Citation Nr: 22017656 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-51 640 DATE: March 25, 2022 ORDER Entitlement to a rating in excess of 20 percent, prior to November 1, 2021, and in excess of 40 percent, thereafter, for chronic lumbar strain with spondylosis L4-L5 and L5 (lumbar spine disability) is denied. Entitlement to a total rating based on individual unemployability is denied. FINDING OF FACT 1. Prior to November 1, 2021, the Veteran's lumbar spine disability was manifested by chronic pain and limited motion with flexion greater than 40 degrees. 2. Beginning November 1, 2021, the Veteran's lumbar spine disability was manifested by chronic pain and limited motion with flexion 30 degrees or less but did not result in ankylosis even when considering additional limitations during flareups and with repeated use over time. 3. Prior to November 1, 2021, the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU rating, and the persuasive evidence of record is against a finding that his service-connected disabilities were of such nature and severity as to preclude him from securing and following a substantially gainful occupation. 4. Beginning November 1, 2021, the Veteran's service-connected disabilities did meet the schedular criteria for a TDIU; however, the evidence of record is against a finding that his service-connected disabilities were of such nature and severity as to preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW 1. The criteria for an initial rating in excess of 20 percent for a lumbar spine disability, prior to November 1, 2021, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. Beginning November 1, 2021, the criteria for a disability rating higher than 40 percent for the Veteran's lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.40, 4.41, 4.59, 4.71a, DC 5242. 3. At no point during the appeal period have the criteria for a total rating based on individual unemployability been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2010 through March 2014. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from June 2018 and December 2021 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before the undersigned Veterans Law Judge in November 2021. While the Veteran's claims were still pending at the Board, the Veteran submitted a claim for TDIU based on his service-connected posttraumatic stress disorder (PTSD) and lumbar spine disabilities in November 2021. In a December 2021 rating decision, the RO denied the claim for entitlement to TDIU and granted the Veteran an increased rating for his lumbar spine disability of 40 percent, beginning November 1, 2021. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, TDIU has been pending since the date of the Veteran's claim for an increased rating. 1. Entitlement to a rating in excess of 20 percent, prior to November 1, 2021, and in excess of 40 percent, thereafter, for lumbar spine disability is denied. Service connection has been in effect for chronic lumbar strain with spondylosis L4-L5 and L5-S1 since January 2016. The Veteran brought his claim for an increase in May 2018, seeking higher than the currently assigned 20 percent disability rating for his lumbar spine disability, prior to November 1, 2021, and 40 percent rating, thereafter. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Veteran's lumbar spine disability is rated under DC 5242, which rates based on the General Rating Formula for Diseases and Injuries of the Spine. Under DC 5242, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when combined range of motion of the thoracolumbar spine is 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 rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Higher ratings of 50 and 100 percent are assigned when there is a finding of ankylosis. Note (1) to the General Formula directs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Effective February 7, 2021, the Schedule of Ratings for the Musculoskeletal System was revised. Pertinent to this case, DC 5242 was modified from "degenerative arthritis of the spine" to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)." This change to the rating criteria need not be discussed here because they do not affect or allow for a more favorable outcome in this case. In assessing musculoskeletal disabilities, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flareups. 38 C.F.R. § 4.14. Additionally, the Court of Appeals for Veterans Claims has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell v. Shinseki,25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id. (quoting38 C.F.R. §4.40). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. See 38 C.F.R. § 4.45. Turning to the evidence of record, treatment notes in March 2015 document that the Veteran had good spinal alignment with no deviations, increased kyphosis, or scoliosis. Tenderness to palpation was noted in the lower lumbar area with full range of motion and painful sensation. In June 2018, the Veteran was afforded a VA examination for his lumbar spine disability. He reported that he had lower back pain and difficulty bending and lifting. He denied flareups. Upon examination. he had flexion to 40 degrees extension to 10 degrees, bilateral lateral flexion to 20, and bilateral rotation to 25 degrees with pain at 30 degrees. There was no evidence of pain with weightbearing or tenderness to palpation. Repetitive movements did not cause additional loss in range of motion. The examiner informed that the Veteran's functioning during flareups or with repeated use over time could not be estimated without resorting to mere speculation. The examiner explained that the Veteran would have to be observed during flareups and at baseline in the same visit in order to reliability provide this information. There was no guarding or muscle spasms. There was also no radiculopathy or IVDS. There was also no ankylosis. Moreover, there was not neurological abnormalities associated with the Veteran's lumbar spine disability. The Veteran was afforded another VA examination for his lumbar spine disability in November 2021. Here, the Veteran reported that his back was progressively getting worse. He reported daily flareups with sharp, radiating pain. On examination, he had flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. There was pain on weightbearing, active range of motion, and passive range of motion. There was no pain in non-weightbearing status. Repetitive testing did not cause additional loss in range of motion. The examiner opined that the Veteran's range of motion would be further reduced during repeated use over time and during flareups to forward flexion limited to 20 degrees. There was localized tenderness not resulting in abnormal gait. There was no radiculopathy or ankylosis. Based on the aforementioned, prior to November 1, 2021, the medical evidence of record demonstrates that the Veteran's lumbar spine disability manifested with symptoms that most nearly approximate those associated with the 20 percent rating. Although the Veteran consistently endorsed chronic back pain, he had flexion of at least 40 degrees. Furthermore, there was no evidence of ankylosis when the spine is fixed in place allowing for no movement. Lastly, the Veteran did not endorse flareups during this time period. To assign a higher disability rating, the Veteran's flexion would have to have been limited to 30 degrees or less or result in favorable ankylosis of the entire thoracolumbar spine. The evidence of record does not support a finding that there are instances where he experienced functional loss consistent with a 40 percent disability rating, prior to November 1, 2021. In so finding, the Board takes notice that the June 2018 VA examiner did not offer an opinion regarding the Veteran's functioning during repeated use over time or during flareups, as required under Sharp v. Shulkin, 29 Vet. App. 26 (2017), and rather opined that doing so would require mere speculation without adequate explanation. However, the Veteran did not actually endorse experiencing flareups during this time period, nor is there any information within the record that the Veteran would experience further functional loss in any quantifiable way. Notably, although he exhibited pain and tenderness during the time period, treatment notes in March 2015 support that he still maintained full range of motion of the lumbar spine. Beginning November 1, 2021, the evidence of record demonstrates that the Veteran's lumbar spine disability manifested with symptoms that most nearly approximate those associated with the 40 percent rating. The November 2021 VA examination documented forward flexion limited to 30 degrees. It was estimated that the Veteran would have additional functional loss during repeated use over time and during flareups which resulted in forward flexion to 20 degrees. However, the record did not demonstrate unfavorable ankylosis during any time during the period on appeal, nor is there evidence to suggest symptoms that approximate ankylosis, which is necessary to warrant the assignment of a higher rating. The assignment of a 40 percent rating, beginning November 1, 2021, considers any additional limitations due to repeated usage over time or during flareups. During the period at issue, there has been no representation, in lay statements or medical evidence, that repeated usage over time and during flareups would decrease his range of motion in his lumbar spine so greatly that his lumbar spine would be ankylosed, as necessary for a higher rating. The ratings assigned for the timeframes on appeal for the lumbar spine disability adequately portray any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his spine. See DeLuca, supra; see also Mitchell, supra; and 38 C.F.R. §§4.40, 4.45, 4.59. The Board notes that the Veteran is competent to report symptoms of his back pain and difficulty with movement, and it has considered his lay statements in reaching this conclusion. Conversely, the Board notes that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; 38 C.F.R. § 4.40. The Board finds the VA examiners to be competent and there is no evidence to undermine the credibility of the medical opinions rendered. As such, the Board assigns the opinions significant weight for each respective appeal period. See Nieves v. Rodriguez,22 Vet. App. 295 (2008); Barr v. Nicholson,21 Vet. App. 303, 309 (2007). Based on the lay and medical evidence of record, the Board finds that evidence of record does not demonstrate that the Veteran's lumbar spine disability warrants a disability rating higher than 20 percent, prior to November 1, 2021. Beginning November 1, 2021, a rating in excess of 40 percent is not warranted. Lastly, the Board has considered whether the Veteran has neurological manifestations of his lumbar spine disability as consistent with Note 1 under the General Rating Formula for Diseases or Injuries of the Spine. At the November 2021 hearing, the Veteran reported that that he experiences shooting pain in his legs. Despite this report, repeated examination does not support any neurological abnormalities associated with the Veteran's lumbar spine disabilities. As noted above, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify provide an etiology or diagnosis related to such symptoms code. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. In this case, both VA examiners found that the Veteran had no objective of radiculopathy, or any other neurologic abnormalities associated with the Veteran's lumbar spine disability. Furthermore, the treatment notes of record do not document a diagnosis of radiculopathy or continuous complaints of shooting or radiating pain in the Veteran's legs. As such, the Board finds these records to be more probative than the Veteran's subjective complaints. Thus, the Board finds that no separate awards are during the period on appeal. 2. Entitlement to a total rating based on individual unemployability is denied. At the November 2021 hearing, the Veteran testified that he only worked two hours a day and received marginal income due to his service-connected disabilities. The Board finds that a claim for TDIU was raised by record and is associated within the context of the Veteran's April 27, 2018, claim for an increased rating for lumbar spine disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). 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). For the purposes of determining rating level, disabilities resulting from a common etiology, or a single accident are considered a single disability. 38 C.F.R. § 4.16 (a). Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director of Compensation and Pension Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. An assessment for entitlement to a TDIU requires consideration of the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). Unemployability associated with advancing age or intercurrent (i.e. non-service connected) disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough, as a schedular rating provides recognition of such. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The schedular criteria contemplate compensating a Veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. See 38 C.F.R. § 4.1. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). During the period on appeal, which begins with his claim in May 2018, the Veteran was service connected for PTSD, rated as 50 percent disabling from January 27, 2016, and 70 percent disabling from September 19, 2019, and lumbar spine disability, rated as 20 percent disabling from January 27, 2016, and 40 percent disabling from November 1, 2021. His combined rating was 60 percent from January 27, 2016, and 80 percent from November 1, 2021. Thus, the Veteran did not meet the schedular rating prior to November 1, 2021. Beginning November 1, 2021, he met the schedular rating for a TDIU. Turning to the evidence of record, in May 2018, the Veteran's fiancée submitted correspondence detailing that his lumbar spine disability impaired the Veteran's ability to walk. He struggled to bend his back at all and had issues with self-care routines like tying his shoes or picking up dropped items. He also could not stand for long periods. She further detailed problems with large crowds and hypervigilance. He also reported forgetting large portions of time. He left jobs due to physical demands. Additionally, he was often tired and struggled in classes due to fatigue and memory lapses. At a June 2018 PTSD VA examination, the Veteran reported that he had friends but did not see them frequently. He was in college fulltime and majoring in computer engineering. He relayed that his ADHD, amotivation, and anhedonia interfered with getting things done in school. He had a 2.4 GPA. His sleep problems also impaired his concentration. He also had emotional difficulties where he felt like crying, which would impair his functioning. He was able to attend classes because there were not large groups of people. He had last worked in 2016 where was around people all the time, which he could not handle. This report conflicted with statements from his last examination where he reported he mainly worked from home. The Veteran clarified that he had to do Skype chats, emails, and telephone calls every day, which was too much contact with people. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. At the November 2021 hearing, the Veteran testified that he recently obtained a job where he taught in an afterschool program. He worked an hour or two every Friday. He did not have to lift anything and just talked to kids. In his November 2021 TDIU application, he represented that his service-connected PTSD and lumbar spine disabilities prevented him from securing and following substantial gainful activity. He did not indicate when he became too disabled to work. He had past work as a restaurant manager in 2016 for approximately a month. He indicated that he had completed his junior year of college and had education and training since he had become too disabled to work. In a November 2021 PTSD examination, he again reported working one day per week at an aftercare program for children. He was trying to obtain more work as he enjoyed working with children. He had positive work performance. Outside of work, he enjoyed playing board games. During COVID restrictions, he had discontinued his attendance at college due to difficulties concentrating on online coursework. The examiner opined that the Veteran would have moderate functional impairments that negatively impact his occupational functioning in sedentary and physical work settings. Overall, the Veteran had occupational and social impairment with reduced liability. Considering the aforementioned, the Board finds that a TDIU is not warranted at any time during the period on appeal. The Veteran has alleged that he is unable to work due to his service-connected disabilities. However, after a thorough review of the record, the Board finds that the evidence shows that the functional limitations imposed by the Veteran's service-connected disabilities did not render him unable to perform the mental or physical tasks necessary to follow a substantially gainful occupation during the period on appeal. The Board does not dispute that the Veteran experienced some occupational impairment due to his service-connected disabilities during the period on appeal. Evidence shows complaints of physical and mental limitations resulting from his service-connected disabilities. However, the Board finds that such impairment was adequately compensated by the assigned schedular ratings. Loss of industrial capacity is the principal factor in assigning disability ratings. See 38 C.F.R. §§3.321 (a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board has considered entitlement to TDIU based only upon the Veteran's service-connected disabilities and finds that although they may have impacted his ability to obtain and maintain employment, they did not wholly prevent him from securing or following gainful employment. Based on his physical limitations, it is conceded that he would experience some limitations in heavy lifting, prolonged standing or walking, frequent bending or stooping, or climbing. However, he maintained the ability to work at jobs with less stringent physical demands. This is most evidenced by his most recent positive employment experience in an afterschool childcare program with less physical demands. His service-connected disabilities would not preclude this type of employment. In addition, such a position would provide income above the poverty level. A review of medical evidence and lay statements during the period appeal does not support significant restrictive physical limitations due to service-connected disabilities, especially to the extent that they would preclude work that the Veteran is qualified to perform. Similarly, the Veteran retained the mental capacity to perform such work when considering the limitations assessed by his PTSD. To this point, VA examinations indicate that the Veteran was able to maintain some relationships with his fiancée and friends, had adequate concentration to play video and board games and attend college, and was able to successfully work with children. He also successfully attended college courses during the period at issue. Thus, the Veteran maintained adequate functioning to perform work tasks not requiring a high level of concentration or memory, such as assembly jobs or clerical work. A job as a teaching assistant or childcare attendant would also not exceed the Veteran's mental capacity. Based on the aforementioned, the evidence is persuasively against finding that the Veteran's service-connected disabilities have prevented him from securing and following substantially gainful employment during the period on appeal. As such, his claim for TDIU is denied, and referral for extraschedular consideration, prior to November 1, 2021, is not warranted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.