Citation Nr: 21061401
Decision Date: 10/01/21	Archive Date: 10/01/21

DOCKET NO. 13-06 413
DATE: October 1, 2021

ORDER

Entitlement to a rating in excess of 40 percent for lumbosacral strain with degenerative joint disease (DJD), L5-S1, from August 6, 2015 has been withdrawn.

Entitlement to a 40 percent disability rating, but not higher, for lumbosacral strain with degenerative joint disease (DJD), L5-S1, prior to August 6, 2015 is granted.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 6, 2015 is granted.

FINDINGS OF FACT

1. On March 12, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, by and through his authorized representative, that a withdrawal of the issue of entitlement to a rating in excess of 40 percent for lumbosacral strain with DJD, L5-S1, for the period from August 6, 2015, is requested.

2. The evidence is in relative equipoise as to whether the Veteran's lumbosacral strain with DJD, L5-S1, was manifest by severe pain and a disability picture more nearly approximating the criteria for a 40 percent disability rating prior to August 6, 2015, but the disability was not manifest by unfavorable ankylosis of the entire thoracolumbar spine (or the functional equivalent thereof) during that period.

3. The preponderance of the evidence weighs in favor of finding that the Veteran's service-connected lumbosacral strain with DJD, L5-S1, prevented him from maintaining substantially gainful employment consistent with his work and educational background during the period prior to August 6, 2015.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the issue of entitlement to a rating in excess of 40 percent for lumbosacral strain with DJD, L5-S1, for the period from August 6, 2015, by the Veteran (by and through his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for a 40 percent disability rating, but no higher, for lumbosacral strain with DJD, L5-S1, prior to August 6, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5235-5243 (2015).

3. The criteria for entitlement to a TDIU prior to August 6, 2015, to include on an extraschedular basis prior to June 18, 2014, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.17, 4.19, 4.25, 4.26 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1972 to July 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

In August 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.  In July 2018, VA sent the Veteran a letter notifying him that the Veterans Law Judge who conducted his hearing was no longer employed by the Board, and provided him an opportunity for an additional Board hearing. The Veteran waived his right to appear at another Board hearing.

Procedurally, this appeal was remanded by the Board in October 2015 for additional development. In September 2018, the Board issued a decision denying entitlement to a rating in excess of 20 percent for lumbosacral strain with DJD, L5-S1, prior to August 6, 2015, and in excess of 40 percent thereafter, and remanding entitlement to TDIU for referral to the Director of Compensation Service for extraschedular consideration.  The Veteran appealed the portion of that Board decision denying the increased rating for lumbosacral strain with DJD, L5-S1, to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2019 order approving a Joint Motion for Partial Remand (Joint Motion), the Court remanded to the Board.  In May 2020, the Board remanded that issue for additional development consistent with the JMPR.

1. Entitlement to a rating in excess of 40 percent for lumbosacral strain with degenerative joint disease (DJD), L5-S1, from August 6, 2015

The Board may dismiss any appeal which 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Appellant, by and through his authorized representative, has withdrawn the issue of entitlement to a rating in excess of 40 percent for lumbosacral strain with DJD, L5-S1, for the period from August 6, 2015, and, hence, there remain no allegations of errors of fact or law for appellate consideration. The withdrawal was submitted in writing and included (1) the name of the Veteran, (2) the applicable VA file number, and (3) a statement that the appeal is withdrawn. See 38 C.F.R. §§ 19.55(b)(1). Accordingly, the Board does not have jurisdiction to review the appeal as to that issue and that issue is dismissed.

2. Entitlement to a rating in excess of 20 percent for lumbosacral strain with degenerative joint disease (DJD), L5-S1, prior to August 6, 2015

The Veteran claims entitlement to an increased rating in excess of 20 percent for his service-connected lumbosacral strain with DJD, L5-S1, during the period prior to August 6, 2015. The Veteran filed the underlying claim for an increased rating of this disability on October 7, 2011; thus, the period on appeal spans from that date to August 5, 2015, the day before August 6, 2015, the date from which the Veteran withdrew his claim of entitlement to an increased rating for this disability, and the day before the currently-assigned effective date of his TDIU. 

The Veteran's lumbosacral strain with DJD, L5-S1, is currently rated 20 percent disabling from October 7, 2011 until August 5, 2015 under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. Hyphenated diagnostic codes are utilized when a rating under one diagnostic code requires use of an additional code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Thus, here, the Veteran's lumbosacral strain with DJD, L5-S1, is rated under Diagnostic Code 5242 and Code 5237 identifies the basis for the evaluation assigned.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as is the case here, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999).

Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, 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. See 38 C.F.R. § 4.7.

During the pendency of this appeal, VA promulgated new regulations governing ratings for the musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33, 422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change.  Here, the amended rating criteria were not in effect during the period on appeal and will not be discussed further.

Under the rating criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted when: forward flexion of the thoracolumbar spine is limited to greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine is limited to greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine is limited to greater than 120 degrees but not greater than 235 degrees; or, the combined range of motion of the cervical spine is limited to greater than 170 degrees but not greater than 335 degrees; or, there is 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 rating is warranted when: forward flexion of the thoracolumbar spine is limited to greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is limited to greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is limited to not greater than 120 degrees; or, the combined range of motion of the cervical spine is limited to not greater than 170 degrees; or, there is 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 rating is warranted when: forward flexion of the cervical spine is limited to 15 degrees or less; or there is favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted when there is: 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 rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Code 5243.

Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V.

The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Unfavorable ankylosis is defined as a condition in which the entire spine is fixed in flexion or extension and 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 dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id.

Recently, the U.S. Court of Appeals for Veterans Claims (Court) held that the requirement of ankylosis in the General Rating Formula for Injuries and Diseases of the Spine can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up.  Chavis v. McDonough, 34 Vet. App. 1 (2021).

Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

In evaluating disabilities of the musculoskeletal system, it is also 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). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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. Id.

Upon review of the claims file, the Board finds that the evidence is in relative equipoise as to whether the Veteran's lumbosacral strain with DJD, L5-S1, was manifest by severe pain and a disability picture most nearly approximating the criteria for a 40 percent disability rating during the period prior to August 6, 2015. 

The Veteran should not assume that evidence that is not explicitly discussed herein has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

The Veteran was afforded multiple VA examinations for his back/spine condition during the period on appeal. In the report of the first VA examination, which was conducted in December 2011, the VA examiner indicated that the Veteran reported symptomatology that limited his activities of daily living in that he could not stand for more than 15 to 20 minutes or walk for more than 2 to 3 blocks, could not run, and occasionally gets an increase in pain about every 4 to 6 weeks, which lasts for about 3 days, and basically requires him to rest and do nothing during those 3 days. The Veteran denied any incapacitating episodes over the past 12 months. The examiner measured the Veteran's range of motion and reported it as follows: 

Active range of motion of the lumbar spine measured x3 with a goniometer is as follows: Flexion 0 to 70 degrees with pain from 50 degrees to 70 degrees, extension 0 to 10 degrees with pain at 10 degrees, right lateral flexion 0 to 25 degrees with pain at 25 degrees, left lateral flexion 0 to 30 degrees with pain at 30 degrees, right rotation 0 to 20 degrees with pain at 20 degrees, left rotation 0 to 30 degrees without pain. With 3 repetitions, the range of motion is not additionally limited by pain, fatigue, weakness, or lack of endurance.

The Veteran was afforded another VA examination for his back/spine in June 2014, but in the September 2019 Joint Motion filed by the Veteran and the Secretary of VA, the parties agreed that this examination was inadequate because it did not adequately address the extent of flare ups of the Veteran's back disability. However, the Board notes that the report of this examination indicates that the Veteran reported chronic, daily low back pain varying in intensity, but always there. He reported that it limited him in his activities, such that he could only drive for about 20 minutes, could no longer cut the grass or do other yard work, could stand for only 10 minutes before his back got stiff and before he got numbness going down his legs, and could walk only 1/2 block. The examiner stated that the Veteran was taking tramadol for the pain and a muscle relaxer at night, and also used ice, heat and a TENS unit, which gave some relief, and had trigger point injections which would help for a short period of time. The examiner also indicated that during range of motion testing, objective evidence of pain was present beginning at 0 degrees in each range tested (including forward flexion, extension, right and left lateral flexion, and right and left lateral rotation).

The Veteran was afforded another VA examination for his back/spine in November 2015, and the report of this examination indicates that during the examination, the Veteran reported that he cannot pick up his 3-year old granddaughter, cut the grass, bend and pick up things, or walk more than a block, and that he experiences numbness down his legs after standing for several minutes. The examiner indicated that the Veteran's forward flexion was 0 to 20 degrees, extension was 0 to 15 degrees, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were each 0 to 10 degrees.

An April 2012 treatment note in the Veteran's private treatment records indicates that during an office visit that month, he reported constant pain associated with a spasm in his mid-back. The physician indicated that he had a normal tandem gait and was able to toe and heel walk but had decreased range of motion of the lumbar spine and spasm and trigger points in the cervical, thoracic, and lumbosacral paraspinal muscles. The physician also noted that the Veteran had an epidural in the lumbar spine in March 2012, which helped. Strength testing was 5/5 in the bilateral upper and lower extremities. The physician opined that the Veteran was "in too much pain to work" and would "most likely need permanent lifelong disability." The Veteran's private treatment records also show that forward flexion was limited to 20 degrees and 30 degrees, respectively, on August 6, 2015 and November 11, 2015. See 38 C.F.R. § 4.46. 

The Veteran's private treatment records also show that he has been treated with epidural and trigger point injections for back pain on numerous occasions throughout the period on appeal prior to August 6, 2015. And like the aforementioned VA examination reports, the Veteran's private treatment records show that he has reported severe pain and significant functional impairment throughout the period on appeal. The Veteran's private treatment records contain treatment notes indicating that the Veteran's physician(s) thought that he was in too much pain to work and would "most likely need permanent lifelong disability" as early as April 10, 2012. However, a March 2014 note in the Veteran's private treatment records indicates that another one of the Veteran's physicians described his functional impairment as moderate and only interfering with some activities of daily living at that time. An August 6, 2015 treatment note in the Veteran's private treatment records indicates that at that time, he complained of severe, continuing, worsening, and debilitating pain in his back and neck that was increased with activity, relieved by nothing, and associated with a severe spasm in his neck and back (including cervical, thoracic, and lumbosacral parapineal muscles). The Veteran's forward flexion was limited to 30 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees; he was noted to have severe pain in all planes with active and passive range of motion testing. He had 4/5 strength in his bilateral lower extremities, normal coordination, a positive straight leg raising sign on the right at 40 degrees but negative on the left at 90 degrees, 

Upon review of the claims file, including but not limited to the evidence discussed above, the Board finds that the Veteran's private treatment records show that his disability picture is most nearly approximates a limitation of forward flexion to 30 degrees or less during the period prior to August 6, 2015. The August 6, 2015 private treatment note clearly states that forward flexion was limited to 30 degrees, and the Board finds it unlikely that it was so limited only on and after the date of that office visit. The Veteran has consistently reported back pain and resultant severe functional limitations caused by his service-connected back/spine disability, including an inability to stand for more than 15 to 20 minutes, walk for more than a block, run, pick up his 3-year old granddaughter, cut the grass, or bend and pick up things; and occasional increases in pain about every 4 to 6 weeks, which lasts for about 3 days, and basically requires him to rest and do nothing during those 3 days. While the June 2014 examination report was deemed inadequate by the parties in the Joint Motion filed with the Court, the Board notes that it showed that objective indicia of pain was present from 0 degrees on forward flexion. The December 2011 VA examination report indicates that forward flexion was limited to 70 degrees with pain from 50 degrees, but the Veteran's private treatment records corresponding with the period prior to August 6, 2015 show that the Veteran was suffering from severe back pain that caused severe functional limitations during that period. The Board finds that in terms of probative value, the December 2011 VA examination report, which weighs in favor of a 20 percent disability rating, holds as much weight as the private treatment records, which weigh in favor of a 40 percent rating considering the level of pain and functional limitation imposed thereby. 

Resolving the doubt in the Veteran's favor, the Board finds that entitlement to a 40 percent disability rating for lumbosacral strain with DJD, L5-S1, prior to August 6, 2015, is warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.  However, as the evidence does not indicate the Veteran had unfavorable ankylosis of the entire thoracolumbar spine (or the equivalent thereof) at any time during the period on appeal, a rating in excess of 40 percent is not warranted.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 6, 2015

The Veteran claims entitlement to TDIU for the period prior to August 6, 2015.

Entitlement to a TDIU has been raised during the administrative appeal of the Veteran's claim for an increased evaluation for his service-connected lumbosacral strain with DJD, L5-S1. It is, therefore, a component of that claim for benefits related solely to that disability. See Rice v. Shinseki, 22 Vet. App. 447, 454-455. This form of a TDIU claim is known as a Rice TDIU. Such a claim is limited to the question of whether a veteran is unemployable exclusively due to the service-connected disability (or disabilities) on appeal (i.e., in this case, the lumbosacral strain with DJD, L5-S1).

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is unable, by reason of his service-connected disability(ies), to secure or follow a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16.

A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of identifying one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology will be considered as one disability. With Board's grant as noted above, the Veteran did not meet this threshold requirement until June 18, 2014, when his back disability was evaluated at 40 percent, and his radiculopathy of the right and left lower extremities were each rated 20 percent. See Rating Decision Codesheet dated May 26, 2020.

TDIU can also be awarded on an extraschedular basis under 38 C.F.R. § 4.16(b), if it is determined that the veteran is unemployable by reason of service-connected disability but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The Board, however, cannot consider an extraschedular TDIU in the first instance, and the claim must be referred to VA's Director, Compensation Service. See Bowling v. Principi, 15 Vet. App. 1 (2001); see also Wages v. McDonald, 27 Vet. App. 233 (2015). In that regard, the Board notes that in its September 2018 decision and remand, it determined that referral for initial extraschedular consideration was warranted, and in May 2020, the Veteran's case was referred to the Director. The Director decided that TDIU on an extra-schedular basis was warranted from August 6, 2015; however, the Director did not grant TDIU prior to that date. As the Director considered whether TDIU was warranted on an extra-schedular basis in the first instance, the Board may now proceed to adjudicate entitlement to TDIU on an extraschedular basis for the period prior to August 6, 2015. 

In resolving any reasonable doubt in favor of the Veteran, the Board finds that the evidence demonstrates that assignment of a TDIU is warranted during the period prior to August 6, 2015. While the Director concluded that TDIU was not warranted, such opinion is not binding on the Board, and the Board may assign an extraschedular rating when appropriate in consideration of all the evidence of record. See 38 U.S.C. § 7104(a); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Kuppamala v. McDonald, 27 Vet. App. 447, 456 (2015).

For the purposes of TDIU, "substantially gainful employment" is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment.

"Substantially gainful employment" contains economic and noneconomic components. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," and the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

In determining whether a TDIU is warranted, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA adjudicator, not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

In Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Marginal employment shall not be considered substantially gainful employment. See 38 C.F.R. § 4.16.

In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim, or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53.

As noted above, the Veteran has consistently reported back pain and resultant severe functional limitations caused by his service-connected back/spine disability, including an inability to stand for more than 15 to 20 minutes, walk for more than a block, run, pick up his 3-year old granddaughter, cut the grass, or bend and pick up things; and occasional increases in pain about every 4 to 6 weeks, which lasts for about 3 days, and basically requires him to rest and do nothing during those 3 days.

One of the Veteran's private physicians stated that he was essentially permanently disabled from "any and all employment due to pain and pain medication side effects" from at least as early as April 10, 2012 and through August 6, 2015. The June 2014 VA examination report, although deemed inadequate by the parties in their September 2019 Joint Motion filed with the Court for failure to adequately address flare ups, indicated that there was objective indicia of pain on all measured spheres of thoracolumbar range of motion beginning at 0 degrees.

The Veteran's DD-214 and Social Security Administration (SSA) records indicate that he was a clerk typist while on active duty between July 1972 and July 1975, worked as a "warehouseman" from November 1977 to February 1979, and worked as a security guard and/or police officer thereafter, until March 2010, when he last worked, as a security guard. The Veteran claims on his January 2015 application for TDIU that he completed 2 years of college and left his last job due to his disability, presumably referring to the back/spine disability. He claimed during his hearing before the Board that, while he was working as a police officer, he became unable to perform other functions and was put on desk duty and was ultimately advised to retire as soon as he could because of the amount of time that he was missing from work as a result of his back disability. The Veteran's SSA records show that he was determined disabled with an onset date of March 22, 2010 and the records list severe spine disorders and severe disorders of muscle, ligament and fascia as his medically determinable impairments and severity and impairment diagnoses.

In March 2021, the Veteran submitted a February 2021 "unemployability assessment" authored by  a vocational expert as evidence in support of this claim, and that expert opined that "based on a review of his medical records, education, and vocational history that the veteran's back disability has prevented him from participating in gainful employment since at least March 2010 when he last worked." This expert noted their qualifications as a professional vocational expert (i.e., board certification by the American Board of Vocational Experts, etc.), reviewed the Veteran's medical records, lay statements, VA examination reports, "military records," education, and vocational history, and completed an interview with the Veteran prior to authoring the unemployability assessment. The expert indicated that the Veteran studied criminal justice during his 2 years in college.

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Upon review of the foregoing evidence, the Board finds that the preponderance of the evidence weighs in favor of finding that the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected back disability and associated lower extremity radiculopathy. See 38 U.S.C. § 5107 (b); C.F.R. §§ 3.102, 4.16(b); Gilbert, 1 Vet. App. at 53. The record reflects that the Veteran's back disability causes severe pain that significantly limits his ability to lift heavy or even light items, bend over, walk, run, or even stand and sit, and that his previous work experience is essentially limited to work as a police officer and security guard  both of which involve unusually high amounts of physical activity including walking, running, standing, carrying gear of significant weight, and at a minimum, sitting for long periods of time. The Veteran's lay statements, private treatment records, and the vocational expert's opinion all indicate that his back disability and resultant symptomatology practically precluded such physical activity during the portion of the period on appeal prior to August 6, 2015. Regarding the Veteran's lay statements, the Board finds no reason to discredit them, as they are largely consistent with the other evidence of record discussed above. Furthermore, the record reflects that the Veteran has little education, experience or skills that are transferrable to another type of employment that (a) does not involve extended periods of sitting, standing, walking or lifting and (b) would accommodate his need to rest his back for 3 days or so, as needed, every 4 to 6 weeks. Accordingly, the Board finds that a TDIU prior to August 6, 2015, is warranted.

 

 

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Banks, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.