Citation Nr: 18161161 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-09 043 DATE: December 28, 2018 ORDER A rating greater than 60 percent for status post low back strain with degenerative disc disease (DDD) is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from January 1975 to December 1977. 2. During the entire period on appeal, the back disability manifested by subjective complaints of pain; objective findings did not demonstrate unfavorable ankylosis of the entire spine. 3. The Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 60 percent for status post low back strain with DDD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5243. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating First, the Veteran is seeking a rating greater than 60 percent for his back disability. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Here, the Veteran’s disability has been rated under DC 5243 as intervertebral disc syndrome (IVDS). The current 60 percent rating represents the maximum evaluation possible under the Formula for Rating IVDS Based on Incapacitating Episodes. Thus, the appeal may be granted and a 100 percent rating assigned only upon evidence of the following: • Unfavorable ankylosis of the entire spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Upon review of the record, a rating greater than 60 percent is not warranted for the Veteran’s back disability at this time. Instead, both June 2012 and September 2014 VA examiners explicitly denied ankylosis of the spine upon examination of the Veteran. The additional medical evidence, including VA and private treatment records and the Veteran’s Social Security Administration (SSA) record, is similarly silent for the existence of this symptom during the period on appeal. As the record is not indicative of a history of unfavorable ankylosis, a 100 percent rating is not warranted at this time. Instead, the medical evidence establishes that the Veteran’s primary symptoms during the period on appeal were significant back pain accompanied by sporadic flare-ups, weakness, and fatigability. However, the combination of these symptoms was not productive of such a severe disability picture as to equate unfavorable ankylosis—defined as a fixation of the joint—of the entire spine. As such, the Veteran remained capable of ambulating, although sometimes with assistance, and of performing the activities of daily living during the period on appeal. Further, those symptoms which are clearly attributable to the Veteran’s service-connected radiculopathy of the bilateral lower extremities, including pain and numbness productive of some functional limitation, are not for consideration with respect to this appeal. Accordingly, the Board finds that the Veteran’s disability picture is properly embodied in the 60 percent rating as currently assigned. In offering this conclusion, the Board has considered the Veteran’s contention that a higher rating is warranted in this case. However, he is not competent to identify a specific level of disability according to the applicable diagnostic code. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, greater probative value is offered to the medical evidence in assessing the severity of the Veteran’s disability. This evidence, including multiple VA examinations, does not establish such impairment as to warrant a 100 percent rating at this time. Accordingly, the appeal seeking a rating greater than 60 percent for the Veteran’s back disability is hereby denied. TDIU The Veteran is additionally seeking entitlement to a TDIU. Generally, VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Thus, the central inquiry in a TDIU claim 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). A total disability rating for compensation may be assigned when a veteran receives less than a total disability rating (i.e., less than a 100 percent combined disability rating) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Regulations provide that if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. If a veteran is service-connected for two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. Here, the Veteran has met the preliminary schedular criteria for entitlement to a TDIU since the submission of his claim in March 2010. At that time, he was service-connected for the following disabilities: (1) Back disability (60 percent disabling); (2) left lower extremity radiculopathy (40 percent disabling); and (3) right lower extremity radiculopathy (40 percent disabling). Taken in combination, these disabilities have been evaluated as 90 percent disabling since August 18, 2008. Thus, the Veteran has been schedularly entitled to a TDIU during the duration of this appeal. See 38 C.F.R. § 4.16. Accordingly, the threshold question is whether the impact of the Veteran’s disabilities now preclude his substantial and gainful employment. In his initial application for a TDIU, the Veteran reported one year of a college education and prior employment as a letter carrier and postal worker with the United States Postal Service (USPS). In a January 2012 statement, his former employer indicated that the Veteran’s employment status with USPS was terminated in December 2008 due to his “chronic back and leg injuries.” He was subsequently classified as medically disabled by the Social Security Administration, effective August 2010, due to multiple conditions including his service-connected disabilities. In a February 2009 lay statement, the Veteran offered further testimony regarding the impact of his disabilities on his employability. At that time, he reported that the last two years of his employment had become “progressively challenging” due to his service-connected injuries. Specifically, he encountered daily back and leg pain that impacted such basic activities as walking, standing, lifting, or bending. As a result, he was unable to “continue working as a letter carrier under these conditions, as it [was] painful and it hinder[ed his] work performance.” See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Several private treatment letters support the Veteran’s testimony, including an April 2006 letter indicating that the Veteran’s back disability prevented such work-related activities as lifting more than 15 pounds or continuous pulling, pushing, standing, walking, or bending. Instead, he required a position in which his work was completed mainly in a “seated position.” A subsequent February 2015 letter reported that the Veteran’s back condition was chronic and required multiple therapeutic treatments. Nonetheless, he continued to suffer from daily pain and disability which prevented “him from completing the necessary duties for holding a steady job or returning to work.” A comprehensive March 2017 private examination further supports this understanding of the impact of the Veteran’s disabilities on his employability. Upon review of the record, the examiner concluded that the Veteran’s combined disabilities caused major limitations to the “physical activity involved in sustaining work.” He was further prevented from performing sedentary work due to the need to frequently alter positions, which would prohibit his capacity to sustain “the production pace and focus to complete even simply work tasks.” As such, the examiner opined that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected disabilities. The accompanying narrative cites to both the Veteran’s own medical records and supporting literature. Further, this opinion is seemingly supported by the notations of June 2010 and September 2014 VA examiners, who noted that the Veteran was currently unemployed due to his service-connected disabilities. In contrast, a June 2012 VA examiner opined that the Veteran’s disabilities should not prevent him from obtaining gainful employment. His symptoms included pain and weakness, but he was able to walk without support and was communicative, alert, and oriented. Though he may not be able to return to his position as a mail carrier, the examiner did “not see any reason he should not be able to obtain a more sedentary type of job which is not as physically demanding.” Upon review of the above, greater probative value is afforded to the March 2017 private opinion, which is based upon a complete review of the claims file, consideration of the nature and severity of the Veteran’s disabilities and their relationships to one another, and their impact on his capacity to perform both physical and sedentary positions. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). This opinion is also largely supported by the record, including multiple private treatment letters, the Veteran’s SSA determination, and testimony from his prior employer. In contrast, the June 2012 opinion is derived from a limited examination of the Veteran and does not address the positive medical evidence of record or the potential relationship between the Veteran’s multiple disabilities. As such, the Board finds that the Veteran’s service-connected disabilities preclude him from substantial and gainful employment. Taken in combination, they are productive of significant pain and weakness that cannot be managed even with sedentary employment. Thus, in affording the Veteran the benefit of the doubt, the appeal is hereby granted. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel