Citation Nr: 21041283
Decision Date: 07/08/21	Archive Date: 07/08/21

DOCKET NO. 09-43 491
DATE: July 8, 2021

ORDER

Entitlement to an increased rating in excess of 40 percent for cervical spine degenerative joint disease and degenerative disc disease ("cervical spine disability") is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 7, 2007 is granted. 

FINDINGS OF FACT

1. For the entire period on appeal, the Veteran's cervical spine disability was not manifested by ankylosis of any kind.

2. Prior to June 7, 2007, the Veteran was rendered unable to secure or follow a substantially gainful occupation due to his service-connected disabilities when considering his education, special training, and employment history.

CONCLUSIONS OF LAW

1. The criteria for an increased rating in excess of 40 percent for a cervical spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5243.

2. The criteria for a TDIU prior to June 7, 2007 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1952 to July 1954 and from May 1960 to May 1963. The Veteran died in May 2012, and the appellant has been substituted on the appeal as his surviving spouse. 38 U.S.C. § 101(3); 38 C.F.R. § 3.1010.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2008 by a Department of Veterans Affairs (VA) Regional Office (RO).

By way of background, the Veteran filed a formal claim for entitlement to a TDIU on July 10, 2006, which the RO also accepted as a claim for an increased rating for the cervical spine disability. The RO denied entitlement to an increased rating for the cervical spine disability and a TDIU in a rating decision issued in January 2007. In June 2007 the Veteran filed a statement requesting reconsideration of the denial of entitlement to a TDIU and disagreeing with the fact that his increased rating claims had been denied without sufficient examinations being provided. 38 C.F.R. §§ 20.201, 20.302 (2007). The RO again denied entitlement to an increased rating for the cervical spine disability and a TDIU in a rating decision issued in August 2008, and the Veteran perfected an appeal of the denials to the Board in November 2009. 

The Board most recently remanded the instant appeal for additional development in November 2020, and the requested supplemental statement of the case was provided to the appellant in February 2021. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board notes that in a September 2019 rating decision the RO granted entitlement to a TDIU effective June 7, 2007. As this is a full grant of the benefits sought from that date forward, the issue of entitlement to a TDIU from June 7, 2007 forward is no longer on appeal. Ab v. Brown, 6 Vet. App. 35 (1993). However, as discussed above in June 2007 the Veteran submitted a statement that met the requirements for a notice of disagreement with the January 2007 rating decision denying TDIU, and therefore the TDIU claim currently on appeal stems from the July 2006 formal claim. As TDIU was not granted for the entirety of the appellate period for the increased rating claim, the grant does not bifurcate the TDIU issue. Harper v. Wilkie, 30 Vet. App. 356, 35962 (2018). The issue has been recharacterized to reflect the date of the award of a TDIU.

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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 disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

1. Entitlement to an increased rating a cervical spine disability.

During the period at issue, the Veteran's cervical spine disability was rated under Diagnostic Code 5010. Under the rating criteria in effect at the time, Diagnostic Code 5010 was to be rated according to the criteria governing degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Code for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. As a result, the Veteran's cervical spine disability was rated by analogy to Diagnostic Code 5243, governing intervertebral disc syndrome. As such, the Board will begin with the criteria applicable to Diagnostic Code 5243.

All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated 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. Id.

Under the General Formula, a 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula. 

Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Id. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the cervical spine being 340 degrees. Id.

Unfavorable ankylosis is a condition in which the entire cervical spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id.

Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1.

During the November 2011 hearing, the Veteran testified that he experienced pain throughout his back and significantly limited range of motion. The Veteran further reported difficulty bending, turning his head, lifting objects, standing, and sitting. The Veteran is competent to report such symptoms, and there is no evidence that his statements were not credible. Jandreau, 492 F.3d 1372. As such, they are entitled to probative weight as to the severity of his disability during the period at issue in the current appeal.

During the period prior to May 2012, the Veteran was provided with VA examinations in October 2006, February 2008, May 2008, and March 2012. In October 2006 the Veteran reported that he experienced recurrent neck pain and aches that were moderate to severe, and radiated into his shoulders. The Veteran also reported flare-ups manifested by increased pain, with additional radiating into the left upper extremity. The examiner noted that the Veteran was capable of flexion to 40 degrees and extension to 25 degrees, with pain at 20 degrees. Range of motion was also present with bilateral lateral flexion and rotation. The examiner estimated that during flare-ups the Veteran's extension would be limited to 20 degrees, but did not estimate that there would be further loss of motion in other planes. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). There was no evidence of ankylosis, spasm, tenderness or deformity.

In February 2008, the Veteran reported flare-ups manifested by pain radiating into the left upper extremity which lasted about two to three hours. The examiner noted that the Veteran was capable of flexion to 35 degrees, which was further limited to 30 degrees after repetitive testing, and that the Veteran was capable of range of motion in all other planes. The examiner stated that during the reported flare-ups the Veteran would be capable of flexion to 30 degrees and that he would have at least 20 degrees of motion in all other planes. Id. There was no evidence of ankylosis, deformity, spasm, or tenderness. The examiner noted that the cervical spine disability resulted in incapacitation totalling 6 to 7 days out of the past 12-month period.

During the May 2008 examination, the Veteran again reported neck pain that radiated into the left upper extremity. The examiner noted that the Veteran was capable of flexion to 40 degrees, which decreased to 30 degrees after repeated testing. The Veteran was capable of motion in all other planes. The examiner estimated that during flare-ups the Veteran's flexion would be limited to 30 degrees and extension would be limited to 25 degrees. Id. There was no evidence of deformity, spasm, tenderness or ankylosis.

Finally, at the March 2012 examination the Veteran reported constant neck pain that worsened when turning his head, as well as radiating pain into both hands. The Veteran denied flare-ups of the disability at the time. Id. The examiner noted that the Veteran was capable of flexion to 20 degrees, and that range of motion was present in all other planes. There was no further loss of motion with repetitive testing. The examiner stated there was no evidence of ankylosis, and that while the Veteran had a diagnosis of IVDS there was no evidence of incapacitating episodes.

There is no evidence that the above examiners were either not competent or credible. Further, each examiner based their assessment on both the Veteran's own reports of his symptoms as well as their own objective examinations of the cervical spine. The Board notes that none of the examiners conducted testing for pain on passive range of motion, weightbearing and non-weightbearing. However, each examiner clearly stated where pain began during range of motion testing generally, thus providing a clear account of the limitations imposed by pain on the Veteran's range of motion. In light of the fact that obtaining a new examination is not possible, as well as the fact that a higher rating in this case is dependent on the Veteran's inability to move his cervical spine or entire spine, the Board finds the current findings of record are sufficient to adequately rate the Veteran's cervical spine disability. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Treatment records reflect that the Veteran was treated for cervical spine pain which radiated into his left upper extremity. However, no further range of motion testing is of record, nor do any of the treatment records from the period at issue reflect that that the Veteran had ankylosis of any kind or its associated symptoms.

Based on the foregoing, the preponderance of the evidence is against a finding that an increased rating in excess of 40 percent is warranted for the Veteran's cervical spine disability. Each VA examination showed that the Veteran retained range of motion in all planes, which is inconsistent with a finding that the Veteran's cervical or entire spine was fixed in a favorable or unfavorable position.

In evaluating the Veteran's level of disability for the period, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. However, the October 2006, February 2008 and May 2008 examiners all estimated that even during flare-ups the Veteran would be capable of at least some range of motion in all planes. Further, none of the VA examiners indicated that the Veteran's pain on motion rendered him unable to move his cervical spine. Each examiner also specifically stated that ankylosis was not present. Finally, none of the medical or lay evidence reflects that the Veteran's cervical spine disability was manifested by any of the symptoms required for a finding of unfavorable ankylosis or the cervical or entire spine. As such, it cannot be said that the Veteran's pain or additional limitations during flare-ups resulted in the functional equivalent of ankylosis of the cervical or entire spine. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). As such, an increased rating in excess of 40 percent for a cervical spine disability is not warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5010-5243.

No additional higher or alternative ratings under different Diagnostic Codes can be applied. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. While the Veteran was diagnosed with IVDS, none of the examiners indicated that the Veteran experienced incapacitating episodes totalling six weeks or more during any twelve month period. In light of the lay and medical evidence of record, a rating in excess of 40 percent based on incapacitating episodes is not warranted. Id.

When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. However, the Veteran was originally assigned his 40 percent rating under Diagnostic Code 5293, which contemplated both the orthopedic and neurologic manifestations of the spine disability. 38 C.F.R. § 4.17a, Diagnostic Code 5293 (1999). As the Veteran's assigned rating of 40 percent already contemplates both his limitation of motion and his associated neurologic symptoms, to assign additional separate ratings for neurologic abnormalities pursuant to Note 1 would constitute pyramiding. 38 C.F.R. § 4.14. As such, separate compensable ratings are not possible in the current case. 38 C.F.R. § 4.71a, General Formula, Note 1.

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the appellant nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). The preponderance of the evidence is against an increased rating in excess of 40 percent for the Veteran's service-connected cervical spine disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

TDIU

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. 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 sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 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, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363.

The phrase "unable to secure and follow a substantially gainful occupation" has been interpreted to consist of two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 7274 (2019). 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. Id. at 73. 

With respect to the noneconomic component, when determining whether a veteran can secure and follow a substantially gainful occupation, consideration should be given to the following: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required; and, (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. at 7374.

2. Entitlement to a TDIU prior to June 7, 2007.

From July 10, 2006 to June 7, 2007, the Veteran was service connected for a cervical spine disability at 40 percent, brain trauma at 30 percent, and a scar at a noncompensable rating, resulting in a combined rating of 60 percent. On their face, these ratings do not meet the threshold requirements for a TDIU. 

However, in December 1995 service connection for the cervical spine disability was granted as secondary to the brain trauma. As the two disabilities resulted from a common etiology, they may be treated as a single disability for the purposes of establishing a disability rated at 60 percent. 38 C.F.R. § 4.16(a). The 40 percent rating for the cervical spine disability and the 30 percent rating for the brain trauma combine to result in a 60 percent rating. 38 C.F.R. § 4.25. Thus, during the period at issue the Veteran had a single disability rated at 60 percent and therefore met the criteria for a schedular TDIU. 38 C.F.R. §§ 4.16(a), 4.25.

With the threshold criteria met, the Board must determine whether the Veteran was rendered unable to secure or follow a substantially gainful occupation during the period at issue. On his July 2006 formal application for TDIU, the Veteran reported that he had stopped working in June 2006, prior to which he had worked as a mechanic since May 1999. The Veteran's account of his work history is corroborated by a September 2006 request for employment information, which reflects that the Veteran was laid off from his job as a heavy equipment mechanic in June 2006, a position which he had held for two years. The Veteran's TDIU application reflects that he had a high school education and additional training regarding refrigeration and air conditioning.

During an October 2006 VA examination, the Veteran reported that he had worked as a car mechanic since separating from service in 1963, and that while he had been laid-off he had been contemplating leaving the job due to his neck pain anyways. During a February 2008 psychiatric examination, the examiner noted that the Veteran's brain trauma resulted in headaches and dizziness, and that prior psychiatric examinations reflected mild cognitive dysfunction. During a cervical spine examination conducted the same month, the Veteran reported that his neck pain caused him to take frequent breaks when working.

A May 2008 examiner noted that the Veteran reported that his cervical spine disability significantly interfered with his ability to work as a mechanic, as he was limited in his ability to turn his head side to side. The examiner noted that the Veteran further stated that he was prevented from lying down to work on the undercarriages of vehicles, was unable to work in confined spaces, and had difficulty lifting heavy objects. The examiner opined that the Veteran's cervical spine disability likely resulted in moderate to severe limitations on physical work and mild limitations on sedentary work, and that the brain trauma likely resulted in mild effects on physical work and minimal effects on sedentary work.

There is no evidence that the above examiners were either not competent or credible. Further, each examiner's assessment of the Veteran's functional abilities was based on an objective examination of the Veteran and a review of the claims file. As such, the Board finds that each respective examination report is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In support of his claim for a TDIU, the Veteran submitted a statement from a VA physician, who asserted that the Veteran was unable to work due to his disabilities. The examiner stated that the Veteran was limited by the severe pain in his neck and had difficulty gripping objects due to his neurologic deficits in both arms. The physician also noted that the Veteran's brain trauma resulted in mild memory loss, which interfered with his ability to work. There is no evidence the physician was not competent or credible, and therefore the assessment of the Veteran's ability to function in a work setting is entitled to probative weight. Id.

Based on the foregoing, entitlement to a TDIU prior to June 7, 2007 is warranted. The October 2006, February 2008, and May 2008 VA examination reports all reflect that the Veteran had moderate to severe limitations with respect to his ability to perform the tasks required for physical labor as a result of his cervical spine disability and its associated neurologic symptoms. Ray, 31 Vet. App. at 7374. Further, the submitted opinion from the VA physician noted that the Veteran's memory loss due to brain trauma impaired his ability to work, thus indicating at least some degree of impairment with respect to the Veteran's ability to perform the mental tasks necessary for work. Id.

While the evidence of record does not reflect significant impairment as to the Veteran's ability to perform sedentary work, the Board also notes that the Veteran's entire work history was as a mechanic, i.e. in a physical setting, and that he had no work experience in a sedentary or office setting. As such, and with consideration of the Veteran's work history, the Board finds that the Veteran was rendered unable to secure or follow a substantially gainful occupation prior to June 7, 2007 as the result of the combined effects of his service-connected disabilities. Therefore, entitlement to a TDIU prior to June 7, 2007 is warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.16(a).

 

 

ROBERT C. SCHARNBERGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Wendell, 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.