Citation Nr: 1753067 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 09-40 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to higher initial evaluations for degenerative joint disease of the lumbar spine disability, with non-incapacitating IVDS rated 10 percent prior to January 6, 2016, and rated 20 percent thereafter. 2. Entitlement to an initial rating in excess of 30 percent for chronic sinusitis with rhinitis and headaches. 3. Entitlement to higher initial evaluations for hypertension rated as compensable prior to January 25, 2012, and 10 percent thereafter. 4. Entitlement to a total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1986 to October 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from the October 2007 and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) located in Atlanta, Georgia. In March 2011, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer at the Board. VA regulations require that the VLJ who conducted a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2017). The Veteran was notified in a June 2017 letter of his options but declined a new hearing in a July 2017 response. The September 2012 rating decision granted a 10 percent rating for the Veteran's hypertension, effective January 25, 2012, and a higher 30 percent rating for the Veteran's sinusitis with rhinitis and headaches, effective November 1, 2006. A February 2017 rating decision granted a higher 20 percent rating for the Veteran's lumbar spine disability, with non-incapacitating IVDS, effective January 6, 2016. As these increases did not constitute grants of the full benefits sought on appeal, these matters remain before the Board. See AB v Brown, 6 Vet. App. 35 (1993) In December 2011 and January 2015, the Board remanded these claims for further development. The issue of entitlement to service connection for a right foot disability, claimed as frostbite, was also included in the January 2015 remand. The aforementioned February 2017 rating decision granted service connection for a right foot disability. As this constitutes a full award of the benefits sought on appeal, this issue is no longer before the Board. Finally, the Board notes that additional relevant evidence was attached to the Veteran's claims folder after the supplemental statement of the case was issued. Generally, the Board may not consider additional evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ), unless a waiver of initial AOJ review is obtained from a veteran. 38 C.F.R. §§ 19.37, 20.1304(c) (2017). In a November 2017 correspondence, the Veteran, through his representative, waived initial consideration by the AOJ. Accordingly, the Board may consider the new evidence. FINDINGS OF FACT 1. Prior to January 6, 2016, the Veteran's lumbar spine strain was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees; without muscle spasms, localized, or guarding severe enough to result in an abnormal gait or abnormal spinal contour; and without incapacitating episodes due to IVDS. 2. From January 6, 2016, the Veteran's lumbar spine strain manifested with forward flexion of the thoracolumbar spine greater than 30 degrees; and without favorable ankylosis or any incapacitating episodes due to IVDS of at least 4 weeks duration. 3. Since the grant of service connection, the Veteran's chronic sinusitis has at times been manifested by more than six nonincapacitating episodes per year of sinusitis with headaches, pain, and purulent discharge or crusting, but not by radical surgery or near constant sinusitis episodes. 4. Prior to January 25, 2012, the Veteran's hypertension did not manifest by diastolic readings predominantly 100 mmHg or more; or systolic readings of predominantly 160 mmHg or more, and the Veteran does not have a history of diastolic readings predominantly 100 mmHg or more. 5. From January 25, 2012, the Veteran's hypertension did not have diastolic readings predominantly 110 mmHg or more, or systolic readings of predominantly 200 mmHg or more. The Veteran's hypertension is controlled by continuous medication. 6. The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for higher initial evaluations for degenerative joint disease of the lumbar spine disability, with non-incapacitating IVDS, rated 10 percent prior to January 6, 2016, and rated 20 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for an initial rating in excess of 30 percent for chronic sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.321, 4.97, Diagnostic Code 6510 (2017). 3. The criteria for higher initial evaluations for hypertension, rated as compensable prior to January 25, 2012, and 10 percent thereafter. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.31, 4.104, Diagnostic Code 7101 (2017). 4. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Higher Ratings Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C.A. § 1155 (West 2014). Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1 (2017). Where there is a question as to which of the two disability evaluations is applied, the higher evaluation 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 (2017). After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When rating the Veteran's service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases where the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A VA examination is adequate only when the examiner discusses whether a loss in the range of motion is attributable to pain. See Mitchell, 25 Vet. App. at 43-44; DeLuca, 8 Vet. App. at 202. The examiner must also expressly comment on active and passive range of motion testing, and weight-bearing and non-weight-bearing described in the final sentence of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Lumbar Spine The Veteran seeks an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine, prior to January 6, 2016, and in excess of 20 percent, thereafter. The Veteran's lumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). Ratings under the General Rating Formula are made 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. See 38 C.F.R. § 4.71a (2017). Diagnostic Code 5242 evaluates lumbar spine disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more body height. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. Any associated objective neurologic abnormality is to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5237, Note 1. 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 combined normal range of motion of the thoracolumbar spine is 240 degrees. Id., General Rating Formula, Note (2) (2017). With respect to joints, in particular, the disability factors reside in reductions of normal excursion of movements in different planes. Inquiries 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 (2017). 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, 8 Vet. App. at 202. Intervertebral disc syndrome (IVDS) is evaluated under either the General Rating Formula or under the IVDS Formula, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes (2017). For the reasons that follow, the Board finds that higher ratings are not warranted for the entire appeal period under review. A. Rating Prior to January 6, 2016 At a September 2007 VA examination, the Veteran reported his current symptoms included constant pain and aching pain, intermittent stiffness and radiating numbness and tingling down his right leg when his pain level is a 6-8 on a scale from 1 to 10. The Veteran reported he was able to mow the grass, but could not perform activities that required bending or lifting. He also reported not working due to his low back condition, but denied use of an assistive device, and denied any limitations in his ability to care complete daily living activities. The Veteran reported that he has not worked in the last year since being separated from the military due to his low back condition. Objectively, range of motion testing showed forward flexion to 74 degrees, extension to 30 degrees, and bilateral lateral flexion and rotation was to 30 degrees. For forward flexion, the Veteran reported pain in the range of 45-74 degrees; for the other ranges of motion, he reported pain at 30 degrees. The examiner noted that repetitive-use motion test did not cause increased pain and no instability or weakness was observed. Neurological examination revealed cranial nerves II through XII were intact. Deep tendon reflexes were 2+ in all extremities. Sensation was intact to monofilament in all dermatomes of both upper and lower extremities. Vibratory and position sense were intact. At the January 2012 VA examination, the Veteran reported back pain that goes down to his left foot and numbs the foot. He reported that he had flare-ups due to back pain and those episodes impacted function, such as bending over and prolonged walking. The range of motion testing indicated the Veteran's forward flexion was to 90 degrees or greater without pain. Extension was to 30 degrees or greater; and bilateral lateral flexion and rotation to 30 degrees or greater. The Veteran reported painful motion beginning from 20 degrees in all ranges of motion, exception forward flexion. The examiner noted pain after the Veteran performed the repetitive-use testing, but not any additional loss in range of motion. The examiner observed pain on movement and palpation to the percussion of the lumbar spine. The examiner also observed guarding or muscle spasms but noted the Veteran did not have an abnormal gait or spinal contour. The Veteran used a cane as an assistive device but the examiner opined that none of the observed symptoms impacted his ability to work. No IVDS or neurological impairments were documented. The reflex and sensory examinations were normal. The examiner noted that there was no clinical evidence of neuropathy or ankylosis. A private treatment record in October 2015 noted that the Veteran retained full range of motion of the lumbar spine. The Veteran reported chronic pain that felt strong, distressing, shooting, throbbing, and numbing. He also reported that the pain felt worse with activity. The examiner did note a positive Faber test, with pain exhibited bilaterally on the contralateral side, and during extension and left lateral rotation range of motion testing. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. However, throughout the appeals period, the Veteran's forward flexion was consistently greater than 60 degrees; the combined range of motion of his thoracolumbar spine was consistently greater than 120 degrees. The Veteran has not exhibited guarding or muscle spasm resulting in an abnormal gait or abnormal spinal contour. These results fall short of the 20 percent rating criteria under the General Rating Formula. The Board has considered the Veteran's chronic pain reports of constant pain that included a throbbing sensation. However, even when considering additional factors such as pain and less movement than normal, the ranges of motion do not more nearly approximate the degree required for a higher rating. Further, the Veteran was able to perform repetitive use testing at both examinations without additional loss in range of motion upon repetitive motion. The October 2015 private examiner noted the Veteran retained full range of motion. The 10 percent rating currently in effect adequately contemplates any mild functional loss due to pain in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59 and a higher rating for functional impairment is not warranted. See DeLuca, 8 Vet. App. at 202. Finally, there is evidence of any IVDS or associated neurologic impairment during this appeal period. Therefore, a separate rating for radiculopathy is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1). The assignment of a higher rating under the IVDS Formula is also not appropriate. B. Rating from January 6, 2016 At his January 2016 VA examination, the Veteran reported flare-ups of chronic low back pain, but denied any functional loss or impairment from the flare-ups. Range of motion testing indicated his forward flexion was to 60 degrees; extension was to 20 degrees; lateral flexion was to 20 degrees on each side; and right lateral rotation was 20 degrees; left lateral rotation was 15 degrees. The examiner observed pain during range of motion testing, but opined it did not result in functional loss. The Veteran demonstrated pain with weightbearing testing, but not pain with palpation. Repetitive-use testing yielded no additional functional loss, but the examiner opined that over time pain, weakness, fatigability or incoordination would significantly limit functional ability with repetitive use and with flare ups. The Veteran exhibited tenderness, guarding, and/or muscle spasms, but did not result in an abnormal gait or spinal contour. No muscle atrophy or ankylosis was noted. The examiner noted IVDS was present. The Veteran reported he was prescribed bedrest for IVDS for a total duration of less than one week during a 12-month period for his back pain, but did not produce any medical documentation to support this report. The examiner noted the Veteran wore a back brace for a total of nine hours per day (three hours at a time for three times per day). The Veteran reported he was unable to perform his daily living activities without assistance. The examiner opined that his lumbar spine disability is exhibited by weakened movement, pain, and fatigue that significantly limits his functional ability, and is unable to stand for greater than 15 minutes at a time or walk greater than a quarter of a mile. Private treatment records from February 2016 to February 2017 indicated that the Veteran underwent injection treatments for his lumbar spine disability; range of motion findings were not provided. The Veteran reported relief from pain with treatment. The evidence reflects that the Veteran was working. Based on the record, the evidence does not support a rating higher than 20 percent. A 40 percent rating is warranted when forward flexion of the spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. From January 6, 2016, onward, the Veteran's forward flexion of the spine objectively was greater than 30 degrees, including upon repetition. He achieved forward flexion to 60 degrees at the 2016 VA examination. This range of motion falls short of the rating criteria required for a 40 percent rating under the General Rating Formula. However, the Board has also considered the Veteran's report of constant pain. The Board has also considered the examiner's opinion that over time, with repetitive use and flare ups, pain, weakness, fatigability or incoordination would significantly limit the Veteran's functional ability. However, even when considering these additional factors, the Veteran himself denied any functional loss or impairment from the flare-ups. In addition, the range of motion testing showed no additional limitation of motion upon repetition. Also, the 2016 to 2017 medical reports indicated the Veteran found relief from the medical treatment. Even assuming that the Veteran would experience some functional loss with repeated use over time, the evidence does not support finding that his flexion would be limited to no more than 30 degrees, or worse to the equivalent of ankylosis. The Veteran has not been diagnosed with actual favorable ankylosis of the entire thoracolumbar spine so as to warrant a 40 percent rating. The Veteran has simply not described or reported such a level of functional loss with flares or with repetitive use over time. For these reasons, the Board declines to assign a higher rating of 40 percent for this appeal period based on limitation of motion under the General Rating Formula. Finally, while the Veteran reports incapacitating episodes due to IVDS, he has not supported this assertion with medical documentation showing physician-prescribed bed rest as required by the rating criteria. Moreover, he asserts that the durations lasted for less than one week, which is significantly less than the 4 weeks required for a 40 percent rating. Thus, the assignment of a higher rating under the IVDS Formula is not warranted. As for separately rating any associated objective neurologic abnormality, the evidence has shown nerve impairment involving both lower extremities. While the claim was on appeal, the RO granted separate, compensable ratings for radiculopathy of the right and left lower extremities in the February 2017 rating decision. As the Veteran has not disagreed with these initial ratings, the matter of higher ratings for neurologic impairment of the lower extremities is not before the Board. The preponderance of the evidence is against the claim for a rating in excess of 20 percent for the service-connected lumbar spine disability. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 4.3, 4.7 (2017); Gilbert, 1 Vet. App. at 55-56. Chronic Sinusitis The Veteran seeks an initial rating in excess of 30 percent for his service-connected chronic sinusitis. Sinusitis (maxillary, chronic) is evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6510. DC 6510 provides that a 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis that requires prolonged (four to six weeks) antibiotic treatment, or more than six nonincapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The maximum schedular disability rating possible is 50 percent and is assigned (1) following radical surgery with chronic osteomyelitis or (2) for near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. An incapacitating episode of sinusitis is defined as an episode that requires bedrest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Codes 6510 to 6514, General Rating Formula, Note. The evidence is against finding that the Veteran met the criteria for a rating higher than 30 percent. At the September 2007 VA examination, the examiner confirmed a diagnosis of chronic sinusitis and reported that the Veteran suffered from more than six nonincapacitating episodes, accompanied by headaches within that year. No surgery was noted. No objective findings for any incapacitating episodes were noted. At the January 2012 VA examination, the examiner found that the Veteran suffered from more than seven nonincapacitating episodes of sinusitis, with headaches, pain, and purulent discharge. No sinus surgery was reported. No objective findings for incapacitating episodes were made. These symptoms meet the criteria for the currently assigned 30 percent rating, but do not meet or more closely approximate the criteria for a higher, 50 percent rating. There is no other evidence suggesting that the Veteran underwent sinus surgery or otherwise meets the criteria for any higher rating for sinusitis. The Veteran, at no time, has been diagnosed with other nose or throat disabilities that would render an additional separate rating. Therefore, the Veteran's claim of entitlement to a rating in excess of 30 percent is denied. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7 (2017) Hypertension Service connection for hypertension was granted by way of an October 2007 rating decision. A noncompensable rating was assigned effective November 1, 2006, pursuant to 38 C.F.R. § 4.104, DC 7101. In a September 2012 rating action, the evaluation was increased to 10 percent, effective January 25, 2012. Under Diagnostic Code 7101, a 10 percent rating is assigned for diastolic pressure predominantly 100 mmHg or more, or systolic pressure predominantly 160 mmHg or more; or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 mmHg or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 mmHg or more, or systolic pressure predominantly 200 mmHg or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 mmHg or more. Diagnostic Code 7101 contemplates the effects of medication; any ameliorative effects of blood pressure medication are not discounted in the evaluation. McCarroll v. McDonald, 28 Vet. App. 267 (2016). A. Rating Prior to January 25, 2012 Service treatment records do not reflect diastolic readings predominantly 100 mmHg or more, systolic readings predominantly 160 mmHg or more, or a history of diastolic pressure predominantly 100 mmHg or more with continuous medication required for control. Tricare records from November 2006 to July 2007 indicated average hypertension diastolic readings of below 100 mmHg and systolic readings below 160 mmHg. At a September 2007 VA examination, the Veteran exhibited the following blood pressure readings: 124/80; 126/80; and 132/80. The examiner noted the Veteran's hypertension was treated with 40 mg of Lisinopril. Tricare records dated in May 2010 indicated average hypertension diastolic readings were below 100 mmHg and systolic readings were below 160 mmHg. A June 2010 private treatment record shows blood pressure was recorded as 166/93. This is the only record where the Veteran's systolic reading exceeding 160 mmHg. In short the evidence shows that the Veteran's diastolic readings have not been predominantly 100 mmHg or more; his systolic readings have not been predominantly 160 mmHg or more. Further, the Veteran has not had a history of diastolic readings predominantly 100 mmHg or more with medication required. In every instance where the rating schedule does not provide a 0 percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2017). The preponderance of the evidence weighs against the claim; there is no doubt to be resolved and an initial compensable rating for hypertension is not warranted for the period prior to January 25, 2012. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. §§ 4.3, 4.7 (2017); Gilbert, 1 Vet. App. at 49. B. Rating from January 25, 2012 Effective January 25, 2012, the Veteran is in receipt of a 10 percent rating for his hypertension. The record as a whole does not support a rating higher than 10 percent. At the January 2012 VA examination, the Veteran's blood pressure readings were: 148/100; 138/100; and 148/100. The examiner noted that the Veteran's hypertension did not impact his ability to work. Private treatment records from 2016 to 2017 indicated that the Veteran's diastolic readings were consistently below 100 mmHg and systolic readings below 160 mmHg. A 20 percent rating is warranted if diastolic readings have been predominantly 110 mmHg or more, or systolic readings predominately 200 mmHg or more. Throughout the appeal period, the Veteran's diastolic readings have not been predominantly 110 mmHg or more. His systolic pressure readings have not been predominantly at 200 mmHg or more. No diastolic readings ever registered above 100 mmHg; the highest readings were at the January 2012 VA examination, where they registered right at 100 mmHg, and within the 10 percent rating criteria. No flare-ups were ever reported. Throughout the appeals period, the evidence showed the Veteran controlled the hypertension with medication and no emergency treatment was ever required. The preponderance of the evidence weighs against the claim; there is no doubt to be resolved; a rating in excess of 10 percent for hypertension is not warranted from January 25, 2012. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7 (2017). There are no additional expressly or reasonably raised issues presented on the record. TDIU In a January 2015 remand, the Board found that a TDIU claim was reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran also contends that his service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Under the applicable criteria, a 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 service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). 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 Census, as the poverty threshold for one person. See 38 C.F.R. § 4.16 (a). Marginal employment may be held to exist on a facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. The Board notes that the Veteran meets the schedular requirements for a TDIU. The Veteran is service-connected for obstructive sleep apnea (rated 50 percent), chronic sinusitis with rhinitis and headaches (rated 30 percent), degenerative joint disease (DJD) of the left ankle (rated 20 percent), lumbar spine disability (rated 10 percent), hypertension (rated at 10 percent), DJD of the left middle finger (rated at 0 percent), and erectile dysfunction (rated at 0 percent). The Veteran's combined schedular rating is 80 percent from November 1, 2006; and 90 percent from January 1, 2016. Although the Veteran meets the schedular threshold under 38 C.F.R. § 4.16(a), a TDIU is not for assignment, as the evidence does not show that he was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities alone. By way of background, the Veteran reported at a September 2007 VA examination that he had not worked since discharging from active service. A January 2008 vocational rehabilitation record indicated that he reported actively looking for work and working with the Disabled Veterans Outreach Program to secure gainful employment. In 2008, the Veteran underwent vocational rehabilitation counseling to find suitable work. The record indicated that the Veteran was able to successfully obtain gainful employment as a warehouse operator in February 2008, starting the next month. A May 2008 follow-up vocational rehabilitation record indicated that the Veteran was satisfied with his work duties. Medical records throughout the appeals period indicated that the Veteran continued working with the same employer, repeatedly requesting medical slips to return to work. A June 2010 private treatment record indicated he was gainfully employed. The Veteran reported working at the March 2011 hearing. The Veteran continued to report working throughout treatment records. Most notably, a February 2016 private treatment record indicated that the Veteran reported working at a paper mill. An August 2016 private treatment record noted that the Veteran reported working Fridays through Sundays at the paper mill. Additionally, the medical evidence record does not otherwise indicate that the Veteran was incapable of securing or following a substantially gainful occupation, consistent with his background and education, due to his service-connected disabilities alone. The VA examinations indicated that his hypertension or chronic sinusitis did not impact his ability to work. Prior to January 2016, the VA examiners for his lumbar spine disability did not find any functional impact on his ability to work. The only medical limitation was reported at the January 2016 back VA examination, where the examiner opined that the Veteran's weakened movement, pain, and fatigue that significantly limits his functional ability, and was unable to stand for greater than 15 minutes at a time. However, a February 2016 private treatment record noted that the Veteran reported he continued to work and "is okay sitting down." The available evidence indicated that the Veteran demonstrated he is able to perform sedentary tasks. There is no specific indication that the Veteran's employment is considered marginal, and the Board is not able to determine, based on the available evidence, how often the Veteran works and the amount of compensation he receives. In other words, the Board cannot determine whether his current employment is marginal or substantially gainful employment. With regard to his work history, in February 2015 , the RO provided the Veteran with a VA Form 21-8940, Formal Application for Compensation Based on Unemployability and that he have his last employer complete a VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits. However, the Veteran did not did not respond to this inquiry. While VA has a duty to assist a veteran in the development of a claim, claimants have a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Additionally, while failure to complete the noted forms is not fatal to a TDIU claim in and of itself, the Veteran's failure to do so deprives the Board of information as to the information necessary to properly address his claim for TDIU. There simply is inadequate information upon which to conclude that he is unable to engage in substantially gainful employment. Based on all pertinent evidence of record, the Board finds that the Veteran is not incapable of securing or following a substantially gainful occupation due to his service-connected disabilities. The preponderance of the evidence is against entitlement to TDIU; thus, the benefit of the doubt doctrine is not for application. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER An initial rating in excess of 10 percent, prior to January 6, 2016, and a rating in excess of 20 percent thereafter, for a lumbar spine disability, is denied. An initial rating in excess of 30 percent for chronic sinusitis is denied. An initial compensable rating, prior to January 25, 2012, and a rating in excess of 10 percent thereafter, for hypertension, is denied. TDIU is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs