful employment at any time during the appeal period. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, 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.