Citation Nr: 1814902 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 05-37 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation left shoulder replacement (due to glenohumeral arthritis with impingement, status post clavicle fracture), currently evaluated as 50 percent disabling from January 1, 2014. 2. Entitlement to an increased evaluation for lumbar spondylolisthesis, currently evaluated as 20 percent disabling prior to April 10, 2017, and 60 percent disabling thereafter. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 4. Entitlement to special monthly compensation (SMC) at the housebound rate. REPRESENTATION Veteran represented by: Harold H. Hoffman-Logsdon, III, Veterans Legal Advocacy Group ATTORNEY FOR THE BOARD J. T. Brant, Counsel INTRODUCTION The Veteran served on active duty from March 1983 to June 1983, and from February 1986 to December 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2005 (TDIU), September 2009 (back), and April 2010 (left shoulder) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2009, July 2011, April 2013, and August 2016, the Board remanded the issue of entitlement to TDIU. In the July 2011, April 2013, and August 2016 decisions, the Board also remanded the issues of entitlement to increased ratings for a left shoulder disability and a lumbar spine disability. In its August 2016 decision, the Board increased the evaluation for the service-connected left shoulder disability to 30 percent disabling for the period prior to January 1, 2014, and denied an evaluation higher than 30 percent for this period. As such, this matter is no longer before the Board. During the course of the appeal, the RO increased the evaluation for the service-connected left shoulder disability to 100 percent disabling beginning November 13, 2012, and to 50 percent disabling beginning January 1, 2014. See January 2016 rating decision. As the Veteran is in receipt of the highest schedular evaluation possible for the left shoulder disability from November 13, 2012, to January 1, 2014, this period is no longer before the Board. The RO also increased the evaluation for the service-connected lumbar spine disability to 20 percent disabling, effective June 19, 2009, and 60 percent disabling, effective April 10, 2017. See September 2009 and August 2017 rating decisions. As the highest possible evaluation for these disabilities have not been assigned (with the exception of the 100 percent evaluation assigned for the left shoulder disability from November 13, 2012, to January 1, 2014), the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). The issues on appeal have been recharacterized on the title page accordingly. The Board must consider entitlement to SMC when fairly raised. Akles v. Derwinski, 1 Vet. App. 118 (1991). The issue of entitlement to SMC at the "statutory housebound" rate under the provisions of 38 U.S.C. § 1114(s) has been raised by the TDIU issue before the Board, and the Board has accordingly added it as an issue on appeal. FINDINGS OF FACT 1. For the period from January 1, 2014, residuals of the left shoulder replacement manifest as severe painful motion and weakness in the affected extremity (minor). There is no evidence that indicates the Veteran experiences left shoulder impairment equivalent to a flail joint. 2. For the period prior to April 10, 2017, the Veteran's lumbar spondylolisthesis was not manifested by forward thoracolumbar flexion to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; neurological abnormalities; or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 3. For the period beginning April 10, 2017, the Veteran's lumbar spondylolisthesis has not been manifested by unfavorable ankylosis of the entire spine. 4. The Veteran is in receipt of a 100 percent schedular rating for left shoulder replacement, effective November 13, 2012, and SMC at the S-1 rate for additional service-connected disabilities independently ratable as 60 percent or more from November 13, 2012, to January 1, 2014. 5. The Veteran is in receipt of a 100 percent schedular rating for schizoaffective disorder, effective July 25, 2014, and SMC at the S-1 rate for additional service-connected disabilities independently ratable as 60 percent or more from July 25, 2014. 6. For the period prior to June 15, 2011, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities precluded him from obtaining and retaining substantially gainful employment. 7. For the period from June 15, 2011, to November 13, 2012, and from January 1, 2014, to July 25, 2014, the Veteran met the schedular criteria for TDIU, and the evidence demonstrates that his service-connected schizoaffective disorder likely precluded him from securing or following a substantially gainful occupation. 8. Based on the Board's award of TDIU for the period from June 15, 2011, to November 13, 2012, and from January 1, 2014, to July 25, 2014, as a result of the Veteran's service-connected schizoaffective disorder, the Veteran had a single service-connected disability rated at 100 percent plus additional service-connected disabilities having a combined rating of 60 percent or more during this timeframe. CONCLUSIONS OF LAW 1. For the period from January 1, 2014, the criteria for an increased rating higher than 50 percent for the Veteran's left shoulder replacement (due to glenohumeral arthritis with impingement, status post clavicle fracture) are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5051 (2017). 2. For the period prior to April 10, 2017, the criteria for an increased rating higher than 20 percent for the Veteran's lumbar spondylolisthesis were not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5239 (2017). 3. For the period beginning April 10, 2017, the criteria for an increased rating higher than 60 percent for the Veteran's lumbar spondylolisthesis have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2017). 4. For the period from November 13, 2012, to January 1, 2014, entitlement to a TDIU is moot. 38 C.F.R. § 4.16(a) (2017). 5. For the period beginning July 25, 2014, entitlement to a TDIU is moot. 38 C.F.R. § 4.16(a) (2017). 6. For the period prior to June 15, 2011, the criteria for entitlement to a TDIU were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2017). 7. For the period from June 15, 2011, to November 13, 2012, and from January 1, 2014, to July 25, 2014, the criteria for entitlement to a TDIU were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2017). 8. For the period from June 15, 2011, to November 13, 2012, and from January 1, 2014, to July 25, 2014, the requirements for SMC at the housebound rate were met. 38 U.S.C. §§ 1114(s), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350(i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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). II. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The intent of the 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. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. at 354. Where there is a question as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Left Shoulder The Veteran is seeking an increased rating for his service-connected left shoulder replacement (due to glenohumeral arthritis with impingement, status post clavicle fracture), currently evaluated as 50 percent disabling from January 1, 2014. At the outset, the Board notes that several of the diagnostic codes dealing with the shoulder and arm have separate criteria based on whether the major or minor extremity is affected. See 38 C.F.R. § 4.71a, Diagnostic Codes 5051, 5200-03. Here, the Veteran is right-handed. Therefore, ratings for the minor extremity must be considered in evaluating the Veteran's disability. The Veteran's left shoulder disability is currently rated as 50 percent disabling under Diagnostic Code 5051. See 38 C.F.R. § 4.71a. The 50 percent rating is the maximum rating authorized under VA's rating schedule beyond the one year following the implantation of the prosthesis and is warranted for chronic residuals of shoulder replacement consisting of severe, painful motion or weakness in the affected extremity. Id. Intermediate degrees of residual weakness, pain or limitation of motion are rated by analogy under Diagnostic Codes 5200 through 5203, suggesting the highest rating under Diagnostic Code 5051 contemplates these factors. Additionally, the 50 percent rating reflects the highest rating available under several other diagnostic codes applicable to the shoulder. See 38 C.F.R. § 4.71a, Diagnostic Code 5200, 5201, 5203. As such, these codes are not for application here. Under Diagnostic Code 5202, the Veteran could receive a higher 70 percent rating for his left shoulder disability (minor arm) for loss of the head of the humerus (flail shoulder). However, while the evidence does reflect that he has lost the head of his left humerus, which has been replaced with a prosthetic, he does not experience functional limitation equivalent to a flail joint. Flail is defined by Dorland's Illustrated Medical Dictionary (31st ed. 2007) as exhibiting abnormal or paradoxical movement. In the case of a flail shoulder, the abnormal or paradoxical movement would stem from the loss of the head of the humerus and the resulting disconnect between the humerus and the shoulder joint. The November 2015 and April 2017 examination reports reflect that the Veteran had severely limited range of motion, as well as weakness, in his left shoulder. Yet, he was still able to actively manipulate the shoulder and move his left arm under his own power. The reports are negative for evidence that the shoulder joint is subject to abnormal or paradoxical movement, rather, it is simply limited in its range and strength. Further, the Veteran has not asserted that he experiences abnormal or paradoxical movement, rather, that he experiences limited range of motion, weakness, pain, and lack of endurance. As there is no evidence that the Veteran has symptoms of, or functional limitation equivalent to, a flail shoulder (paradoxical or abnormal joint motion), a 70 percent rating under Diagnostic Code 5202 is not warranted. Based on the available rating codes, the Veteran is already being compensated at the highest schedular rating possible for his left shoulder disability; therefore, an increased rating is not warranted. Lumbar Spondylolisthesis The Veteran seeks higher evaluations for his lumbar spondylolisthesis, evaluated as 20 percent disabling prior to April 10, 2017, and 60 percent disabling thereafter. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), a 10 percent disability rating is warranted 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 or more of the height. A 20 percent disability rating is warranted 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 combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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 disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. When rated based on incapacitating episodes, a 10 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Prior to April 10, 2017 As for whether a higher rating is warranted under the criteria for orthopedic manifestations under the General Rating Formula, for the period prior to April 10, 2017, considering pain and functional loss due to pain, flexion was at most limited to 35 to 60 degrees with objective evidence of pain. See July 2009 VA examination (flexion limited to 60 degrees), March 2011 VA examination (flexion limited to 35 degrees), September 2012 VA examination (flexion limited to 60 degrees), and September 2014 VA examination (flexion limited to 60 degrees). Moreover, the majority of the evidence during this timeframe shows flexion limited to 60 degrees with objective evidence of pain. These findings do not more nearly approximate or equate to limitation of flexion of the thoracolumbar spine 30 degrees or less, when considering additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups and with repeated use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). As limitation of flexion does not more nearly approximate to 30 degrees or less, and there is no evidence of ankylosis, a rating higher than 20 percent is not warranted under the General Rating Formula. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. The July 2009 VA examiner indicated that although motion was accompanied by end of range pain, it was not additionally limited following repetitive use. Moreover, the March 2011 September 2012, and September 2014 VA examiners also found that there was no additional limitation following repetitive range of motion. In a submission dated in December 2011, the Veteran's representative argued that the Veteran experienced pain, decreased range of motion, stiffness, weakness and spasms during flare-ups. The Board acknowledges that the March 2011 VA examination report did not address flare-ups. However, the Veteran denied flare-ups in his July 2009 examination; instead, he indicated that his back problems were consistent without significant flare-ups. The Veteran also denied flare-ups in his September 2012 VA examination. Although the Veteran reported flare-ups caused by movement in his September 2014 VA examination, the September 2014 examiner indicated that it was not possible to determine without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability either during flare-ups or when the joint was used repeatedly over a period of time, explaining that there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Given the Veteran's descriptions of his functional limitations during flare-ups, the Board finds that the 20 percent evaluation assigned adequately portrays any functional impairment, pain, stiffness, and weakness that the Veteran experienced as a consequence of his lumbar spine disability. As for whether a higher rating is warranted for intervertebral disc syndrome under Diagnostic Code 5243 (Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), for the period prior to April 10, 2017, there is no evidence, either lay or medical, of incapacitating episodes, that is, bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 4 weeks but less than 6 weeks during a 12 month period. In this regard, the March 2011, September 2012, and September 2014 VA examiners found that the Veteran did not have intervertebral disc syndrome or incapacitating episodes of spine disease. Moreover, in the July 2009 VA examination, the Veteran only reported one incapacitating episode of back pain in the past year. As to whether additional compensation for neurological impairment is warranted, the General Rating Formula requires consideration of neurological findings, to include bladder or bowel impairment, separate from orthopedic manifestations. For the period prior to April 10, 2017, the Board observes that there was no objective evidence of radiculopathy. Specifically, in his July 2009 VA examination, motor strength and sensory function appeared normal in the bilateral lower extremities. The examiner found no evidence for lumbar radiculopathy. The March 2011 VA examination also found sensation within normal limits. During his September 2012 VA examination, the Veteran complained of low back pain without radiation. His muscle strength was 5/5 with no atrophy, and sensation was within normal limits. The examiner did not find any evidence of radiculopathy. In the September 2014 VA examination, the Veteran's muscle strength was again 5/5 with no atrophy. His sensation was again within normal limits and the examiner found no evidence of radiculopathy. The examiner noted further that there were no neurological abnormalities. Therefore, for the period prior to April 10, 2017, there were no findings of lower extremity radiculopathy. Additionally, there were no other neurological findings, to include bladder or bowel impairment, during the appeal period. Beginning April 10, 2017 In an August 2017 rating decision, the RO increased the evaluation for the service-connected lumbar spondylolisthesis to 60 percent disabling under Diagnostic Code 5243, effective April 10, 2017, the date of the VA examination showing worsening. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes (Diagnostic Code 5243), 60 percent is the maximum rating available. 38 C.F.R. § 4.71a. As noted above, disabilities of the spine are to be evaluated either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Disease and Injuries of the Spine (Diagnostic Codes 5235-5242), a higher rating of 100 percent, the maximum available, is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. 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. Id. at Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). After review of the pertinent evidence of record, the Board finds that the Veteran's service-connected lumbar spondylolisthesis has not been manifested by unfavorable ankylosis of the entire spine. The April 2017 VA examination report during this appeal period shows the Veteran exhibited acting range of motion findings of the lumbar spine, and there were no findings of symptomatology to meet ankylosis of the entire thoracolumbar spine for VA compensation purposes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (5). As such, a rating in excess of the currently assigned 60 percent rating is not warranted. During the entire appeal period, the Veteran is assigned the highest schedular evaluation available based upon limitation of motion. Since there is no applicable diagnostic code which provides an evaluation in excess of 60 percent for limitation of motion of the thoracolumbar spine, a higher rating under 38 C.F.R. §§ 4.40 and 4.45 is not in order and cannot be utilized to grant a higher rating during this appeal period. See Johnston v. Brown, 10 Vet. App. 80 (1997). Additionally, the Board acknowledges that the April 2017 VA examination revealed moderate intermittent pain, mild paresthesias, and mild numbness of the bilateral lower extremities involving the sciatic nerve. The examiner noted that the Veteran's lumbar radiculopathy was of a moderate severity, which could warrant separate 20 percent ratings for the right and left lower extremities. However, it is to the Veteran's advantage to evaluate the Veteran's lumbar spine disability under the Formula for Rating IVDS based on Incapacitating Episodes, as doing so results in a higher evaluation. In this regard, the April 2017 VA examination showed forward flexion to 75 degrees with pain, which would warrant a 20 percent rating, at most, based on limitation of motion. If the Veteran was to be rated under the General Rating Formula for Disease and Injuries of the Spine based on limitation of motion and radiculopathy, his combined evaluation would only be 50 percent. See 38 C.F.R. §§ 4.25 and 4.26 (40 percent rating for the lower extremities due to the bilateral factor combined with a 20 percent rating for the spine equals 50 percent under the combined ratings table). As such, evaluating the Veteran's lumbar spine disability under the General Rating Formula for Disease and Injuries of the Spine based on limitation of motion and radiculopathy would not be appropriate, and would be less favorable to the Veteran. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Notes (1) and (6). The Board has considered the Veteran's statements that describe his pain and discomfort. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. In this case, however, the Board finds that the objective medical findings by skilled professionals are more persuasive, which, as indicated above, do not support an increased rating higher than 20 percent prior to April 10, 2017, or an increased rating higher than 60 thereafter, for the service-connected lumbar spondylolisthesis. III. TDIU In his initial February 2005 formal application for a TDIU, the Veteran indicated that his service-connected psychosis with depressive disorder affected his full-time employment as a mail handler with the United States Postal Service beginning in February 2000, and that he became too disabled to work at this time. In a subsequent November 2006 formal application for a TDIU, the Veteran indicated that his stroke (non-service-connected disability) and tremors affected his full-time employment as a mail handler beginning in 2000. In a subsequent October 2009 formal application for a TDIU, the Veteran indicated that his service-connected back and depression disabilities affected his full time employment as a mail handler beginning in February 2000. In a subsequent August 2012 formal application for a TDIU, the Veteran indicated that his service-connected mental disabilities affected his full time employment as a mail handler beginning in February 2000. In a subsequent August 2014 formal application for a TDIU, the Veteran indicated that his service-connected lower back, PTSD, broken nose, shoulder, and schizoaffective disorder affected his full time employment as a mail handler beginning in January 2000. The evidence shows that the Veteran has a high school education. His most recent work history includes jobs as an infantryman in the Army, a yarn tender in a dye house, and a mail handler at the United States Postal Service. The evidence shows that the Veteran is in receipt of service connection for schizoaffective disorder, lumbar spondylolisthesis, left shoulder replacement (due to glenohumeral arthritis with impingement, status post clavicle fracture), neuroleptic-induced tardive dyskinesia, right and left upper extremities associated with schizoaffective disorder, hypertension, stellate scar tip of nose, arthritis left knee, arthritis right knee, hemorrhoids, scar status post hemorrhoid surgery, and surgical scar status post left shoulder replacement. His combined schedular rating was 70 percent from April 19, 2004, 80 percent from April 25, 2005, 90 percent from February 4, 2010, and 100 percent from June 15, 2011. The Board notes that the Veteran met the schedular criteria for a TDIU during the entire timeframe on appeal, because he had one disability ratable at 40 percent (service-connected back and left shoulder disabilities rated at 20 percent each are disabilities affecting a single body system, e.g. orthopedic), and the Veteran's combined disability rating was at least 70 percent. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. At the outset, the Board notes that the RO has granted SMC effective from November 13, 2012, to January 1, 2014, based on the Veteran having a total schedular rating for left shoulder replacement and additional service-connected disabilities independently ratable at 60 percent or more as set forth under 38 U.S.C. § 1114(s) (2017). The RO has also granted SMC effective beginning July 25, 2014, based on the Veteran having a total schedular rating for schizoaffective disorder and additional service-connected disabilities independently ratable at 60 percent or more as set forth under 38 U.S.C. § 1114(s) (2017). The U.S. Court of Appeals for Veteran's Claims (Court) held in Bradley v. Peake, 22 Vet. App. 280 (2008), that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate). See 38 U.S.C. § 1114(s). Thus, Bradley made it such that even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. The Board concludes that the facts of Bradley are sufficiently distinguishable from the facts of this case such that the holding in Bradley is inapplicable and the Veteran's TDIU claim is in fact moot. Specifically, the Veteran has already been granted an award of SMC based on additional service-connected disabilities independently ratable at 60 percent or more for the period from November 13, 2012, to January 1, 2014, and for the period beginning July 25, 2014. As the Veteran has already been awarded SMC during these timeframes and therefore would have no need to establish a TDIU rating in order to qualify for SMC under 38 U.S.C. § 1114(s), the holding in Bradley is not applicable to these periods. Therefore, for the period from November 13, 2012, to January 1, 2014, and the period beginning July 25, 2014, the Veteran's TDIU claim is moot. As such, this appeal is limited to whether a TDIU is warranted for the period prior to November 13, 2012, and for the period from January 1, 2014, to July 25, 2014. Prior to June 15, 2011, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities precluded him from obtaining and retaining substantially gainful employment, as the evidence shows the severity of the functional limitations from the Veteran's service-connected disabilities during this timeframe did not preclude meaningful employment and the Veteran was instead unemployable as a result of his non-service-connected residuals of a stroke. In this regard, in a June 2000 VA examination, it was noted that the Veteran had a mild stroke related to an overdose of Dilantin in February 2000, which had resulted in weakness on the left side and cerebellar degeneration. The examiner noted that the Veteran suggested that he had been unable to work since February 2000, when he had his stroke. The Social Security Administration (SSA) found the Veteran disabled beginning February 28, 2000, due to a primary diagnosis of chronic brain syndrome and a secondary diagnosis of late effects of a cerebrovascular accident. In a December 2000 evaluation for SSA benefits, it was noted that the Veteran had a stroke in February 2000. The examiner found that the Veteran's mood and affect were indicative of some clear organic and perceptual deficits, essentially consistent with reports of someone who has sustained a major cerebrovascular incident within the past 12 months. The examiner found that the nature of the Veteran's brain injuries imposed functional limitations. The examiner found that the Veteran would have difficulty in performing work-related functions on a full-time basis due to his obvious deficits in speech, reasoning, and in making appropriate occupational, personal, or social adjustments. The examiner noted that it did not appear that the Veteran was currently capable of maintaining the pace, stamina, or attention to details that would be required to return to work. Moreover, in an August 2003 mental disorders VA examination, the examiner found that the Veteran had moderate to severe impairment in occupational settings as a result of the cognitive impairment from his non-service-connected stroke. The examiner indicated that the Veteran's mood disorder was less severe than his cognitive impairment. With respect to the Veteran's physical impairment prior to June 15, 2011, as a result of his service-connected disabilities, on VA examination of the left shoulder in December 2005, the Veteran denied pain, stiffness, swelling, heat, redness, instability, locking, aggravating factors or flare-ups. He denied any knowledge of interference with his activities of daily living. Examination showed a stable left shoulder. On VA examination of the lumbar spine in December 2005, the Veteran denied pain, radiation of pain, effect on his ability to walk, aggravating factors, incapacitating episodes, or flare-ups. X-ray imaging revealed the Veteran's degenerative joint disease of the lumbar spine was mild in nature. The Veteran was unable to express how this condition affected his activities of daily living. On VA examination of the lumbar spine in July 2009, the Veteran noted that he had suffered one incapacitating episode of back pain in the past year. The Veteran was uncertain as to what degree his back condition limited his work activities, but noted that it had curtailed his gardening in his daily living. He indicated that his back problems were consistent over time without significant flare-ups. He denied using any assistive devices, such as a back brace. The Veteran's complaints regarding his left shoulder appeared to worsen in or around 2010. VA treatment records dated in January 2010 showed complaints of left shoulder pain with treatment with numerous pain medications and injections with relief. VA treatment records also show that the Veteran underwent left shoulder arthroscopic debridement in January 2010. On VA examination of the left shoulder in March 2010, the Veteran reported constant, severe pain in his left shoulder. He noted that he recently underwent arthroscopic surgery. He indicated that he was not currently employed, but did not know why he was disabled. He noted that his left shoulder condition affected his activities of daily living, including reaching and performing overhead activities. On VA examination in March 2011, the Veteran again reported worsening pain in the left shoulder. He noted that the surgery in January 2010 did not help. He indicated that his left shoulder disability impacted his occupational activities due to decreased concentration, problems with lifting and carrying, difficulty reaching, weakness or fatigue, and pain. VA treatment records revealed ongoing treatment for left shoulder pain. The evidence shows the Veteran reported worsening back pain in or around 2011. VA treatment records revealed ongoing treatment for low back pain. On VA examination in March 2011, the Veteran reported his back pain was getting worse and he could not sit or stand for very long. He also reported that he was unable to walk 1/4 mile. The Veteran noted that he had been retired since 2000 as a result of a cerebrovascular accident. He indicated that his lumbar spine disability impacted his occupational activities due to decreased concentration, decreased mobility, and problems with lifting and carrying. He reported that he could not stand, walk or sit for very long, and that he avoided lifting. On VA general medical examination in September 2012, the examiner found that the Veteran's low back disability did render him unable to secure and maintain a physical type of employment; however, should not prevent him from securing and maintaining a sedentary type of employment. The examiner noted that the Veteran only had moderate intermittent pain in his lower back, and with the help of medications, a sedentary type of employment would be most suitable. VA treatment records also show treatment for frequent acute episodes of bleeding hemorrhoids in 2010 and 2011. On VA examination in April 2011, the Veteran reported pain and constant bleeding resulting in having to change his underwear two to three times a day. The Board notes that prior to June 15, 2011, the Veteran was also in receipt of service connection for neuroleptic-induced tardive dyskinesia, right and left upper extremities associated with schizoaffective disorder, hypertension, stellate scar tip of nose, arthritis left knee, arthritis right knee, scar status post hemorrhoid surgery, and surgical scar status post left shoulder replacement, but there is no compelling evidence of substantial ongoing functional limitations from these conditions. See, e.g., September 2012 VA general medical examination (finding that the Veteran's hypertension did not render him unable to secure and maintain a substantially gainful physical and sedentary type of employment because condition was well-controlled with medication and also finding that the Veteran's scar condition was a non-factor in the determination of whether he could be employed in any type of job, as it did not cause any deformity or cosmetic problem). Additionally, the Veteran has not presented contentions on appeal that he experienced more extensive limitations during the period at issue as a result of these conditions. In light of the above, the Board finds that the evidence shows that the Veteran's ability to perform physical work was limited prior to June 15, 2011, by his service-connected lumbar spine and left shoulder disability. However, the Board finds that the Veteran nonetheless retained the physical ability to perform sedentary tasks. The Board affords probative weight to the VA examination findings noted above as they are consistent with the totality of the evidence including the treatment history, which shows that the Veteran's physical disability picture had worsened in or around 2010 to 2011, but that he was otherwise capable of at least some substantially gainful sedentary employment. While the Board also affords some weight to the Veteran's statements during the examinations regarding his limitations with sitting due to his service-connected lumbar spine disability, the Board finds that they do not establish that he was incapable of performing any substantially gainful sedentary employment prior to June 15, 2011, as he would be able to take reasonable breaks throughout the course of a work day to mitigate any limitations regarding prolonged sitting. Moreover, the Board finds that the Veteran's ability to perform sedentary work was not precluded by the mental limitations from his service-connected psychiatric disorder prior to June 11, 2015. In this regard, in a November 2008 brief, the Veteran's representative argued that the Veteran contended that he was entitled to TDIU benefits, based on the fact that he was incompetent to handle his own funds. The representative indicated that the Veteran's severe psychiatric deficits rendered him unable to sustain gainful employment. The representative noted that the Veteran had severe impairment in judgment, insight, and memory secondary to his depression, which rendered him unemployable. However, as noted above, prior to June 15, 2011, the examination reports separated out the symptomatology from the service-connected psychiatric disorder and the non-service-connected residuals of a stroke. The Veteran was shown to be significantly limited by the cognitive impairment resulting from his non-service-connected stroke, and not from the symptomatology from his service-connected psychiatric disorder. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran was incapable of obtaining and maintaining any substantial gainful employment of a sedentary, unskilled or semiskilled nature, during the period prior to June 15, 2011. Accordingly, the Veteran's claim for entitlement to a TDIU prior to June 15, 2011, must be denied. The evidence shows the Veteran's service-connected psychiatric disorder worsened in or around June 2011. In this regard, on VA examination in February 2012, the examiner diagnosed schizoaffective disorder-depressed type with occupational and social impairment with reduced reliability and productivity due to symptoms such as depressed mood, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, and persistent delusions or hallucinations. Additionally, on VA examination in September 2012, the examiner found occupational and social impairment with reduced reliability and productivity due to depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and persistent delusions or hallucinations. In an August 2012 rating decision, the RO increased the Veteran's disability rating for his schizoaffective disorder to 70 percent, effective June 15, 2011, based on the results of the February 2012 VA examination. As such, beginning June 15, 2011, the Veteran met the schedular rating threshold for the grant of a TDIU based on this disability alone. Despite the September 2012 examiner's findings that the Veteran's schizoaffective disorder alone did not render him unable to secure or maintain substantially gainful employment, the Board resolves reasonable doubt in favor of the Veteran and finds that, beginning June 15, 2011, the severe psychiatric impairment from the service-connected schizoaffective disorder shown in the February and September 2012 VA examinations, to include the findings of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, would preclude any meaningful employment. As such, the Veteran is entitled to a TDIU due to his service-connected schizoaffective disorder for the period from June 15, 2011, to November 13, 2012 (the date he was awarded a 100 percent schedular evaluation for the left shoulder disability and SMC), and for the period from January 1, 2014, to July 25, 2014 (the date he was awarded a 100 percent schedular evaluation for his schizoaffective disorder and SMC). The benefit of the doubt rule is therefore for application for this timeframe. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. IV. SMC The Board must consider entitlement to SMC if raised by the rating issue on appeal. Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC at the (s) rate is payable if a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). For the purpose of meeting the first criterion (a single service-connected disability rated at 100 percent), ratings of 100 percent may be based on any of the following grants of a total rating: on a schedular basis; on an extraschedular basis; on the basis of a TDIU if granted for a single disability; or, on the basis of a temporary total rating. Subsection 1114(s) housebound benefits are not available to a veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011). However, in Bradley v. Peake, 22 Vet. App. 280, 293 (2008), the Court held that a TDIU satisfies the total (100 percent) rating requirement if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more, for purposes of entitlement to special monthly compensation for a housebound rating. In other words, 38 U.S.C. § 1114(s) for housebound benefits does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent. Id. A TDIU rating based on a single disability is permitted to satisfy the statutory requirement of a total rating. Id. Nonetheless, the TDIU rating based on a single disability that satisfies the total (100 percent) rating requirement must be separate and distinct from the additional disability or disabilities independently ratable at 60 percent or more for purposes of housebound benefits. Id. In addition, the Bradley decision also stated that the decision to treat multiple disabilities as one under 38 C.F.R. § 4.16(a) was specifically limited to TDIU ratings. That is, a TDIU rating based on multiple service-connected disabilities does not satisfy the criteria for one total disability in considering entitlement to housebound benefits under 38 U.S.C. § 1114(s). Id. at 290-91. The Court reiterated this interpretation with its holding in Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2010) ("The Court today holds that a TDIU rating that is based on multiple disabilities cannot satisfy the section 1114(s) requirements of 'a service-connected disability' because that requirement must be met by a single disability."). As noted above, for the period from June 15, 2011, to November 13, 2012, and the period from January 1, 2014, to July 25, 2014, the Board has awarded a TDIU as a result of the Veteran's service-connected schizoaffective disorder. As such, the first element of entitlement to SMC at the (s) rate is shown. The Veteran also had service connection for the following disabilities during these timeframes: lumbar spondylolisthesis, rated as 20 percent disabling; left shoulder replacement, rated as 30 percent disabling from February 4, 2010 to November 13, 2012 and as 50 percent disabling from January 1, 2014; neuroleptic-induced tardive dyskinesia, bilateral upper extremities, rated as 20 percent disabling each; hypertension, rated as 10 percent disabling; stellate scar tip of nose, rated as 10 percent disabling; arthritis of the bilateral knees, rated as 10 percent disabling each; and hemorrhoids, rated as 20 percent disabling from February 3, 2011, and 10 percent disabling from July 17, 2014. When combined under 38 C.F.R. § 4.25 with consideration of 38 C.F.R. § 4.26, these additional service-connected disabilities have a combined evaluation of 60 percent or more. Accordingly, for the period from June 15, 2011, to November 13, 2012, and from January 1, 2014, to July 25, 2014, SMC at the statutory housebound (s) rate is granted. ORDER Entitlement to a rating in excess of 50 percent for the left shoulder replacement (due to glenohumeral arthritis with impingement, status post clavicle fracture), for the period beginning January 1, 2014, is denied. Entitlement to a rating in excess of 20 percent for lumbar spondylolisthesis for the period prior to April 10, 2017, is denied. Entitlement to a rating in excess of 60 percent for lumbar spondylolisthesis for the period beginning April 10, 2017, is denied. For the period from November 13, 2012, to January 1, 2014, entitlement to a TDIU is dismissed. For the period beginning July 25, 2014, entitlement to a TDIU is dismissed. For the period prior to June 15, 2011, entitlement to a TDIU is denied. For the period from June 15, 2011, to November 13, 2012, and from January 1, 2014, to July 25, 2014, entitlement to a TDIU is granted, subject to the regulations pertaining to the payment of monetary benefits. For the period from June 15, 2011, to November 13, 2012, and from January 1, 2014, to July 25, 2014, entitlement to SMC at the (s) rate is granted, subject to the regulations pertaining to the payment of monetary benefits. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs