Citation Nr: 21028579 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-32 017 DATE: May 11, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease (DDD) L5-S1, prior to January 31, 2019, is denied. Entitlement to an evaluation in excess of 20 percent for DDD L5-S1 after January 31, 2019, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to January 31, 2019, the Veteran's DDD L5-S1 is manifest by functional loss due to painful motion. 2. After January 31, 2019, the Veteran's DDD L5-S1 is manifest by forward flexion of 40 degrees during flare-ups. 3. Affording the Veteran the benefit of the doubt, he is not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to January 31, 2019, the criteria for a rating in excess of 10 percent for DDD L5-S1 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242-5237 (2020). 2. After January 31, 2019, the criteria for a rating in excess of 20 percent for DDD L5-S1 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242-5237 (2020). 3. The criteria for entitlement to a total disability rating based on individual unemployability are met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from September 1975 to May 1980. This case comes before the Board of Veterans' Appeals (Board) on an appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim for increased rating for his back disability has come before the Board before. In November 2018, the Board remanded the claim for DDD L5-S1 for more development. The Board also found that the issue of entitlement to TDIU was part of the increased rating claim then on appeal, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also remanded the TDIU claim for additional development. An August 2020 supplemental statement of the case was most recently issued, and the claims are once again before the Board. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, DC 5237-5242. 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 assigned, if forward flexion of 30 degrees or less; or favorable ankylosis of the entire lumbar spine is present. Where there is unfavorable ankylosis of the entire thoracolumbar spine, a 50 percent is assigned. Finally, a maximum 100 percent rating is assigned where there is unfavorable ankylosis of the entire 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. Id. at Note (2). The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal combined ROM of the thoracolumbar spine is 240 degrees. Id. 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 ROM. Id. ROM measurements are to be rounded to the nearest five degrees. Id. at Note (4). The Board notes that 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). 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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, and the criteria that is more favorable to the Veteran will be applied. Effective February 7, 2021, DC 5242 compensates for degenerative arthritis, DDD other than intervertebral disc syndrome (IVDS) (also, see either DC 5003 or 5010). Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5242). The rating criteria under the general rating formula remained unchanged. 1. Entitlement to an evaluation in excess of 10 percent for DDD L5-S1 prior to January 31, 2019. The Veteran seeks an increased rating for his DDD L5-S1 prior to January 31, 2019. The Veteran was granted a ten percent rating for his DDD L5-S1 in a May 2015 rating decision based on his painful motion associated with his thoracolumbar spine. The Veteran stated in a July 2014 primary care note that his chronic back pain was getting worse, and in December 2014, he indicated he had constant sharp aching pain in his back on his left and right sides. He reported nothing made the pain better, and that his pain interfered with general activities and his ability to walk. However, in a January 2015 outpatient visit, the examiner noted that the Veteran did not show pain behavior, he moved quickly and well, and was not guarding his back. In a February 2015 psychiatry consult, the Veteran told the social worker that he had been having back pain for so long and all the time. He said that the pain prevented him from lifting over fifty pounds and from sitting for too long. The Veteran explained that the pain affects his lifestyle in every way, making it difficult to get up and preventing him from working. Again, in a March 2015 substance abuse treatment consult, the Veteran told the therapist he has sharp pain daily from standing too long, and nothing makes it better, preventing him from doing certain things. The Veteran underwent a VA examination for his back in May 2015. The Veteran was diagnosed with DDD L5-S1. The Veteran reported no flare-ups, no functional loss or functional impairment of the thoracolumbar spine. There was objective evidence of localized tenderness to the right paraspinal muscle lumbosacral area. He had normal range of motion measurements, forward flexion at 90 degrees, extension at 30 degrees, right and left lateral flexion at 30 degrees, and right and left lateral extension at 30 degrees. The examiner did note that the Veteran experienced pain with forward flexion and extension, but that it did not cause or result in functional loss. The examiner performed a repetitive use test and found there was no additional loss of range of motion or function. The Veteran suffered no pain with weightbearing, was negative for guarding, muscle spasms, muscle atrophy, radiculopathy, intervertebral disc syndrome (IVDS), and ankylosis. His sensory examination was normal, but his reflex examination showed he measured at hypoactive for each reflex tested. It is noted that in a November 2018 remand, the Board determined this examination was inadequate because it did not meet all the requirements set forth in Correia v. McDonald, 28 Vet. App. 158 (2016), specifically range of motion results for pain on both active and passive motion and weightbearing and non-weightbearing. In a March 2016 neurosurgery consult, the physician reviewed a lumbar spine MRI the Veteran had in March 2016. The physician determined that the Veteran suffered from mild multilevel degenerative joint disease slightly worse at L4/5 and L5/S1, with no root or canal compromise. He recommended the Veteran pursue conservative treatments to include physical therapy, chiropractic, massage therapy, acupuncture, and pain management, but determined surgery was not a good treatment for axial low back pain. In a September 2017 progress note, the Veteran complained of chronic back pain and indicated that it was getting worse. The Veteran sought treatment at the emergency department in March 2018 for nonservice-connected issues. During this visit, the examiner noted during his physical examination that the Veteran had no midline lumbar tenderness, no paravertebral muscle tenderness, and had full range of motion. Then in a December 2018 physician note, the doctor indicated that the Veteran had no joint pain, redness, or swelling, and that he had good range of motion with no back or neck pain, weakness, or numbness. Upon review, the Board finds that a disability rating in excess of 10 percent is not warranted at any time prior to January 31, 2019. The records reflect that the Veteran had constant pain during this appeal period, but there is no indication he had a limited range of motion to include forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or muscle spasms or guarding severe enough to result in an abnormal gait. Thus, in evaluating the claim, the Board finds that the VA examinations and medical records are competent and probative, and therefore, the preponderance of the evidence is against the Veteran's claim. A rating in excess of 10 percent prior to January 31, 2019, is denied. 2. Entitlement to an evaluation in excess of 20 percent for DDD L5-S1 after January 31, 2019. The Veteran seeks a rating in excess of 20 percent for his DDD L5-S1 after January 31, 2019. Pursuant to the Board remand, the Veteran underwent a VA examination in January 2019 for his lower back condition. The Veteran told the examiner his back condition had increased in severity, and that his current symptoms were daily aching pain and stiffness. He described having functional impairment due to his back pain manifested by difficulty with repetitive bending, heavy lifting, and prolonged sitting and standing. His range of motion measurements were forward flexion at 65 degrees, extension at 20 degrees, right and left lateral flexion at 0-20 degrees, and right and left lateral rotation at 25 degrees. The examiner noted the Veteran had pain with all movements and that the pain noted on the examination caused functional loss, and that there was objective evidence of localized tenderness on palpation of the lumbar area L4-L5 and L5-S1. The examiner determined there was pain on weightbearing, but no objective evidence of pain when the back was used in non-weightbearing. He determined passive range of motion for the back could not be performed or was not medically appropriate. The Veteran reported having flare-ups causing sharp stabbing pain. The examiner noted the pain and fatigue during the flare-ups contributed to functional loss. He estimated the Veteran's range of motion during flare-ups to be forward flexion at 40 degrees, extension at 10 degrees, right and left lateral flexion at 15 degrees, and right and left lateral rotation at 20 degrees. He had no muscles spasms, guarding, muscle atrophy, ankylosis, or IVDS, and he did not use an assistive device. His muscle strength test was normal, his reflex test showed right and left knee and left ankle to be normal and his right ankle as hypoactive, his sensory exam showed his left side to be normal and his right side decreased, and he was positive for his straight leg test on the right side only. The examiner indicated the Veteran suffered from radiculopathy, with moderate intermittent pain on the right side. The examiner noted that the Veteran's back condition impacted his ability to work and that he should avoid repetitive bending and heavy lifting, and that he has difficulty with prolonged sitting or standing. He also opined that the medical records indicate that the DDD and degenerative joint disease (DJD) had progressed to multiple levels of the lumbar spine. The Board finds that a disability rating in excess of 20 percent is not warranted after January 31, 2019. The records reflect that the Veteran had constant pain and that during flare-ups and repetitive use that his forward flexion was 40 degrees and 50 degrees respectively. However, there is no indication he had a limited range of motion to include forward flexion of the thoracolumbar spine less than 30 degrees at any time, nor favorable ankylosis of the entire thoracolumbar spine. As the Veteran is currently in receipt of a compensable, 20 percent, rating under Diagnostic Code 5242-5237 for limitation of motion for his lumbar spine, and he does not have a diagnosis of post-traumatic arthritis, Diagnostic Code 5003 and Diagnostic Code 5010 are not for application under the former or amended schedular criteria, from February 7, 2021. Therefore, the Board finds that the VA examination is competent and probative, and the preponderance of the evidence is against the Veteran's claim. A rating in excess of 20 percent after January 31, 2019, is denied. Regarding neurological impairment, the Veteran has already been granted service connection for sciatic lumbar radiculopathy of the right lower extremity and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The January 2019 VA examination report noted that the Veteran did not have left extremity radiculopathy or other neurologic abnormalities related to the spine. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to a total disability rating based on individual unemployability. The Veteran contends he is unable to work due to his service-connected disabilities. Specifically, he alleges that the pain from his back condition preclude employment. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the disability rating assigned for his or her service-connected disabilities met certain thresholds. 38 C.F.R. § 4.16(a). As of May 2020, the Veteran was in receipt of service connection for major depressive disorder, evaluated at 70 percent; DDD L5-S1 evaluated at 10 percent prior to January 31, 2019, and 20 percent thereafter; sciatic lumbar radiculopathy of the right lower extremity, evaluated at 20 percent. Applying the combined rating table, the Veteran had a combined rating of 70 percent at the beginning of this appeal period, and 80 percent after January 31, 2019. Therefore, the Veteran meets the criteria for schedular TDIU for the entire period on appeal. See 38 C.F.R. § 4.16(a). The Board turns to the second aspect of TDIU: whether the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). 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). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's educational history shows he has a high school diploma, received a welding certificate in 1987, and got his commercial driver's license (CDL) in 1987. Following the November 2018 Board remand, the Veteran was sent a VA Form 21-8940 in March 2019, but he never returned it to the VA. However, during his vocational rehabilitation appointments, he provided the counselor a list of his previous employment. Throughout the record, the Veteran provides different dates for his last day of employment. During a March 2016 vocational counseling appointment, the Veteran reported he worked from 1998-2002 at KLLM as a truck driver and welder, from 2001-2003 at Ceat Warehouse as a truck driver, and from 2008-2010 with Thomas & Sons Fencing as skilled labor and a welder. He told the counselor he left his job in 2010 due to him not being able to work because of his back pain. However, in an August 2013 VA examination, the Veteran reported his last day of work as a truck driver was fifteen years prior; then in a February 2018 counseling record, he said he had been unemployed for the past four years; and finally, in his February 2019 VA examination for mental health, he told the examiner he had not worked since 2001. He told the examiner he was a certified welder and truck driver, but he was unable to maintain stable employment because something comes up and he gets mad and leaves. Turning to the Veteran's actual occupational impairment due to his service-connected disabilities, the Veteran contends he is unable to work due to the pain caused by his back disability. In a vocational counseling session, the Veteran reported having problems with prolonged standing, walking, lifting, carrying heavy objects, bending, stooping, climbing, and reported severe pain with physical activities. He also said he has difficulty concentrating, remembering, punctuality, and dealing with people. Then in February 2018, in another counseling report, he stated that he gets anxious when lots of people are around, stated that he always felt depressed, and the he could not stand for prolonged periods of time due to his back pain. However, he did indicate he could still drive and did so all over the state, but that his CDL was currently suspended due to unpaid tickets. The Veteran underwent a VA examination in February 2019 for his major depressive disorder. During this examination, the psychologist noted that in an occupational environment, the Veteran's irritability and impulsivity may lead him to have difficulty getting along with others. She continued saying he may get into arguments with colleagues and/or superiors and walk off the job, that his sleep disturbances could cause problems with punctuality, and that his problems with concentration may make it difficult to complete tasks in a timely manner. The doctor said the Veteran suffered from irritable behavior and angry outbursts with little to no provocation, typically expressed as verbal or physical aggressions toward people or objects. Concluding that the Veteran suffered from occupational and social impairment with deficiencies in most areas, such as work. The Veteran underwent a VA examination for his back condition in January 2019. The examiner found that the Veteran had contributing factors to his disability including interference with repetitive bending or heavy lifting and difficulty with prolonged standing or sitting. The examiner concluded that the Veteran's back condition impacted his ability to work by him having to avoid repetitive bending, heavy lifting, and prolonged standing or sitting. The question of unemployability is ultimately a legal one, not a medical one. In this regard, the Board acknowledges the impact the Veteran's service-connected disabilities have on his employability, which may limit the type of employment he may be able to secure. Despite the Veteran indicating different dates for his last day of employment, based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected disabilities have rendered him unable to secure and follow substantially gainful employment. While the Veteran has a welding certificate and a CDL, currently suspended for unpaid speeding tickets, and he showed a strong desire to get back to truck driving, the record of evidence indicates his back and sciatic pain coupled with his major depressive disorder symptoms would preclude his ability to maintain employment as a truck driver. His occupational impairment from his disabilities manifest in pain, difficulty standing or sitting for prolong periods, difficulty interacting with others, irritability, angry outbursts, and difficulty with concentration and punctuality. In this regard, despite him saying he is willing to drive, the Veteran's pain, difficulty working with others, and mood deficits would make securing and maintaining employment difficult, if not impossible. Accordingly, after resolving all doubt in favor of the Veteran, the Board concludes that entitlement to a schedular TDIU rating due to service-connected disabilities is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. MARENNA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Doerfler, 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.