Citation Nr: 1801994 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 08-32 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an extraschedular rating for degenerative joint disease of the lumbar spine, currently evaluated 40 percent disabling. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis prior to February 8, 2012. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney-at-Law ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to March 1972 and from March 1973 to February 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which granted service connection for degenerative joint disease of the lumbar spine and assigned an initial 20 percent disability evaluation, effective December 28, 2004, and a 40 percent disability evaluation, effective from July 31, 2007, forward. In a March 2014 decision, the Board granted a higher rating of 40 percent for degenerative joint disease of the lumbar spine from December 28, 2004, to July 30, 2007; denied entitlement to a scheduler rating in excess of 40 percent for the low back disorder for the entire appellate period; and remanded the issue of entitlement to a TDIU. The Veteran appealed the March 2014 Board decision to the Court of Appeals for Veterans Claims (CAVC). In a December 2014 Joint Motion for Partial Remand (JMPR), CAVC remanded that part of the March 2014 Board decision that determined that referral for consideration of an extraschedular rating for service-connected degenerative joint disease of the lumbar spine was not warranted. The Veteran declined to pursue that part of the decision that denied a higher scheduler rating (i.e., in excess of 40 percent) for degenerative joint disease of the lumbar spine. In July 2015, the Board remanded the appeal for further development in accordance with the December 2014 JMPR. In August 2016, the RO granted a TDIU on an extraschedular basis effective from February 8, 2012, following referral of the issue to the Director of Compensation Service. The issues of entitlement to an extraschedular rating for degenerative joint disease of the lumbar spine, and entitlement to an extraschedular TDIU for the time period prior to February 8, 2012, remain on appeal. The Board acknowledges that a Statement of the Case (SOC) has recently been issued for entitlement to service connection for urinary and fecal incontinence, chronic hypertension, peripheral neuropathy of lower extremity, bilateral upper extremity radiculopathy, cervical spondylosis, diabetes mellitus, type II, kidney disease, and hypertensive heart disease; however, a Substantive Appeal has not been received and therefore the Board will not accept jurisdiction over the issues at this time. FINDINGS OF FACT 1. The Veteran's service-connected disabilities include degenerative joint disease of the lumbar spine, rated as 40 percent disabling; and left lower extremity radiculopathy, rated as 20 percent disabling. His combined service-connected disability rating is 50 percent. 2. The most probative evidence of record demonstrates that the Veteran was unemployable due solely to his service-connected lumbar spine disability as of the date he filed his claim, December 28, 2004. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extraschedular TDIU effective December 28, 2004, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (2017). 2. The issue of entitlement to an increased extraschedular rating for degenerative joint disease of the lumbar spine is rendered moot. 38 U.S.C. § 7105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. TDIU A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Review of the record shows that the Veteran in this case does not meet the schedular requirements of 38 C.F.R. § 4.16(a). In that regard, service connection has been established for degenerative joint disease of the lumbar spine, rated as 40 percent disabling, effective from December 28, 2004; and for left lower extremity radiculopathy, rated as 20 percent disabling, effective from February 8, 2012. Thus, his combined service-connected disability rating is 50 percent. The Veteran's appeal was referred to the Director of Compensation Service for a decision as to whether a TDIU may be awarded on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). Per the Director's findings, the RO awarded an extraschedular TDIU effective February 8, 2012. The issue remains as to whether such can be awarded at an earlier date, to include as far back as the date of claim December 28, 2004. Upon review of all the evidence of record, the Board finds that the most probative evidence demonstrates that the Veteran was indeed unemployable due solely to his service-connected lumbar spine disability as of the date he filed his claim, December 28, 2004. The Board initially notes that the Veteran stopped working as a bartender in 2002. He asserts he had to retire due to his back disability. Prior work experience included being a short-order cook and unloading boxes from trucks. He has a 10th grade education prior to joining the military. The medical evidence of record, summarized below, supports a finding that the Veteran's back disability was of such severity that it precluded his ability to secure or follow gainful employment as of December 28, 2004, when taking into account the