Citation Nr: 21040648 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-50 292 DATE: July 6, 2021 ORDER Entitlement to a rating in excess of 20 percent for compression fracture, T-10, T-11, with degenerative changes is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 19, 2020 is denied. FINDINGS OF FACT 1. Even considering functional limitations, the Veteran's compression fracture, T-10, T-11, with degenerative changes did not more nearly approximate forward flexion of 30 degrees. 2. Prior to October 19, 2020, the preponderance of the evidence is against finding that the Veteran is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for compression fracture, T-10, T-11, with degenerative changes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5235-5242. 2. The criteria for a TDIU prior to October 19, 2020 have not been met. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1963 to January 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript is associated with the claims folder. The Board previously remanded these claims in December 2020. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to a rating in excess of 20 percent for compression fracture, T-10, T-11, with degenerative changes is denied. The Veteran contends that he is entitled to a higher rating because of constant back pain. See March 2016 notice of disagreement. At the November 2020 Board hearing, the Veteran testified that his back pain prevented him from performing occupational duties, including carrying mail and lifting heavy objects. The Veteran reported incapacitating episodes two to three days per week due to his back condition. Upon further questioning, the Veteran indicated that no doctor had prescribed bedrest, and he does not spend the entire day in bed. The Veteran also reported radiculopathy related to his spine disability with pain shooting down the back of his legs. Initially, the appeal period before the Board begins one year prior to May 8, 2015, the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010); May 2015 VA Form 21-526EZ. Currently, the Veteran's compression fracture, T-10, T-11 is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5235. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Alternatively, spine disabilities may be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. This formula provides a 20 percent rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a , Note (1). The rating criteria for the spine were amended on February 7, 2021. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. 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). In this case, treatment records note chronic and radiating back pain. A May 2015 MRI of the lumbar spine showed multilevel broad-based disc bulges, disc bulge and facet and ligament hypertrophy at L4-L5, with left lateral recess narrowing with traversing left L5 nerve root impingement. The clinical information noted lower back pain and radiculopathy. However, the impression notes included multilevel facet arthritis and recommended correlation with the Veteran's symptoms. In March 2016, the Veteran was noted to have normal gait, station, and no pain with range of motion in any major joints. The Veteran was also noted to have pain with palpation of the spine and paraspinal area in the lumbosacral region. The Veteran reported being active and enjoyed walking, with some hip and back problems limiting his ability to do so. In March 2017, the Veteran reported back pain radiating to the legs. In July 2018, the Veteran reported chronic low back problems and the clinician noted an assessment of radicular low back pain. In May 2015, the Veteran was afforded a VA examination. The Veteran reported gradual, increased low back pain over the last year with a sudden increase in the prior month. He also reported increased stiffness, but denied related neurologic symptoms. Of note, the Veteran denied bowel or bladder issues, as well as radiating pain, tingling, numbness, or weakness in the lower extremities. The Veteran reported flare-ups caused pain and a stabbing sensation without any radiation, tingling, or numbness. On objective examination, which was conducted during a flare-up, initial range of motion testing revealed forward flexion to 70 degrees and combined range of motion to 220 degrees. Pain was noted on forward flexion and extension. After repetitive use testing, there was additional loss in terms of range of motion. That additional loss resulted in forward flexion to 45 degrees, with the other ranges the same after repetitive motion. Joint function was additionally limited by pain and fatigue after repetitive use. There was localized tenderness resulting in abnormal gait or abnormal spinal contour. There was no sign of sensory deficit, motor weakness, pathologic reflexes, or ankylosis. The Veteran did not have IVDS. Although the Veteran was unable to perform straight leg raising tests, the examiner noted no signs or symptoms due to radiculopathy. The examiner stated the thoracolumbar spine disability would impact the Veteran's ability to work because he would unable to perform extensive lifting or bending repeatedly. The Veteran was afforded another VA examination relating to his compression fracture, T-10, T-11, with degenerative changes in December 2020. The Veteran reported severe lower back pain and stiffness, with decreased activities of daily living. On examination, range of motion was noted as flexion to 45 degrees and combined range of motion of 130 degrees. There was pain in all range of motion. After repetitive use testing, there was additional loss in terms of range of motion. That additional loss resulted in forward flexion to 40 degrees, with combined range of motion to 120 degrees. Although the Veteran denied flare-ups, the examiner indicated that pain, weakness, fatigability, lack of endurance, and incoordination significantly limit functional ability with flare ups. The examiner estimated that flare-ups result in flexion to 40 degrees and combined range of motion to 115 degrees. There was reduced muscle strength in the bilateral hip flexion, knee extension and ankle dorsiflexion. There was no muscle atrophy, signs of sensory deficit, motor weakness, pathologic reflexes, ankylosis, or IVDS. There were negative results on straight leg raising tests, and there was no radicular pain or any other signs or symptoms. The examined concluded that the Veteran's severe lower back pain and decreased range of motion limits any form of occupational work, including the ability to sit or stand for long periods, or perform "sedentary" work. Review of the relevant evidence demonstrates that the Veteran's range of flexion has most closely approximated 40 degrees, and not less, throughout the appeal period in question. This range of motion corresponds to a 20 percent rating under the General Rating Formula for the Spine. This conclusion is based on the objective medical evidence contains in the VA examination reports and includes consideration of functional impairment factors discussed in 38 C.F.R. §§ 4.40 and 4.45. The Veteran has reported that his back disability manifests with constant pain and stiffness, and functional impairment that affects certain activities. Despite this, the competent and probative evidence demonstrates that the Veteran's range of flexion has most closely approximated 40 degrees. The VA examination reports reflect consideration of functional impairment and the impact on the Veteran's range of motion. The 2015 examination was conducted during a flare-up and the Veteran achieved forward flexion to 70 degrees. However, the examination findings suggest that forward flexion would be further limited to 40 degrees with repeated use over time. Indeed, upon repetitive use testing, the Veteran's forward flexion was reduced to 45 degrees. The examiner indicated this functional loss was due to pain and fatigue. During the December 2020 examination, the VA examiner estimated functional loss would limit forward flexion to 40 degrees with repeated use and during flare-ups. Forward flexion limited to 40-45 degrees closely approximates the criteria for a 20 percent rating. An even higher rating of 40 percent requires forward flexion limited to no greater than 30 degrees, which is not shown here, even considering functional impairment. Given the clinical evidence and the Veteran's description of the functional impairment during flare-ups demonstrates forward flexion of the thoracolumbar spine has not been limited to 30 degrees or less so as to support the assignment of a 40 percent rating. The VA examination reports are probative as they were completed by medical professional trained to evaluate the claimed disability and provide the Board with a clear description of all relevant data points necessary to evaluate this claim. Although the Veteran reported general functional loss and is competent to report what he observed with his own senses, the lay evidence does not establish range of motion in forward flexion to 30 degrees or less, or the criteria for a higher 40 percent rating based on limited motion. Further, a rating in excess of 20 percent is also not warranted pursuant to the Formula for Rating IVDS Based on Incapacitating Episodes because the evidence does not show that the Veteran has had an incapacitating episode as defined by the pertinent VA regulations. For rating purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Although the Veteran's representative reported incapacitating episodes, the Veteran appeared to offer inconsistent testimony as to whether he was actually at rest at the Board hearing. Moreover, the Veteran testified that the bedrest was not prescribed by a physician. The record does not otherwise support treatment by a physician that included prescribed bed rest. Further, the Board notes the VA treatment records and VA examinations did not support a diagnosis of IVDS in this case. The Board has considered whether separate ratings are warranted for neurologic impairment. The Veteran and his representative asserts that he has neurological abnormality associated with his spine disability. In VA treatment records and at VA examinations the Veteran reported that low back pain radiates to the lower extremities. However, he denied numbness or weakness in his lower extremities. May 2015 imaging impression did not result in an assessment of lumbar radiculopathy. Rather, the note indicated a need for further correlation with the Veteran's pain pattern. Although the Veteran was unable to perform straight leg raise testing in May 2015, both of the May 2015 and December 2020 VA examiners noted they found no signs or symptoms due to radiculopathy. Of note, the December 2020 VA examination included consideration of all available records, which would include the May 2015 MRI results. Ultimately, the Board finds the VA examination reports and the clinical evidence is competent and probative evidence on this question and do not demonstrate lumbar spine radiculopathy or any other related neurological abnormalities. Although the Veteran is competent to report what he observed with his senses, the ability to diagnose radiculopathy is a complex matter and requires the ability to understand an internal medical process and interpret complex medical testing. Thus, in circumstances like this, the Board accords more probative value to clinicians trained to perform testing and interpret testing results in relation to the claimed radiculopathy. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against finding that there was bilateral lower extremity radiculopathy. The Board has considered the argument of the Veteran's representative in support of an extraschedular evaluation, but finds referral to the Director of Compensation is not warranted. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). See 38 C.F.R. § 3.321 (b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. In this case, the Veteran, by his representative argue that the Veteran's radiculopathy, incapacitating episodes, and sleep difficulties warrant extraschedular consideration. See November 2020 Board Hearing. As noted above, any neurological complications from the Veteran's spine disabilities and incapacitating episodes are explicitly contemplated in the rating criteria. 38 C.F.R. § 4.71a. No radiculopathy has been diagnosed by a clinician and any incapacitating episodes due to pain are likewise contemplated by the schedular rating criteria for IVDS. Pain is contemplated by the rating schedule and specifically 38 C.F.R. § 4.71a, 4.40, 4.45. Further, the evidence of record indicates that the Veteran's sleep difficulties are attributable to his service-connected posttraumatic stress disorder (PTSD). In particular, the Veteran testified that sleep difficulties due to flashbacks and nightmares, as well as back pain. However, his own testimony predominantly concerned the psychiatric causes of sleep difficulties. Likewise, in treatment records, the Veteran has only complained of sleep difficulties in relation to his psychiatric disability. Further, the November 2020 VA PTSD examination report shows sleep difficulty is a symptom of his PTSD. Ultimately, the preponderance of the evidence does not indicate that the claimed sleep difficulties were due to the Veteran's service-connected thoracolumbar spine disability. In addition, since October 19, 2020, the Veteran has been compensated for this symptom as part of his rating for PTSD. In the November 2020 rating decision, the RO noted chronic sleep impairment as part of the 70 percent evaluation. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Moreover, the Veteran does not contend, and the evidence does not suggest, that there is marked interference with employment or any periods of hospitalization. Thun at 115-116. The rating criteria adequately contemplates the symptoms related to the Veteran's thoracolumbar spine disability. Under these circumstances, the Board concludes that the threshold requirement for referral of the claim for extraschedular consideration is not warranted. In sum, the preponderance of the evidence does not establish that there is limited motion or functional loss which more closely approximates forward flexion to 30 degrees of less to support the assignment of a higher rating. There is no doubt to be resolved. See Gilbert v. Derwinski,1 Vet. App. 49, 55 (1990). A rating in excess of 40 percent is not warranted. 2. Entitlement to a TDIU prior to October 19, 2020 is denied. The Veteran asserts that he is unable to work due to his spine disability and posttraumatic stress disorder (PTSD). See November 2020 VA 21-8940. At the November 2020 Board hearing, the Veteran testified that he had incapacitating episodes due to his back requiring him to stay in bed multiple days per week. In addition, the Veteran reported that his spine disability limited his ability to perform work duties, including carrying mail and lifting. In December 2020, the Board took jurisdiction of the claim for a TDIU as part and parcel of the Veteran's claim for an increase rating for his spine disability pursuant to Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In doing so, the Board noted that the RO granted a TDIU, effective October 19, 2020, for only part of the appeal period. Thus, entitlement to TDIU prior to October 19, 2020, remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). As this increased rating claim for the lumbar spine was received in May 2015, the appeal period for IU consideration follows the same appeal period. It is the established policy of VA 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). For the period prior to October 19, 2020, the Veteran was service-connected for compression fracture, T-10, T-11, with degenerative changes rated 20 percent disabling from November 30, 2007; and tinnitus rated 10 percent disabling from November 30, 2007. Thus, the schedular criteria for a TDIU are not met. See 38 C.F.R. § 4.16 (a). Nevertheless, entitlement to a TDIU still may be granted on an extraschedular basis under § 4.16(b). This additional subpart of the regulation indicates "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." Id. However, the Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1(2001). The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase "unable to secure and follow a substantially gainful occupation" under 38 C.F.R. § 4.16 (b). The Court defined the term to have two components: one economic and one noneconomic. 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. The non-economic component, which is pertinent in this case, includes consideration of: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Upon review, the Board finds the evidence does not support TDIU prior to October 19, 2020. The Veteran's DD Form 214 shows his military occupational specialty was light weapons infantryman. On the Veteran's November 2020 VA 21-8940, he indicated he had completed high school. The Veteran also reported that he worked for the USPS full time as a mailman from 1977 to August 2007. In March 2016 VA treatment records, the Veteran indicated that he had returned to work after his retirement in his sixties (approximately mid to late 2000s) due to boredom. The Veteran was reportedly working six hours per day, five days per week at an automotive parts distributor. The Veteran also reported being the primary caretaker for his ill spouse. A July 2018 VA treatment record reflects that the Veteran "continues to work at a local trucking company loading equipment, not anything heavy and has modified how he is doing to avoid aggravating his back." VA treatment records dated in May 2019 show the Veteran reported his wife had died earlier that month and that was no longer working. With regard to the economic considerations in Ray, the evidence does not clearly show whether the Veteran was engaged in an occupation earning more than marginal income during the appeal period in question. However, the evidence clearly indicates that the information provided by the Veteran on his November 2020 VA From 21-8940 (i.e. that he ceased to work in August 2007) is not entirely accurate, because the VA treatment records reflect that he expressed to various clinicians that he was indeed working as between the 2016 - 2019 timeframe, and possibly before. With regard to the non-economic considerations discussed in Ray, the Board determines that the Veteran has mental and physical ability (considering his education and past training, skills, and work history) to perform substantially gainful work as a mailman and in automotive parts distribution or similarly situated occupations. Prior to October 19, 2020, the evidence shows the Veteran had some difficulties due to his service-connected thoracolumbar spine disability. Indeed, the May 2015 VA examination report reflects he was unable to unable to perform extensive lifting or bending repeatedly. However, that disability is not shown to have precluded the Veteran from obtaining substantially gainful employment consistent with his work history, training, education, and skills. Rather, the Board finds that the Veteran could have performed employment consistent with his training, work experience and education with sufficient rest breaks from lifting and bending. Indeed, the Veteran was able to perform occupational activities that required engaging in physical activities even after he retired as a mailman. The record reflects that his post-USPS retirement work was in an automotive part distribution position despite his service-connected compression fracture, T-10, T-11, with degenerative changes. Indeed, a July 2018 VA treatment record reflects that the Veteran continued to work at a local trucking company loading equipment and had modified how he is doing to avoid aggravating his back disability. To the extent that he reported on the VA 21-8940 that he could not work due to the combined impact of his spine disability and PTSD, the Board notes that the Veteran was not service-connected for PTSD prior to October 19, 2020. Therefore, the Board cannot consider the effect of PTSD prior to that time. As noted, the Court in Ray held that the appropriate standard for the Board when determining whether to remand a claim for TDIU pursuant to §4.16(b) is whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Based on the Board's review, the evidentiary record fails to demonstrate that the Veteran was unemployable due solely to his service-connected disabilities prior to October 19, 2020. Accordingly, there is no basis to refer this matter to the Director of Compensation Services for extraschedular consideration. The preponderance of the competent and probative evidence is against entitlement to a TDIU prior to October 19, 2020. As such, the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski,1 Vet. App. 49, 55 (1990). The claim must be denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.