Citation Nr: 21028398 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-36 359 DATE: May 11, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for a chronic lumbar strain is denied. Entitlement to a total disability rating based on individual unemployability (TDIU rating) is denied. FINDINGS OF FACT 1. The chronic lumbar strain has not been more nearly manifested by flexion of 30 degrees or less, or favorable thoracolumbar ankylosis. 2. A TDIU rating is not warranted because the Veteran did not appeal a September 2017 rating which denied entitlement to a TDIU rating and he has been in receipt of a combined 100% schedular rating since September 9, 2010. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for a chronic lumbar strain have not been met. 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 5237. 2. The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's DD Form 214 reflects that he had active service from January 1992 to November 1994. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for degenerative joint disease (DJD) of the cervical spine and assigned an initial 10% rating, all effective August 26, 2010; and also granted an increase from 10% to 20% for the chronic lumbar strain, effective May 22, 2012. In pertinent part, a September 19, 2017, rating decision denied entitlement to a TDIU rating. The Veteran was notified of that decision by RO letter of September 22, 2017. He did not appeal that decision. In October 2018 the Board remanded claims for service connection for numbness of each hand and each foot, a claim for a rating in excess of 20% for a lumbar spine disability, a rating in excess of 10% for DJD of the cervical spine, and a TDIU rating, all to afford the Veteran VA examinations which he had previously not attended. A September 10, 2020 rating found clear and unmistakable error (CUE) in assigning August 26, 2010, as the effective date for service connection for DJD of the cervical spine, and granted an effective date of May 28, 2010, and also granted an increase from a 10% rating to 20% since May 28, 2010. That rating also granted service connection for the radiculopathy of both upper and lower extremities, claimed as numbness the hands and feet, and assigned appropriate disability evaluations and effective dates. Because this resulted in an increase in the combined disability rating from 80%, which had been in effective since May 28, 2010, to 100% effective September 9, 2010, the Veteran was also granted entitlement to basic eligibility to Dependents' Educational Assistance (DEA), under 38 U.S.C.A. Ch. 35 effective September 9, 2010. In October 2020 the Board found that the only remaining issues on appeal were entitlement to a rating in excess of 20% for a chronic lumbar strain and entitlement to a TDIU rating. Those claims were remanded to afford the Veteran a VA rating examination. In February 2021 the Board again remanded the claims for a rating in excess of 20% for a chronic lumbar strain and entitlement to a TDIU rating for an addendum opinion from a clinician that conducted a December 2020 rating examination. This was done in March 2021. The case has now been returned for appellate consideration. 1. Entitlement to an evaluation in excess of 20 percent for a chronic lumbar strain The Veteran contends that his service-connected low back disorder warrants a rating greater than 20%. The Board concludes that the preponderance of the evidence is against finding that the criteria for a rating in excess of 20 percent for lumbar disability are met because during the appeal the disability is not shown by the more persuasive evidence to more nearly approximate forward flexion of the thoracolumbar spine limited to 30 degrees or less, or that there was favorable ankylosis of the entire thoracolumbar spine. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings may be assigned to compensate for times when the disability may have been more severe than at other times during an appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. 38 C.F.R. § 4.45 requires consideration 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Correia v. McDonald, 28 Vet. App. 158 (2016) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran's lumbar disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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 rating is warranted for forward flexion of the thoracolumbar spine to 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The current 20% rating was assigned because the June 21, 2012 rating examination found that the Veteran had guarding or muscle spasm severe enough to result in an abnormal gait. However, no guarding or muscle spasm were found on subsequent rating examinations of March 18, 2020 and December 1, 2020. Also, at the June 2012 examination it was reported that he used a cane as an ambulatory aid, but the subsequent rating examinations of March 18, 2020 and December 1, 2020 observed that he did not use an ambulatory aid. With respect to findings of range of motion, the evidence shows that the Veteran has not had less than 80 degrees of flexion, which is more than twice the range of motion for the next higher rating of 40% which requires flexion be limited to 30 degrees or less. For example, the June 2012 examination found that flexion was to 80 degrees, with pain beginning only at that point and with no additional limitation of motion on repetitive use. Similarly, the March 18, 2020 examination found that he had painless flexion to 85 degrees, a loss of only 5 degrees of full flexion, and without additional limitation of motion after three repetitions of motion. Moreover, at that time, even with repeated use over time flexion was estimated to be 80 degrees, with pain, weakness, fatigability, or incoordination limiting functional ability to this limited degree. No estimate was made as to motion during flares because, at the March 2020 examination, he denied having flareups. At the December 1, 2020 rating examination it was reported that as to both repeated use over time and as to flareups, although the Veteran might report functional impact and/or loss with repeated use and flare ups, the current examination and medical record findings were not consistent with a functional loss, and therefore he would have increased pain during flare ups and repeated use but no further loss of motion would occur. Testing of passive motion was not conducted at the March 2020 examination because the examiner reported that it was not feasible to do so in a safe and reasonable manner, but at the December 1, 2020 examination there was no evidence of pain on passive range of motion. In fact, the December 2020 examination found full range of thoracolumbar motion in all planes, but with pain that did not cause functional loss. A March 2021 addendum to the December 2020 examination noted that there was no means of testing for range of thoracolumbar motion in nonweight-bearing because the back was always in a weight-bearing position. With respect to the Veteran's reports of functional impairment, he reported at the June 21, 2012 rating examination that he could no longer work at the physically demanding job of a licensed electrician and, so, now worked full-time as a cashier. He did not report that flareups impacted function of his back. He had similar complaints at the March 18, 2020, i.e., difficulty sitting and standing of long periods of time, bending, and lifting heavy objects. He again related such complaints at the December 1, 2020 examination, stating that pain caused functional impairment, but only at that time did he first report having any flareups. He related, at that time, that daily flareups were moderate to severe, lasting from hours to days, and were precipitated by standing, lifting, sitting, bending, and were alleviated by lying down. He reported that pain caused functional impairment. As to clinical assessments of functional impairment, at the June 2012 examination it was opined that the Veteran had functional impairment due to limited, painful, and weakened motion, excess fatigability, disturbance of locomotion, and interference with sitting and standing. At the March 18, 2020 examination it was felt that he would have difficulty sitting and standing of long periods of time, bending, and lifting heavy objects. On the other hand, at the December 1, 2020 examination it was opined that the thoracolumbar disorder did not impact on the Veteran's ability to work, although he would have to change position every 1 to 2 hours, as needed, and he could lift up to 50 lbs. It is significant to note that despite the Veteran's reports of functional impairment not only was there no guarding or muscle spasm on rating examinations of March 18, 2020 and December 1, 2020, the Veteran was not observed to require a cane for any impairment of his gait. Both his reports of functional impairment as the rating examinations, and the clinical assessments of his functional impairment at those times, do not refect such impairment as to even begin to approximate limitation of thoracolumbar flexion to 30 degrees or less, which is only one-third of normal flexion of 90 degrees, but in this case, even after repetitive use and despite his complaints of functional impairment, he has thoracolumbar flexion which is to more than twice that required for the next higher rating of 40%. Likewise, given these findings of range of motion and the absence of any evidence, including not only clinical but lay evidence, of symptoms similar to or equating with ankylosis, there is no basis for finding that a 40% disability rating is warranted. Thus, as to the matter of ankylosis of the thoracolumbar spine, there being no evidence of functional impairment, e.g., during flareups, which equates to ankylosis the rating factors enumerated in 38 C.F.R. §§ 4.40, 4.45 are not for application. See generally Chavis v. McDonough, No. 18-2928, slip op. at 11 (U.S. Vet.App. Apr. 16, 2021) (precedential panel decision) (holding that evidence of functional equivalent of ankylosis during a flare-up requires consideration of rating factors in 38 C.F.R. §§ 4.40 and 4.45 but not if there is no such evidence, citing Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) and Spencer v. West, 13 Vet. App. 376, 382 (2000)). Accordingly, the Board finds that the preponderance of the evidence is against the claim for an evaluation in excess of 20 percent for a chronic lumbar strain. Thus, there is no doubt to be resolved and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, Id. 2. Entitlement to a TDIU rating The Veteran contends that he is entitled to a TDIU rating because of the adverse impact from the combined effect of his service-connected disabilities. However, for the following reasons the Board must deny the claim for a TDIU rating. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. Under 38 C.F.R. § 4.16(a) a total disability rating may be assigned where the schedular rating is less than 100 percent if two requirements are satisfied. First, the veteran must meet a minimum percent evaluation, i.e., 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. For the purpose of meeting the 60 percent disability, or one 40 percent disability in combination, certain disabilities will be considered as one disability, and these include disabilities affecting a single bodily system, e.g., orthopedic. See 38 C.F.R. § 4.16(a)(3). 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 the veteran does not meet the percentage evaluation requirements under 38 C.F.R. § 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) if the evidence indicates he is unemployable due to service-connected disabilities, in which case the matter maybe referred to the Director of the Compensation and Pension Service (hereinafter 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. 208 (1995); Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In determining whether 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(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is service connected for the following: (1) cervical radiculopathy of the right (dominant) upper extremity with carpal tunnel syndrome, rated 10% from November 3, 1994, 30% from June 29, 2009, and 40% from September 9, 2010; (2) left knee instability, rated 20% from June 29, 2009; (3) cervical spine degenerative joint disease (DJD), rated 20% from May 28, 2010; (4) sciatic radiculopathy of the left lower extremity, rated 20% from August 26, 2010; (5) left upper extremity radicular nerve group radiculopathy, rated 20% from September 9, 2010; (6) sciatic radiculopathy of the right lower extremity, rated 20% from September 9, 2010; (7) chronic lumbar strain, rated noncompensable from November 3, 1994, 10% from June 29, 2009, and 20% from May 22, 2012; (8) chronic right hip strain, 10% from November 3, 1994; (9) right tibia/fibula chronic strain, to include the ankle, 10% from November 3, 1994; (10) right knee patellofemoral syndrome (PFS), rated noncompensable from November 3, 1994, and 10% from June 19, 2009; and (11) left knee osteoarthritis, status post (SP) medial meniscectomy and anterior cruciate ligament (ACL) tear, rated 10% from November 3, 1994, 30% from June 29, 2009, and 10% from September 17, 2009. The Veteran has had a combined disability evaluation of 40% from November 3, 1994; 80% from June 29, 2009; 70% from September 17, 2009; 80% from May 28, 2010, and 100% from September 9, 2010. He has also been entitlement to basic eligibility to Dependents' Educational Assistance (DEA), under 38 U.S.C.A. Ch. 35 effective September 9, 2010. With respect to the Veteran's work history, in VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran reported that he had last worked and become too disabled to work on October 1, 2015. Thus, he was not incapable of obtaining or retaining substantially gainful employment prior to October 1, 2015. Even more significantly, a recent March 2020 Individual Unemployability Statement by a VA Nurse Practitioner reflects an opinion that it was at least as likely as not that when considering his service-connected disorders the Veteran was capable of performing light work in a normal 8 hour workday. However, the dispositive matter is that, in pertinent part, a September 19, 2017, rating decision denied entitlement to a TDIU rating. The Veteran was notified of that decision by RO letter of September 22, 2017. He did not appeal that decision. Accordingly, that decision is final. See 38 C.F.R. §§ 3.104(a), 20.1103. Consequently, a TDIU rating may not be awarded prior to the September 19, 2017 rating decision. As to the time period following the September 19, 2017 rating decision, a TDIU rating may not be assigned because the Veteran has been awarded a 100% combined schedular rating continuously effective since September 9, 2010. As noted above, 38 C.F.R. § 4.16(a) limits awards of a TDIU rating to those cases when a veteran is not entitled to a 100% schedular rating. Because the Veteran has been awarded a combined disability rating of 100% continuously effective since September 9, 2010, a TDIU rating may not be assigned for any period of time since September 9, 2010, including since the TDIU rating denial in September 2017. Accordingly, as a matter of law the Veteran is not entitled to a schedular TDIU rating at any time during the appeal period. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Moreover, because he was gainfully employed even during a time when in receipt of a 100% combined schedular rating, a TDIU rating could not be assigned on an extraschedular basis and, so, referral for extraschedular consideration is not warranted. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.