Citation Nr: 1807376 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 10-19 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for radiculopathy of the left lower extremity. 2. Entitlement to an evaluation in excess of 20 percent for radiculopathy of the right lower extremity. 3. Entitlement to an initial compensable evaluation for surgical scars associated with the service-connected low back injury with fractures of L1 and L2. 4. Entitlement to an evaluation in excess of 40 percent for the service-connected low back injury with fractures of L1 and L2. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected disabilities. 6. Entitlement to an effective date earlier than January 8, 2014, for the grant of service connection for surgical scars as secondary to the service-connected low back injury with fractures of L1 and L2. 7. Entitlement to service connection for full thickness partial width insertional tear of the anterior supraspinatus tendon (claimed as a right shoulder condition), to include as secondary to the service-connected radiculopathy of the bilateral lower extremities. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from September 1980 to February 1981. He had additional service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran's claim for entitlement to a TDIU was withdrawn in a December 2013 statement, the claim was reasonably raised in the context of the Veteran's increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also VAOPGCPREC 6-96. Specifically, in November 2017, the Veteran's attorney submitted a vocational assessment that asserts the service-connected disabilities prevent the Veteran from engaging in maintaining substantially gainful employment. FINDINGS OF FACT 1. In a December 2013 signed statement, the Veteran withdrew his appeal pertaining to the issues of entitlement to an evaluation in excess of 30 percent for radiculopathy of the left lower extremity and entitlement to an evaluation in excess of 20 percent for radiculopathy of the right lower extremity. 2. Throughout the appeal period, the Veteran's surgical scars associated with the service-connected low back injury with fractures of L1 and L2 have not been manifested by tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hyperpigmentation, abnormal texture, or limitation of motion. They were less than 39 square centimeters in total area. 3. The Veteran's lumbar spine is not ankylosed, there are no neurological impairments that have not been previously rated by VA, and his intervertebral disc syndrome of the lumbar spine has not been manifested by 6 weeks of incapacitating episodes for any 12 month period during the appeal period. 4. The right shoulder disability is shown to be etiologically related to the Veteran's service-connected radiculopathy of the bilateral lower extremities. 5. The Veteran is unable to maintain substantially gainful employment by reason of his service-connected disabilities. 6. The Veteran's claim for an increased evaluation for his service-connected low back injury with fractures of L1 and L2 was received by VA on February 17, 2009. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the issue of entitlement an evaluation in excess of 30 percent for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal pertaining to the issue of entitlement an evaluation in excess of 20 percent for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for a compensable rating for surgical scars associated with the service-connected low back injury with fractures of L1 and L2 have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.118, Diagnostic Code 7805 (2017). 4. The criteria for a disability rating greater than 40 percent for the low back injury with fractures of L1 and L2 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017). 5. The right shoulder disability is caused by the Veteran's service-connected radiculopathy of the bilateral lower extremities. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 6. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2017). 7. The criteria for an effective date of February 17, 2009, but no earlier, for the grant of service connection for surgical scars as secondary to the service-connected low back injury with fractures of L1 and L2 have been met. 38 U.S.C. §§ 5103, 5103A, 5110(d), 7104 (2012); 38 C.F.R. §§ 3.5, 3.102, 3.152, 3.400(c)(2) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has 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 duty to assist argument). As such, the case is ready to be decided on its merits. II. Withdrawal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In a December 2013 signed statement, the Veteran withdrew his appeal pertaining to the issues of entitlement to an evaluation in excess of 30 percent for radiculopathy of the left lower extremity and entitlement to an evaluation in excess of 20 percent for radiculopathy of the right lower extremity. Hence, there remain no allegations of errors of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. III. Increased Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). 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 (2017). 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). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one Diagnostic Code is duplicative of or overlapping with the symptomatology justifying an evaluation under another Diagnostic Code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. A. Scars The Veteran's surgical scars associated with low back injury with fractures of L1 and L2 are rated zero percent disabling under Diagnostic Code 7805. 38 C.F.R. § 4.118. Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated, even if not considered in a rating provided under Diagnostic Codes 7800-04, under an appropriate Diagnostic Code. 38 C.F.R. § 4.118. Diagnostic Code 7800 does not provide an avenue for the Veteran for a higher evaluation is it only pertains to scars of the head, face, or neck, and the Veteran's scars are located on his back. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to DC 7801 provides that a deep scar is one associated with underlying soft tissue damage 38 C.F.R. § 4.118. Note (2) provides that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under 38 C.F.R. § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to DC 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under 38 C.F.R. § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 38 C.F.R. § 4.118. Diagnostic Code 7804 provides a 10 percent rating for superficial unstable scars. DC 7804 provides that one or two scars that are unstable or painful are rated as 10 percent disabling. Three or more scars that are unstable or painful are rated 20 percent disabling. Five or more scars that are unstable or painful are 30 percent disabling. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7891, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable. 38 C.F.R. § 4.118. In January 2014, the Veteran underwent a VA examination to determine the severity of his lumbar spine disability. The VA examiner identified 2 surgical scars that measured 5 centimeters by 0.5 centimeters on the back and 9 centimeters by 1 centimeter on the abdomen. The scars were not painful or unstable, and were not greater than 39 square centimeters. In July 2017, the Veteran was afforded a VA scars examination. The Veteran stated that he underwent lumbar surgeries in 1998 and 2001. He denied pain at his scars. The scars were stable and did not involve loss of covering of skin over the scars. The VA examiner identified a 14 centimeter linear scar on the anterior trunk and a 5 centimeter linear scar on the lumbosacral midline. There were no other pertinent physical findings associated with the Veteran's scars. The scars did not impact the Veteran's ability to work. Diagnostic Codes 7801 and 7802 do not provide a basis for a higher evaluation as the Veteran's scars were less than 39 square centimeters and did not cause limitation of motion. The Veteran is also not entitled to a higher evaluation under Diagnostic Code 7804 as his scars were not unstable or painful. 38 C.F.R. § 4.118. The Veteran's competent and credible belief that his disability is worse than the assigned rating is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran's lay statements. In sum, the benefit of the doubt doctrine is inapplicable, and the schedular criteria for a compensable disability rating for the surgical scars associated with low back injury with fractures of L1 and L2 have not been met. 38 C.F.R. § 4.3. B. Back The Veteran's low back injury with fractures of L1 and L2 is rated 40 percent disabling under Diagnostic Code 5242-5243. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine (described above) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25 (2017). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. The April 2013 VA examiner found that the Veteran's IVDS of his lumbar spine was productive of at least 2 weeks, but less than 4 weeks, of incapacitating episodes over the past 12 months. For purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. To warrant a rating in excess of 40 percent based on incapacitating episodes of IVDS, the evidence must show incapacitating episodes having a total duration of at least six weeks during the past 12 months. This would warrant a 60 percent rating pursuant to Diagnostic Code 5243; however, the examination reports and treatment records do not show the Veteran's IVDS of the lumbar spine has been productive of at least 6 weeks of incapacitating episodes during the past 12 months. Thus, the Veteran is not entitled to a higher rating of under Diagnostic Code 5243, referring to IVDS. 38 C.F.R. § 4.71a. Diagnostic Code 5242 utilizes the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The next higher rating of 50 percent is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992). In this case, there is no evidence that the Veteran's lumbar spine is ankylosed. The April 2009, September 2010, April 2013, and January 2014 VA examination reports determined that the Veteran's lumbar spine had motion in every direction, thereby precluding a finding of ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (5), indicating that, for VA compensation purposes, unfavorable ankylosis is a disorder in which the entire thoracolumbar spine is fixed in flexion or extension. The Veteran's range of motion is certainly limited; however, at no time during the appeal period was ankylosis of the lumbar spine demonstrated. Additionally, since 40 percent is the highest rating available for limitation of motion of the lumbar spine, there is simply no basis to assign a higher rating based on painful motion. Johnston v. Brown, 10 Vet. App. 80 (1997) The Veteran's lumbar spine disability causes radiculopathy of the bilateral lower extremities. These disabilities are separately rated. In December 2013, the Veteran withdrew his appeal for higher evaluations for these disabilities. Therefore, the issue regarding whether the Veteran is entitled to higher ratings for radiculopathy of the bilateral lower extremities is not before the Board. There have been no other neurological abnormalities associated with the Veteran's service-connected low back disability. The Veteran has provided competent lay testimony; however, the Board is assigning more probative weight to the findings on examination by medical professionals after interviews of the Veteran. These findings take into account the Veteran's lay statements, medical examinations, and the examiners' medical knowledge and experience. Thus, they are highly probative. For these reasons and bases, the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 40 percent for his low back injury with fractures of L1 and L2 - in turn meaning there is no reasonable doubt to resolve in his favor and his claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. IV. Service Connection The Veteran claims that his service-connected low back injury and his service-connected bilateral radiculopathy caused him to fall. When he fell, he injured his right shoulder. He seeks service connection for his right shoulder disability under a theory of secondary service connection. In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a non-service-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. In reaching this determination as to aggravation of a non-service-connected disorder, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected disability), in comparison to the medical evidence establishing the current level of severity of the non-service-connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular non-service-connected disorder. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In September 2010, the Veteran was afforded a VA examination to determine the nature and etiology of his right shoulder disability. The Veteran stated that he fell frequently due to the pain in his legs. He fell in May 2010 and injured his right shoulder. The VA examiner diagnosed full thickness partial with insertional tear of the anterior supraspinatus tendon of the right shoulder. The VA examiner concluded that the Veteran's full thickness partial width insertional tear of the anterior supraspinatus tendon was not caused by or a result of his radiculopathy of the bilateral lower extremities. She explained that there was no diagnosis of radiculopathy. In October 2017, Dr. H.S., a private physician, rendered an opinion regarding the etiology of the Veteran's right shoulder disability. The Veteran and his wife indicated that the Veteran would occasionally go to the backyard and walk the perimeter of the fence for fresh air and exercise. On the day he injured his shoulder, the Veteran experienced severe leg cramping, which caused his legs to buckle. He grabbed the fencepost on his way to the ground and this caused his current right shoulder injury. Dr. H.S. found that the Veteran's reported symptoms and limitations were congruent with his medical history and diagnoses since February 2009. The Veteran was service-connected for radiculopathy since 2004. Dr. H.S. opined that it was as likely as not that the Veteran's right shoulder was related to his service-connected back and bilateral radiculopathy disabilities. The Board finds that the private opinion is more probative than the September 2010 VA medical opinion. The VA opinion indicated that the Veteran did not have bilateral radiculopathy. However, the record indicates that the Veteran has been service-connected for radiculopathy of the bilateral lower extremities since 2004. Based on the forgoing, service connection for a right shoulder disability is granted. V. TDIU Total disability ratings for compensation based on individual unemployability 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, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered 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). 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). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service-connected for a low back injury with fractures of L1 and L2; radiculopathy of the bilateral lower extremities; surgical scars associated with his service-connected low back injury with fractures of L1 and L2; right shoulder disability; and, a right BIK iliac crestbone graft. His low back injury with fractures of L1 and L2 is rated 40 percent disabling and his combined evaluation is 70 percent. The Veteran meets the criteria for a schedular TDIU rating per 38 C.F.R. § 4.16(a). The Veteran last worked as an automotive production worker from February 1998 to December 2008. See October 2010 VA Form 21-4192. During the 2009 VA spine examination, the Veteran described his low back pain as constant and a level of between 2 and 3 on a 10 point scale with 10 being the worst pain. He also experienced lower extremity weakness and numbness. Once a week, the Veteran had flare-ups that resulted in his low back pain becoming a 10. The September 2010 VA examiner indicated that the Veteran's low back disability caused moderate effects on shopping, exercise, and chores. The Veteran's ability to lift and carry was also impacted. The VA examiner concluded that the Veteran's low back disability would cause increased absenteeism. The April 2013 VA examiner found that the Veteran's low back disability impacted his ability to work. She commented that the Veteran's low back disability caused significant difficulty lifting heavy objects, ambulating for prolonged distances, climbing ladders, standing for extended periods of time, and performing repetitive activities of the trunk. The January 2014 VA examiner confirmed that the Veteran's low back disability impacted his ability to work. His limitations were: lifting 25 pounds; walking 1 to 2 blocks; walking half a mile in an 8 hour day; and, sitting for 15 to 20 minutes and standing for 10-20 minutes. He was limited to sitting for 4 hours during an 8 hour day and standing for between 1 and 2 hours during an 8 hour day. In October 2017, Dr. H.S., a private physician, reviewed the Veteran's file and conducted an interview with the Veteran. He indicated that the Veteran's service-connected disabilities limited his ability to stand between 15 and 20 minutes; walking was limited to 10 minutes; and, sitting in a standard chair was limited to between 5 and 10 minutes in an eight hour day. The Veteran was limited to lifting and carrying nor more than between 5 and 7 pounds but not repetitively. The Veteran's physical pain caused sleep disturbance. His poor sleep and the side effects from his pain medication caused significant problems staying on task and focusing on simple tasks. Dr. H.S. elaborated that the Veteran would have increased absenteeism and would need unscheduled prolonged breaks per day due to his pain, lack of focus, and sleepiness. He concluded that the Veteran would not be capable of performing substantial work in any capacity. In November 2017, Dr. S.B., a certified vocational evaluator, provided a vocational assessment of the Veteran. She reported that the Veteran worked in a factory following his discharge from active service and began receiving disability benefits from the Social Security Administration in December 2008. Dr. S.B. cited two research studies conducted in 2010, which found that most employers will tolerate variable rates of absence. However, most employers will not allow more than 7 or 8 days per year. The Veteran's service-connected symptoms would require him to miss more than 8 days per year of work. She summarized the Veteran's physical limitations that were described in his prior VA examinations, and found that his rate of absenteeism precluded him from maintaining substantially gainful employment. The weight of the evidence demonstrates that the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. In sum, the preponderance of the evidence shows that the Veteran is unable to secure and follow substantially gainful employment by reason of his service-connected disabilities. See 38 C.F.R. § 4.16(a). As a consequence, entitlement to a TDIU is granted. VI. Earlier Effective Date The Veteran contends that he should be awarded an effective date prior to January 8, 2014, for the grant of service connection for surgical scars as secondary to the service-connected low back injury with fractures of L1 and L2. In general, the effective date of an award of pension, compensation, or DIC based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of the receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A "claim" is defined broadly to include a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2017); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a) (prior to March 24, 2015). The date of an informal claim may be used as the effective date if a formal claim is filed within one year of that date. Id. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107. In a May 2008 rating decision, the Veteran was granted a 40 percent evaluation for a low back injury with fractures of L1 and L2, effective January 23, 2004. On February 17, 2009, the VA received the Veteran's claim for an increased evaluation for his service connected low back injury with fracture of L1 and L2 and an increase for his service-connected radiculopathy. The January 2014 VA examiner identified two scars associated with the Veteran's service-connected low back injury. In a September 2015 rating decision, the Veteran was granted service connection for surgical scars, effective January 8, 2014. The Veteran was afforded a VA scar examination in July 2017. The VA examiner reported that the Veteran's scars were associated with lumbar surgeries that were performed in 1998 and 2001. The Board finds that the Veteran is entitled to an effective date of February 17, 2009, which is when VA received his claim for an increased evaluation for the service-connected low back injury. The Board acknowledges that the Veteran's scars pre-date his increased evaluation claim. However, there are no unadjudicated claims for service connection for scars prior to the receipt of the Veteran's claim in February 2009. Additionally, the Veteran did not appeal his prior initial evaluation for his service-connected low back injury. Based upon the forgoing, an effective date of February 17, 2009, but no earlier, for the grant of service connection for surgical scars as secondary to the service-connected low back injury with fractures of L1 and L2 is granted. 38 C.F.R. § 3.400. ORDER The issue of entitlement to an evaluation in excess of 30 percent for radiculopathy of the left lower extremity is dismissed. The issue of entitlement to an evaluation in excess of 20 percent for radiculopathy of the right lower extremity is dismissed. An initial compensable evaluation for surgical scars associated with the service-connected low back injury with fractures of L1 and L2 is denied. An evaluation in excess of 40 percent for the service-connected low back injury with fractures of L1 and L2 is denied. Service connection for full thickness partial width insertional tear of the anterior supraspinatus tendon (claimed as a right shoulder condition), secondary to the service-connected radiculopathy of the bilateral lower extremities, is granted. A TDIU is granted. An effective date of February 17, 2009, but no earlier, for the grant of service connection for surgical scars as secondary to the service-connected low back injury with fractures of L1 and L2 is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs