Citation Nr: 1808586	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  10-04 082A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to a initial rating higher than 10 percent for lumbosacral strain for the period prior to November 3, 2016, and higher than 20 percent for lumbosacral strain with degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS) for the period since November 3, 2016.  

2. Entitlement to an initial rating higher than 10 percent for associated left lower extremity (LLE) radiculopathy.

3. Entitlement to an initial rating higher than 10 percent for associated right lower extremity (RLE) radiculopathy.

4. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Adam Neidenberg, Attorney

ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from November 1978 to April 1981.

This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). 
A September 2013 rating decision granted service connection for lumbosacral strain with DDD and assigned an initial 10-percent rating, effective in July 2008, and the Veteran perfected an appeal of the initial rating. In an April 2017 rating decision, an RO decision review officer granted an increased initial rating from 10 to 20 percent; and, granted service connection for associated lumbar radiculopathy of both LEs and assigned an initial rating of 10 percent each, all effective in November 2016. The Veteran continued his appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (stating that a veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise).

VA received a Notice of Disagreement (NOD) from the Veteran's attorney that addressed a denial of a TDIU. (06/15/2017 NOD). In a letter also dated in June 2017, the RO informed the attorney that the NOD was premature, as a decision had not been made on the claim for a TDIU. (06/22/2017 Correspondence). In light of established precedent, however, the Board still takes jurisdiction of the TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

In December 2014, the Board remanded the case for issuance of a Statement of the Case (SOC). (12/17/2014 BVA/Remand) See 38 C.F.R. §§ 19.29, 19.30 (2017). 
A SOC was in turn issued, and the Veteran perfected the current appeal. On his Substantive Appeal, he requested a Board hearing via video conference. (04/21/2017 VA Form 9) In August 2017, the Board remanded the case again so the requested hearing could be scheduled. (08/25/2017 BVA Decision) A September 2017 VA letter informed the Veteran that his hearing was scheduled for October 19, 2017. (09/21/2017 Hearing Request) Later that same month, the Veteran, through his attorney, cancelled the hearing, requested that it not be rescheduled, and withdrew his hearing request. (10/03/2017 Correspondence, p. 2-3) Hence, the hearing request was effectively withdrawn. See 38 C.F.R. § 20.702(e) (2017). In the same correspondence, the attorney requested that the record be held open for 
60 days from the date the hearing was scheduled for submission of additional evidence and argument. To date, no additional evidence or argument has been received.


FINDINGS OF FACT

1. For the period prior to November 3, 2016, the Veteran's lumbar spine disability manifested orthopedically with range of motion (ROM) on forward flexion greater than 0 to 60 degrees, combined ROM (CROM) greater than 120 degrees; and, neurologically with mild LLE radiculopathy.

2. For the period beginning on November 3, 2016, the Veteran's lumbar spine disability manifested orthopedically with ROM on forward flexion less than 0 to 
60 degrees but greater than 0 to 30 degrees, CROM less than 120 degrees; and, neurologically with mild radiculopathy of both LEs. It also manifested with IVDS without incapacitating episodes.

3. The evidence of record is against a finding that the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment.


CONCLUSIONS OF LAW

1. The criteria for initial rating higher than 10 percent for lumbosacral strain with DDD for the period prior to November 3, 2016, and higher than 20 percent for lumbosacral strain with DDD and IVDS for the period since November 3, 2016 are note met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.400, 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242, 5243 (2017).

2. The criteria for an initial rating of 10 percent, and no higher, for associated lumbar radiculopathy, LLE, were met, effective February 6, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.3, 4.10, 4.124a, 
DC 5237-8520.

3. The criteria for an initial rating higher than 10 percent, for associated lumbar radiculopathy, LLE, for the period beginning on November 3, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.10, 4.124a, 
DC 5237, 5243-8520.

4. The criteria for an initial rating higher than 10 percent, for associated lumbar radiculopathy, RLE, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.10, 4.124a, DC 5237, 5243-8520.

5. The requirements for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

As service connection, an initial rating, and an effective date have been assigned, no further notice is required regarding the downstream issues of a higher initial rating for lumbar spine and LLE and RLE radiculopathy as they stem from the grant of service connection, and no prejudice has been alleged. TDIU is part and parcel of the initial ratings. Regarding, VA's duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations, see 38 C.F.R. § 3.159(c), the Veteran's service treatment records (STRs), non-VA, VA treatment records, including the VA examination reports, and the records of the Social Security Administration (SSA) related to that agency's grant of disability benefits are in the claims file. Neither the Veteran nor his representative has asserted that there are additional records to obtain. As such, the Board will proceed to the merits of the appeal.

Applicable Law and Regulation

Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10.

If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

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 disability present. 38 C.F.R. § 4.2; see Peyton v. Derwinski, 1 Vet. App. 282 (1991).

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  Nonetheless, separate, or staged, ratings can be assigned for separate periods during the initial rating period on appeal based on the facts found. See O'Connell v. Nicholson, 21 Vet. App. 89, 91-92 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 
8 Vet. App. 202, 205-08 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be, where possible stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Rating Criteria

For the thoracolumbar spine, normal ROM on forward flexion is 0 to 90 degrees; backward extension, 0 to 30 degrees; lateral flexion and lateral rotation, 0 to 
30 degrees. See 38 C.F.R. § 4.71a, Plate V.

Spine disabilities are rated under the General Formula. Regarding the lumbar 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, 
a 40-percent rating applies if forward flexion of the thoracolumbar spine is 0 to 
30 degrees or less. A 20-percent rating applies if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the CROM of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Formula. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id., Note (1).

Discussion

Historically, the Veteran was treated for a low back strain during active service. His post-service records reflect long-standing complaints of chronic low back pain. Further, he sustained a work-related low back injury in 2001 which eventually led to his receipt of SSA disability benefits. (01/10/2005 SSI/SSA) VA received his claim to reopen the low back claim in July 2008. A VA medical examiner opined that, other than via speculation, he could not identify that part of the Veteran's low back pathology which was attributable to the in-service strain from that part attributable to the work injury. (04/23/2013 Email Correspondence) Hence, the September 2013 rating decision resolved doubt in favor of the Veteran and granted service connection for lumbosacral strain with DDD.

The February 2009 examination report reflects that the Veteran reported complaints of some sciatica to the LLE with daily dysesthesia. He reported having undergone treatment that entailed occupational and physical therapy, traction, and injections, with fair response, and he used a TENS unit. The Veteran described his constant pain as an aching and pulsing type at the mid to lower paraspinal area bilaterally. He also complained of stiffness, spasms, and daily electrical-shooting pain that radiated to the LLE. He denied flare-ups or incapacitating episodes. The Veteran reported further that he could walk a quarter-mile, and that he used a cane. Physical examination revealed the Veteran's posture and head position as normal, his appearance symmetrical, and his gait antalgic. However, the muscle spasms, tenderness, or guarding was not severe enough to result in the abnormal gait or contour. There was lumbar flattening but no other abnormal spinal curvature. 
ROM on forward flexion was 0 to 85 degrees; backwards extension, 0 to 
35 degrees; lateral flexion 0 to 35 degrees bilaterally; left lateral rotation 0 to 
25 degrees, and right lateral rotation 0 to 35 degrees, all with pain. The examiner noted that a CT scan without contrast was read as having shown no fractures or bony destructive lesions but mild disc bulges at L3/4, L4/5, and L5/S1 with hypertrophy, most prominent at L4/5; mild stenosis, and a small sclerotic lesion at the left sacral area. The examiner diagnosed degenerative joint disease.

The findings on clinical examination show that the orthopedic symptoms of the Veteran's low back more nearly approximated the assigned 10-percent rating. 38 C.F.R. § 4.71, General Formula. A higher rating was not met or approximated, as ROM on forward flexion was greater than 0 to 60 degrees, and CROM was greater than 120 degrees. Further, the examiner noted that repetitive-use testing did not reveal additional loss of ROM and there were no reported flare ups; see 38 C.F.R. §§ 4.40, 4.45. Additionally, as noted above, the examination revealed tenderness and muscle spasms; however, the examiner noted that they were not severe enough to result in guarding, abnormal gait, or abnormal spinal contour. (02/06/2009 VA Examination)

Another examination was conducted in November 2016. The examination report (11/25/2016 C&P Exam, 1st Entry) reflects that the examiner conducted a review of the Veteran's claims file and his electronic records. The Veteran reported complaints of low back pain that radiated to both LEs and flare-ups of pain and stiffness that caused difficulty with bending and walking. Physical examination revealed no tenderness to palpation, guarding, or muscle spasms. ROM testing revealed forward flexion of 0 to 60 degrees; backwards extension of 0 to 
25 degrees; and lateral flexion and rotation of 0 to 25 degrees each bilaterally-all with pain, for CROM of 185 degrees.

The initial objective findings on clinical examination revealed ROM values that approximated the assigned 10-percent rating. See 38 C.F.R. § 4.71a, General Formula. On repetitive-use testing, however, the examiner noted additional loss of ROM of 5 degrees in each plane. Although CROM still exceeded 120 degrees after accounting for the loss, the loss of 5 degrees of motion on forward flexion rendered the Veteran's motion in that plane to less than 0 to 60 degrees, which warrants the assigned 20-percent rating, as the rating criteria are in the disjunctive. See DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40, 4.45. The examiner opined further that the Veteran's functional loss due to pain, fatigue, etc., with use over time and due to flare-ups was yet another 10 degrees, combined, in each plane. (Exam Report, 
p. 5-6) Id.; see Sharp v. Shulkin, 29 Vet. App. 26 (2017). A higher, 40-percent, rating was not met or approximated, as even after accounting for the estimated additional loss of ROM (with repetitive use and/or flare-ups), motion on forward flexion remained greater than 0 to 30 degrees. The Board's review of the evidence of record since July 2008 has not disclosed any entries or findings that show ROM on forward flexion of 0 to 60 degrees or less, or CROM of 120 degrees or less prior to the November 2016 examination. This examination report reflect no ankylosis of the spine. Hence, the Board finds that the RO appropriately assigned an effective date of the date of the examination, November 3, 2016, for the increase to 
20 percent. 38 C.F.R. § 3.400.

As noted earlier, the General Formula provides that associated neurological objective findings be rated separately under the appropriate diagnostic code. 38 C.F.R. § General Formula, Note (1).  The Veteran has been assigned such separate ratings for the LLE and the RLE and these will be discussed next.

Rating Criteria

Peripheral neuropathy is rated as paralysis and incomplete paralysis of peripheral nerve pathology. See 38 C.F.R. § 4.124a. Under these criteria, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id., Diseases of the Peripheral Nerves.

The RO assigned the separate rating for radiculopathy, effective November 3, 2016, the date of the November 2016 examination, and rated it as sciatic nerve impairment under DC 8520.  Under DC 8520, an 80-percent rating is assigned for complete paralysis of the sciatic nerve, demonstrated by foot drop, no active movement possible of the muscles below the knee, and knee flexion that is weakened or (very rarely) lost. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as "a degree of lost or impaired function substantially less than the type picture for complete paralysis given." Id. 
A 60-percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A 40- percent rating is assigned for moderately severe incomplete paralysis; and, a 20- percent rating is assigned for moderate incomplete paralysis. 38 C.F.R. § 4.124a.

The words "mild," "moderate," and "severe" are not defined in the 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. 
It should also be noted that use of such terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

The February 2009 examination report reflects that the neurological examination revealed normal muscle motor strength of 5/5. Muscle tone was normal, and there was no atrophy. Lasegue's (straight leg raising) was positive on the left. Deep tendon reflexes were 2+ throughout the LEs bilaterally. Sensation to vibration and pinprick, however, was diminished from 2/2 to 1/2 in the LLE. Although the examiner diagnosed low back strain and DJD, the examiner noted that the Veteran's medical history included mild sciatica of the LLE. (Exam Report, p. 13) Further, the Board notes that service connection was initially denied, but the eventual grant was effective back to 2008. Generally, the effective date for disability compensation is the date the claim was received or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The examination findings at the 2009 examination clearly included diminished sensation. Hence, the Board finds that the Veteran's disability manifested with mild LLE radiculopathy and a 10-percent rating as of February 6, 2009, the date of the examination. Id.; 38 C.F.R. §§ 3.400, 4.124a, DC 8520. The Board finds further that a higher rating was not met or approximated, as muscle strength and deep tendon reflexes were normal, and sensation was diminished in only two categories. In light of such competent findings on diagnostic testing, the Board finds that moderate incomplete paralysis is not approximated.

The November 2016 examination report (11/25/2016 C&P Exam, 1st Entry) reflects that the examiner change the Veteran's diagnosis to add IVDS to the others of record. Id., p. 3. The General Formula require IVDS to be rated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  Id., Note (1). When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes.  Id., Note (2). The examiner specifically noted that the Veteran had not had any incapacitating episodes. (Exam report, p. 8) Hence, there is no factual basis to consider a rating on the basis of incapacitating episodes.

Neurological examination revealed muscle strength of 5/5 bilaterally, with normal tone and no atrophy. Straight leg raising was positive bilaterally; deep tendon reflexes were 2+ throughout, and sensation to light tough was decreased throughout the LEs bilaterally. The examiner assessed the severity of pain, paresthesias and/or dysesthesia, and numbness due to the radiculopathy as mild. (Exam Report, p. 7) The report states there are no other signs or symptoms of radiculopathy.

The Board finds that, when compared to complete paralysis of the sciatic nerve, the objective findings on clinical examination show the Veteran's LLE continued to manifest with mild severity, and the RLE now manifested with mild severity. The Board notes that the Veteran's muscle strength was normal (his orthopedic LOM was due to pain) without any atrophy, and the deep tendon reflexes were also normal bilaterally. Hence, his impairment is wholly sensory. Thus, the Board finds this evidence more nearly approximates the assigned 10-percent ratings. 38 C.F.R. §§ 4.1, 4.10, 4.124a, DC 8520. The Board finds further that the competent medical evidence of record does not show sciatica to have manifested in the RLE prior to the November 2016 examination. 38 C.F.R. § 3.400.

The 2016 VA examination report reflect no other neurologic abnormalities, such as bowel or bladder problems.  

As noted earlier, staged ratings are to be assigned where indicated by the evidence. Here, the Board finds that the Veteran has be afforded a staged rating in accordance with the evidence of record, as set forth in the discussion above.

TDIU 

The Veteran asserts that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment.

Legal Requirements

In order to establish entitlement to IU, there must be impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 
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, 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 Pederson v. McDonald, 
27 Vet. App. 276, 286 (2015) (en banc) (stating that "when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history"). Entitlement to TDIU is based on an individual's particular circumstance. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).

Thus, the Board must evaluate whether there are circumstances, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. An IU claim is an alternate way to obtain a total disability rating without recourse to a 100-percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994).  

Discussion

In addition to the low back disability and bilateral LE radiculopathy, service connection is also in effect for bilateral hearing loss, rated noncompensable, and tinnitus, rated 10-percent disabling. With the Board allowance on the LLE, the Veteran's total combined rating was 30 percent prior to November 3, 2016, and 40 percent as of that date. Id.; 38 C.F.R. § 4.25. The Veteran's lumbar DJD/DDD and LEs radiculopathy are deemed to be one disability. 38 C.F.R. § 4.16(a). Nonetheless, the Veteran still does not meet the requirement of 70 percent for multiple disabilities with one rated at least 40-percent disabling. Hence, he is not eligible for consideration under the schedular criteria. 38 C.F.R. § 4.16(a).

Where the combined rating percentage requirements are not met, entitlement to the benefits may be nonetheless 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). Rating boards should refer to the Director, Compensation Service (Director) for extraschedular consideration, all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a).

Where a claimant does not meet the percentage requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a total disability evaluation based on individual unemployability under 38 C.F.R. § 4.16(b) in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001); see Wages v. McDonald, 27 Vet. App. 233, 236 (2015) ("On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance.").

As noted earlier, the Veteran sustained a work injury in 2001, and he has not worked full time since. A SSA administrative law judge (ALJ) determined that the Veteran was disabled as of March 14, 2003. (01/10/2005 SSA) The Veteran worked in construction as a crane operator and truck driver. In light of the fact that there are significant differences in the definition of disability under the SSA and VA systems, SSA determinations are not binding on VA. Holland v. Brown, 6 Vet. App. 443, 448 (1994). On the other hand, there are also significant similarities between the two systems. Consequently, the Board must provide the basis for disagreeing with or not accepting a finding of disability by a SSA ALJ. Id.

The ALJ found that the Veteran did not have any residual functional capacity, including for sedentary work, primarily due to his age, limited education (11th grade), absence of transferable skills, and a finding that there were not any jobs in the economy that he could perform. The ALJ also found that the Veteran was unable to perform his past relevant work as an air condition mechanic and truck driver. As discussed below, the Board finds that the Veteran does not meet 
VA criteria for individual unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 

First, age is not a factor to consider when assessing whether a claimant is able to obtain and maintain substantially gainful employment under VA criteria. Although the Veteran has less than a high school education, he did obtain a Welder's Certification and has had training in driving a truck. (05/22/2012 VA Form 21-8940) In a May 2017 statement, the Veteran recounted how his last effort at work, in 2003, went. His bottom line was that his low back pain rendered it unsafe to himself and others to attempt work that needed a steady hand and back in the field working with heavy piping. (05/01/2017 VA 21-4138, p. 2-3) The statement, however, describes the Veteran's last effort to work at his last occupation. 
The VA criteria for unemployability is not satisfied by an inability to perform one's prior occupation as it can be for SSA, as noted above.

Private medical records dated in 2002 note that the Veteran's work restrictions were limitations on frequent bending, twisting, and lifting more than 30 pounds. (10/14/2008 Non-Government Facility) VA physical therapy records dated in June 2009 reflect that the Veteran worked 24/7 caring for his elderly mother, and he followed a home exercise program. The Veteran's care for his mother included helping her to move. That activity entailed carrying boxes, during which he wore a back support. At the time of the assessment, the Veteran reported pain of 
3-4 intensity but he expected it to be worse after his moving activity. He was told to use his TENS unit while engaged in the moving activity. (04/08/2010 Government Facility, p. 2) The examiner at the February 2009 examination did not address work limitations because the Veteran was not employed.

The RO specifically asked the examiner at the 2016 examination to address the occupational impairment of the Veteran's low back disability. The examiner opined that the Veteran would be impaired due to pain by employment that required physical activities that involved prolonged walking or standing; and, that there would not be any impact from sedentary activities of employment. (11/25/2016 C&P Exam, 2nd Entry, p. 11) The examination report reflects that the occupational impairment from the Veteran's hearing loss would be difficulty hearing if working in a noisy environment, especially if without the benefit of hearing aids; and, the tinnitus would impact hearing others only when active. (08/10/2012 VA Examination) At the 2017 VA audiological examination, the examiner noted that his service-connected hearing loss impacted the Veteran's daily life. The impact was noted in the Veteran's own words as "[p]eople are telling me I'm talking louder. My phone, I don't hear it ring so I have it turned all the way up." The impact of tinnitus was that it would wake up the Veteran.  

The Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful sedentary employment. The medical assessment of the occupational impairment of his disabilities, and his documented ability to help his mother move, etc., demonstrate a physical capacity for sedentary employment. While a job requiring frequent telephone communication would be difficult, the Veteran's education and ability to learn show that the Veteran has the overall capacity to work in certain forms of sedentary employment. Hence, the Board finds no plausible basis for referral to the Director, Compensation Service, for consideration of a TDIU on an extraschedular basis. 38 C.F.R. §§ 3.340, 3.341, 4.16(b). 
In reaching this decision the Board considered the doctrine of reasonable doubt and afforded to the Veteran as concerned the effective date for the LLE radiculopathy. Otherwise, as the preponderance of the evidence is against his claims for higher ratings, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999).

ORDER

An initial rating higher than 10 percent for lumbosacral strain with DJD for the period prior to November 3, 2016, and higher than 20 percent for lumbosacral strain with DDD and IVDS for the period since November 3, 2016 is denied.  

An initial rating not to exceed 10 percent for associated LLE radiculopathy is granted, effective February 6, 2009, subject to the law and regulations governing the award of monetary benefits.

An initial rating higher than 10 percent for RLE radiculopathy is denied.

TDIU is denied.




____________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs