Citation Nr: 22015210 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-14 657 DATE: March 16, 2022 ORDER Entitlement to a disability rating in excess of 20 percent for a back disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. For the pendency of the appeal, the evidence does not show that the Veteran's back disability is manifested by ankylosis; forward flexion of the thoracolumbar spine 30 degrees or less; or incapacitating episodes of IVDS that required bed rest prescribed by a physician and treatment by a physician. 2. For the pendency of the appeal, the Veteran met the schedular criteria for a TDIU, and his service-connected disabilities rendered him unable to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased initial disability rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a. 2. The criteria for entitlement to a TDIU due to service-connected disabilities have been 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 had active service with the United States Navy from January 2006 to January 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from the September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. As to musculoskeletal disabilities, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to a disability rating in excess of 20 percent for a back disability. The Veteran contends that he is entitled to a disability rating higher than 20 percent for his service-connected back disability due to occupation difficulties and functional limitations. The Veteran indicated that he lost his job due to constant back pain and difficulty doing simple tasks such as bending and squatting. The Board notes that, with this decision, the Veteran has been awarded a TDIU based partly on the functional impairment caused by his back disability. At the November 2021 Board hearing, the Veteran indicated that a grant of TDIU would satisfy his claim for an increased rating for his back disability. However, as the Veteran did not clearly state that he would withdraw his claim upon receipt of a TDIU, the Board will proceed to address his increased rating claim under the applicable rating criteria. As a preliminary matter, the Board notes that, while this appeal was pending, VA published a final rule amending its regulations on musculoskeletal disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 85523, 85524 (Dec. 29, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. The Veteran's service-connected back disability is currently rated as 20 percent disabling under DC 5237 (lumbosacral or cervical strain), effective July 9, 2018. The regulations provide for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for 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. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted where there is forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 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 rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note 2; see also Plate V. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. The Veteran was provided a VA examination for back conditions in September 2018. The Veteran was diagnosed with lumbosacral strain. Examination revealed forward flexion to 45 degrees; extension to 10 degrees; right and left lateral rotation to 20 degrees; and right and left lateral flexion to 20 degrees. The examiner noted pain on examination that caused functional loss on forward flexion, extension, lateral rotation, and lateral flexion. The examiner found no evidence of localized tenderness or pain on palpation. The examiner found no evidence of pain with weight bearing. The examiner found no evidence of pain on passive range of motion testing of the back and no evidence of pain on non-weight bearing testing of the back. The examiner found that pain and fatigue significantly limit functional ability with repeated use over a period of time. The examiner pain significantly limits functional ability with flare-ups. The examiner found guarding and muscle spasm not resulting in abnormal gait or abnormal spinal contour. The examiner found aggravation of symptoms with prolonged standing, sitting, and locomotion. The examiner found normal muscle strength, no muscle atrophy, normal reflexes, and normal sensation to light touch. The examiner found no radiculopathy. There was no evidence of ankylosis of the spine or other neurological abnormalities. The examiner did not find that the Veteran has IVDS of the thoracolumbar spine. The examiner noted that the Veteran regularly uses a brace. The examiner did not find arthritis documented by imaging studies. The examiner did not find any other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's back condition. The examiner found that the Veteran's back condition impacted his ability to work. The examiner found that his condition was impairing for any job that requires prolonged sitting, prolonged standing, long distance walking, running, repetitive bending, repetitive reaching, or lifting moderate to heavy loads. The Board also notes that while treatment records also periodically document the Veteran's complaints and treatment related to his back disability, nothing in these records during the pendency of the claim show his adverse symptomatology to be markedly worse than what was reported at the above examinations. To warrant a rating in excess of 20 percent for IVDS requires physician-prescribed bed rest or incapacitating episodes as defined by VA regulation, lasting a total four weeks or more during a 12-month period. 38 C.F.R. § 4.71a, IVDS Formula. For the entire pendency of the appeal, the record does not show incapacitating episodes of IVDS that required bed rest prescribed by a physician and treatment by a physician. The record is negative for a diagnosis for IVDS. To warrant a higher 40 percent rating for a back disability under the General Rating Formula, there must be evidence of limitation of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. During the entire pendency of the appeal, the record is negative for a diagnosis of ankylosis. The VA examination found that the Veteran does not have ankylosis and this medical opinion is not contradicted by any other medical evidence of record. The record is also negative for evidence of flexion to 30 degrees or less. The September 2018 VA examination revealed forward flexion to 45 degrees. During the entire pendency of the appeal, the preponderance of the evidence does not show that pain, weakness, fatigue, muscle spasms, or incoordination cause further functional loss that more nearly approximates forward flexion of the thoracolumbar spine 30 degrees or less or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. at 202 (1995); Burton, 25 Vet. App. at 5; Mitchell, 25 Vet. App. at 32. Accordingly, the Board finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for his back disability under the General Rating Formula or IVDS Formula. The Board has also considered separate evaluations for neurological manifestations of the Veteran's service-connected lumbar disability. The evidence does not show that the Veteran has radiculopathy, or any other neurological abnormalities associated with the service-connected back disability. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating for his back disability. In this case, the Veteran is competent to report symptoms because that requires only personal knowledge as it comes to his through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Disability ratings are made by the application of a rating schedule which is based on average impairment of earning capacity as determined by the clinical evidence of record. Such competent evidence concerning the nature and extent of the Veteran's back condition has been provided by the medical personnel who have examined the Veteran during the current appeal and who have rendered pertinent opinions in conjunction with the examination. The medical findings as provided in the examination reports directly address the criteria under which disability due to a back condition is rated. Even considering the Veteran's credible statements regarding the impact of his back condition, the findings of the examination do not support the assignment of higher ratings or additional separate ratings. Therefore, the Board finds the examination report to be more probative than the Veteran's subjective evidence of complaints regarding the severity of symptomatology because they provide objective medical evidence of the manifestations of the service-connected disabilities. Cartright v. Derwinski, 2 Vet. App. 24 (1991). Accordingly, the Board finds that the evidence is persuasively against the assignment of a rating higher than 20 percent for the Veteran's service-connected back disability and the claims must be denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a. This finding does not suggest that the Veteran does not have back problems, simply the nature and extent of the problem is within the 20 percent evaluations based on the criteria, nothing more. A 20 percent back disability will cause the Veteran many problems. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to a disability rating in excess of 20 percent for back disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating than those found above. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, 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 fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating 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 as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). Here, the Veteran is currently service connected for the following: PTSD, rated as 70 percent disabling from August 21, 2017, and 50 percent from January 10, 2011. Sleep apnea, rated as 50 percent disabling from February 26, 2019. Heart block, status post implantable cardiac pacemaker, rated as 30 percent disabling from August 1, 2017. Status post thoracotomy with PPM placement, rated as 30 percent disabling from August 1, 2017. Low back sprain, rated as 20 percent disabling from July 9, 2018. Two anterior surgical scars, rated as 10 percent disabling from September 29, 2015. Erectile dysfunction, rated as 0 percent disabling from July 9, 2018. The Veteran's combined evaluation for compensation was 90 percent from July 9. 2018, 80 percent from August 21, 2017, 70 percent from August 1, 2017, and 100 percent from April 25, 2014. See 38 C.F.R. § 4.25. The Veteran has had one disability rated at least 40 percent disabling since January 10, 2011. Therefore, the Veteran has met the schedular criteria for TDIU for the pendency of the appeal. The Veteran contends he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. He alleges that the collective effect of his service-connected disabilities is the reason he can no longer obtain and maintain a job. The record indicates that the Veteran most recently worked in retail from February 2018 to May 2018. The Veteran also indicated that he worked as a firefighter prior to working in retail. The Veteran's service treatment records, including recent VA examinations, support a finding that the Veteran's service-connected disabilities impact the Veteran's ability to perform occupational tasks and significantly impact his ability to work. A September 2019 VA examination for sleep apnea found that the Veteran's condition impacts his ability to work due to increased fatigue. A September 2018 VA examination for back conditions found that, as a result of his back condition, the Veteran's was unable to perform any job that requires prolonged sitting, prolonged standing, long distance walking, running, repetitive bending, repetitive reaching, or lifting moderate to heavy loads. A June 2018 VA examination for mental health conditions found that the Veteran's PTSD causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. A September 2015 VA examination for heart conditions found that the Veteran's condition impacts his ability to work because he gets fatigued very easily as a result of his heart condition. VA regulations provide that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). Considering the aggregate impact of his service-connected disabilities and affording the Veteran the benefit of the doubt, the Board finds that the evidence of record supports that the Veteran was precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. Accordingly, the Veteran meets the criteria for an award of TDIU. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The RO will assign an effective date for the TDIU award when it effectuates this decision. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. VanValkenburg 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.