Citation Nr: 21028169 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 07-39 080 DATE: May 10, 2021 ORDER Entitlement to a rating in excess of 10 percent for a lumbar spine strain prior to February 11, 2020, is denied. Entitlement to a rating in excess of 20 percent for the lumbar spine strain since February 11, 2020 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to February 11, 2020, the Veteran's lumbar spine strain was manifested by forward flexion of the thoracolumbar spine to greater than 60 degrees but not to greater than 85 degrees, a combined range of motion greater than 120 degrees but not greater than 235 degrees, and localized tenderness not resulting in abnormal gait or abnormal spinal contour. 2. Since February 11, 2020, his lumbar spine strain has been manifested by comparatively worse symptoms, including forward flexion of his thoracolumbar spine to greater than 30 degrees but not to greater than 60 degrees and without ankylosis. 3. However, his service-connected disabilities do not meet the schedular rating requirements for a TDIU, and the preponderance of the evidence is against finding they preclude him from obtaining or maintaining substantially gainful employment when considering his level of education, prior work experience and training. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a rating higher than 10 percent for the lumbar spine strain prior to February 11, 2020, or to a rating higher than 20 percent since. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria are not met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1978 to January 1984. This appeal to the Board of Veterans' Appeals (Board/BVA) is from July 2008 and January 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ). The first decision denied the Veteran's TDIU claim and the second decision granted service connection for his lumbar spine strain and assigned an initial rating of 10 percent for it retroactively effective from June 19, 2006. Aside from continuing to appeal for a TDIU, he also appealed for a higher initial rating for his lumbar spine strain. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others). The Board since has remanded these claims back to the RO (AOJ) in May 2017, August 2019, and November 2020 for further development and consideration. The Veteran testified in support of these claims during an intervening October 2016 hearing before the undersigned Veterans Law Judge of the Board. A transcript of that hearing is of record. In a more recent, but also intervening, July 2020 rating decision on remand, the RO increased the rating for the Veteran's lumbar spine strain from 10 to 20 percent but only retroactively effective from February 11, 2020. The RO denied any greater rating, and he since has continued to appeal for an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). Since the rating for this disability has been "staged", this appeal now concerns whether he was entitled to an initial rating higher than 10 percent for this low back disability prior to February 11, 2020 (i.e., from June 19, 2006 to February 10, 2020) and whether he has been entitled to a rating higher than 20 percent for this low back disability since February 11, 2020. There has been the required compliance, certainly acceptable substantial compliance, with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice, as already alluded to, is known as "staged" ratings and is employed for initial or established ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a rating higher than 10 percent for the lumbar spine strain prior to February 11, 2020 (i.e., from June 19, 2006 to February 10, 2020) For this initial period, the Veteran's lumbar strain was rated as 10-percent disabling under 38 C.F.R. § 4.71a, DC 5237, of the General Rating Formula for Diseases and Injuries of the Spine. According to this General Rating Formula, the next higher 20 percent rating requires forward flexion of the thoracolumbar (thoracic and lumbar) spine to greater than 30 degrees but not to greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. An even higher 40 percent rating requires forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An even higher 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. And a still greater 100 percent rating requires unfavorable ankylosis of the entire spine (that is, when additionally considering the adjacent cervical segment). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate DC. Id. at Note (1). Recognizing this, it has been conceded that, because of his lumbar spine strain, the Veteran has right lower extremity radiculopathy, which is separately rated as 10-percent disabling as of February 11, 2020 and as 20-percent disabling effectively since January 11, 2021 under 38 C.F.R. § 4.124A, DC 8520. Moreover, although he does not have to separately appeal those ratings, meaning apart from appealing the ratings for his underlying low back strain, there is no indication of more severe right lower extremity radiculopathy during either of those periods. See Chavis v. McDonough, No. 18-2928 (April 16, 2021). As for the underlying lumbar spine strain, the record reflects reports of and treatment for low back pain since at least November 2000. The first lumbar spine range of motion test on record is from a June 2013 VA spine examination. But that examiner found normal ranges of motion, albeit with pain on motion, fatigability, and weakened movement on repetition. The Veteran reported flare ups caused by repeated use including walking, running, lifting, and using stairs. The examiner surmised the Veteran's flare ups would likely cause loss of range of motion equivalent to a 10 percent disability rating due to pain and fatigability. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (indicating to apply § 4.59, concerning painful motion, even when the disability at issue does not involve arthritis). The examiner found no muscle spasms or guarding severe enough to result in abnormal gait or contour. The report of the Veteran's subsequent September 2014 VA spine examination contains similar findings, with normal ranges of motion, but with pain on motion and additional symptoms after repetitive use. The examiner noted less movement, weakened movement, excess fatigability, pain on movement, lack of endurance, and interference with sitting, standing, or weight-bearing on repetition. However, this examiner did not opine on additional range of motion loss during flare ups, finding impairment would vary based on symptom severity. Again, the examiner found no muscle spasms or guarding severe enough to result in abnormal gait or contour. The next range-of-motion test on record was on February 11, 2020, the effective date for the increase in rating for the Veteran's lumbar spine strain from 10 to 20 percent. That was the first indication he had sufficient limitation of motion of his thoracolumbar spine to warrant this greater rating, even when considering the impact of his pain on his range of motion. Thus, that is the correct effective date for the increase in his rating since that is the "date entitlement arose". See Harper v. Brown, 10 Vet. App. 125, 126 (1997), citing 38 C.F.R. § 3.400(o)(1). A rating greater than 10 percent for the Veteran's lumbar spine strain before February 11, 2020 unfortunately is not warranted. Prior to that date, the evidence does not show a range-of-motion restriction to the required extent including forward flexion of his thoracolumbar spine limited between 30 and 60 degrees, even when accounting for his pain. Pain may constitute functional loss if it affects some aspect of the normal working movements of the body. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), 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 (38 C.F.R. § 4.45). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell, supra. However, 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (meaning 0-percent disabling) under the applicable DC. See Mitchell, supra. Although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, the maximum rating is not warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Id. Moreover, although the Veteran has reported instances of severe symptoms due to his lumbar spine strain, the record on appeal does not reflect incapacitating episodes according to the relevant VA regulation meaning requiring treatment by a physician and bedrest prescribed by a physician (so not, instead, just of his own election). See the explanatory Note (1) in the former version of DC 5243 and the distinction now made of what constitutes intervertebral disc syndrome (IVDS) in the revised versions of DCs 5242 and 5243 that took effect as of February 7, 2021. Finally, the evidence does not demonstrate the presence of any ankylosis, favorable or unfavorable. Ankylosis is essentially defined as total absence of motion due to "fixation" of the spine (frozen spine) in either a favorable or unfavorable position. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar (thoracic and lumbar) spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in the neutral position (0 degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, Note (5) to DCs 5235-42. There is no such indication here. While the Veteran, as a layman, is competent to report observable symptoms such as increased pain and decreased range of motion, his statements that symptoms render him immobile cannot establish ankylosis, which is a complex medical condition. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the evidence of record does not support awarding a rating higher than 10 percent for the lumbar spine strain from the effective date of his rating June 19, 2006 until February 11, 2020, when the rating was increased to the higher 20-percent level. There is no reasonable doubt to be resolved in his favor, as the preponderance of the evidence is against this claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating higher than 20 percent for the lumbar spine strain since February 11, 2020 Effectively since February 11, 2020, the Veteran's lumbar spine strain has been rated higher instead, as 20-percent disabling, but still under the same rating code, DC 5237. As already explained, the next higher 40 percent rating requires forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An even higher 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. And the maximum 100 percent rating requires unfavorable ankylosis of the entire spine, again, meaning when also considering the adjacent cervical segment. The Veteran does not have the impairment contemplated by these higher ratings. As discussed in the Board's November 2020 remand of this claim, the Veteran's February 11, 2020 VA medical examination was inadequate for failing to assess motion limitation with pain on active and passive motion, in weight-bearing and nonweight-bearing, or functional loss during flare-ups. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The resulting additional VA examination he had in January 2021, on remand, shows he has forward flexion to 50 degrees, with pain on weight-bearing and nonweight-bearing and with functional loss due to the pain, but not ankylosis. The examiner explained that, after interviewing the Veteran and on review of his claims file, he could find no basis to offer additional range of motion loss on repetitive motion or during a flare up. It therefore cannot be said the Veteran has the impairment needed for a higher 40 percent rating since, even when considering his pain and functional loss, his thoracolumbar spine motion is not limited to 30 degrees or less and he does not have favorable ankylosis of his thoracolumbar spine, much less unfavorable ankylosis of this thoracolumbar segment or entire spine (thoracolumbar and cervical segments) to warrant an even greater 50 or 100 percent rating, respectively. Notably, the prior February 11, 2020 VA examination found nearly the same range of motion measurements 50 degrees forward flexion with pain on motion. So, to reiterate, that was the "date entitlement arose" to the higher 20 percent rating, thus, the correct effective date for this higher rating. See Harper v. Brown, 10 Vet. App. 125, at 126 (1997), citing 38 C.F.R. § 3.400(o)(1). But at no time since has the Veteran had sufficient limitation of motion to warrant an even greater rating again, meaning 40, 50 or 100 percent rating. Hence, at most a 20 percent rating has been warranted since February 11, 2020. There is no reasonable doubt concerning this to be resolved in the Veteran's favor, as the preponderance of the evidence is against any greater rating during this succeeding period. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a TDIU The Veteran contends that he is unemployable due to his service-connected disabilities and, therefore, entitled to a TDIU. Unfortunately, after considering the relevant evidence, this evidence does not tend to suggest he is precluded from engaging in substantially gainful employment due to his service-connected disabilities. The determinative issue in a TDIU case is whether the Veteran's service-connected disabilities, alone, preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits him to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned by the Board in the first instance when the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or those affecting both upper extremities or both lower extremities or a single bodily system are considered as one, collective disability. 38 C.F.R. § 4.16(a). The Veteran has the following service-connected disabilities and corresponding ratings for them: lumbar spine strain, rated as 10-percent disabling prior to February 11, 2020, and as 20-percent disabling since; associated right lower extremity radiculopathy, rated as 10-percent disabling as of February 11, 2020 and as 20-percent disabling since January 11, 2021; sinusitis (also claimed as allergies), rated as 0-percent disabling (noncompensable) since December 7, 2011; pseudofolliculitis barbae, rated as 0-percent disabling also since December 7, 2011; and hemorrhoids, rated as 0-percent disabling, but instead since February 28, 2008. The combined rating for the service-connected disabilities initially was 10 percent as of June 19, 2006, 30 percent as of February 11, 2020, and 40 percent effectively since January 11, 2021. See 38 C.F.R. § 4.25 (VA's Combined Ratings Table). Thus, even accepting that the Veteran's lumbar spine strain and associated right lower extremity radiculopathy derive from common etiology or single accident to, in turn, warrant considering them for all intents and purposes as one, aggregate disability, he still does not have the requisite 70 percent or greater combined rating to warrant considering his TDIU claim on a schedular basis under § 4.16(a). It is also the policy of VA, however, that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, even where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular TDIU is for consideration where the Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). When there is at least suggestion the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but his disabilities fail to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to the Director of the Compensation Service for consideration of the assignment of a TDIU on an extra-schedular basis under the special provisions of § 4.16(b). On March 14, 2019, so during the pendency of this appeal, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; 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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Here, after considering both economic and noneconomic components, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. As discussed, the Veteran's lumbar spine strain and associated right lower extremity radiculopathy cause him pain and reduce his range of motion. At his January 2021 VA examination, he reported that he cannot sit for more than a few hours without pain. The examiner surmised the Veteran's condition likely causes moderate impairment with limitations when laying down, sitting, standing, repetitive bending, and heavy lifting. There is no suggestion that his condition requires, or requires avoidance of, certain types of work, sedentary work, or has any other effect on employment or his earning capacity, meaning above and beyond what is contemplated by the ratings assigned for these service-connected disabilities. 38 C.F.R. §§ 4.1, 4.15 Likewise, his VA examinations regarding his remaining service-connected disabilities sinusitis, pseudofolliculitis barbae, and hemorrhoids reflect little, if any, functional limitation, thus, the reason all are rated as 0-percent disabling. His June 2013 VA sinusitis examination listed functional impacts as headaches and lack of concentration with symptom flare ups, which had not occurred in the year prior to that exam. His examinations did not imply any functional limitations for the remaining conditions. Notably, and perhaps most significantly, the Veteran's medical treatment notes do not reflect that his service-connected disabilities have affected his employment. However, they reflect that his non-service-connected disabilities, most notably his psychiatric conditions and recovery from substance abuse, have significantly affected his employment. He has a high school diploma and nearly completed his bachelor's degree. Since service, he has worked as a musician and office manager and maintained employment with a music studio, yacht company, UPS, and for an anthropologist. However, he entered substance abuse treatment in or around June 2001 while homeless and reported employment only sporadically thereafter. At that time, he stated that he had stopped working as a musician due to depression, which has not been determined to be a service-connected disability. In June 2005, his VA mental health provider stated the Veteran was totally disabled and unable to work due to his chronic depression. Treatment of varying intensity continued over the next 15 years. The Veteran stopped working, again, for the same reason, in the months prior to November 2016. As such, there is evidence the Veteran is/was unemployable due to his non-service-connected disabilities, but that his service-connected disabilities conversely do not preclude him from obtaining and maintaining substantially gainful employment. To reiterate, the disability rating itself (for the service-connected disability) acknowledges the disability affects or impairs (i.e., interferes with) employment. See 38 C.F.R. §§ 4.1, 4.15. Moreover, generally, the degrees of disabilities specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Id. In other words, the disability rating, itself, is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consequently, the record must reflect some factor that takes a particular case outside the norm for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he/she can perform the physical and mental acts required by employment, not whether he/she can find employment. Further, and notably, the record in this case repeatedly offers evidence of the Veteran losing working time due to his non-service-connected disabilities which, as explained, cannot serve as basis or grounds for granting a TDIU since not attributable to his military experience. The Veteran's VA examinations, available employment information, and treatment notes do not reflect inability to perform a substantially gainful job due to his service-connected disabilities. His medical examinations did not specifically limit labor-intensive jobs, although they alluded to the same. Nothing on record precludes sedentary or other types of less physically demanding work consistent with his level of education and prior occupational experience, which often has not involved physically demanding labor. See 20 C.F.R. § 404.1567(a). In sum, the Veteran's service-connected disabilities, together or separately, do not preclude maintaining and/or obtaining substantially gainful employment. And since, for the reasons and bases discussed, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.