Citation Nr: 22028413 Decision Date: 05/13/22 Archive Date: 05/13/22 DOCKET NO. 18-05 846A DATE: May 13, 2022 ORDER Entitlement to a 50 percent rating, but no higher, lumbar spine degenerative disc disease L5-S1 with spondylosis L5 and spondylolisthesis L5-S1 is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's lumbar spine symptoms more nearly approximates unfavorable ankylosis of the entire thoracolumbar spine when considering flareups, but it does not more nearly approximate ankylosis of the entire spine, or incapacitating episodes. 2. The Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for Entitlement to a 50 percent rating, but no higher, lumbar spine degenerative disc disease L5-S1 with spondylosis L5 and spondylolisthesis L5-S1 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to a TDIU 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 served on active duty from January 1985 to December 1987. This matter came to the Board of Veterans Appeals (Board) on appeal from July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which continued the 20 percent evaluation for lumbar spine degenerative disc disease L5-S1 with spondylosis L5 and spondylolisthesis L5-S1. The RO also denied entitlement to a TDIU. In July 2015, the Veteran submitted a notice of disagreement (NOD, and a statement of the case (SOC) was issued in December 2017 addressing the matter. The Veteran timely appealed. In January 2022, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. The Board notes that the Veteran has been service connected for radiculopathy of the left lower extremity since February 2013. In Chavis v. McDonough, 34 Vet. App. 1, 15-18 (2021)), the Court recently addressed the question of how to determine whether the issue of an increased rating for radiculopathy, is part and parcel of a claim for an increased rating for the lumbar spine and should be adjudicated by the Board. As was explained in Koeller v. McDonough, No. 19-2357, 2021 U.S. App. Vet. Claims 1666 (Sept. 21, 2021) (mem dec) (Falvey, J.), "Chavis tells us that whether a veteran's radiculopathy symptoms should be viewed as part of a properly appealed lumbar spine claim depends on several factors, including the scope of the initial claim for increased compensation, medical and lay evidence of record, and VA's procedural treatment of the claim"). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). In the November 2013 application for increased compensation based on unemployability (VA Form 21-8940), the Veteran sought an increased evaluation based lower back (thoracolumbar spine). As noted above, in the July 2014 rating decision, the RO denied an increased rating for lumbar spine degenerative disc disease L5-S1 with spondylosis L5 and spondylolisthesis L5-S1. In his July 2015 NOD, the Veteran identified the specific issues as lumbar degenerative disc disease and TDIU, L5-S1 and did not reference radiculopathy. Thus, given the scope of the Veteran's claim and pleadings and the RO's procedural treatment of the claim, continuing to identify only the lumbar spine disability, the Board will address only the low back disability. Higher Ratings Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § § 4.10. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before, he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or staged ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as seriously disabled any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). When evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021). 1. Lumbar Spine The Veteran's lumbar spine degenerative disc disease L5-S1 with spondylosis L5 and spondylolisthesis L5-S1 is currently evaluated at 20 percent under Diagnostic Code 5237, pertaining to the General Rating Formula for Diseases and Injuries to the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. VA's Rating Schedule evaluates disabilities of the spine pursuant to a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. That formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. Under Note 5, 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 20 percent rating is assigned. When intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 provides that 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. The Veteran was afforded a VA examination in May 2014. He denied flare-ups of the thoracolumbar spine. His lumbar forward flexion was to 60 degrees with pain. He performed repetitive use testing with no additional limitation of motion. The Veteran exhibited less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. There was no objective evidence of localized tenderness, guarding, or muscle spasm. The Veteran s muscle strength was normal and there was no evidence of atrophy. His reflex exam was noted as normal. The Veteran's sensory exam was normal in all regions except left lower leg/ankle, noted as decreased. The Veteran's left lower extremity exhibited mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. There were no other signs or symptoms due to radiculopathy. There was no evidence of ankylosis. There were no other neurological abnormalities. The examiner indicated that the Veteran had IVDS of the thoracolumbar spine, which did not result in any incapacitating episodes over the past 12 months. The Veteran used a cane regularly. In his July 2015 notice of disagreement (NOD), and February 2018 substantive appeal (VA Form 9), the Veteran asserted that his lumbar spine disability is more severe than already assessed. A September 2021 private treatment record indicates the Veteran reported that he experiences stiffness especially in the morning and at night, that lasts about an hour to an hour and a half. He has developed difficulty walking more than 150 feet. His lumbar forward flexion was to 15 degrees. The check box was marked for unfavorable ankylosis of the entire spine. At his January 2022 Board hearing, the Veteran testified that his back pain causes difficulty walking, bending, and standing. He reported having daily flare-ups of his back. The Veteran stated that he cannot move at all during flareups. The Board notes that an examiner's characterization of the level of disability is not binding on the Board. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present"). Resolving reasonable doubt in favor of the Veteran, for the entirety of the period on appeal, an increased rating of 50 percent for lumbar spine degenerative disc disease L5-S1 with spondylosis L5 and spondylolisthesis L5-S1 is warranted. During the period on appeal, at worst, the Veteran's lumbar forward flexion was to 15 degrees with pain. However, the Board must consider additional functional loss due to symptoms such as pain, repetitive motion, and flare-ups. 38 C.F.R. §§ 4.40, 4.45. Although the May 2014 VA examination indicates the Veteran's lumbar forward flexion was to 60 degrees with pain, there is no evidence of record indicating that the examination was administered during a flare-up. The September 2021 private treatment record lumbar forward flexion was to 15 degrees, with reports of difficulty walking. At the January 2022 VA Board hearing, the Veteran testified his back pain causes difficulty walking, bending, and standing, and that he cannot move at all during flareups. The Veteran has provided competent and credible reports of pain during use that limit movement of his back. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). The evidence of record shows that when considering pain, flare-ups, and other functional factors, the Veteran's back disability symptoms have been shown to result in symptoms more nearly approximates unfavorable ankylosis of the entire thoracolumbar spine as contemplated by a 50 percent rating under the general rating formula. However, a higher 100 percent disability rating is not warranted. The Veteran does not contend, and the evidence does not demonstrate that the Veteran's lumbar spine disability has resulted in symptomatology that more nearly approximates ankylosis of the entire spine, to include the Veteran's reports of functional limitation during a flare-up. The Board acknowledges the September private treatment record showing a box was marked for unfavorable ankylosis of the entire spine. However, checking of the box indicating unfavorable ankylosis of the entire spine, without an explanation of the basis for this finding, does not represent a finding more nearly approximating VA's definition of unfavorable ankylosis of the entire spine in Note 5 of the general rating formula. The Veteran is not service-connected for a cervical spine disability, and cervical spine is not before the Board on this appeal. Therefore, the Board will assign the highest schedular rating for ankylosis of the thoracolumbar spine. For the foregoing reasons, after affording the Veteran the benefit of the doubt, a 50 percent rating, but no higher, for lumbar spine degenerative disc disease L5-S1 with spondylosis L5 and spondylolisthesis L5-S1 is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. TDIU Where the schedular rating is less than total, a total disability rating may nonetheless 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § §§ 3.340, 3.341(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 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). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Significantly in this case, individual unemployability must be determined without regard to advancing age. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In this case, the Veteran is now service connected for lumbar spine degenerative disc disease L5-S1 with spondylosis L5 and spondylolisthesis L5-S1, rated as 50 percent disabling, and left lower extremity radiculopathy, rated as 20 percent disabling. While 50 and 20 percent ratings combine to 60 percent under 38 C.F.R. § 4.25, the lumbar spine disc disease and radiculopathy are disabilities resulting from a common etiology and therefore constitute a single disability rated 60 percent under 38 C.F.R. § 4.16(a)(2). Therefore, the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU. Thus, the next question for consideration is whether his service-connected disabilities prevent him from securing and following substantially gainful employment. In November 2013, the Veteran submitted a formal TDIU application, VA Form 21-8940a indicating that service-connected lower back disability prevents him from securing or following any substantial gainful occupation. He indicated that he worked in maintenance and became too disabled to work in in November 2008. He further indicated that he completed two years of college. The Veteran noted that he had obtained an associate of applied science since becoming too disabled to work. A May 2014 VA examination report shows the examiner indicated the Veteran's left shoulder condition impacts his ability to work. Specifically, the pain with prolonged walking/standing would interfere with any employment requiring same. Also, there is nothing to interfere with sedentary work. In his July 2015 NOD, and February 2018 substantive appeal (VA Form 9), the Veteran asserted that his lumbar spine disability is more severe than already assessed and prevents him from working. At his January 2022 Board hearing, the Veteran testified that when he worked in maintenance, he experienced pain that started to his back, then shift to his left hip, then a stinging type, electricity down to his left leg. He noted difficulty walking and standing longer periods of time. The Veteran noted his job was constantly to find out what was wrong with things and think his way through a process of remedying whatever situation it was. He further noted that due to the pain, which was much all the time, he could not finish his thought process and that was kind of dangerous for his line of work. The Veteran indicated that was what finally caused him to quit altogether. (Continued on the next page) The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The above evidence reflects that the Veteran's service connected lumbar spine degenerative disc disease L5-S1 with spondylosis L5 and spondylolisthesis L5-S1 and left lower extremity radiculopathy preclude him from securing substantially gainful employment given his educational and occupational history. Thus, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16 (a). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.