Citation Nr: 18140149 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-17 527 DATE: October 2, 2018 ORDER Entitlement to an increased rating for degenerative disc disease (DDD) of the lumbar spine, rated at 10 percent disabling, prior to March 20, 2015 is denied. REMANDED 1. Entitlement to an increased rating for DDD of the lumbar spine, rated at 20 percent disabling, after March 20, 2015 is remanded. 2. Entitlement to an increased rating for radiculopathy of the right lower extremity, currently evaluated at 10 percent disabling, is remanded. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Prior to March 20, 2015, the Veteran’s DDD of the lumbar spine disability has been manifested by symptoms of abnormal motion, to include 75 degrees of forward flexion. However, at no point during this period has the Veteran been observed to have less than 30 degrees of lumbar spine forward flexion. CONCLUSION OF LAW Prior to March 20, 2015, the criteria for an increased evaluation, in excess of 10 percent, for the service-connected degenerative disc disease of the lumbar spine have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.49, 4.7.1a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from September 1996 to June 2003. Increased Disability Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany her DDD of the lumbar spine. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). The Veteran filed an increased rating claim for her service-connected DDD of the lumbar spine on September 22, 2014. As noted above, the Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart, 21 Vet. App. at 509. Therefore, in the present case, the Board will place a specific focus on evidence of record back to September 22, 2013. 1. Entitlement to an increased rating for DDD of the lumbar spine, rated at 10 percent disabling, prior to March 20, 2015 is denied. In September 2014, the Veteran submitted VA Form 21-526EZ. Therein, the Veteran initiated her entitlement claim for an increased disability rating for her service-connected DDD of the lumbar spine. In the instant appeal, the Board observes that the Veteran’s lumbar spine disability has been rated under 5242 for degenerative arthritis of the spine. As an initial matter, the Board notes that a lumbar spine disability may be rated under multiple diagnostic codes. However, the Board finds the General Rating Formula for the spine provides the most potential for a favorable rating. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Here, the evidence does not show any incapacitating episodes requiring physician prescribed bedrest. As such, Diagnostic Code 5243 is not for application in the instant appeal. The General Rating Formula for Diseases and Injuries of the Spine is as follows: 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 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 (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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect after September 26, 2003). In September 2014, VA received the Veteran’s treatment records from the Central California HCS. Therein, on June 6, 2014, Dr. DL reported that, “vertebral body heights are uniform and well maintained. There is no evidence of height loss or wedge compression deformity. No evidence of subluxation or dislocation. No definite evidence of displaced acute fracture. Evaluation of the soft tissues is limited on noncontrast CT. Within the confines limitations of this noncontrast exam, there is no obvious evidence of substantial disc herniation or obvious substantial central canal stenosis. There is disc space narrowing at L5-S1. This is similar in appearance to that shown on the previous MRI of 06/13/2012.” On June 9, 2014, Dr. WJV recorded the following impression, “1) stable broad-based disc bulge L5/1. . . . 3) Vertebral hemangioma LI appears slightly more prominent on sagittal sections without significant other complication. 4) Appearance suspect for arachnoiditis L5/1.” In December 2014, the Veteran underwent a VA examination to determine the current severity of her DDD of the lumbar spine. At that time, the VA provider noted a diagnosis of lumbosacral strain with mild DDD. The VA provider observed abnormal range of motion (ROM), to include: 75 degrees forward flexion, 15 degrees extension, 25 degrees right and left lateral flexion, and 30 degrees right and left lateral rotation. The Veteran reported flare-ups of moderate to severe severity. The Veteran demonstrated no muscle atrophy and 5/5 strength test values. Intervertebral disc syndrome (IVDS) was not identified. The Veteran did not demonstrate ankylosis. The VA provider did not note muscle spasm, localized tenderness and/or guarding that resulted in an abnormal gait or abnormal spinal contour. No other neurologic abnormalities were noted, to include bowel or bladder problems, during the VA examination. The Board observes that at no point during the appeal period, September 22, 2013 to March 20, 2015, has the Veteran ever been observed to exhibit limitation in forward flexion of the lumbar spine between 30 and 60 degrees. A review of the Veteran’s medical record, during the applicable appeal period, does not reveal any evidence that suggests the Veteran’s forward flexion deviated away from 75 degrees and/or below 30 degrees. To be clear, the Board has considered the totality of the symptoms of the Veteran’s lumbar spine disability and they have been factored into the Board’s decision to continue the Veteran’s 10 percent disability rating prior to March 20, 2015. Even considering DeLuca, while the Veteran complains of pain in her lumbar spine that limits various activities, to include hiking, camping, and packing horses, the Veteran’s pain has been considered in the rating above and indeed is part and parcel of the 10 percent rating that she is currently assigned. DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The Board finds no evidence to warrant the assignment of separate disability ratings for symptoms of the Veteran’s lumbar spine disability. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). As identified previously, Note 1 of the General Rating Formula for Diseases and Injuries of the Spine provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. However, a review of the evidentiary record indicates the Veteran has not demonstrated symptoms of bladder or bowel impairment. As such, a separate rating for bowel or bladder impairment is not warranted. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s entitlement claim for an increased rating for her DDD disability of the lumbar spine prior to March 20, 2015. Since the preponderance of the evidence is against this lower spine claim, the provisions of 38 U.S.C. § 5107 (b), regarding reasonable doubt, are not applicable. The Veteran’s claim for entitlement to an increased disability rating for DDD of the lumbar spine prior to March 20, 2015 must be denied, because the preponderance of the evidence weighs against her claim. REASONS FOR REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to her country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing her claims prior to final adjudication. 1. Entitlement to an increased rating for DDD of the lumbar spine, rated at 20 percent disabling, after March 20, 2015 is remanded. In September 2014, the Veteran submitted VA Form 21-526EZ. Therein, the Veteran initiated her entitlement claim for an increased disability rating for her service-connected DDD of the lumbar spine. As the Board revealed above, to satisfy the regulatory criteria for the next higher, 40 percent rating requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5242. ¬¬¬In March 2015, the Veteran underwent a VA examination to determine the current severity of her DDD of the lumbar spine. At that time, Dr. JTM noted a 2014 diagnosis for “lumbar degenerative disc disease, L5-S1, mild.” Dr. JTM observed abnormal range of motion (ROM), to include: 60 degrees forward flexion, 15 degrees extension, 20 degrees right and left lateral flexion, and 30 degrees right and left lateral rotation. However, Dr. JTM did report that the Veteran’s abnormal ROM did not contribute to functional loss. Importantly, Dr. JTM did not report additionally functional loss or lost ROM with repetition, nor did pain, weakness fatigability or incoordination significantly limit functional ability with repeated use. The Veteran reported flare-ups with prolonged standing and sitting, which resulted in “less motion.” The Veteran demonstrated no muscle atrophy and displayed 5/5 strength test values. Intervertebral disc syndrome (IVDS) was not identified. The Veteran did not demonstrate ankylosis. At time, Dr. JTM did note that the Veteran demonstrated IVDS; however, it did not require physician prescribed bed rest during the prior 12 months. Also, Dr. JTM did not note guarding and/or muscle of the thoracolumbar spine. No other neurologic abnormalities were noted, to include bowel or bladder problems, during the VA examination. In July 2015, VA received a statement from the Veteran’s primary care physician. Therein, Dr. AJL revealed that the Veteran “has been treated for lumbar disc disease, symptoms include daily lower back discomfort, times of right leg numbness, tingling. She has undergone plain film, MRI evaluation and completed formal physical therapy. She has been treated with epidural steroid injection, acupuncture treatments, TENs unit and medication to manager her disease.” In February 2016, the Veteran underwent a VA examination to consider the current severity her service connected DDD of the lumbar spine. During the history portion, the Veteran revealed that, “she can experience spasm of the paravertebral muscles of the lumbar region and that, with flare-ups or increased pain of the back, she can experience the symptoms of muscle spasm accompanying the back pain.” Ultimately, Dr. JCJ delivered the following inadequate opinion: “it is this examiner's opinion that it is at least as likely as not that the muscle spasms and pain are the result of her service-connected lumbosacral spine strain with degenerative disc disease. However, it is this examiner's opinion that the muscle spasms and pain represent symptoms of this condition and not a separate diagnosis. Furthermore, the muscle spasms and pain associated with her lumbar spine condition do not appear to be specifically a central nervous system condition.” The VA’s duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the February 2016 examination report supplied by Dr. JCJ did not address any of the rating criteria for the Veteran’s service connected DDD of the lumbar spine, the March 2016 VA examination report in not adequate for an increased rating analysis for the period following March 20, 2015. Specifically, the examination report does not document, among other things, any range of motion studies of the lumbar spine. Accordingly, on remand, an opinion regarding the current severity of the Veteran’s DDD of the lumbar spine should be obtained. Barr v. Nicholson, 21 Vet. App. 303, 31 (2007). 2. Entitlement to an increased rating for radiculopathy of the right lower extremity, currently evaluated at 10 percent disabling, is remanded. In April 2015, the Veteran submitted her Statement in Support of Claim. Therein, the Veteran revealed that, “(t)his is in response to the VA Regional Office letter I received . . . with a proposal to reduce my compensation from for my right lower radiculopathy from 40 % to 10%. During the Comp and Pen evaluation for my lumbosacral Strain with (DDD) the examiner made a decision on my right lower radiculopathy. I do receive epidural injections for this condition which are temporary in nature and do not improve the condition just the symptoms. I am very concerned that the evaluation was done in a manner that is not medically in my best interest. I feel this single evaluation should not be used to propose a reduction for this condition.” With the relevant generalized law to rating evaluation supplied above, the Board will now discuss the specific code under which the Veteran’s disability is analyzed. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve, as well as neuritis and neuralgia of that nerve, warrants a 10 percent rating. Moderate incomplete paralysis is assigned a 20 percent rating, and moderately severe incomplete paralysis is warranted for a 40 percent rating. Severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124a, a disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull. 38 C.F.R. § 4.120. The words “slight,” “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. In July 2015, VA received a statement from the Veteran’s primary care physician. Therein, Dr. AJL revealed that the Veteran “has been treated for lumbar disc disease, symptoms include daily lower back discomfort, times of right leg numbness, tingling. She has undergone plain film, MRI evaluation and completed formal physical therapy. She has been treated with epidural steroid injection, acupuncture treatments, TENs unit and medication to manager her disease.” In March 2016, the Veteran underwent a VA examination that considered the central nervous system and neuromuscular diseases. Important to this Board analysis, the resultant Disability Benefits Questionnaire did not consider and/or address diseases of the peripheral nerves. In fact, Dr. JCJ only mentioned the symptoms relevant to this claim on one occasion: “(t)his Veteran is service-connected for a lumbar spine condition with (DDD), disc bulge and radiculopathy. Her medication includes naproxen and Lyrica. However, these provide on limited benefit to any muscle spasm. She reports that she previously was on Baclofen and the muscle spasm is currently worse since being discontinued off the Baclofen.” The VA’s duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2016 VA examination was inadequate for proper analysis of the Veteran’s claim for entitlement to an increased rating for radiculopathy of the right lower extremity. Consequently, the Board finds that a remand is necessary for an adequate VA examination of the Veteran’s service connected radiculopathy of the right lower extremity. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. In April 2018, the agency of original jurisdiction (AOJ) informed the Veteran that, “(y)ou may be entitled to service connected disability benefits at the 100% rate if you are too disabled to work because of your service connected disabilities.” At that time, the AOJ provided the Veteran a VA Form 21-8940, Veteran Application for Increased Compensation Based on Unemployability. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (West 2014). Total disability is considered to exist when there is any impairment 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). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the Veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341 (a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In December 2014, the Veteran underwent VA examinations to determine the current severity of lumbosacral strain, clavicle/scapula impairment, and shoulder condition. At that time, the VA provider observed that, “(w)ith regards to this Veteran's lumbar spine condition, this veteran may have difficulty with jobs requiring heavy lifting, prolonged lumbar flexion or frequent repetitive lumbar flexion. With regards to this veteran's L shoulder condition and clavicle/scapula impairment, this veteran may have difficulty with prolonged work overhead or medium to heavy lifting.” In a May 2018 rating decision, the AOJ denied the Veteran entitlement to a total disability due to individual employability. Therein, the AOJ notified the Veteran that, “(e)ntitlement to individual unemployability is denied because you have not been found unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. On April 17, 2018 we wrote and asked you to send us a completed VA Form 21-8940 . . .. As of this date, we have not received a complete VA Form 21-8940. This form is required to further consider your claim.” The Board notes that M21-1 states the VA “may” deny a TDIU due to the Veteran’s failure to submit a VA Form 21-8940, as opposed to a mandatory requirement that VA “must” deny a TDIU in such instance. Moreover, with regard to the M21-1 provision discussed above, as provided by 38 C.F.R. § 19.5, the Board, in its consideration of appeals, “is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs. The Board is not bound by Department manuals, circulars, or similar administrative issues.” See also 38 U.S.C. § 7104 (c) (West 2014). In June 2018, the Veteran supplied sworn testimony to the undersigned VLJ. At that time, the Veteran reported that she last worked as a veterinarian technician in November 2014. When questioned by the undersigned VLJ, the Veteran averred that her lower back impacted her ability to work the most. When questioned by her representative, the Veteran revealed that her lumber condition did not allow her to lift and move small animals, i.e. dogs, cats, turtles and rabbits. Additionally, the Veteran testified that she did not have any other training or experience that would lend itself to employment possibilities. The Board confirms that the Veteran competently and credibly testified that she has been unemployed since November 2014, and that her service-connected lumbar disability was the primary factor. However, the Board also notes that, on January 17, 2012, the Veteran withdrew her application for VA vocational rehabilitation services (VR&E). The Board is cognizant that, under the regulatory umbrella created by 38 C.F.R. § 4.16 (a), the Veteran’s various disabilities satisfy the schedular criteria for a TDIU. However, additional development is necessary to determine whether the Veteran is incapable of securing and following a substantially gainful occupation due to her service-connected disabilities. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consequently, these matters are REMANDED to the AOJ for the following action: 1. The AOJ should contact the Veteran, and, with her assistance, identify any additional outstanding records of pertinent medical treatment from VA or private health care providers that have treated her for her service-connected DDD of the lumbar spine after March 20, 2015. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If the AOJ’s attempts to obtain any outstanding records results in a finding that such records are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for the appropriate VA examination to determine the current severity of the Veteran’s service-connected DDD of the lumbar spine. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A history should be elicited directly from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. When rendering his or her exam results and opinion, the VA provider should address the criteria of 38 C.F.R. § 4.71a, DC 5242, which are supplied above. 3. The AOJ should contact the Veteran, and, with her assistance, identify any additional outstanding records of pertinent medical treatment from VA or private health care providers that have treated her for her service-connected radiculopathy of the right lower extremity. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If the AOJ's attempts to obtain any outstanding records results in a finding that such records are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 4. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for the appropriate VA examination to determine the current severity of the Veteran’s service-connected radiculopathy of right lower extremity. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A history should be elicited directly from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. When rendering his or her exam results and opinion, the VA provider should address the criteria of 38 C.F.R. § 4.71a, DC 8520, which are supplied above. 5. For the Veteran’s TDIU claim, the AOJ should send a new VCAA notice letter to the Veteran notifying her of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim on appeal. This VCAA letter should include both (1) a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability); and (2) a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). The AOJ should request that the Veteran fill out these forms and submit them to the AOJ, to determine the Veteran’s employment history. 6. After completion of the preceding directive, schedule the Veteran for a VA examination with an appropriate VA examiner or vocational specialist to address the combined impact of her service-connected disabilities on her employability. The examiner should review the claims file in conjunction with the examination and indicate that such review has occurred. The examiner(s) should comment on the functional effect of the Veteran's service-connected disabilities on her ability to secure or follow a substantially gainful occupation, including any form of sedentary work. When addressing the effect on the ability work the examiner must not consider the Veteran’s age or any non-service connected disabilities. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate Counsel