Citation Nr: 1800599 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-18 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for benign prostate hypertrophy (BPH). 2. Entitlement to service connection for bladder dysfunction as secondary to the service-connected disability of residuals of fracture of the L-1 vertebra with mild degenerative changes to lumbosacral spine. 3. Entitlement to service connection for radiculopathy of the right lower extremity. 4. Entitlement to service connection for radiculopathy of the left lower extremity. 5. Entitlement to an initial compensable disability evaluation for pyelonephritis. 6. Entitlement to a disability evaluation in excess of 20 percent for residuals of fracture of the L-1 vertebra with mild degenerative changes to lumbosacral spine. 7. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) beginning April 6, 2017. 8. Entitlement to a TDIU prior to April 6, 2017. REPRESENTATION Veteran represented by: Douglas E. Sullivan, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from November 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction over the Veteran's claims file was subsequently transferred to the VA RO in Atlanta, Georgia. The Board notes that the Veteran's claims for radiculopathy of the right and left lower extremities were initially characterized as a claim for entitlement to service connection for a pinched nerve. The Veteran is essentially claiming service connection for a radiculopathy of the right and left lower extremities. This issue has been broadened and characterized as reflected on the title page. The Veteran testified before the undersigned Veterans Law Judge in May 2017 hearing. A transcript of the hearing is of record. Clemons v. Shinseki, 23 Vet. App. 1(2009) At his hearing, the Veteran requested that his claim an initial compensable disability evaluation for pyelonephritis be withdrawn. However, in a September 2017 correspondence, the Veteran's attorney asked that the Veteran's claim be reinstated. The Board acknowledges the Veteran's request and the claim will be adjudicated. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran's May 2017 hearing testimony indicated that the Veteran's service-connected disabilities prevent him from being able to secure or follow meaningful employment. Therefore, the issue of entitlement to TDIU is before the Board. However, as discussed below, the Board may only grant a TDIU in the first instance if the criteria set forth in 38 C.F.R. § 4.16(a) are met. Therefore the issue has been bifurcated. The issue of entitlement to an initial compensable disability evaluation for pyelonephritis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In May 2017, prior to the promulgation of a decision on the issue of whether new and material evidence has been submitted to reopen a claim for service connection for BPH, the Veteran withdrew his appeal. 2. Evidence associated with the claims file since September 2002 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bladder dysfunction. 3. The preponderance of the evidence of record shows that the Veteran's bladder dysfunction was caused or aggravated by his service-connected back disability. 4. The preponderance of the evidence of record shows that the Veteran's radiculopathy of his right lower extremity was caused or aggravated by his service-connected back disability. 5. The preponderance of the evidence of record shows that the Veteran's radiculopathy of his left lower extremity was caused or aggravated by his service-connected back disability. 6. The Veteran's thoracolumbar spine disability manifests, at worst, with flexion of 80 degrees, with pain on movement, and no ankylosis of the spine. 7. The Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's appealed petition to reopen a claim for service connection for BPH have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Evidence received since the September 2002 rating decision that denied service connection for bladder dysfunction, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 20.1100 (2017). 3. The Veteran's bladder dysfunction is related to service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 4. The Veteran's radiculopathy of the right lower extremity is related to service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 5. The Veteran's radiculopathy of the left lower extremity is related to service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 6. The criteria for a disability evaluation in excess of 20 percent for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.27, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 7. Resolving reasonable doubt in the Veteran's favor, the criteria are met for a TDIU beginning April 6, 2017. 38 U.S.C §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204 (2017). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204 (2017). At his May 2017 hearing before the Board, the Veteran withdrew his appeal as to his petition to reopen a claim for service connection for BPH. The Veteran's statement indicating his intention to withdraw the appeal as to this issue, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). In the present case, the Veteran, has withdrawn this appeal as to this issue and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Duties to Notify and Assist Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran. New and Material Evidence In a September 2002 rating decision, the Veteran's claim for service connection for bladder dysfunction was denied on the basis that there was no evidence linking the Veteran's bladder dysfunction directly to the Veteran's active service. He did not submit a notice of disagreement or submit new and material evidence within one year of its promulgation. The September 2002 rating decision was a final determination of the Veteran's claim. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b) (2012); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). At present, the Veteran has submitted a VA treatment provider letter, dated September 2014, noting a direct relationship between his bladder dysfunction and the Veteran's service-connected residuals of fracture of the L-1 vertebra with mild degenerative changes to lumbosacral spine (back disability). Presuming the credibility of this evidence, it is new and material. Reopening of the Veteran's claim for service connection for bladder dysfunction based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110, 121 (2011). Entitlement to Service Connection for Bladder Dysfunction The Veteran claims entitlement to service connection for a bladder dysfunction secondary to his service-connected back disability. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board acknowledges the Veteran's VA and private treatment records indicate a current bladder disability. Further, the Veteran has submitted a letter from his VA treatment provider noting that it is as likely as not that the [V]eteran's bladder dysfunction condition is secondary to the residuals of fracture of the L-1 vertebra with mild degenerative changes to the lumbosacral spine. The VA physician noted, "Any injury to the vertebra or spinal cord can result in bladder dysfunction as the nerves can be injured." The Veteran has additionally submitted a September 2014 VA urinary tract examination that also notes a potential nexus between the Veteran's bladder dysfunction and his service-connected back disability. In light of the above discussed evidence, the Board finds the preponderance of the evidence of record is in favor of the Veteran's claim. Accordingly, entitlement to service connection for bladder dysfunction secondary to the residuals of fracture of the L-1 vertebra with mild degenerative changes to the lumbosacral spine is warranted. See 38 C.F.R. § 3.310. Entitlement to Service Connection for Radiculopathy of the Right and Left Lower Extremities The Veteran has claimed entitlement to radiculopathy of the right and left lower extremities secondary to his service-connected back disability. The Veteran has radiculopathy of the right and left lower extremities. The Veteran's medical treatment records indicate he began reporting symptoms of radiculopathy in February 2010, and was formally diagnosed in August 2011. In treatment records, the Veteran reports experiencing intermittent numbness and tingling in his lower extremities since falling during his period of active service in 1969. In a September 2014 VA peripheral nerve condition examination, the examiner noted severe, intermittent pain in both the left and right lower extremities. The examiner further noted mild, incomplete paralysis of the sciatic, external popliteal, and musculocutaneous nerves. An October 2015 thoracolumbar spine examination also further the detailed the Veteran's radiculopathy. The October 2015 examination noted radiculopathy of moderate severity of both the right and left lower extremity. In light of the above discussed evidence, the Board finds the preponderance of the evidence of record is in favor of the Veteran's claim. Accordingly, entitlement to service connection for radiculopathy of the right and left lower extremities secondary to the residuals of fracture of the L-1 vertebra with mild degenerative changes to the lumbosacral spine is warranted. See 38 C.F.R. § 3.310. Entitlement to a Disability Evaluation in Excess of 20 Percent for a Back Disability The Veteran claims entitlement to a disability evaluation in excess of 20 percent for a back disability. The Veteran's current 20 percent disability evaluation has been effective since June 1971. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran's lumbar spine disability was rated 20 percent disabling under Diagnostic Code 5237, which pertains to lumbosacral or cervical strain, using the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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 spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 40 percent is awarded for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, n. 2 and Plate V. When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). In this case, the Veteran has had more than the minimum compensable rating assigned for his low back disability. In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. After review of the evidence, in consideration of the above criteria, the Board finds that the preponderance of the evidence is against a finding for a rating in excess of 20 percent for the Veteran's back disability. The Veteran completed a general medical examination in December 2009. At the examination, his posture was within normal limits and he used a cane to walk to minimize weight on his left leg. The December 2009 examination noted flexion to 80 degrees with pain at 70 degrees. He had extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees, with pain at the end point of motion. There was no additional limitation of motion after repetitive testing. The Veteran completed another VA examination in March 2013 specifically regarding his back disability. During examination, the Veteran demonstrated range of motion measurements of flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. He had pain at all endpoints of motion. There was no additional limitation of motion or functional loss with repetitive-use testing. He had localized tenderness to palpation over his lower back. He did not have guarding or spasm. The Veteran was negative for ankylosis, intervertebral disc syndrome (IVDS), muscle atrophy, and neurologic abnormalities. The Veteran completed a thoracolumbar spine examination in October 2015. This thoracolumbar spine examination measured flexion to 90 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Painful movement was noted. The VA examiner also noted there was no ankylosis of the thoracolumbar spine. The examiner noted that repetitive motion testing was not performed and did not explain why. IVDS was noted but there were no incapacitating episodes. As noted above, a 40 percent disability rating is not warranted unless the probative medical evidence of record establishes forward flexion of the thoracolumbar spine is limited 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board has considered whether a disability rating higher than 20 percent is warranted for this period of appeal based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The October 2015 VA examiner indicated that the Veteran did not perform repetitive testing, that there was pain during range of motion testing, that the pain did contribute to additional range of motion limitation or functional loss. The Veteran did not experience pain when the joint was used in weight-bearing and nonweight-bearing. The examiner noted the Veteran's additional functional limitation to include weekend movement, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing. The Board determines that the Veteran's additional limitations due to pain cannot be established to more nearly approximate a finding of forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5237; DeLuca, 8 Vet. App. at 202; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Even when considering the Veteran's pain and functional loss, his disability is not more closely described as limitation of forward flexion to 30 degrees or less or favorable ankylosis. He does not have ankylosis because he retains motion in his thoracolumbar spine. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Note (1) under the General Rating Formula for Diseases and Injuries of the Spine directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. The Veteran's bladder dysfunction and radiculopathy of both lower extremities as a result of his back disability has been addressed above. The Veteran's December 2009, March 2013, and October 2015 examinations were silent for any additional neurologic abnormalities. The provisions for evaluating intervertebral disc syndrome are also not for application for the Veteran's service-connected lumbar spine disability because the evidence of record does not document any incapacitating episodes with bed rest prescribed by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. In sum, the Board finds that the 20 percent rating contemplated functional loss due to pain, excess fatigability, and less movement. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination during this period of appeal. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07. At his hearing, the Veteran's attorney suggested that he was entitled to an extraschedular evaluation because the Veteran's back disability interfered with his employment. However, neither the Veteran nor his attorney described any symptoms that were not covered by the rating criteria. Extraschedular consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Id. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the Board finds the applicable rating criteria adequately contemplate the severity and symptoms of the Veteran's back disability, such as pain and limited motion. Notably, these signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5237; DeLuca, Mitchell, supra. The rating criteria are therefore adequate to evaluate both the Veteran's back disability and referral for consideration of an extraschedular rating is not warranted. TDIU A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). As noted above, the Board finds that entitlement to a TDIU has been raised by the Veteran's May 2017 testimony. The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology will be considered as one disability. See 38 C.F.R. § 4.16(a)(2). The record must reflect that circumstances, apart from non-service-connected conditions, place the Veteran in a different position than other veterans having the same compensation rating. The sole fact that a veteran 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 is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). With that framework in mind, the Board concludes that the Veteran meets the criteria for TDIU under 38 C.F.R. § 4.16(a) beginning April 6, 2017, when his service-connected disabilities first had a combined rating of 70 percent, including a 60 percent rating for coronary artery disease. In a May 2017 hearing, the Veteran testified that he was unemployed and ceased working in April 2017 due to his service-connected disabilities. The Veteran also testified that he was unable to perform his occupation due to the bending, stretching, and straining that his employment required. Further, the Veteran testified that prior to leaving his full-time employment he was forced to decrease his work productivity significantly due to his service-connected disabilities. A February 2017 coronary examination noted the severity of the Veteran's service-connected coronary disability. The examiner noted the functional impact of the disability resulted in the Veteran not being able to walk more than 100 yards without becoming fatigued and short of breath. An October 2015 thoracolumbar spine examination noted that the Veteran's pain increased significantly with walking or standing for more than five minutes at a time. Moreover, a September 2014 nerve examination noted the Veteran experienced "constant pain, especially with prolonged standing or walking." The Veteran "need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert, 1 Vet. App. 49. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. Based on the above discussed examinations, the Veteran's multiple service-connected disabilities and their resulting limitations, and his May 2017 testimony concerning the his inability to maintain gainful employment, the Board finds that a TDIU is warranted in this case. The overall weight of the evidence is at least in equipoise as to whether the Veteran's wide array of service-connected disabilities precludes him from performing the physical and mental requirements of employment. Accordingly, the Veteran's claim for entitlement to TDIU is granted effective April 6, 2017, which is the first date the Board may grant a TDIU in the first instance. ORDER The appeal concerning the issue of whether new and material evidence has been submitted to reopen a claim for service connection for BPH is dismissed. Entitlement to service connection for bladder dysfunction as secondary to the service-connected disability of residuals of fracture of the L-1 vertebra with mild degenerative changes to lumbosacral spine is granted. Entitlement to service connection for radiculopathy of the right lower extremity is granted. Entitlement to service connection for radiculopathy of the left lower extremity is granted. Entitlement to a disability evaluation in excess of 20 percent for residuals of fracture of the L-1 vertebra with mild degenerative changes to lumbosacral is denied. Entitlement to a total rating based on individual unemployability due to service-connected disabilities is granted. REMAND In a September 2017 the Veteran notified the Board that his service-connected pyelonephritis has worsened since his last VA kidney examination in March 2013. The Veteran also submitted private treatment records noting a worsening of the Veteran's kidney condition. As there is evidence that the findings of the March 2013 VA examination no longer reflect the current severity of the Veteran's pyelonephritis, a new examination is needed. A new VA examination is necessary to determine the current disability evaluation of the Veteran's service-connected pyelonephritis. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). With regard to the issue of entitlement to a TDIU prior to April 6, 2017, the Board notes that prior to that date, the schedular criteria for consideration of a TDIU were not met. However, in this decision, the Board granted separate ratings for radiculopathy of both lower extremities and a bladder disorder. The ratings assigned by the AOJ may impact whether the schedular criteria are met. Further, when the applicable percentage standards set forth in 38 C.F.R. § 4.16(a) are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b) (2017); Fanning v. Brown, 4 Vet. App. 225 (1993). In this case, as noted above, the evidence shows that the Veteran is unable to work due to his service-connected disabilities. On remand, the AOJ should readjudicate the TDIU claim prior to April 6, 2017. If the schedular criteria are not met, the claim should be referred for extraschedular consideration. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his pyelonephritis. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide all findings, along with a complete rationale for any opinions provided. 2. The AOJ should then review the record, ensure that all development sought is completed and readjudicate the claims. If the schedular criteria for consideration of a TDIU prior to April 6, 2017 are not met, refer the claim to the Director, Compensation Service, for consideration of the issue of entitlement to TDIU on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b). If the claims remain denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs