Citation Nr: 21041308
Decision Date: 07/08/21	Archive Date: 07/08/21

DOCKET NO. 10-24 783
DATE: July 8, 2021

ORDER

Entitlement to a higher initial rating for service-connected lumbar spondylosis with neural foramina narrowing at L4-L5 and L5-S1, evaluated as 10 percent disabling prior to September 4, 2009, and as 20 percent disabling from September 4, 2009, to May 6, 2015, is denied.

Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied.

FINDINGS OF FACT

1. Prior to September 4, 2009, the Veteran's lumbar spine disability was manifested painful motion with forward flexion limited at 90 degrees and a total combined range of motion of 220 degrees. 

2. From September 4, 2009, to May 6, 2015, the Veteran's lumbar spine disability was manifested by painful motion with forward flexion limited to 50 degrees with a total combined range of motion of 140 degrees, with muscle spasms.

3. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities prevent the Veteran from obtaining or maintaining substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent prior to September 4, 2009, and in excess of 20 percent from September 4, 2009, to May 6, 2015, for lumbar spondylosis with neural foramina narrowing at L4-L5 and L5-S1 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5237, 5239. 

2. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1984 to March 1992. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO granted service connection for chronic low back pain and assigned a 10 percent rating, effective September 24, 2007. The Veteran disagreed with the assigned rating and this appeal followed.

A Decision Review Officer (DRO) hearing was conducted in August 2012. The transcript of the hearing is of record.

When the Veteran perfected his appeal in May 2010, he requested a Board hearing at his local RO office. He subsequently withdrew his request for a Board hearing in December 2017.

During the pendency of the appeal, the agency of original jurisdiction (AOJ), in an August 2015 rating decision, increased the Veteran's lumbar spine disability rating from 10 percent to 20 percent, effective September 4, 2009, and to 40 percent from August 5, 2015.

In an April 2019 decision, the Board denied a rating in excess of 10 percent from September 24, 2007, to September 4, 2009, and in excess of 20 percent from September 4, 2009, to May 6, 2015, for the service-connected lumbar spondylosis disability. The Board also determined that the proper effective date for the 40 percent rating was May 6, 2015, and then denied a rating in excess of 40 percent from that date. In addition, the April 2019 Board decision denied entitlement to a TDIU.

The Veteran appealed the April 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2020, the Court granted a January 2020 Joint Motion for Partial Remand (Joint Motion) and vacated the Board's April 2019 decision insofar as it had denied entitlement to an initial rating for lumbar spondylosis in excess of 10 percent prior to September 4, 2009, and in excess of 20 percent from September 4, 2009, to May 6, 2015, and to a TDIU.  

The Joint Motion did not disturb the Board's denial of an initial rating in excess of 40 percent from May 6, 2015, for lumbar spondylosis. As such, the appeal is limited to the appropriateness of the ratings assigned prior to May 6, 2015.  

In July 2020, the Board remanded the issues of entitlement to a higher rating prior to May 6, 2015, and to a TDIU, for further evidentiary development in compliance with the Joint Motion. The matters were again remanded in March 2021 to ensure compliance with the terms of the July 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Court or the Board confers on the veteran the right to compliance with the remand orders). Upon completion of the requested development, to include obtaining retrospective medical opinions, the AOJ issued an April 2021 supplemental statement of the case (SSOC) in which it continued to deny ratings in excess of 10 and 20 percent prior to May 6, 2015, and entitlement to a TDIU.  The matters were thereafter returned to the Board for further appellate consideration.

Upon review of the development undertaken on remand, the Board finds that there has been substantial compliance with the prior remand directives. See id.  Accordingly, the Board may proceed to adjudicate the merits of the claims on appeal.

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). For disability rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See id.  

In determining the degree of limitation of motion, VA must consider the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.

The Veteran contends that his lumbar spine disability was more disabling than initially rated.  He has also requested a rating under 38 C.F.R. § 4.71a, DC 5243, which pertains to intervertebral disc syndrome. See September 2008 Statement in Support of Claim.

In the instant case, the Veteran's service-connected lumbar spondylosis has been evaluated under 38 C.F.R. § 4.71a , DC 5237. While the rating for the Veteran's lumbar spine disability is assigned under DC 5237, pertaining to lumbosacral or cervical strain, all diseases and injuries of the spine, are evaluated in accordance with the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula); intervertebral disc syndrome under DC 5243 may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a , DCs 5235-5243.

The Board notes that the General Rating Criteria for musculoskeletal disabilities contained 38 C.F.R. § 4.71a was updated on February 7, 2021. However, as the period on appeal is prior to May 6, 2015, only the pre-revision criteria apply. The pertinent rating criteria is reproduced below.

General Rating Formula for Diseases and Injuries of the Spine

(For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): 	

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 	

Unfavorable ankylosis of the entire spine	100 

Unfavorable ankylosis of the entire thoracolumbar spine	50 

Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine	40 

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	20 

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	10 

During the pertinent time period, the rating criteria for IVDS pursuant to DC 5243 was as follows:

Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes

With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months	60

With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months	40

With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months	20

With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months	10

Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

Turning to the evidence of record, the Veteran's lumbar spondylosis was initially rated as 10 percent disabling based on the report of a March 2008 VA examination; it was later increased to 20 percent disabling based on the report of a September 2009 VA examination. In their Joint Motion, the parties agreed that the results of these examination did not comply with Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016) by the Court. Joint Motion at 2, citing Correia (holding that, "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59," which includes testing in weight-bearing and non-weight bearing conditions). Therefore, to correct this, the Court ordered VA to obtain a retrospective medical opinion. 

In September 2020, the AOJ obtained a medical opinion concerning the range of motion of the Veteran's thoracolumbar spine during flare-ups, on passive and active motion, and in weight-bearing and nonweight-bearing positions, for each VA spine examination conducted prior to May 2015.  In a March 2021 action, the Board found that the September 2020 retrospective medical opinion was not adequate because it was speculative and failed to address the questions posed in the Board's remand.  The matter was therefore again remanded to obtain a new retrospective medical opinion.

In March 2021, a new retrospective medical opinion was obtained. The Board finds this retrospective opinion provides an opinion that in compliance with 38 C.F.R. § 4.59 and Correia. The March 2021 examiner addresses the measurements taken in the March 2008 and September 2009 examinations and, in consideration of the Veteran's statements and other evidence of record, provides an opinion regarding how measurements for passive motion and with weight-bearing and nonweight-bearing would vary based on the active motion range of motion measurements taken and evidence of record. The Board notes that the retrospective medical opinion identifies October 5, 2007, and March 2008 examinations. The Board notes that there is no October 7, 2007, VA examination; however, October 7, 2007 is the date on which the March 2008 VA examination was requested and so treats them as the same.

Specifically, at the time of the March 2008 VA examination, the Veteran was found to have active ranges of motion as follows: forward flexion from 0 to 90 degrees, with pain noted from approximately 30 degrees onward; extension from 0 to 10 degrees, with pain at 10 degrees; left and right lateral flexion of 0 to 30 degrees each; and left and right lateral rotation of 0 to 30 degrees each. The examiner conducted repetitive motion testing in compliance with the DeLuca requirements and found no change in range of motion, only in degree of pain. The examiner found normal motor strength of the lower extremity muscles tested and no signs of muscle atrophy. The examiner found mild tightness to the Veteran's lumbar muscles, more on the left than the right. The examiner noted a normal alignment and curvature of the spine with normal gait with no signs of any postural or fixed deformities. The examiner noted neurological examination showed all sensory examination to be intact to light touch throughout the Veteran's lower extremities. The examiner noted that the Veteran's reflexes were all normal at 2+ for both the ankles and the knees. The examiner noted that a negative straight leg raise test did show some moderate amount of hamstring tightness. Based on radiographic imaging, the examiner noted there to be normal alignment of the Veteran's lumbar spine with no signs of any anterior or retrolisthesis. The examiner did note some loss of disk space at L5-S1 junction. The Veteran did report flare-ups to the examiner. The Veteran described that the flare-ups would occur once every three months and last for approximately two days. The Veteran reported that when he does have one, his pain increased to 8 of 10 on a pain scale of 1 to 10. There is no notation of a diagnosis of IVDS. The Veteran did not report using any assistive devices for normal locomotion.

Regarding the missing Correia factors, the March 2021 retrospective opinion addresses these, as well as any findings regarding IVDS. The March 2021 examiner reviewed the record, including the Veteran's statements and testimony. The March 2021 examiner found the record sufficient such that an additional interview/examination was not necessary. The March 2021 examiner stated that the documented history is sufficient for his opinion and that it would be unlikely that another history taken over ten years later would be accurate regarding weight bearing, flareups, repetitive use, and that it would be impossible to determine an additional loss in ranges of motion based on Veteran's history alone or if an additional examiner tried to determine from the previous examinations or treatment records.

The March 2021 opinion states that the March 2008 examination report did not include any objective findings nor any history consistent with IVDS as stated in the Veteran's September 2008 Notice of Disagreement (NOD). The retrospective medical opinion noted that the March 2008 examiner did indicate that the Veteran had pain on flareups and repetitive use but does not indicate a change in the range of motion, specifically in repetitive use. The March 2021 examiner stated that based on the evidence in the testimony by the Veteran in the examination and the March 2008 examination report, there is less than likely any additional finding of worse disability than what was determined at the time of the May 2008 Rating Decision. The March 2021 examiner states that in review of the March 2008 examiner's documentation without any increase in range of motion flare-ups noted, it would be less than likely there was additional loss of actual degrees of motion during a flareup, on either passive or active motion, nor in weight bearing and non-weight bearing positions based on this March 2008 examination. The Board notes that the March 2008 examination does not contain, and the Veteran never reported, any additional range of motion loss based on flare-ups, only increased pain that limited his ability to conduct some strenuous activities. See e.g., March 2008 Examination; September 2008 NOD; September 2008 Statement in Support of Claim. Based on this reasoning, the March 2021 examiner concurred with the March 2008 examiner's diagnosis of a chronic lumbar strain. 

Based on the findings in the March 2008 VA examination report and the retrospective opinion provided by the March 2021 examiner, the Board finds that the preponderance of the evidence of record does not show the Veteran would experience decreased ranges of motion for passive, weight-bearing, and/or non-weight-bearing circumstances as compared to the recorded active ranges of motion. As such, the preponderance of the evidence establishes that the Veteran is appropriately rated at 10 percent disabling based on the total combined range of motion of 220 degrees, which is greater than 120 degrees but less than 235 degrees. The evidence does not demonstrate entitlement to a rating in excess of 10 percent. The Board finds that evaluation under diagnostic code 5243 for IVDS is not appropriate because there is no diagnosis of IVDS.

An August 2008 VA imaging study report of the Veteran's lumbar spine identifies no subluxation of the lumbar spine, finds minimal height loss involving L5 vertebral body, edematous endplate changes at L5/S1 (Mobic type I), notes a benign hemangioma within L5 vertebral body, and notes no suspicious bone marrow signal abnormalities. The report also identifies disc desiccation and moderate generalized disc bulges from L3/L4 through L5/S1. The report identifies facet arthropathy in the lower lumbar spine. The report notes no spinal canal stenosis but finds moderate bilateral neural foramina narrowing at L4/L5 and L5/S1 secondary to disc bulges and facet hypertrophy.

The Veteran provided a December 2008 private medical opinion regarding his spine that the Board finds conclusory. The December 2008 private opinion fails to provide or identify specific supporting evidence. The opinion simply states that the Veteran "suffers from radicular pain and neuropathy associated with service-connected lumbar disc disease, documented at multiple levels." However, the private opinion does not provide a specify which disc(s) are involved, the severity of any disc issues, fails to identify which side is affected or if it is bilateral, it fails to identify which nerve or nerve root(s) if any, are involved. The only explanation provided is that the Veteran's "current foot problems including plantar fasciitis are related to his lumbar problems due to a gait disturbance." This appears to suggest that the Veteran's foot disorders are secondary to his lumbar spine. Further, the Board notes that the December 2008 private examination report does not provide any range of motion measurements or any other data on which to base a higher rating. Based on the short comings of the December 2008 examination, the Board affords the December 2008 private opinion no probative weight. Further, the March 2021 retrospective opinion noted that the objective findings at the time of the September 2009 examination did not support the December 2008 private physician's findings. The March 2021 examiner stated further stated that there was no support for radiculopathy due to lumbar disc disease and no abnormal gait in the record, including MRI and x-ray imaging.

Turning to the September 2009 VA examination, at that time, the Veteran reported decreased motion, stiffness, weakness, spasms, and constant moderate pain over the lumbar spine with pain radiating down the posterior aspect of both legs. The September 2009 examiner did not note any trauma to the spine. The September 2009 examiner found active ranges of motion for the thoracolumbar spine as follow:  forward flexion limited to 50 degrees; extension limited to 15 degrees; left and right lateral rotation limited to 20 degrees; left lateral flexion limited to 20 degrees; and right lateral flexion limited to 15 degrees. This provides a total range of motion for the thoracolumbar spine of 140 degrees. The examiner noted that there was no evidence of pain on active range of motion. The September 2009 examiner found the Veteran's gait to be normal. The examiner found abnormal spinal curvature. Specifically, the September 2009 examiner noted lumbar flattening. The September 2009 examiner found no evidence of ankylosis of the spine. The examiner found no muscle spasms or guarding, no muscle atrophy, and no weakness. The examiner did note tenderness to the thoracic sacrospinal column, but stated that muscle spasms, localized tenderness, or guarding severe enough to cause abnormal gait or abnormal spinal contour was not present. The examiner noted all muscle strength testing was normal, except right great toe extension, which was noted at 4/5. The examiner noted normal muscle tone. The examiner found all lower extremity sensation normal except a slight decrease over right medial foot and right great toe. All reflexes were noted as normal.  The September 2009 examiner stated  that there are no physical signs of pain with thoracolumbar spine range of motion, but noted that the Veteran did report significant pain with thoracolumbar spine active range of motion. The September 2009 examiner noted that imaging demonstrated normal alignment with minimal degenerative disc disease al L4/L5, with no vertebral body fractures and no evidence of lysis or listhesis. The Board notes that the Veteran did not report any pain with passive range of motion or any difference with weight-bearing and non-weight-bearing activities. The September 2009 examination did not record passive, weight-bearing and non-weight-bearing ranges of motion for the Veteran's spine.

The March 2021 examiner who provided that retrospective medical opinion noted that the ranges of motion in the September 2009 VA examination were based on active ranges of motion. The March 2021 examiner noted that there was no indication for passive ranges of motion nor that he or the September 2009 examiner thought that they were medically indicated. Therefore, the March 2021 examiner reasoned that the September 2009 examiner determined that the active ranges of motion for the lumbar spine were the same as passive. The March 2021 examiner also explained that there was no documentation indicating that the September 2009 examiner found any additional functional loss (pain, incoordination, fatigue, etc.) during repetitive use, flareups on either active or passive motion or in weight-bearing and nonweight-bearing, despite the discussion with the Veteran that was documented. The March 2021 examiner further explained that there was no indication from the examination report that the Veteran experienced flareups or worsening with repetitive use over a period of time. 

It was also noted that the findings on the September 2009 examination did not indicate radiculopathy due to the service-connected lumbar spine disability. The March 2021 examiner explained that the MRI findings and the September 2009 physical examination did not support a diagnosis of IVDS. The March 2021 examiner stated that the examination report, x-rays, and MRI findings indicated a worsening of the chronic strain diagnosis to lumbar spondylolisthesis, not only a degeneration of the discs in the vertebral spine, but actual degenerative arthritis as evidenced by the endplate spurring based on the MRI imaging. The March 2021 examiner stated that there was no evidence to support a finding of radiculopathy due to lumbar disc disease. The March 2021 examiner opined, therefore, that there is no subjective or objective evidence to determine any additional loss in ranges of motion or functional loss based on weight-bearing or nonweight-bearing (passive motion) at the time of the September 2009 examination. 

The March 2021 examiner did disagree with the specific DC used by the AOJ to evaluate the Veteran's lumbar spine disability, opining that a DC for spondylolisthesis would be more appropriate. The Board notes that disabilities evaluated under DC 5237, pertaining to lumbosacral strain, and DC 5239, pertaining to spondylolisthesis, are evaluated under same criteria under the General Rating Formula for Diseases and Injuries of the Spine. As such, a change between DCs 5237 and 5239 is immaterial to the rating here. 

The Board finds probative the opinion and rationale of the March 2021 retrospective opinion that the there is no medical indication or reason that ranges of motion would be more limited than those reported in the September 2009 VA examination report. The March 2021 examiner's opinion and rationale accounts for the evidence of record and explains why various findings are inconsistent with the record and others are more probative. Therefore, the Board finds that the September 2009 VA examination findings represent an accurate measure of the Veteran's lumbar spine disability at the time. Therefore, the Board finds that the Veteran's lumbar spine disability was manifested by limitation of forward flexion of the thoracolumbar spine was restricted to 50 degrees, which is greater than 30 degrees but not greater than 60 degrees. Therefore, the Board finds that a rating of 20 percent disabling, no higher, is warranted based on range of motion.

The March 2021 examiner also opined that the August 2011 findings at Landstuhl Regional Medical Center indicated that there were likely muscle spasms that occurred with moderate activities that were not documented at the time of the previous Compensation and Pension examinations. The March 2021 examiner noted that the Landstuhl Regional Medical Center treatment records indicate that the Veteran was prescribed Baclofen, a muscle relaxant as well as the anti-inflammatory Naproxen for his spondylosis as of August 1, 2011. Therefore, the March 2021 examiner opined that it appears that in August 2011, there was documented additional muscle spasm, which appear to have been present based on the diagnosis of myositis, and prescription for Baclofen. This additional feature of muscle spasms appears to have been recurring based on physical therapy, and muscle relaxant prescriptions through to at least 2015. The Board notes that there is no evidence identifying whether these muscle spasms are sufficiently severe to result in an abnormal gait or abnormal spinal contour. However, the October 2015 rating decision made a beneficial finding that these muscle spasms were so were sufficiently severe to cause abnormal gait or spina contour. Based on the General Rating Formula for the Spine, muscle spasms warrant a 20 percent disabling rating, no higher.

Records from Landstuhl Regional Medical Center dated in August 2011 also identify possibly IVDS but do not confirm the diagnosis. The August 2011 records state that the diagnosis needed to be confirmed the affected nerve roots needed to be identified. A September 2011 record then records diagnoses of myalgia and myositis, lumbar spondylosis at L4/L5, L5/S1, neuritis at L5/S1, and lumbar disc degeneration. IVDS and radiculopathy are not listed issues or diagnoses. Similarly, the March 2021 examiner explained that it is less than likely that there is any finding of radiculopathy based on the Landstuhl pain clinic evaluations. The March 2021 examiner explained that the records from Landstuhl did not support a diagnosis of IVDS or radiculopathy/ies. The March 2021 examiner noted that facet injections did take place in Landstuhl in the Pain Clinic to rule out IVDS. The Board notes that the diagnosis, problem list, and subsequent treatment did not identify IVDS or radiculopathy. 

The March 2021 examiner noted further that the August 2011 Landstuhl records indicated that there was likely additional pain with any moderate activities or repetitive use with duration and that the discussed the range of motion was simply documented as limited with pain; there was no findings of radiculopathy with the evaluations. The Board notes that this additional pain matches the Veteran's statements during the March 2008 VA examination and other personal statements that various activities increase the level of pain. However, the Board notes that nothing identifies that the pain reduces the Veteran's range of motion. The March 2021 examiner noted that the June 2013 evaluation at the Landstuhl Regional Medical Clinic indicated that there was a myalgia and myositis in the area of the L4-L5 and L5-S1 lumbar area. The Board notes that the L4/L5 and L5/S1 lumbar area is also the area identified by imaging with lumbar spondylosis with neural foramina narrowing based on VA imaging. Again, nothing identifies a diagnosis of IVDS or radiculopathy. As such, while there is treatment of the Veteran's spine, the Board finds that the preponderance of the evidence is that such treatments is for muscle spasms in the Veteran's lumbar spine. None of the imaging, testing, examinations, or medical opinions of record confirm or support a diagnosis of IVDS or radiculopathy. 

Assuming for argument sake, that the Veteran was diagnosed with IVDS, he would still not be entitled to a higher rating under DC 5243 based on the evidence of record. Notably, DC 5243 provides that an incapacitating episode of acute signs and symptoms due to IVDS must have bed rest prescribed by a physician. See Diagnostic Code 5243 Note (1). (This note was unchanged in the February 2021 amendment to the General Rating formula for Diseases and Injuries of the Spine). The record is devoid of any physician prescribed bed rest. Therefore, under DC 5243, the Veteran would be evaluated at a noncompensable rating because he has no incapacitating episodes as defined by DC 5243. As such, the Veteran is rated under a different, more applicable diagnostic code that provides for a higher, compensable rating. See 38 C.F.R. § 4.71a ("Evaluate intervertebral disc syndrome [] either under the General Rating Formula for Diseases and Injuries of the Spine or under Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25).

Based on the above, the Board find that the preponderance of the evidence establishes that the Veteran's lumbar spine disability does not warrant a rating in excess of 20 percent at any point during the period from September 4, 2009, through May 6, 2015. This decision includes giving the Veteran every benefit of the doubt. Therefore, based on the probative evidence, the Veteran's claim for a higher initial rating in excess of 10 percent prior to September 4, 2009, and in excess of 20 percent from September 4, 2009, to May 6, 2015, is denied.

TDIU

Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation solely as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 

The Veteran first applied for TDIU in March 2009 and contends that he has been unable to work due to his service-connected lumbar spine disability and other service-connected disabilities since he stopped working in 2007.

A Veteran may qualify for TDIU on either of two prongs. The first is if a veteran is service connected for one only disability, this disability must be rated at 60 percent or greater. See 38 C.F.R. § 4.16(a). The second is if a veteran is service connected for two or more disabilities, one must be rated least at 40 percent or greater, and the combined rating of all disabilities must be 70 percent or greater. See id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. See id. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable.

A review of the record shows that the Veteran qualifies under the second prong. The Veteran has a total combined rating of 70 percent disabled as of September 15, 2016, with his adjustment disorder rated at 50 percent from the same day onward and his lumbar spine being rated at 40 percent disabling. Prior to September 15, 2016, the Veteran did not meet the schedular requirements for a schedular TDIU rating because his total combined disability rating was only 50 percent.

Upon review of the evidence, the Board finds that the Veteran has been able to secure and follow substantially gainful employ for the entire period from September 15, 2016, to present and therefore does not warrant a TDIU rating.

In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having 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 includes consideration of the following: 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. A Veteran must meet both elements to warrant a TDIU rating. 

The U.S. Department of Commerce single person threshold has two values, one for individuals under the age of 65, the other aged 65 and older. The Veteran was born March 1966, as such the Veteran is under 65 years of age for the entire period on appeal. The Veteran disclosed that he and his wife started a business together and half the net profits are imputed to him. See July 2020 Statement in Support of Claim. As this business was run out of the home, the Board finds there to be a question as to whether it was a protected work environment and, as such, will not consider income from that source. The following chart compares the Veteran's reported income from sources other than his home business with the poverty thresholds for one person for the years in questions. 

Year	U.S. Dept. of Commerce Poverty Threshold Limit for Individual under 65 Years Old	Veteran's Income

2015	$12,331	$18,429.69 (2015 W-2)

2016	$12,486	$18,444.22 (2016 W-2)

2017	$12,752	$19.385.63 (2017 W-2)

2018	$13,064	$0 (2018 Form 1040)

2019	$13,300	$0 (2019 Form 1040)

2020	$13,465	No evidence provided

2021	Not yet released	No evidence provided

Based on the Veteran's income, until 2018, he had secured and followed substantially gainful employment through 2018. The evidence of record then shows that the Veteran voluntarily stopped working when he returned to the United States from Germany in 2018. The Veteran worked as a paraprofessional with autistic children and children with special needs from 2012 until he voluntarily quit working in 2018. There is no evidence to suggest that the Veteran could not have continued to engage in that employment from 2018 forward.

Turning to the non-economic prong, the Board noes that the Veteran reported working 7 hours a day, five days a week as a paraprofessional at a school on a military base in Germany. See January 2018 Request for Employment Information in Connection with Claim for Disability Benefits. The Veteran claimed missing 14 days of work due to his disabilities. The Board notes that it is unclear from the evidence if the 7 hours is the normal working hours for a paraprofessional educator at the school in Germany where he worked at or if the Veteran opted to work only part time so he could assist with his wife's business.  Even giving the Veteran the benefit of the doubt, he is was able to earn an income well above the poverty threshold for the years he worked part time. The Veteran was rated at 70 percent disabling and none of his ratings have changed since September 15, 2016, when he first met the threshold rating criteria for a TDIU. The record further shows no change in terms of the Veteran's history, education, skill, and training; whether the he has the physical ability to perform the type of activities required by the occupation at issue; and whether the he has the mental ability to perform the activities required by the occupation at issue. The Veteran still had the same training, education, and certifications that qualified him to be a paraprofessional working with autistic children and children with special needs for the entire period he has applied for TDIU. None of that training, education, certifications or history changed when he voluntarily quit his to move to or from Germany. As such, the Board finds that the Veteran is not precluded from following and securing substantially gainful employment solely due to his service-connected disabilities. 

A review of the Veteran's medical record shows he was service connected for a mental disorder in August 2012. This is the year in which the Veteran obtained a new job in a foreign country. When psychiatrically evaluated in January 2013, the Veteran was found to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functional satisfactorily, with normal routing behavior, self-care, and conversation. The report of a May 2015 mental health evaluation noted 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 are controlled by medication. The report of the most recent mental health examination, dated in  August 2017, had the same findings as the January 2013 examination report. As such, the occupational and social impairment for the period the Veteran is eligible for TDIU has essentially remained the same. In fact, the Board notes that the Veteran was able to cope with the stresses of moving overseas and obtaining a new job in a foreign country in the period he is seeking TDIU. Based on the mental disorder examinations, while there is some impact, the Board finds that it does not preclude the Veteran from following and securing substantially gainful employment due to his service-connected adjustment disorder. 

Regarding the Veteran's lumbar spine, that disability was evaluated as 40 percent disabling in August 2015. The Veteran's total range of motion was found to be forward flexion of 0 to 20 degrees, extension of 0 to 15 degrees, left and right lateral flexion of 0 to 15 degrees each, left and right lateral rotation of 0 to 15 degrees each. The August 2015 examiner noted no objective evidence of pain with any of the ranges of motion. When the examiner attempted repetitive motion range of motion testing, the Veteran stated he was unable to proceed due to pain at onset of movement. The examiner noted less movement than normal, excess fatigue, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or walking as the functional impairments of the Veteran's lumbar spine disability. The examiner noted that the Veteran's lumbar spine condition did impact his ability to work, but  noted that the Veteran was unable to replicate the estimated limitation at the time of examination. The examiner also noted that the "employer will accommodate pain during flare-ups by limiting lifting responsibilities." The examiner also noted that the Veteran did miss work due to painful flare-ups, which could affect his overall productivity. 

The Veteran also had a VA examination in January 2018 where his forward flexion was found to be 0 to 75 degrees, extension to be 0 to 10 degrees, left and right lateral flexion to be 0 to 15 degrees each, and left and right lateral rotation to be limited to be 0 to 15 degrees each. The examiner noted that there was no objective evidence of pain on non-weight bearing and that passive range of motion could not be conducted or was not medically appropriate. The examiner noted that the Veteran's back condition can significantly interfere with lifting, bending, and twisting activities and work activities requiring such would likely be difficult for the Veteran. However, later that year, during a primary care visit, the care provider found full range of motion, normal appearance of joints upper and lower extremities, normal gain, and point tenderness to lumbar/sacral spine. 

An October 2019 VA examination report then noted that they were unable to test the Veteran's ranges of motion. The examiner noted that during the physical examination, the Veteran appeared to be in no acute distress and was without noticeable objective evidence of "severe back pain" etc. The examiner further noted that when the Veteran was asked to perform range of motion testing for his back, the Veteran stated that he "would go only to certain point of movements, since it is already too painful for him." Objectively, the examiner found the Veteran's maximum range of motion in lower back was self-restricted by the Veteran to 10-15 degrees, in all plains. The VA examiner's professional opinion was that there was no medical/objective evidence to report these observed and measured back range of motion as "true and accurate." The examiner noted that a set of three repetitions back movements were not performed by the Veteran for the same reason.

The foregoing shows that the Veteran was able to continue working while receiving a 40 percent disabling rating for his lumbar spine condition. There is also some question whether the lumbar spine condition is currently as severe as the Veteran claims it to be, especially in light of the findings of the October 2019 VA examination. The prior examinations in January 2018 and in August 2015 showed similarly limited range of motion to 15 degrees. The Veteran worked as a paraprofessional with autistic children and special needs children from 2012 to 2018 This includes continuing to do the same work with a 20 percent rating and a higher 40 percent rating since August 2015. Therefore, the Board finds that the Veteran is not precluded from following and securing substantially gainful employment due to his service-connected lumbar spine disorder.

With regard to the Veteran's foot disorder, it was first service connected as of September 2017. The Board notes that the Veteran is rated from September 18, 2017, onward for bilateral pes planus and hallux valgus.  A February 2018 VA examiner found the Veteran's foot disabilities to have mild impact on his ability to stand/work for prolonged periods of time. An October 2019 VA examiner found that the Veteran's feet disorders did impact his ability to perform occupational tasks.  Specifically, it was stated that the Veteran was to avoid prolonged weight bearing (long standing hours, distances walking) due to his feet conditions. A July 2020 VA examiner then found that the Veteran's feet conditions do not impact his ability to perform any type of occupational tasks. Based on the Veteran's statements, his bilateral pes planus and hallux valgus had been on going with symptoms of 30 percent disabling since he filed his claim. As such, the Veteran's symptoms have remained essentially unchanged meeting the 30 percent disabling since it was service connected. In 2017, the Veteran was not prevented from working due to his feet conditions. The evidence of record shows that the Veteran's feet conditions have only improved since then. See July 2020 VA examination. As such, the Board finds that the preponderance of the evidence shows that the Veteran is not precluded from following and securing substantially gainful employment due to his service-connected feet disabilities.

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Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran is not precluded from following and securing substantially gainful employment solely based on his service-connected disabilities. The benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert, supra. Therefore, the Veteran's claim for TDIU must be denied.

 

KRISTIN E. NEILSON

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Boushehri, Darjush M.

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.