Veteran's physical impairment, and his prior work and education experience. In October 2004 VA treatment records, the Veteran reported his low back pain had worsened, especially when he changed positions or bent over. His pain medication was increased from once daily to twice or as needed. A back brace was requested as well. The Veteran was afforded a VA examination in February 2005. The Veteran reported constant, localized pain that was crushing, aching, sharp and cramping in nature at 9 out of 10 on a pain scale. He reported that the condition did not cause incapacitation, but did result in functional impairment with sitting, lying down, and standing. The examiner noted that the Veteran was not working when he developed this condition. The Veteran was afforded another VA examination in July 2007. The Veteran reported constant, ache-like pain at a 7-8 out of 10 on the pain scale. He denied radicular-type pain. He did report he had occasional shooting pain down his leg after his surgery, but this had resolved. He further reported the pain required him to walk hunched over, and when he walked for a long period his left thigh ached and he would have pain and weakness in his leg. He reported flare-ups once a week when the pain would reach 10 out of 10 on the pain scale. The symptoms could last all night and required him to sleep in his recliner. Pain would increase when he bent forward, lay flat, or walked for too long. He denied fevers, malaise, dizziness, visual disturbance, numbness, bladder complaints, bowel complaints or erectile dysfunction. He used a cane for ambulation, as well as a back brace. He could only walk one block at a time, if that, and felt unsteady with his ambulation. His wife had to help him dress, and when the pain was bad she had to help him in the shower as well. Upon physical examination, the Veteran had a hunched over posture, and he ambulated with a slight forward flexion of his spine. His gait was not abnormal. Range of motion testing revealed flexion to 15 degrees, with the Veteran using a table to prevent from falling forward; extension to 5 degrees, with most of the motion coming from his knees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right rotation to 10 degrees; and left rotation to 10 degrees. He had tenderness to palpation, and his response to pain was noted as exaggerated. Attempts at repetitive motion testing resulted in an inability to test after he almost fell over after one repetition. In October 2007 the Veteran submitted a statement that he was unable to work because of his back condition. In November 2007 the Veteran submitted a statement that described the severity of his back pain. He reported the pain made it hard to walk; he had to sleep in a recliner because it hurt to lie flat, he could not lie, sit or stand for too long, and he had bowel and bladder incontinence issues. He also noted his back was listed as one of the reasons for his resignation. He further noted that it was next to impossible to focus on work and perform safely with his back condition. The Veteran was afforded another VA examination in February 2012. The Veteran reported constant pain in the lower back that radiated to his left leg. He could not sleep, stand, or walk due to his back pain. The Veteran reported flare-ups that resulted in his inability to do anything. The examiner opined the current status of the lumbar spine would cause difficulty with physical and sedentary activities of employment that involve lifting and carrying, pushing and pulling, standing, walking, reaching, stooping, crouching, balancing, and climbing. In April 2015, Dr. D.B.M. conducted an expert independent medical review of the Veteran. He opined that the rating schedule did not adequately evaluate the totality of the Veteran's disability by only contemplating his loss of spine mobility. He noted the Veteran was not able to sit or stand for more than 15 to 20 minutes and could not walk more than a block. Dr. D.M.B. noted the Veteran was forced to retire due to his lumbar symptoms. He further noted that since the Veteran retired he had only been able to perform relatively sedentary jobs on an intermittent basis. He also noted that the Veteran's education and past work activities did not result in skills transferrable to a sedentary position. He then opined that it was at least as likely as not that the Veteran had not been able to secure or follow substantial gainful employment of any kind since February 2002. The Veteran was afforded another VA examination in September 2015. The Veteran reported constant low back pain that radiated to his upper back and neck. It was aggravated by bending, lifting more than five pounds, walking more than 10 minutes, lying supine, and weeding for more than five minutes. He would awaken at night due to back pain. He also reported pain paresthesia and numbness that radiated from low back to left lower extremity to bottom of left foot. Flare-ups varied with activities, but occurred daily and lasted eight hours at 10 out of 10 on the pain scale. The functional loss reported was inability to walk or lie on his back, pain when bending, inability to work in his garden as he used to, and weakness and numbness in his left leg. The examiner noted that the Veteran had not worked since 1999. The examiner further opined that the Veteran would have increased pain with bending, crouching, pulling, pushing, lifting, carrying, and balancing that would impact his employment. The Veteran was afforded another VA examination for his back in January 2016. The Veteran reported constant daily pain that shot down to the heel and tingled around the toes. The pain then shot up from his back to his neck. He used a walker for mobilization. He was no longer able to perform activities of daily living because of his back pain and left lower extremity radiculopathy. The Veteran did not report flare-ups, but did report functional loss as his left leg would get weak and pain would go down to his heel, coughing caused pain and he sometimes urinated as a result, and if he moved too fast something would pop and he would begin to ache. The examiner noted that the Veteran was unable to ambulate due to his back pain and lower extremity pain so he constantly used a walker with a seat. The examiner also noted that the functional impact of his condition was the inability to perform daily activities due to his pain. He could not perform in a work environment. He could not bend, twist, rotate, or lift anything more than five pounds. In May 2017, a certified rehabilitation counselor, E.S.B., completed a TDIU vocational assessment report. She noted since the early 2000's the Veteran was unable to follow the plot of a 30 minute television show or complete a task without interruption due to his pain. She also noted he required assistance to dress, was limited to cleaning only a few dishes at a time due to the need to sit as a result of his pain, could remain seated for 5 to 10 minutes, but would stretch his legs for three to four minutes before he resumed a seated position or stood in a stationary position. His standing and walking were also limited to 15 minutes or one block. The vocational expert opined it was at least as likely as not that the Veteran would be unable to maintain and sustain employment at any skill or exertional level of work due to his need to stretch when he altered positions, inability to complete tasks, reminders to stay on topic, and need to lie down throughout the day. She further opined it was at least as likely as not the Veteran had been unable to secure and follow substantial gainful employment in any occupation, to include sedentary employment, since 2002 due to the chronic back pain interfering with his ability to concentrate and remain on task, and his need to walk and stretch between positions that would result in significant amount of time of task and not tolerated by employers. After having carefully reviewed the record, the Board finds that the most probative evidence of record supports a finding of entitlement to an extraschedular TDIU prior to February 8, 2012. The Board notes that the vocational expert's opinion in May 2017 is the most probative and persuasive as it was based upon a review of the entire record, and provides a supporting explanation within the context of the progression of the Veteran's disability, and his work experience and education. The medical evidence summarized above demonstrates that the Veteran's service-connected spine disability severely limited his ability to perform both labor-intensive and sedentary tasks since he filed his claim for service-connection, and supports a finding that his back disability precluded him from securing or following gainful employment. Therefore, entitlement to an extraschedular TDIU based solely on his service-connected lumbar spine disability has been established from the date of his claim, December 28, 2004 under the provisions of 38 C.F.R. § 4.16(b). II. Extraschedular Rating As noted above, in an August 2016 rating decision, the RO granted an extraschedular TDIU effective from February 8, 2012. Herein, the Board granted an extraschedular TDIU effective the date of claim, December 28, 2004. Significantly, the extraschedular TDIU was granted based solely on the Veteran's lumbar spine disability. As the Court held in Rice v. Shinseki, 22 Vet. App. 447, a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. In this case, a TDIU has been granted based solely on the Veteran's lumbar spine disability effective the entirety of the appeal period. Indeed, a schedular rating, extraschedular rating and TDIU rating are various avenues to be awarded higher ratings for a particular disability, and the highest has been achieved here. Therefore, in this case, the question of whether an extraschedular rating for degenerative joint disease of the lumbar spine is warranted has become moot in light of the award of a TDIU based on the debilitating effects of that same disability. See, e.g., Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014) (38 C.F.R. § 3.321(b)(1) performs a "gap-filling" function). Cf. Colayong v. West, 12 Vet. App. 524, 537 (1999). As there is no longer a determination to be made on a specific error of fact or law, the Board will dismiss this issue. See 38 U.S.C. § 7105(d)(5). ORDER An extraschedular TDIU is granted effective December 28, 2004. An increased extraschedular rating for degenerative joint disease of the lumbar spine is dismissed. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs