Citation Nr: 22017932 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 03-28 205 DATE: March 27, 2022 ORDER Entitlement to a disability rating in excess of 40 percent from February 4, 2015 to March 6, 2015 and from July 1, 2015 for service-connected lumbar myositis, degenerative joint disease, and bulging disc is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from March 6, 2003 is denied. FINDINGS OF FACT 1. The Veteran's low back disability did not manifest complete ankylosis of the thoracolumbar spine, or its functional equivalent, at any time during the period from February 4, 2015 to March 6, 2015, and/or since July 1, 2015. 2. The Veteran is in receipt of a 100 percent combined disability rating for the entire period on appeal; the competent evidence of record does not show that the Veteran was unable to obtain or maintain substantially gainful employment due solely to his service-connected back disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent, from February 4, 2015 to March 6, 2015 and from July 1, 2015 for service-connected lumbar myositis, degenerative joint disease, and bulging disc have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for entitlement to a TDIU due to a back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19; Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to July 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in May 2021 when the claims were remanded for additional development. It has returned for adjudication. 1. Entitlement to a rating in excess of 40 percent from February 4, 2015 to March 6, 2015 and from July 1, 2015 for service-connected lumbar myositis, degenerative joint disease, and bulging disc (a low back disability) The Veteran contends that he is entitled to a higher disability rating for his service-connected low back disability. He described in correspondences and VA thoracolumbar spine examinations that he has difficulty with range of motion, experiences pain, and has functional loss due to his low back symptoms. He reported difficulties with bending, walking, sitting, standing, and lifting as a result of his lumbar spine disability and the requirement for assistive devices on occasion for ambulation. He also argues that he is unable to work due to his back disability. The Veteran's low back disability is currently rated 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS) for the pertinent periods on appeal. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings 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. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38C.F.R. §4.71a). When 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. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, Diagnostic Code 5242 and 5243 were not to the rating schedule itself, but added instruction to classify disabilities associated with IVDS under Diagnostic Code 5243 and all other intervertebral disc disabilities under 5242. As such, Diagnostic Code 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010)"; Diagnostic Code 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Turning to the evidence of record, the Veteran was afforded a VA examination in February 2015. At that time, the Veteran reported constant low back pain which radiated towards his left lower extremity. He reported that his pain worsened after being in a sitting or standing position for a prolonged period. He was prescribed pain medication as needed with a fair response. The Veteran reported flare-ups of back pain that caused him to stay in bed for a few hours. On observation, his range of motion was abnormal, with flexion to 30 degrees and extension to 10 degrees. The examiner noted pain on range of motion but stated it did not result in or cause functional loss. Although the Veteran was able to perform repetitive use testing, there was additional loss of range of motion with flexion to 20 degrees and extension to 5 degrees. Muscle strength, reflex, and sensory examinations were normal and there was no evidence of radiculopathy or other neurologic abnormalities. The examiner specifically noted that there was no ankylosis of the spine and that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran was afforded an additional VA examination in September 2017. At that time, the Veteran reported that he has low back pain that worsens with repetitive bending at the waist, prolonged sitting, and prolonged standing activities. He was prescribed pain medication and received physical therapy with partial relief. The Veteran reported flare-ups of back pain and noted that he was unable to dress his lower extremities or lace his shoes. On observation, his range of motion was abnormal, with flexion to 30 degrees and extension to 10 degrees. The examiner noted pain on range of motion and stated it resulted in functional loss. There was no evidence of pain with weight bearing but there was objective evidence of localized tenderness or pain on palpation of the joint. The Veteran was able to perform repetitive use testing without additional loss of range of motion. Muscle strength, reflex, and sensory examinations were normal and there was no evidence of radiculopathy or other neurologic abnormalities. The examiner noted that there was no ankylosis of the spine and that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran underwent another VA examination in October 2019. Since the 2017 examination, the Veteran stated that he continued to have low back pain that progressively worsened. The Veteran described the pain as constant, localized low back pain that worsened with repetitive bending at the waist, prolonged ambulation, and standing activities. The Veteran denied any Emergency Room visits or incapacitating episodes requiring bed rest in the previous 12 months. The Veteran reported 2 or 3 episodes of flare-ups per week lasting 3-to-4 hours and described difficulty dressing his lower extremities, especially lacing his shoes. The Veteran's range of motion was abnormal, with flexion to 25 degrees and extension to 10 degrees. The examiner noted pain on range of motion and stated it resulted in functional loss. There was no evidence of pain with weight bearing but there was objective evidence of localized tenderness or pain on palpation of the joint. The Veteran was able to perform repetitive use testing without additional loss of range of motion. During flare-ups, the examiner estimated that the Veteran's flexion would be limited to 10 degrees and extension to 5 degrees. Muscle strength, reflex, and sensory examinations were normal and there was no evidence of radiculopathy or other neurologic abnormalities. The examiner noted that there was no ankylosis of the spine. Finally, the examiner found that the Veteran had IVDS of the thoracolumbar spine but that he had not required bed rest prescribed by a physician or treatment by a physician in the previous 12 months. A VA examiner provided an August 2021 opinion indicating that there was no evidence of ankylosis at the examination and the Veteran preserved the functional lumbar range of movement compatible with independent capacity to do all activities of daily living and self-care activities by himself. Treatment records throughout the period on appeal document the Veteran's ongoing complaints of back pain. Upon review of the above, the Board finds that the evidence persuasively weighs against awarding a rating in excess of 40 percent for low back disability from February 4, 2015 to March 22, 2015 or from July 1, 2015. The probative evidence of record, including VA examinations, medical treatment records, and the Veteran's lay statements, do not demonstrate that the Veteran was prescribed bedrest by a physician or that he had ankylosis, or its functional equivalent, of the thoracolumbar spine at any time during the appeal period. In this regard, the Board finds the VA examination reports to be the most probative evidence of record. During each of the examinations, the Veteran maintained at least some range of motion and the examiners specifically found no evidence of ankylosis of the spine. Additionally, while the October 2019 VA examiner diagnosed IVDS, the medical and lay evidence does not demonstrate that he was prescribed bedrest for incapacitating episodes at any time. The Board acknowledges the Veteran's lay reports of his symptoms and that there was functional loss due to include causes of additional functional loss due decreased movement and pain, with exacerbated symptoms during flare-ups. However, even considering the Veteran's descriptions of his back symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's statements during flare-ups is not found to result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. At no time has the Veteran's back disability manifested with symptoms that more closely resemble stiffness and rigidity that are analogous to fusion. See 38 C.F.R. § 4.71A. As noted above, the probative evidence of record indicates that the Veteran maintains the functional ability to perform activities of daily living and self-care. The Veteran himself has not indicated that he experiences ankylosis of the spine, even during flare-ups. Regarding associated neurological impairments, the medical evidence does not demonstrate, and the Veteran does not otherwise assert, that he has any neurological abnormalities associated with his service-connected spine disability. Indeed, while the Veteran reported pain radiating to his left leg during the February 2015 VA examination, the VA examination reports state that the Veteran did not have radiculopathy and that the Veteran demonstrated normal strength, reflex, and sensory results in his extremities. For the foregoing reasons, the evidence persuasively weighs against the Veteran's claim for a rating in excess of 40 percent for low back disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to TDIU since March 6, 2003 (other than from March 23, 2015 to July 1, 2015) The Veteran is seeking entitlement to a TDIU. He contends that he is unable to work due to his nervous condition and his low back pain. Alternatively, the Veteran asserts that he is entitled to a TDIU related to a single service-connected disability, his low back disability, because his pain would render even sedentary employment impossible. Throughout the period on appeal, the Veteran is in receipt of a combined 100 percent rating for service-connected disabilities, to include major depression, rated 100 percent disabling; a low back disability, rated 40 percent disabling from March 19, 2001, 20 percent disabling from April 30, 2009, 40 percent disabling from February 4, 2015, 100 percent disabling from March 23, 2015, and 40 percent disabling from July 1, 2015; gastroesophageal reflux disease, rated 10 percent disabling from April 1, 2009; and lumbar spine scar, rated noncompensable from March 23, 2015. A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). This award, in and of itself, does not render the question of entitlement to a TDIU moot. Despite the fact that the Veteran already is in receipt of a 100 percent combined schedular rating for the period on appeal, VA has a duty to maximize benefits. The Board notes that special monthly compensation (SMC) at the housebound rate a payable where a veteran has a single service-connected disability rated as 100 percent disabling and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. See 38 C.F.R. § 3.350. Notably, the Veteran was awarded special monthly compensation from March 23, 2015 to July 1, 2015 on this basis during the period when the Veteran's back disability was assigned a temporary 100 percent disability rating in addition to his 100 percent disability rating for major depression. Accordingly, the Board's analysis is limited to the period before March 23, 2015 and after July 1, 2015. When the Veteran's additional service-connected disabilities are not independently ratable at 60 percent, a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, VA must consider whether an award of TDIU based on a single disability is warranted, for the sole purpose of determining eligibility to a SMC from March 6, 2003. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Following a review of the record and the applicable legal criteria, the Board finds that the assignment of a TDIU based on the Veteran's back disability alone is not warranted. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15. A TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The phrase "unable to secure and follow a substantially gainful occupation" has been interpreted to consist of two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 7274 (2019). The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. at 73. With respect to the noneconomic component, when determining whether a veteran can secure and follow a substantially gainful occupation, consideration should be given to the following: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required; and, (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. at 7374. Turning to the evidence of record, on his May 2009 Application for Increased Compensation Based on Unemployability, the Veteran reported that he completed 2 years of college. The Veteran is in receipt of Social Security Disability benefits from August 13, 2003 related to his mental impairment, back disability, and a right shoulder disability. The decision specifically notes that the Veteran has a combination of physical conditions which exacerbate his mental condition to the point he is totally disabled for gainful activity. During the period on appeal, although the Veteran reported chronic pain and debilitating episodes of severe pain that require him to lay down, the VA examiners have not found that the Veteran is unable to obtain and maintain employment solely due to his back disability. Rather, during a November 2008 VA examination, the Veteran reported that he left his job as an agricultural employee in 2001 due to his back pain and his mental condition. The Board notes that an April 2009 VA examiner found the Veteran unemployable "to work in strenuous labor such as farming," indicating that the Veteran should not lift or carry more than 10-to-15-pound objects and should not bend at the trunk repeatedly or engage in high impact activity. However, after the February 2015 VA examination, the Veteran was considered able to secure a sedentary type of job with light duty precautions with periods of intermittent standing and seating, such as a clerk or answering phones. During the September 2017 VA examination, the Veteran was again found capable of sedentary employment that did not require lumbar twisting, extreme bending movements, heavy lifting, pushing, pulling, or prolonged standing or ambulation activities. In October 2019, the Veteran was directed to avoid lifting heaving objects, extreme being, and prolonged standing or ambulation. There was no indication that the Veteran was precluded from all substantially gainful employment. In August 2021, the Veteran was found with back function that would allow him to do "desk-top type sedentary activities." As noted above, he was reportedly independent with activities of daily living and self-care activities, further weighing against finding him incapable of obtaining employment. The Veteran's representative indicated that while a sedentary position would be the most ideal, the Veteran's low back disability would still prevent him from sitting or standing for long periods of time such that he would be precluded from maintaining employment. After a review of the medical evidence discussed above, which certainly indicates that the Veteran has experienced limitation of motion and pain, the Board finds that the functional impairment associated with the Veteran's low back disability, alone, is not so severe as to actually preclude all forms of substantially gainful employment. There is no medical or other competent opinion of record to indicate otherwise. In short, the Board does not dispute that the Veteran may be unable to obtain and maintain gainful employment due to his combined service-connected disabilities. However, the weight of the competent, probative medical evidence indicates that the Veteran's service-connected low back disability, alone, has not rendered him unemployable at any point pertinent to the current claim. The Board has considered the Veteran's competent lay assertions of record. The Veteran is competent to describe his back symptoms and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, to whatever extent the Veteran, himself, attempts to assert that his low back disability renders him unemployable, the Board emphasizes that he is not shown to possess expertise in medical or vocational matters. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). Hence, any lay assertions in this regard have little probative value. Furthermore, the medical evidence addressing the functional effects of the Veteran's disability on his ability to perform the mental and/or physical acts required for substantially gainful employment, incorporate the Veteran's lay assertions, and is relevant to the unemployability determination. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In this case, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions, provide the most persuasive evidence regarding the limitations posed by his service-connected back disability. This medical evidence shows that although the Veteran's back disability has a functional impact on his ability to work, it does not by itself, prevent him from obtaining and maintaining gainful employment. The Board also acknowledges that the evidence shows the Veteran left his previous employment at least in part due to his back disability. However, the Board reiterates that entitlement to a TDIU is not based on an inability to be employed in a chosen field or job, but an inability to secure and maintain any gainful employment. In light of the foregoing, although the Board does not dispute that the Veteran's combined service-connected disabilities may render him unable to obtain and maintain substantial gainful employment, the Board finds the evidence of record persuasively weighs against finding that the Veteran's back disability alone renders him unable to maintain substantially gainful employment. Therefore, the Board concludes that the Veteran is not entitled to a TDIU based on his back disability and the claim for entitlement to a TDIU from March 6, 2003 must be denied. 38 C.F.R. § 4.16. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Macek, M. A. 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.