Citation Nr: 1320489	
Decision Date: 06/25/13    Archive Date: 07/05/13

DOCKET NO.  09-36 843	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to a disability rating greater than 20 percent between May 3, 2006, and January 6, 2009, and greater than 20 percent effective March 1, 2009, for lumbosacral spine degenerative joint disease with disc phenomenon at L2-3 and mild scoliosis.

2.  Entitlement to a disability rating greater than 20 percent for radiculopathy of the right lower extremity, effective December 4, 2012.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Colorado Division of Veterans Affairs



ATTORNEY FOR THE BOARD

A. Zenzano, Associate Counsel


INTRODUCTION

The Veteran had active service from February 1960 to May 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  

A Travel Board hearing was held at the RO in June 2012 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record.

In the Board's November 2012 remand and the RO's March 2013 supplemental statement of the case, the issue with respect to the Veteran's lumbar spine disability was mistakenly listed to read in part a disability rating "greater than 30 percent effective March 1, 2009."  The rating on appeal for this timeframe is actually 20 percent. 

The Board notes that a March 2013 rating decision granted service connection for radiculopathy of the right lower extremity, as secondary to the service-connected thoracolumbar spine disability, assigning a separate 20 percent disability rating, effective December 4, 2012, as a partial grant of the thoracolumbar spine increased rating claim.  Following the partial grant, the Veteran has not withdrawn his claim, and is presumed to be seeking the maximum benefit allowed by law and regulation.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  As such that claim is currently before the Board.
The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system.  

FINDINGS OF FACT

1.  The Veteran's lumbar spine disability has been manifested by limited motion, and complaints of pain on repetition; medical evidence does not reflect any separately compensable neurological manifestations of lumbar spine disability for which service connection has not already been established; or incapacitating episodes associated with the lumbar spine disability.

2.  The evidence does not show that the Veteran's service-connected radiculopathy of the right lower extremity results in moderately severe incomplete paralysis of the sciatic nerve. 

3.  The Veteran is service-connected for the following: left total knee arthroplatsty (30 percent disabling), right total knee arthroplasty (30 percent disabling), lumbar spine disability (20 percent disabling), radiculopathy of the right lower extremity (20 percent disabling), GERD (10 percent disabling) tinnitus (10 percent disabling) and bilateral hearing loss (noncompensable).  

4.  The Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a) for the rating of his disabilities.

5.  The competent and credible evidence establishes that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 20 percent for service-connected lumbar spine disability are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012).

2.  The criteria for an initial rating higher than 20 percent for service-connected radiculopathy of the right lower extremity as secondary to the service-connected lumbar spine disability are not met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.124a, DC 8520 (2012).

3.  The criteria for entitlement to TDIU have been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012).  Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability.  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

For an increased-compensation claim, VA must notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase 
in severity of the disability, and the effect of such worsening or increase has on the claimant's employment and daily life.  Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement.  VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  38 U.S.C.A. § 5103(a) (West 2002); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).

VA satisfied the notice requirements for the Veteran's TDIU and increased ratings claims in an October 2009 letter.  That letter also notified the Veteran of his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates.  That letter accordingly addressed all relevant notice elements.

Thus, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by providing evidence and argument.  Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Moreover, neither the Veteran nor his representative has alleged prejudice with respect to notice.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); 
Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board and the Board finds that VA's duty to notify has been satisfied.  

Next, VA has a duty to assist a veteran in the development of the claims.  That duty includes assisting him in the procurement of service medical records and other pertinent records, and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).  Social Security Administration records, private medical records and VA treatment records are of record.

The Veteran has been afforded several VA examinations which address the extent of the Veteran's service-connected disabilities and his degree of employability, if any, to include examinations conducted in December 2012 and February 2013, pursuant to the Board's November 2012 remand.  The Board finds those VA examination reports to be thorough and adequate evidence upon which to base a decision with regard to the Veteran's claim.  The VA examiners personally examined the Veteran and provided the information necessary to rate his disabilities under the applicable rating criteria.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions, and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

Therefore, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran and the Board will proceed to a decision.  


II.  Lumbar Spine Disability & Radiculopathy


The Veteran seeks higher ratings for his lumbar spine disability and secondarily-related radiculopathy of the right lower extremity.

Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity.  38 U.S.C.A. 
§ 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  

When evaluating disabilities of the musculoskeletal system, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be applied.  For disabilities based on limitation of motion, the Board must consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  38 C.F.R. § 4.45.  Joints which are actually painful, unstable or malaligned, due to healed injury, are entitled to at least the minimum compensable rating.  38 C.F.R. § 4.59.

The Schedule for Rating Criteria indicates that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine.  The General Rating Formula assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease.  Under this formula, a 100 percent evaluation is appropriate for unfavorable ankylosis of the entire spine; a 50 percent evaluation is appropriate for unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation is appropriate for favorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 30 percent evaluation is appropriate for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 10 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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.  38 C.F.R. § 4.71a, DC 5237.

Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Colayong v. West, 12 Vet. App. 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (28TH Ed. 1994) at 86).

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, Note (2).

Disorders of the spine may also be rated under DC 5243, Intervertebral Disc Syndrome Based on Incapacitating Episodes.  Under this code a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, Note (1).

When peripheral nerves are affected by disabilities of the spine, they are to be rated separately under Diagnostic Code 8520.  Under this code, a 10 percent rating is assigned when there is mild incomplete paralysis of the sciatic nerve; a 20 percent rating for moderate incomplete paralysis of the sciatic nerve; 40 percent for moderately severe incomplete paralysis; and a 60 percent for severe incomplete paralysis with marked muscle atrophy.  A maximum 80 percent rating requires complete paralysis of the sciatic nerve, where the foot dangles and drops, with no active movement possible of muscles below the knee, flexion of knee weakened or lost.  38 C.F.R. § 4.124a, DC 8520. 

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.

The Board observes that the words "slight," "moderate," and "severe," are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just."  38 C.F.R. § 4.6.  It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 U.S.C.A. 
§ 7104(a); 38 C.F.R. §§ 4.2, 4.6.

Turning to the facts, during a May 2006 private physical therapy examination, the Veteran ambulated with no apparent distress and was diagnosed with degenerative disc disease and low back pain.  Lumbar spine range of motion testing revealed flexion to 40 degrees, extension to 25 degrees, left side bending to 5 degrees, right side bending to 15 degrees, left rotation to 30 degrees and right rotation to 40 degrees with pain experienced when returning to the anatomical positions.

At a July 2006 VA examination, the Veteran reported that long periods of sitting, standing or driving can result in flare-ups of his pain, and that pain sometimes radiates into his right hip.  He denied any decrease in range of motion or weakness, or incapacitating episodes.  The Veteran stated that his physical therapist told him to lie down in bed when he is experiencing back pain.  He further reported that he is restricted to lifting less than 5 pounds, and avoids house work and yard work, wearing a back brace when he does perform yard work.

On physical examination, the Veteran's posture and gait were abnormal.  The Veteran used no assistive devices to ambulate, but reported installing handrails in his home and an assistive device in the bathtub.  Muscle spasms, tenderness and scoliosis were noted by the examiner.  Range of motion testing revealed forward flexion to 85 degrees with pain at the end of the range, left lateral flexion to 20 degrees with pain beginning at 10, and right and left rotation to 20 degrees with pain begging at 10.  Decreased range of motion was not present upon repetitive use; nor was increased fatigue, weakness or incoordination demonstrated.  Normal motor, sensory and reflexes and straight-leg raise testing was negative for radiculopathy of either side.  X-rays revealed mild lumbar scoliosis and degenerative disc disease.

A December 2006 private examination, the Veteran reported occasional tingling in his left foot, but no problems with bowel or bladder control.  Range of motion testing for the lumbar spine revealed forward flexion to 90 degrees, lateral bending to 30 degrees and extension to 30 degrees.  The Veteran was noted to have a normal straight walk and slow tandem walk.  He was diagnosed with likely degenerative disease, and the examiner stated he was best suited for sedentary work with frequent position changes and no bending, stooping or reaching, and limited to lifting no more than 15 pounds.

VA treatment records reveal treatment for low back pain, and show that the Veteran received multiple injections to ease his low back pain.  An August 2007 treatment note documents the Veteran's report of a history of an electric shock sensation in his buttocks, but that this had abated since he began physical therapy.  The Veteran also denied radiculopathy of the lower extremities.  Range of motion testing revealed forward flexion to 80 degrees.  Repeated flexion while standing for ten repetitions produced a worsened passing low back pain.

The Veteran underwent back surgery on January 7, 2009, and was assigned a temporary evaluation of 100 percent effect from that date through March 1, 2009, when his 20 percent rating was restored.

In July 2009, the Veteran's spine was again examined.  He reported constant low back pain that increases on motion.  He stated that walking, standing or sitting in a car after about ten minutes will increase his low back pain, which he said was non-radiating.  He also reported a knife-like pain in his right buttocks.  Upon examination, there was no palpable spasm or tenderness.  Straight leg raising testing was negative.  Range of motion testing revealed flexion to 74 degrees, extension to 18 degrees, right rotation to 53 degrees, left rotation to 42 degrees, right lateral motion to 17 degrees and left lateral motion to 17 degrees.  Pain was present initially and after repetitive motion; there was no additional limitation to range of motion after repetitive motion.

In January 2010, the Veteran underwent another VA examination, where he reported constant low back pain and right-side lower radiculopathy.  Walking, standing or sitting for more than 10 minutes increases his back pain, he stated.  The Veteran denied any periods of incapacitation.  On examination, the Veteran had loss of normal lordosis.  Straight leg raising test was negative.  Normal neurosensory function in both lower extremities was noted.  Range of motion testing revealed right rotation to 31 degrees, left rotation to 33 degrees, right lateral motion to 16 degrees, left lateral motion to 16 degrees, flexion to 93 degrees and extension to 22 degrees.  Pain was present initially and after repetitive motion; there was no additional limitation to range of motion after repetitive motion.

At a January 2012 VA examination, the Veteran reported a numbing, aching constant pain localized to his right sacroiliac back area.  He again reported an electrical knife sensation in the lower right side, and a jolting pain down his right leg, and a tingling sensation in his 4th and 5th toes of the right foot.  The Veteran stated that the radiating symptoms occur if he sits without moving for 1 to 2 hours.  He also said that his back pain increases if he does yard work, or if he does repetitive lifting of about 20 to 25 pounds.  He stated he wears a lumbar support device about 10 days a month when he knows he will be increasing his activity, that he places a lumbar roll in his seat when driving and uses a can if its icy or slick outside.  He reported that he walks two miles twice a day and that he has no bowel or bladder dysfunction.  He denied any flare-ups.  Range of motion testing revealed flexion to 85 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, and right lateral rotation to 25 degrees, left lateral rotation to 30 degrees.  There was no objective evidence of painful motion, with the exception of flexion, at 85 degrees, and there was no additional limitation of range of motion on repetition.  Functional loss on repetition was manifested by less movement than normal and pain on movement.  Tenderness with palpation of the right side was noted, but findings were negative for guarding/muscle spasm.  Radiculopathy of the right lower extremity, noted to result in moderate, intermittent pain and moderate paresthesias and/or dysesthesias was noted, as well as sciatica.  The Veteran had no other neurologic abnormalities and findings were negative for intervertebral disc syndrome. 

Given the above, the Board finds that a rating in excess of 20 percent between May 3, 2006, and January 6, 2009, and from March 1, 2009 forward, is not warranted.  As noted above, under the General Rating Formula, the next higher, 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  Here, however, there have been no such findings.  There are no findings of ankylosis of any portion of the spine.  As for limited motion, most of the evidence shows flexion upwards of 70 degrees, with the exception of the May 2006 private examination, where flexion was limited to 40 degrees.  As such, there is no evidence of flexion limited to 30 degrees or less, and, therefore, no basis for a 40 percent rating under the General Rating Formula.

As indicated above, evaluation of the disability at issue must include consideration of functional loss due to pain and other factors, as mandated  by 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at  204-7 (1995).  See also Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010) (holding that, when rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue).  Moreover, pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point where pain begins.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  

Here, testing revealed no additional limitation of motion on repetition, but did show pain on repetition of motion.  However, the Veteran's overall disability picture simply does not reflect that which is required to meet the criteria for the next higher, 40 percent, rating under the General Rating Formula for Diseases and Injuries of the Spine at any pertinent point.  The Board notes that a majority of the medical evidence shows the Veteran has a range of motion which would more appropriately place him in the 10 percent rating category, which is assigned where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.  Accordingly, the 20 percent rating contemplates the Veteran's additional disability attributable to his reported pain and functional loss.

Also, as noted above, Note (1) to the General Rating Formula requires that VA consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating for the Veteran's service-connected lumbar spine disability.  Here, the RO has already awarded service connection for radiculopathy of the right lower extremity associated with the service-connected lumbar spine condition, for which 20 percent rating has been assigned, effective December 4, 2012 (the date of the VA examination confirming the radiculopathy diagnosis).  The Board finds that a rating in excess of 20 percent is not warranted, as the evidence does not show that the Veteran has moderately severe incomplete paralysis, as is required for the next higher 40 percent rating.  Indeed, at the January 2012 VA examination, his radiculopathy was reported as resultant in moderate, intermittent pain, such that the Board finds that the 20 percent rating, which contemplates a moderate degree of radiculopathy, is appropriate.  Apart from this, the medical evidence does not support a finding that the Veteran has, or has had at any point pertinent to this appeal, any other separately ratable neurological manifestations(s) of his service-connected back disability.  Accordingly, Note (1) to the General Rating Formula provides no basis for higher rating at any point pertinent to this appeal.

The Board has also considered whether a higher rating is assignable under the criteria specific to disc disease, or, intervertebral disc syndrome (IVDS). Under the Formula for Rating IVDS, the next higher, 40 percent rating requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during a prior 12-month period, and a 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during a prior 12-month period.  An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician.  38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.   

In this case, the Veteran once reported that his physical therapist recommended he lie down in bed when he is experiencing back pain, but the medical record is devoid of evidence showing that bed rest was prescribed by a physician at any time pertinent to the period under consideration.  The Veteran has also denied a history of flare-ups.  Moreover, the Board also finds it noteworthy that the Veteran has not asserted or even suggested that, at any time since the inception of this claim, he has required the extent of bed rest required for at least a 40 percent rating under this Formula.

In reaching this determination, the Board has considered the Veteran's statements that his disability is worse than reflected by the current rating.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.  He is not, however, competent to identify a specific level of disability of his lumbar spine disability according to the appropriate diagnostic codes.  Such competent evidence concerning the nature and extent of the Veteran's lumbar spine disability has been provided by the medical personnel who have performed examinations during the current appeal and who have rendered pertinent opinions in conjunction with the examinations.  The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated.  As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony).  Therefore, a compensable rating for a lumbar spine disability is not warranted on a schedular basis.

The Board has also considered whether "staged" ratings are appropriate in this case.  See Fenderson v. West, 12 Vet. App. 119 (1999).  Here, with the exception of the Veteran's temporary 100 percent evaluation, the record does not reflect that the Veteran's disability varies in severity so as to warrant staged ratings.  

The Board has also considered whether referral for an extraschedular evaluation is warranted.  The question of an extraschedular rating is a component of a claim for an increased rating.  Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

Under the provisions of 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  Id.  If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

In this case, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence.  Thus, his disability picture is contemplated by the Rating Schedule, and the assigned scheduler evaluations are, therefore, adequate.  Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted.

III.  TDIU

The Veteran also seeks entitlement to a total disability rating based upon individual unemployability, which the Board previously found was raised by the record in conjunction with the Veteran's increased rating claim for his lumbar spine disability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 
 
A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.26.  Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or the impairment caused by any nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991).

TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of 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.  Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered one disability in calculating the percentage requirements.  38 C.F.R. § 4.16(a).  In addition, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation.    Id.

The Veteran is currently service-connected for the following:  left total knee arthroplasty (30 percent disabling), right total knee arthroplasty (30 percent disabling), lumbar spine disability (20 percent disabling), radiculopathy of the right lower extremity (20 percent disabling), GERD (10 percent disabling) tinnitus (10 percent disabling) and bilateral hearing loss (noncompensable).  The combined rating of the lower extremities satisfies the requirement of one 40 percent disability.  Therefore, he meets the criteria for a total disability rating under the provisions of 38 C.F.R. § 4.16(a).  The remaining question, then, is whether the Veteran's service-connected disabilities render him unemployable.


The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (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 v. Brown, 4 Vet. App. 361 (1993).

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question, however, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose, 4 Vet. App. at 363.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran's favor.  38 C.F.R. § 4.3.

While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides."

Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a Veteran's earned annual income.  In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability.

The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances.  See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991).

The claims file reflects that the Veteran is on long-term disability from his employer and currently receives disability benefits from the SSA due to his service-connected knee and back disabilities.  He has some college credits but no degree, and worked most recently as a production assistant supervisor, at a plant.  His work required climbing stairs and ladders, and crawling.

At the January 2010 VA examination, the examiner opined that the Veteran's employment activity was not impaired by his GERD.  The examiner noted that the Veteran's bilateral knees and his lower back limit his standing, walking, bending and lifting, stating that the Veteran should not be employed in activities that require standing or walking greater than about 10 minutes at a time.  He further stated that sedentary work remains feasible as long as the Veteran is permitted to get up from a seated position to move and stretch as needed.  

The Veteran also underwent a VA audiology exam in January 2010, at which time the examiner stated that the Veteran may have difficulty in a work environment in which auditory communication was essential, especially where there is competing background noise.  The examiner noted that the Veteran [should] do better with hearing aids, though she would still expect him to do better with visual cues.

In February 2013, the Veteran was again examined to determine whether his service-connected disabilities rendered him unemployable.  It was again found that his GERD does not impact his employability.  With respect to the Veteran's hearing loss, the examiner pointed to the January 2010 opinion, which stated, essentially, that the Veteran would have difficulty, especially with background noise, but that hearing aids should help.  Regarding his tinnitus, the examiner stated that he may have difficulty in a work environment, "especially if the environment is quiet and the tinnitus is more noticeable."  The Veteran's knee and back disabilities were noted to preclude him from work requiring climbing ladders, stairs, crawling, repetitive bending of the waist, lifting or carrying greater than 20 pounds, running or jumping.  It was noted that sedentary employment would be feasible if the Veteran was allowed to get up and move, stretch and reposition as needed.

Based on the evidence of record, and resolving doubt in the Veteran's favor, the Board finds that he is unemployable due to his service-connected disabilities.  Throughout the pendency of the appeal, the Veteran has consistently reported that his service-connected disabilities prevent him from working in his profession.  He has presented competent and credible lay testimony regarding the severity of his disabilities and their impact on his ability to work in his previous capacity as a production assistant supervisor.  While medical experts have testified that the Veteran is fit for sedentary work, the Board finds that given his work history, education and discomfort caused by his service-connected disabilities, such would not be feasible.  Also, the Board points out the contradictory nature of the effect of the Veteran's service-connected hearing loss and tinnitus on his employability, with the examiner recommending a quiet work environment due to the hearing loss and a noisier environment to block out the tinnitus.

In determining that the Veteran is unemployable, the Board acknowledges that medical experts have not said the Veteran's service-connected disabilities preclude him from engaging in sedentary work, as indicated above.  In this regard, the Board notes that while the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion.  See Wilson v. Derwinski, 2 Vet. App. 614 (1992).  

The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation.  See VAOPGCPREC 75-91 (Dec. 17, 1991).  The critical issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage").  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  In this case, the evidence reflects that the Veteran's service-connected disabilities present significant obstacles with respect to the Veteran's employability, essentially rendering him unemployable as defined for VA purposes.

The Board notes that while it is not bound by the SSA determination, the determination is nevertheless relevant.  See Martin v. Brown, 4 Vet. App. 136, 140   (1993) (while an SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a veteran's claim).  The Board finds that the SSA decision does bolster the Veteran's claim for a TDIU. 

There can be no doubt that further inquiry could be undertaken with a view towards development of the claim.  However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-07 (1994).

In summary, because it appears that the Veteran's service-connected disabilities preclude him from securing or maintaining substantially gainful employment, the criteria for entitlement to a TDIU have been met.  Accordingly, the TDIU claim is granted.


ORDER

A disability rating greater than 20 percent between May 3, 2006, and January 6, 2009, and greater than 20 percent effective March 1, 2009, for lumbosacral spine degenerative joint disease with disc phenomenon at L2-3 and mild scoliosis, is denied.

A disability rating greater than 20 percent for radiculopathy of the right lower extremity, effective December 4, 2012.

The claim for a TDIU is granted, subject to the laws and regulations governing the payment of monetary awards.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs