Citation Nr: 21023218 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-01 823 DATE: April 20, 2021 ORDER Entitlement to a rating greater than 40 percent for service-connected degenerative arthritis of the lumbar spine, is denied. Entitlement to a total rating based on individual unemployability (TDIU), is granted. FINDINGS OF FACT 1. The Veteran's service-connected degenerative arthritis of the lumbar spine, when considering additional functional loss during flare-ups and after repeated use over time, has manifested with symptoms analogous to forward flexion limited to 30 degrees or less. At no time during the period on appeal has the Veteran’s disability, even when considering additional functional loss during flare-ups or after repeated use over time, manifested with symptoms analogous to unfavorable ankylosis of the entire thoracolumbar spine. 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 service-connected degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2020). 2. The criteria for entitlement to a total rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from March 1991 to September 1994. This case originally came before the Board on appeal of a July 2013 and October 2015 rating decision. In June 2019, the Veteran testified before the undersigned Veteran Law Judge (VLJ) via live video conference. A transcript of the hearing has been associated with the record. The matter was most recently before the Board in January 2020. The Board finds that there has been substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating greater than 40 percent for service-connected degenerative arthritis of the lumbar spine. The Veteran contends that a rating greater than 40 percent is warranted for his service-connected degenerative arthritis of the lumbar spine. The Board previously remanded this issue to afford the Veteran a contemporaneous VA examination to obtain a current picture of the Veteran’s lumbar spine disability because the previous lumbar spine examination on record was conducted in July 2015. The Veteran’s back condition is rated under Diagnostic Code 5242. Diagnostic Code 5242 refers the rater to the General Rating Formula for Diseases and Injuries of the Spine, which provides a 10 percent evaluation for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). During the pendency of this appeal, VA amended the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020), effective February 7, 2021. Diagnostic Code 5242 (to be codified at 38 C.F.R. § 4.71a. Diagnostic Code 5242 was revised to include “degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome.” The Board will apply the criteria most favorable to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The Veteran was afforded a post-remand VA examination in November 2020. At worse during repeated use and flare-ups, his forward flexion was noted to be 0 to 40 degrees; extension was 0-10 degrees; right lateral flexion was 0 to 20 degrees; left lateral flexion was 0 to 15 degrees; right lateral rotation was 0 to 20 degrees and left lateral rotation was 0 to 15 degrees. Pain was noted during the examination to cause functional loss. Ankylosis of the spine was not noted during the examination. As noted above, a 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, which is not shown in this case. Although the Veteran’s limitation of motion would warrant a 20 percent rating, the RO continued the current 40 percent rating considering painful motion. In adjudicating a claim, the competence and credibility of the Veteran and other lay persons must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran is competent to present as evidence what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran’s statements have been considered and the Board finds that the statements are outweighed by the clinical findings of record. The Board assigns greater probative value to the clinical findings in the VA examination reports and clinical records that were recorded following physical examinations of the Veteran, based on the medical expertise of the examining physicians. These are more probative than the Veteran's assertions requesting a higher rating. There is no indication that the Veteran has the requisite medical expertise or knowledge to determine the severity of his back condition, pursuant to Diagnostic Code criteria, which has not been shown by the clinical evidence of record. Thus, the Veteran’s lay assertions regarding severity of his back condition are not competent, nor credible. For the foregoing reasons, entitlement to a rating greater than 40 percent for service-connected degenerative arthritis of the lumbar spine.is not warranted and the claim is denied. As the preponderance of the evidence is against a higher disability rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. TDIU – Legal Criteria A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A TDIU rating may be assigned when the schedular rating is less than 100 percent and disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. If unemployability is claimed as a result of only one service-connected disability, it must be rated at 60 percent or more. If it is a result of two or more disabilities, at least one disability must be rated at 40 percent or more, with at least another sufficient disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.341(a), 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to show 100 percent unemployability to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (stating that entitlement to TDIU is based on an individual's particular circumstances). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a total rating based on individual unemployability (TDIU). The Veteran contends that a TDIU is warranted based on his service-connected disabilities. As the Board has previously identified above, a total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38C.F.R. §3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38C.F.R. §4.16(a). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). A review of the record shows that the Veteran is currently service connected for. depressive disorder NOS, and assigned a 70 percent rating; lumbar strain with degenerative disc disease is assigned a 40 percent evaluation. His current combined evaluation for compensation purposes is 80 percent. The Board finds that the Veteran has met the schedular criteria for TDIU during the entire period on appeal. A review of the Veteran’s service personnel records shows that he has some high school education and reported during a June 2019 hearing before the undersigned VLJ that he attained a GED. See June 2019 Hearing Transcript. Military personnel records show that he held the military occupational specialty (MOS) of a Boatswain’s Mate while serving in the United States Navy. The Veteran filed a VA 21-8940 -Application for Increased Compensation Based on Unemployability in June 2015 and reported that he last worked in March 2012 as a Civil Drafter. He added that his disabilities prevent him from working with others and that he has difficulty concentrating on the tasks at hand. The Veteran reported that he trained on computer aided drafting through Vocational Rehabilitation from 2001 – 2004. The November 2020 VA back examination noted that the Veteran would have difficulty with work that required prolonged standing and walking. A previous July 2015 mental disorders VA examination noted that the Veteran also worked as a truck driver prior to March 2012 and noted occupational and social impairment with reduced reliability and productivity. A review of records provided by the Social Security Administration (SSA) shows that the Veteran has been found to be disabled as a result of his back and mental health condition since June 11, 2014. Furthermore, the Veteran testified during the June 2019 hearing that he has random crying spells for no apparent reason related to his mental health condition, including suicidal thoughts and loss of concentration. See June 2019 Hearing Transcript. The Veteran also added that he left a truck driver position as a result of his back issues. Id. Considering the Veteran’s education and previous positions he has held, which required prolonged sitting/standing, the Board observes that the Veteran would have difficulty in securing and following a substantially gainful occupation as a result of his service connected disabilities, as the Veteran’s disabilities alone are of sufficient severity to produce unemployability. (Continued on the next page)   Resolving all reasonable doubt in the Veteran's favor, the Board find that entitlement to a total rating based on individual unemployability (TDIU).is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claim is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.