Citation Nr: 21028895 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 09-36 437 DATE: May 12, 2021 ORDER A disability rating higher than 20 percent for lumbar spine disability prior to August 6, 2019 is denied. A disability rating higher than 40 percent for lumbar spine disability since August 6, 2019 is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 6, 2019 is denied. FINDINGS OF FACT 1. The Veteran served on active duty from October 1985 to May 1990. 2. Prior to August 6, 2019, lumbar spine disability was manifested by forward flexion with pain occurring at no less than 65 degrees, as well as limitation of extension, bilateral flexion, and bilateral rotation. There was no intervertebral disc syndrome (IVDS) or ankylosis. 3. Since August 6, 2019, lumbar spine disability was manifested by forward flexion with pain occurring at 40 degrees, as well as limitation of extension, bilateral flexion, and bilateral rotation. There was no IVDS or ankylosis. 4. Prior to August 6, 2019, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to August 6, 2019, the criteria for a rating in excess of 20 percent for lumbar spine disability were not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a. 2. Since August 6, 2019, the criteria for a rating in excess of 40 percent for lumbar spine disability were not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a. 3. The criteria for a TDIU prior to August 6, 2019 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The claims on appeal were previously before the Board on multiple occasions, most recently in May 2020, at which time the claims were remanded for further development. The case is again before the Board for appellate review. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Lumbar Spine While this appeal was pending, the rating criteria for musculoskeletal disabilities was amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). If the amended criteria are more favorable, the implementation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of the change. If the pre-amended criteria are more favorable, VA can apply the pre-amended criteria for the period prior to and from the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the pre-amended criteria prior to February 7, 2021 and will consider both the pre-amended and amended criteria since February 7, 2021. The criteria that is more favorable will be applied. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (Spine Formula). 38 C.F.R. § 4.71a, DCs 5237-5243. Intervertebral disc syndrome is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The amended regulations clarify that DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. No other changes were made to the rating criteria for the spine. The Veteran's lumbar spine disability has been rated under DC 5242 as 20 percent disabling prior to August 6, 2019, and as 40 percent disabling since then. The Board will consider all relevant diagnostic codes. A rating in excess of 20 percent will be warranted when the objective medical evidence shows the following: forward flexion of the thoracolumbar spine 30 degrees or less (40 percent); favorable ankylosis of the entire thoracolumbar spine (40 percent); incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent). A rating in excess of 40 percent will be warranted when the objective medical evidence shows the following: unfavorable ankylosis of the entire thoracolumbar spine (50 percent); unfavorable ankylosis of the entire spine (100 percent); incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent). Notably, the Veteran has not been diagnosed with IVDS during the appeal period. Thus, DC 5242 remains the most appropriate DC for application here. The Veteran was provided multiple VA examinations during the course of the appeal. A review of treatment notes reflects that he has received treatment for back pain, but no findings were reported that suggested more severe symptoms or manifestations of the back disability that were more severe than found at the VA examinations. In a March 2008 VA examination, the Veteran reported symptoms of sharp pain radiating to both hips, weakness, and stiffness in his low back. He experienced flare-ups caused by increased and deceased activity and described as pain and stiffness that became significantly worse and may occur several times per week, lasting 4-5 hours on average. The Veteran displayed a gait that was somewhat antalgic. Range of motion was to 60 degrees forward flexion with pain. Extension was to 10 degrees with pain. Left lateral flexion was to 20 degrees with pain and right lateral flexion was to 15 degrees with pain. Left lateral rotation was to 15 degrees with pain and right lateral rotation was to 15 degrees with pain. His results on repetitive motion showed increased pain, but he did not have fatigue, weakness, lack of endurance, or incoordination, and there was no additional functional loss. The Veteran did not have ankylosis. In a February 2010 VA examination, range of motion was to 65 degrees forward flexion with pain. Extension was to 10 degrees with pain. Left lateral rotation was to 20 degrees with pain and right lateral rotation was to 20 degrees with pain. Repetition resulted in no additional loss of range of motion. In a September 2015 VA Disability Benefit Questionnaire (DBQ), the Veteran reported experiencing flare-ups described as locking of his lumbar spine. Functional loss as a result of flare-ups was indicated as no prolonged activity of any kind and he could not pick up his grandchildren. Range of motion was to 75 degrees forward flexion with pain. Extension was to 10 degrees with pain. Left lateral flexion was to 20 degrees with pain and right lateral flexion was to 25 degrees with pain. Left lateral rotation was to 20 degrees with pain and right lateral rotation was to 20 degrees with pain. There was no pain with weight-bearing. The functional loss was due to pain. After repetition, forward flexion was reduced to 65 degrees, right lateral flexion was reduced to 20 degrees. The examiner indicated that the examination was not performed during periods of flare-ups and that he was unable to say without mere speculation whether pain, weakness, fatigue, or incoordination significantly limited the functional ability of the Veteran's lumbar spine during flare-ups. He explained that the findings did not provide data to make these determinations without mere speculation. There was evidence of localized tenderness and guarding not resulting in abnormal gait or abnormal spinal contour. There was no ankylosis. The examiner found no IVDS. In an August 2019 VA DBQ, the Veteran reported that his back was increasingly painful, with daily back pain at a 7/10. He indicated experiencing flare-ups of his back pain once or twice a week, with pain at a 10/10. He denied his flare-ups were initiated by particular activity. He further reported that he was unable to fish, hunt, mushroom hunt, or play with his children/grandchildren due to his back condition. He noted that he was unable to go shopping without riding in a wheelchair. Range of motion was to 60 degrees forward flexion with pain. Extension was to 20 degrees with pain. Left lateral flexion was to 10 degrees with pain and right lateral flexion was to 20 degrees with pain. Left lateral rotation was to 10 degrees with pain and right lateral rotation was to 20 degrees with pain. There was pain with weight-bearing. There was no evidence of pain on passive range of motion testing or pain with weight-bearing. The Veteran was able to perform repetitive use testing, and after three repetitions, flexion was limited to 40 degrees, extension was to 20 degrees, right lateral flexion was limited to 20 degrees and left lateral flexion was limited to 10 degrees. Right lateral rotation was limited to 20 degrees and left lateral rotation was limited to 10 degrees. The examiner noted that pain caused functional loss. The Veteran was not being examined after repetitive use over time, but the examiner determined that the examination neither supported nor contradicted the Veteran's statements describing functional loss with repetitive use over time. The examiner opined that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. Although the Veteran was not being examined during a flare-up, the examiner opined that the examination of the Veteran neither supported nor contradicted his statements describing functional loss during flare-ups. The examiner opined that pain significantly limited functional ability with flare-ups. Range of motion was to 0 degrees forward flexion. Extension was to 0 degrees. Left lateral flexion was to 0 degrees and right lateral flexion was to 0 degrees. Left lateral rotation was to 0 degrees and right lateral rotation was to 0 degrees. There was no ankylosis. There was evidence of muscle spasms not resulting in abnormal gait or abnormal spinal contour. The examiner found no IVDS. The regular use of a back brace as an assistive device was noted. In an October 2020 VA medical opinion, the examiner indicated that during the August 2019 VA DBQ, the Veteran could not reliably determine and demonstrate range of motion loss during a flare-up or after repetitive use and medical records did not sufficiently identify previous range of motion during flare-ups or after repetitive motion. The examiner indicated that the general medical knowledge of the Veteran's joint condition was insufficient to reasonably estimate range of motion for each plane of motion as there was great variability between individuals who had the same conditions. For the period prior to August 6, 2019, the 20 percent rating contemplates the Veteran's forward flexion with pain occurring at no less than 65 degrees with spasm, stiffness, pain, tenderness to palpitation. A rating in excess of 20 percent requires forward flexion to no more than 30 degrees, ankylosis, or that the Veteran experienced incapacitating episodes requiring bedrest due to IVDS. None of the evidence dated prior to August 2019 indicates forward flexion limited to 30 degrees or less, or IVDS. Therefore, the medical evidence does not support a rating in excess of 20 percent prior to August 6, 2019. Next, for the period since August 6, 2019, the 40 percent rating assigned contemplates the Veteran's range of motion limitations and the effect of his flare-ups of pain on function. A rating in excess of 40 percent may not be assigned without ankylosis or incapacitating episodes of IVDS, neither of which is present. Therefore, the medical evidence does not support a rating in excess of 40 percent since August 6, 2019. The Board has considered the revised criteria under DC 5243, effective February 7, 2021. See 85 Fed. Reg. 76453 (February 7, 2021) (codified at 38 C.F.R. § 4.71a). However, there is no relevant evidence dated February 7, 2021 or later in this case, and thus the amended criteria are inapplicable. The Board has also considered the Veteran's lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's lumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. TDIU Prior to August 6, 2019 A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Prior to August 6, 2019, the Veteran did not have a 100 percent rating, a single disability ratable at 60 percent or more, or at least one disability ratable at 40 percent or more with a combined rating of 70 percent or more. Rather, he was service connected for multiple disabilities rated between 20 and 0 percent disabling, with a combined rating of 60 percent from 2011 until 2019. As such, the threshold requirement for the assignment of a schedular TDIU is not met here. Nevertheless, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for a TDIU, the case may be referred to the Director, Compensation Service (Director) for consideration of assignment of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16 (b). The RO referred this case to the Director who, in December 2020, found entitlement to a TDIU prior to August 6, 2019 unwarranted. The Director reasoned that while the Veteran had limitations caused by his service-connected disabilities during the time period in question, the cumulative evidence did not support that any service-connected disability, alone or in conjunction, would have precluded all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. Looking at the disability picture as a whole, the evidence does not indicate that service-connected disability rendered the Veteran unable to obtain or maintain substantially gainful employment prior to August 2019. During this period, the Veteran was service connected for lumbar degenerative disc disease at 10 percent from May 26, 1990 and 20 percent from March 3, 1999; left knee degenerative arthritis with meniscal repair at 10 percent from May 26, 1990 and 20 percent from March 3, 1999; tinnitus rated at 10 percent from January 19, 2007, unspecified depressive disorder rated at 10 percent from January 19, 2007, GERD at 10 percent from November 3, 2008, right knee degenerative arthritis with meniscal tear at 10 percent from March 21, 2011, left knee limitation of flexion at 10 percent from September 15, 2015; and left knee surgical scars rated at 0 percent from September 15, 2015. As to the GERD, in an April 2009 VA examination, the examiner determined that the Veteran's GERD impacted his ability to work in that he had poor social interactions, decreased mobility, lack of stamina, weakness or fatigue, and pain. As to the unspecified depressive disorder, in a September 2015 VA examination, the examiner noted symptoms of depressed mood. The examiner determined that the Veteran's unspecified depressive disorder resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Further, the examiner noted that there was no indication that the mild to moderate psychiatric symptoms alone prevented the Veteran from engaging in some form of sedentary/solitary work wherein reasonable accommodations (such as frequent breaks, flexible scheduling) were allowed. As to the lumbar spine disorder, in an April 2008 VA examination, the examiner found that the Veteran's lumbar spine disability impacted his ability to work as his mobility was decreased because of his back pain and he was unable to perform many of his occupational or recreational activities due to pain. He was also unable to drive long distances due to back discomfort. Further, in a September 2015 VA Back (thoracolumbar spine) examination, the examiner found that the Veteran's lumbar spine disability impacted his ability to work. The examiner indicated that the Veteran could not stand or walk for long periods. However, the examiner opined that the Veteran's lumbar spine disability would not prevent him from securing and maintaining substantially gainful employment. The examiner noted that the Veteran's lumbar spine may restrict employment opportunities, however, would not prevent him from employment of a more sedentary nature or other employment that did not require physical labor to include prolonged walking, standing, lifting, carrying, bending, squatting or climbing. As to the left and right knee disorders, in an April 2008 VA examination, the examiner found that the Veteran's left knee disability impacted his ability to work as his mobility was significantly limited due to pain and he was unable to perform many occupational and recreational activities due pain and he could not drive for any length of time. Further, in a February 2010 VA examination, the examiner found that the Veteran's left knee degenerative arthritis with meniscal repair impacted his ability to work. The examiner indicated that the Veteran's left knee degenerative arthritis with meniscal repair caused decreased mobility, problems with lifting and carrying, and pain. Additionally, in a June 2015 VA examination, the examiner found that the Veteran's right knee degenerative arthritis with meniscal tear and left knee degenerative arthritis with meniscal repair impacted his ability to work. The examiner indicated that using stairs and standing for long periods increased the Veteran's pain, especially due to the concrete floors. The Veteran stated that he could not work as he has always done physical labor and he could not do the standing or walking now. The examiner indicated that he would be able to do limited sedentary work with frequent breaks. In a September 2015 VA knee and lower leg examination, the examiner found that the Veteran's right knee degenerative arthritis with meniscal tear and left knee degenerative arthritis with meniscal repair impacted his ability to work. The examiner indicated that the Veteran could not stand for any length of time and he had pain on the stairs. However, the examiner opined that the Veteran's left knee disability would not prevent him from securing and maintaining substantially gainful employment. The examiner noted that the Veteran's left knee disability may restrict employment opportunities, however, would not prevent him from employment of a more sedentary nature or other employment that did not require physical labor to include prolonged walking, standing, lifting, carrying, bending, squatting or climbing. As to the Veteran's other service-connected disabilities mentioned above, the medical evidence did not show that they would render him unable to obtain or maintain substantially gainful employment. In sum, the medical evidence does not support a TDIU prior to August 6, 2019 on an extraschedular basis. Rather, the medical evidence shows that the bilateral knee, lumbar spine, and unspecified depressive disorder disabilities would only impose restrictions on the type of employment that he could perform. Regarding the bilateral knee disabilities and the lumbar spine disability, there was no indication that it would restrict employment for sedentary work or other employment that did not require physical labor to include prolonged walking, standing, lifting, carrying, bending, squatting, or climbing. Further, with regard to the unspecified depressive disorder, there was no indication that the mild to moderate psychiatric symptoms alone prevented the Veteran from engaging in some form of sedentary/solitary work wherein reasonable accommodations (such as frequent breaks, flexible scheduling) were allowed. Social Security Administration (SSA) records reflect a SSA Disability Determination and Transmittal indicating he was found to be disabled as early as November 13, 2007 primarily due to osteoarthrosis and allied disorders and secondarily due to disorders of the back, discogenic and degenerative. An SSA Work History Report showed the Veteran was last employed on December 14, 2007 as a correctional officer. He had worked in that capacity from December 2001. Prior to that, he worked as a construction worker, maintenance worker, counselor at a boys' home, in heating and air conditioning, and as a general laborer. In terms of the Veteran's educational and vocational attainment, the evidence of record discloses he has earned a General Equivalency Diploma. While he began course work for an associate degree in heating and air condition, he did not complete it. The Board notes that while findings from SSA constitute probative evidence with respect to a TDIU claim, they are not dispositive or binding on VA. The SSA legal criteria for assessing disability differs in important respects from VA's own framework for determining entitlement to TDIU. SSA bases disability on a claimant's residual functional capacity, and whether there is substantial gainful activity that could be performed with that residual functional capacity. A VA claim for a TDIU focuses on unemployability based on impairments caused only by service-connected disabilities. Also, unlike SSA, VA does not consider age in making its determination. The Board has considered the Veteran's lay statements and testimony regarding his capacity to work prior to August 6, 2019. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16 (b). Such competent evidence concerning the nature and extent of the Veteran's employability on an extraschedular basis has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations, including his level of functional impairment due to his service connected disabilities. The medical findings (as provided in the examination report and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the impact of the Veteran's service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the medical opinions are probative. As such, these records are more probative than the Veteran's subjective evidence of unemployability. In light of the medical evidence, and based on the Board's own analysis and determination, the appeal for a TDIU prior to August 6, 2019 is denied. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.