Citation Nr: 1751486	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  06-07 112	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1. Entitlement to an initial rating in excess 10 percent prior to January 9, 2006, in excess of 20 percent from January 9, 2006 to July 19, 2017, and in excess of 40 percent from July 20, 2017, forward, for service-connected degenerative joint disease (DJD) of the lumbar spine with spondylosis.

2. Entitlement to an initial compensable rating for tension headaches with swelling prior to January 9, 2006, and in excess of 30 percent thereafter.

3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

J. Tunis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1982 to January 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

This matter was previously remanded by the Board in February 2015 and March 2017 for further development and adjudication. The Board finds that there has been substantial compliance with its previous remand directives, and the matter is now properly before the Board for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

Since the Board's last remand in March 2017, the RO has granted an increased rating of 40 percent from July 20, 2017, forward, for service-connected DJD of the lumbar spine with spondylosis. Although the RO granted a higher rating for this disability, the issue remains in appellate status, as the maximum schedular rating was not assigned from the date of the award of service connection, nor has the Veteran withdrawn his appeal. AB v. Brown, 6 Vet. App. 35 (1993).

As stated in the Board's prior remand, the Veteran has alleged an inability to retain employment due, in part, to his service-connected lumbar spine disability. See, e.g., the Veteran's statement dated June 2016. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. As such, the issue is now properly before the Board. See id.; see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996).



FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's service-connected DJD of the lumbar spine with spondylosis is shown to have been manifested by pain and limited forward flexion of the thoracolumbar spine at 30 degrees or less. Ankylosis has not been shown.

2. Throughout the period on appeal, the Veteran's tension headaches with swelling have been shown to be manifested by prostrating attacks occurring several times a week, but has not been shown to be manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 

3. The Veteran's service-connected disabilities are not shown to preclude him from securing and following substantially gainful employment.


CONCLUSIONS OF LAW

1. For the entire period on appeal the criteria for a disability rating of 40 percent, but no more, for service-connected DJD of the lumbar spine with spondylosis of the thoracolumbar spine have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 (2017).

2. For the entire period on appeal the criteria for a disability rating of 30 percent, but no more, for service-connected tension headache condition with swelling have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 8100 (2017).

3. Criteria for a TDIU are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2017).
 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). However, as this appeal arises from the Veteran's disagreement with the rating following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have similarly held that regarding the downstream element of increased rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C.A. § 5103 (a) notice is no longer required); 38 C.F.R. § 3.159 (b)(3) (no VCAA notice required because of filing of notice of disagreement (NOD)).

These claims were remanded in March 2017 to afford the Veteran additional VA examinations. Since the Board's remand, the Veteran was provided VA examinations in July 2017. The Board finds that the July 2017 VA examination of the Veteran's spine substantially complies with the requirements under Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). Accordingly, there has been substantial compliance with the Board's remand directives and the matter is not appropriately before the Board for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Nevertheless, the Board notes that the Veteran's rating is the highest rating that can be given for a spinal disability without a showing of unfavorable ankylosis. As will be discussed further below, there is no evidence of unfavorable ankylosis of the Veteran's spine in the record. The tests for range of motion specified in Correia would not show such a symptom. Therefore, any deficiency under Correia, in this case, is harmless and does not require a remand. See Pratt v. Nicholson, 20 Vet. App. 252 (2006). As such, the examinations of record are adequate for the purpose of adjudicating the issue before the Board. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Moreover, the Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

II. Increased Ratings

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.) Where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.

The Board will discuss the Veteran's claims for increased ratings of his service-connected DJD of the lumbar spine with spondylosis and tension headaches with swelling separately below.


A. DJD of the Lumbar Spine with Spondylosis

The Veteran's DJD of the lumbar spine with spondylosis is rated under Diagnostic under 5237. The Veteran is currently assigned a 10 percent rating for the period prior to January 9, 2006, a 20 percent rating for the period from January 9, 2006 to July 19, 2017, and a 40 percent rating from July 20, 2017, forward. The period on appeal includes from the time of discharge, forward.

Under Diagnostic Code 5237 the Veteran's disability is evaluated under the following General Rating Formula for Diseases and Injuries of the Spine:

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:

A 10 percent evaluation will be assigned for 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 of more of height.

A 20 percent rating is assigned for 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 30 percent evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 

A 40 percent rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. 

A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine.

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is 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 cervical spine is 340 degrees and 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.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is 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.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017).

As will be discussed further below, the Board finds that a rating of 40 percent is warranted for the entire period on appeal. Therefore, the Board grants an increased rating of 40 percent, but no higher, for the period prior to January 9, 2006; grants an increased rating of 40 percent for the period from January 9, 2006 to July 19, 2017; and denies an increased rating in excess of 40 percent for the period from July 20, 2017, thereafter.

In this case, private treatment records from August 2005 indicate spondylotic changes, loss of lumbar lordosis which may represent back muscle spasms, and lower back pain. Moreover, a January 2006 VA examination notes antalgic gait (noted as a slight moderate limp), and thoracic sacrospinalis with pain on motion and tenderness. Range of motion testing indicates flexion on active motion at 0 to 40 degrees, with pain beginning at 20 degrees but ending at 40 degrees; flexion on passive motion at 0 to 40 degrees with pain beginning at 20 degrees but ending at 40 degrees. Upon repetitive use testing, the Veteran's flexion was limited at 0 to 30 degrees due to pain. No ankylosis was found.

March and April 2016 VA treatment records report normal alignment, minimal narrowing, mild facet disease, and back pain. An August 2016 VA examination indicates lumbar spondylosis with forward flexion measuring 0 to 50 degrees with pain. However, the examiner noted no pain upon weight bearing with no additional loss after repetitive use testing. No flare ups were reported, and no guarding or muscle spasms were found. No ankylosis or IVDS was found.

The Veteran was afforded an additional VA examination in July 2017. The examiner noted a diagnosis of degenerative arthritis of the spine. The Veteran reported pain with prolonged standing, walking, bending, rotational back movement, and stair use. Although the Veteran reported having flare ups, the Veteran stated that he was experiencing a flare up at the time of the VA examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the examiner was not asked to provide an opinion as to additional functional loss during flare-ups of musculoskeletal disability. See id. Range of motion testing indicates forward flexion at 0 to 20 degrees, with no evidence of pain with weight bearing. There was no additional loss of function or range of motion after three repetitions, and no guarding or muscle spasm of the spine. No ankylosis or IVDS was found. The Veteran did not demonstrate radiculopathy or decreased sensation.

Under the rating criteria, VA must consider limitations in motion due to pain. The VA and private treatment records for the entire rating period indicate pain upon motion with some complaints of muscle spasms. Additionally, all VA examinations of record indicate the Veteran experienced pain with flexion. The Board notes that the January 2006 VA examination report indicates pain beginning at 20 degrees upon forward flexion, and the July 2017 VA examination report indicates forward flexion limited to 20 degrees. Affording the Veteran the benefit of the doubt, the Board finds the for the entire period on appeal, the Veteran's functional limitation of his lumbar spine more nearly approximates limitation of flexion to 30 degrees or less. Therefore, the Board finds that for the entire period on appeal, a rating of 40 percent, but no higher, is warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5237 (2017).

A higher rating would require unfavorable ankylosis in the thoracolumbar spine. There is no evidence of such. Nor was there evidence of associated objective neurologic abnormalities. Further, since the Veteran was not diagnosed with IVDS, nor were there incapacitating episodes documented or mentioned in the record, a higher rating under the alternative IVDS. 

Therefore, the Veteran's DJD of the thoracolumbar spine warrants a disability of 40 percent for the appeal period, but no more.

B. Tension Headaches with Swelling

The Veteran's service-connected tension headaches with swelling has been assigned a noncompensable rating for the period prior to January 9, 2006, and a 30 percent rating for the period from January 9, 2006, thereafter. The period on appeal includes from the time of discharge, forward.

The Veteran's tension headaches are currently evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompensable rating is warranted for less frequent attacks. A 10 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; a 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; and the maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. Id. 

The rating criteria do not define "prostrating" nor has the Court of Appeals for Veterans Claims. Cf. Fenderson, 12 Vet. App. at 126-127 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). Other sources have defined prostrating as "extreme exhaustion or powerlessness." See Kaiser v. Shinseki, No. 08-4039, slip op. at 2 (Vet. App. Feb. 23, 2010) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007) (cited for definitional purposes only).

As will be discussed further below, the Board finds that a rating of 30 percent is warranted for the entire period on appeal. Therefore, the Board grants an increased rating of 30 percent, but no higher, for the period prior to January 9, 2006; and denies an increased rating in excess of 30 percent for the period from January 9, 2006, thereafter.

In this case, the Board notes that service treatment records indicate complaints of headaches accompanied by swelling on the right side of his head. The Veteran's diagnosis was muscle tension headaches. An October 2003 VA pre-discharge examination shows continued complaints of headaches that occur 1-2 times per week starting on the right side of the head or back portion of the head and migrating to the entire head. The Veteran reported that his headaches feel like a tight band squeezing his head. No additional symptoms were reported. The Veteran explained that he treated his headache with Tylenol and aspirin. 

The Veteran was afforded a VA examination in January 2006. The Veteran reported daily tension headaches, treated with continuous medication, mostly prostrating, and lasting hours.

A May 2016 VA treatment record reports increasing complaints of headaches with headaches 3-4 times a week, twice a day. The Veteran reported trouble sleeping as a result of his headaches, blurry vision, chills, neck stiffness, occasional nausea, but no weakness or numbness. A June 2016 VA treatment record indicates headaches in the morning with mild blurred vision. A July 2016 VA treatment record reports complaints of constant headaches on right top of head, with dizziness, sees flashing, and nausea 1-2 times a week. 

The Veteran was afforded a VA examination in August 2016. The Veteran reported headaches about 3 to 4 times a week, which last for 2 to 3 hours. Symptoms were reported to include headache pain on both sides of the head, sensitivity to light, and sensitivity to sound. The examiner found that the Veteran does not have prostrating attacks of migraine/ non-migraine headache pain. No scars were indicated. The examiner found that the Veteran's headache condition did not impact his ability to work.

A March 2017 VA treatment record reports chronic headache, "very bad currently." The Veteran reported daily headaches for about the past month, with the headache measuring 7 out of 10 for pain. 

The Veteran was afforded a VA examination in July 2017. The Veteran reported headaches as frontal and right temporal parietal with tunnel vision, and nausea. Symptoms were reported to include: headache pain, pulsating or throbbing head pain, localized to one side of head, pain worsens with physical activity, sensitivity to light, and changes in vision. The examination report indicates head pain located on the right side of head. The examiner reported use of medication to treat the headaches. The examiner concluded prostrating attacks of migraine/ non-migraine pain, occurring on average once every month. However, the examiner did not find that the prostrating and prolonged attacks of pain were productive of severe economic inadaptability. Upon examination, the examiner found soft tissue mass measuring 5 centimeters by 3 centimeters on the right temporal parietal area compared to the left side. No pulsations or bruits were heard. The Veteran reported a headache and pain on the soft tissue mass at the time of the examination. However, no facial or scalp deformity or disfiguration was found because the Veteran's soft tissue mass was covered by hair. The examiner specifically reported that although the Veteran reports prostrating attacks, the Veteran was completing classes two times per week and did not report any performance issues, disciplinary challenges, or academic standing impact due to his headaches.

Given the medical evidence of record, the Board finds that the Veteran's headache condition more nearly approximates that of a 30 percent disability rating for the entire period on appeal. Throughout the period on appeal, the Veteran's headache condition has been manifested by prostrating attacks occurring, on average, a few times per week. However, at no point during the appeal period was the Veteran's headache condition manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Although the Veteran has asserted a worsening of his condition, as noted above, the Veteran's headaches have not been found to cause severe economic inadaptability, affect his work, or inhibit him from completing his academic courses. Therefore, the Board finds that a rating of 30 percent, but no higher, is warranted for the entire period on appeal.

Additionally, although the Veteran asserts swelling and pain on the right side of his head associated with his headache pain, the Board notes that the Veteran's swelling is not shown to cause a deformity or disfiguration, as the July 2017 VA examiner found that such soft tissue mass is covered by hair. Therefore, the Board does not find that a separate rating is warranted, and the Board finds that the pain associated with such headaches is already completed by the rating criteria assigned. 38 C.F.R. §§ 4.14.

Given the medical evidence of record, the Veteran's tension headaches with swelling is more nearly approximated by that contemplated by a 30 percent rating, but no higher, for the entire period on appeal. Thus, an increased rating of 30 percent, but no higher, is granted for the period prior to January 9, 2006, and an increased in excess of 30 percent for the period from January 9, 2006, thereafter is denied. 

III. TDIU

It is the established policy of VA that all veterans who are unable to secure and follow 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." 38 C.F.R. §§ 3.340 (a)(1), 4.15. 

Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16 (a). In calculating whether a veteran meets the schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. Id. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. 

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon a Veteran's actual industrial impairment. In a pertinent precedent decision, VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. VAOPGCPREC 75-91 (Dec. 17, 1991). Thus, the criteria for determining unemployability include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and maintain a substantially gainful occupation. Id. 

The Court has also held that a veteran's advancing age and non-service-connected disabilities may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and maintain employment. Thus, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose, 4 Vet. App. at 363. 

Furthermore, marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a).

The ultimate issue of whether a TDIU should be awarded is not solely medical determination; rather, it is a determination for the adjudicator based on several factors. See Moore, 21 Vet. App. at 218 (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore, 555 F.3d 1369. Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case).

In this case, the Veteran is service-connected for two or more disabilities, with at least one disability is rated at 40 percent, as decided herein, and the combined rating is at least 70 percent. Therefore, the minimum schedular requirement for a total disability rating based on individual unemployability are met. 

With the minimum schedular requirement met, this matter turns upon whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16. The Veteran asserts that he is unable to secure or follow substantially gainful occupation as a result of his service-connected lumbar spine disability. However, in July 2017, after review of the Veteran's claims file and an in-person examination, a VA examiner found that the Veteran's back disability would limit him from performing heavy physical labor where prolonged walking, standing, kneeling, bending, pulling, and stair climbing is involved. The examiner found that the Veteran would also have some limitations where prolonged sitting is involved, but that he should be able to have "reasonable accommodations to provide for sedentary work in an office based or home based environment." 

As for the any assertions that the Veteran's service-connected headaches with swelling render him unable to secure of follow a substantially gainful occupation, the July 2017 VA examiner reported that the Veteran is currently able to attend college classes and pursue an advanced college degree. The Veteran reports having been accommodated with parking and class seating to support his service-connected conditions. Therefore, the examiner concluded that "it is reasonable to assume that similar accommodations can be provided in most office based employment situations to address his headache condition." For example, the VA examiner noted that "prolonged sitting and use of computer monitor could be accommodated with standing/sitting desk options and with optometry assessment for vision to ensure he is using the proper visual correction for computer monitor." Additionally, the July 2017 VA examiner did not find that the Veteran's headache disability was productive of severe economic inadaptability.

Given the evidence of record, the Board finds that the Veteran's service-connected disabilities do not render him unemployable. Although the Veteran may have some limitations and require some reasonable accommodations, the Board notes the Veteran's continued academic accomplishments, and finds that any such limitations do not render the Veteran unable to secure or maintain substantial employment. Therefore, when considering the entire claims file, the evidence of record demonstrates that the Veteran's service-connected disabilities do not, in and of itself, render the Veteran unable to secure or follow a substantially gainful occupation. 

Thus, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim for TDIU. 38 USCA §5107, 38 C F R § 4 3.


ORDER

Entitlement to an increased rating of 40 percent, but no higher, for the period prior to July 20, 2017, for service-connected DJD of the lumbar spine with spondylosis is granted.

Entitlement to an increased rating in excess of 40 percent for the period from July 20, 2017, forward, for service-connected DJD of the lumbar spine with spondylosis is denied.

Entitlement to an increased rating of 30 percent, but no higher, for the period prior to January 9, 2006 for service-connected tension headaches with swelling is granted.

Entitlement to an increased in excess of 30 percent for the period from January 9, 2006, thereafter, for service-connected tension headaches with swelling is denied. 

Entitlement to a TDIU due to service-connected disability is denied.


____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs