Citation Nr: 21041802 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 13-06 515A DATE: July 10, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative joint disease with degenerative disc disease and herniated disc of the lumbar spine (spine condition) is denied. REMAND Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's back condition has not been manifested by forward flexion of 15 degrees or less, favorable ankylosis of the entire cervical spine, or intervertebral disc syndrome. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for the Veteran's back condition have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.59, 4.71a, Diagnostic Code 5424-5243 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1979 to April 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board previously remanded these matters in February 2016 and in May 2018 denied the Veteran's claims. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Partial Remand (JMPR). In August 2019 the Board issued another remand order following the JMPR. There has been substantial compliance with Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In connection with this appeal, the Veteran testified at a videoconference hearing before a Veterans Law Judge in December 2015.A transcript has been associated with the claims file. Since the December 2015 hearing, however, the Judge has left employment with the Board. The law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. 38U.S.C.§7102 (2012); 38C.F.R.§20.707 (2017). Additionally, a Veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide their appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran was given the opportunity to have a new hearing in May 2021. As the Veteran has not responded within 30 days, the claim is now properly before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). 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 or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional loss i.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance' including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The Veteran's back condition has been rated under diagnostic code (DC) 5242, which provides ratings pursuant to the General Rating Formula. Under the General Rating Formula for the Spine, a 20 percent evaluation requires either forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation requires forward flexion of the cervical spine of 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent evaluation will be assigned for either unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation will be assigned for unfavorable ankylosis of the entire spine. Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities. 38 C.F.R. § 4.71a. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). Entitlement to a rating in excess of 20 percent for the Veteran's back condition The Veteran contends that his current back condition's symptomatology is more severe than is contemplated by the current rating. The Veteran submitted a claim for a rating in excess of 10 percent in September 2010, and as such the Board has considered all evidence up to one year prior. A VA examination was provided in October 2010. There the Veteran reported a dull aching pain that happened 3 to 4 times per week, which radiated from his left buttock to the back of his calf. The Veteran stated that he had weekly flare ups that were moderate in severity. Range of motion testing showed flexion to 85 degrees, extension to 24 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, left lateral rotation to 40 degrees and right lateral rotation to 40 degrees. Active motion testing and repetitive motion testing indicated pain on motion. Muscle spasms and guarding was found but was not severe enough to cause abnormal gait or spinal contour. See October 2010 VA Examination. In December 2010 the RO denied the Veteran's claim and he submitted a timely notice of disagreement (NOD) in May 2011. A statement of the case (SOC) was provided in January 2013 and the Veteran perfected his appeal with a March 2013 VA Form 9, stating that the October 2010 results were inaccurate and that his condition was 'twice as bad' as it had been before and that he requested both a new examination and a hearing. A VA examination was provided in October 2013. Range of motion testing showed forward flexion was to 90 degrees, extension to 10 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 20 degrees and left lateral rotation to 20 degrees. Guarding or muscle spasms was found, but it was not severe enough to result in abnormal gait or spinal contour. IVDS was found, but the Veteran did not have any incapacitating episodes over the past 12 months. See October 2013 VA Examination. In December 2015 the Veteran participated in a video hearing before a VLJ. The Veteran reported back pain that lasted for several weeks at a time and muscle spasms at least once a week. The Veteran stated that sometimes he felt that he could not bend his back, that his back pain caused him to retire early with 100 percent Social Security Disability and that it was worsening. See December 2015 Hearing Testimony. Based upon the Veteran's testimony, the Board issued a remand order in February 2016 for a new VA examination to be provided. A new VA examination was provided in July 2017. The Veteran reported daily lumbar pain and radicular pain in the left lower leg, with flare ups at times that caused abnormal pain. Range of motion testing showed forward flexion to 50 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 25 degrees and left lateral rotation to 25 degrees. Repetitive use testing showed right and left lateral rotation decreasing to 15 degrees. The examiner did not provide range of motion estimates for the Veteran's flare up, stating that the examination was medically consistent with the Veteran's statements describing functional loss during flare ups. Guarding was fond that did not cause abnormal gait or spinal contour. IVDS was found, but without any incapacitating episodes in the past 12 months. See July 2017 C&P Exam. The RO increased the Veteran's rating to 20 percent based upon the July 2017 VA examination results, with an effective date of September 29, 2010, the date of the Veteran's claim for an increased rating. The Board then denied a claim for an increased rating in May 2018, having found that the criteria for a higher rating had not been met. See May 2018 BVA Decision. The Veteran appealed to CAVC, who issued a JMR in April 2019. CAVC found that the September 2013 and July 2017 VA examinations were inadequate as the examiners did not describe the Veteran's additional functional loss in terms of range of motion during flare-ups. As such, the Board issued a remand order in August 2019 for a new VA examination. As per Board remand directives, a VA examination was provided in February 2021. The Veteran reported that the symptomatology of his condition had worsened since the July 2017 VA examination, with daily low back pain radiating from left leg to foot. The Veteran did not report any flare-ups. Range of motion testing showed forward flexion to 50 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. Repetitive use testing showed forward flexion to 40 degrees and left lateral flexion to 20 degrees. Repeated use over time testing showed left lateral flexion to 20 degrees, right lateral rotation to 25 degrees and left lateral rotation to 25 degrees. No guarding, muscle spasms or IVDS was found. See February 2021 C&P Exam. The Veteran's representative responded with an appellate brief that claimed an increase rating was warranted based upon symptomatology, without further argument. Neither the Veteran, nor his representative, have argued that the February 2021 VA examination was inadequate. See April 2021 Appellate Brief. The claim is now before the Board. A review of the Veteran's medical treatment records, from one year prior to the date of his claim to the present, have shown continual treatment, but has not shown any medical evidence that contradicts the findings of the VA examinations. The Veteran underwent another VA lumbar spine examination in June 2021. The examiner noted the Veteran's report of continued back pain and an inability to lift objects. He used a topical pain medication and underwent chiropractic care when needed. He denied flare-ups. Range of motion testing showed forward flexion to 80 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees and left lateral rotation to 15 degrees. The examiner noted that the testing was "weight bearing" as appropriate for the lumbar spine and passive motion testing was contraindicated because of pain and risk of further injury. No guarding, muscle spasms or IVDS was found. Muscle strength was normal. The Board finds that the criteria for a rating greater than 20 percent has not been met, as the Veteran's back condition has not been shown to manifest with thoracolumbar flexion to 30 degrees or less or by favorable ankylosis of the entire thoracolumbar spine. While IVDS was reported prior to the February 2021 VA examination, the record does not contain evidence of incapacitating episodes. The Board therefore finds that the criteria for a disability rating in excess of 20 percent have not been met at any time during the relevant period. The preponderance of the evidence is against the assignment of a higher disability rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Total Disability Rating based on Individual Unemployability (TDIU) Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Even if the lumbar spine and associated radiculopathies are considered one disability, the total does not reach 70 percent. If the Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age which would justify a TDIU rating. See 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The critical question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). Entitlement to TDIU Service connection was in effect for degenerative joint disease for 20 percent, right lower extremity sciatic nerve for 10 percent, left lower extremity sciatic nerve for 20 percent from July 2017 to February 2021, and 10 percent thereafter, and bilateral femoral radiculopathy at 10 percent each. The Veteran has a combined rating of 50 percent for these disabilities. The Board notes that the Veteran asserted in his VA Form 21-8940, that he was unemployable due to his service-connected back condition. The question before the Board is therefore whether the Veteran's TDIU claim should be referred to the Director of Compensation Service for extraschedular consideration. A review of the Veteran's educational history shows that he completed 1 year of high school education and received additional education in Elevator Constructors Union School from May 1983 to October 1988. The Veteran worked at the Elevator Constructors Union until March 2009. See Medical Treatment Records Furnished by SSA, p. 85, 98. The Veteran has stated that he ceased working due to pain from his service-connected back condition. See April 2017 VA 21-8940. A review of the Veteran's social security administration records (SSA) shows that the Veteran reported that he was laid off and was unsure whether it was because he did not get along with others. SSA granted disability benefits for the back disability as well as for non-service-connected disabilities of the knees, fingers, and hands, tendinitis of the upper extremities and hypertension. He reported that he was able to drive short distances, do household chores at a slow pace, and use email. The Veteran described the effect of his back condition succinctly at his October 2013 VA examination. There, the Veteran stated that he "did elevator work for 28 years. One day I was working on an escalator and had to leave early. I was at the point where I couldn't walk. Through the treatment of chiropractors, I was able to continue working for 20 years." The Veteran continued by stating flare ups caused him to take time off. The VA examiner stated that the Veteran's back condition would cause difficulty working in an elevator shaft, and he would be limited to work in a seated position. See October 2013 VA Examination. At the July 2017 VA examination, the VA examiner found that the Veteran's back condition precluded him from gainful physical occupations, and that the Veteran was unable to lift, load or climb. However, the Veteran's back condition did not preclude him from sedentary employment. See July 2017 C&P Exam. And in the February 2021 VA examination, the VA examiner found that: "Degenerative arthritis and DDD of the lumbar spine; herniated disc impact Veteran's ability to bend over, stand and sit for prolonged periods. Radiculopathy left lower extremity impact Veteran's ability to sit and stand for prolonged periods. Radiculopathy right lower extremity have no impact." See February 2021 C&P Exam. The question is thus whether the Veteran's service connected back condition has precluded the Veteran from any substantial employment. Here, the functional impact of the Veteran's back condition has been an inability to lift or carry objects, and an inability to sit or stand for prolonged periods. Given that the Veteran has a 10th grade education and a work experience of nearly 3 decades specialized in elevator repair, it is questionable whether the Veteran could secure or follow a substantially gainful occupation consistent with his educational level and occupational experience given his physical limitations from his service-connected back disability. However, the Veteran may have experience in work scheduling and material management in the elevator business that does not require physical labor. However, the Board is prohibited from assigning a TDIU on an extraschedular basis in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for such consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). As such, this matter is referred to the Director of Compensation Service for consideration as to whether a TDIU is warranted. The matters are REMANDED for the following action: Refer the Veteran's claim for entitlement to a TDIU to the Director of Compensation Service for an opinion as to whether the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation, pursuant to § 4.16(b). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.