Citation Nr: 21066030 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-35 081 DATE: October 28, 2021 ORDER Entitlement to service connection for a lumbosacral spine disability is denied. Entitlement to service connection for left lower extremity radiculopathy, claimed as sciatica is denied. Entitlement to service connection for right lower extremity radiculopathy, claimed as sciatica is denied. Entitlement to a disability rating in excess of 40 percent for vertebral compression fractures is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is denied. INTRODUCTION The Veteran served on active duty from January 2003 to November 2003. In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. When this case was previously before the Board in August 2019 the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's claimed lumbosacral spine disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's claimed left lower extremity radiculopathy began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran's claimed right lower extremity radiculopathy began during active service, or is otherwise related to an in-service injury or disease. 4. The Veteran failed to report for a VA examination without good cause in conjunction with his claim for an increased rating for his service-connected thoracic spine vertebral compression fractures, and the evidence does not indicate the Veteran met the schedular criteria necessary to establish a disability rating in excess of 40 percent for his disability. 5. The Veteran failed to report for a VA examination without good cause in conjunction with his claim for a TDIU rating, and the criteria for a TDIU rating have not been shown. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for a left lower extremity neurological disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. The criteria for service connection for a right lower extremity neurological disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 4. The criteria for a disability rating in excess of 40 percent for thoracic spine vertebral compression fractures have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Diagnostic Code 5235. 5. The criteria for a TDIU rating have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all pertinent available service treatment records (STRs) and post-service medical evidence identified by the Veteran have been obtained. The Veteran has been afforded several VA examinations to assess his claimed disabilities, but following the Board's August 2019 remand, the Veteran refused to report for additional examinations on two occasions. The Veteran was also afforded a hearing before the Board in April 2019. Neither the Veteran nor his representative have identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims. Legal Criteria-Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Where a veteran served for at least 90 days of active and continuous service after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Legal Criteria-Increased Ratings Disability evaluations are determined by the application of the 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. 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. 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Legal Criteria-TDIU Entitlement VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one service-connected disability, it must be rated at 60 percent or more. 38 C.F.R. § 4.16 (a). When these percentage requirements are not met, entitlement to benefits may be considered when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign a total disability rating for compensation purposes based on individual unemployability pursuant to 38 C.F.R. § 4.16 (b) in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). A Veteran may be considered unemployable upon termination of employment that occurred because of disability, or in which special consideration was given on account of the disability, when it is satisfactorily shown that the Veteran is unable to secure further employment. 38 C.F.R. § 4.18. The determination as to whether a TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Any consideration as to whether the Veteran is unemployable is a subjective one that is based upon the Veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Advancing age and nonservice-connected disability may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. However, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis Service Connection Claims The Veteran initiated a claim for service connection for his lumbar spine disability in October 2010. He subsequently initiated a claim for left and right lower extremity sciatica in October 2014. He has asserted these disabilities were either incurred in service, or are consequentially related to his service-connected thoracic spine compression fractures. The Board has extensively reviewed the Veteran's STRs and post-service medical records. Though these records do show the Veteran has been diagnosed with current lumbar spine compression fractures, with degenerative disc disease and annular tears, as well as bilateral lower extremity radiculopathy, there is no indication in either the Veteran's lay statements or STRs that these disabilities arose in service. As such, the Board finds service connection cannot be established for these disabilities on a direct basis. Additionally, the evidence does not indicate the Veteran's lumbar spine arthritis manifest within one year of his discharge from active duty, and therefore, service connection cannot be established under 38 C.F.R. § 3.309 (a). The Veteran contends his lumbar spine and bilateral lower extremity disabilities were proximately caused or aggravated by his service-connected thoracic spine vertebral fractures. In December 2014, the RO obtained a medical opinion from the examiner that conducted an October 2012 VA back examination. The examiner found the Veteran's disabilities were less likely than not due to or the result of his service-connected condition. The Board did acknowledge some deficiencies in this opinion, and by way of the above-noted August 2019 remand, the Board requested an additional VA examination and medical opinions as the evidence of record was not sufficient to establish service-connection in this case. However, in April and July 2021 the Veteran reported he did not wish to attend his VA examinations, noting he was already being fully compensated and did not wish to pursue his claims any longer. Based on the foregoing, the Board finds insufficient evidence to establish a link between the Veteran's current lumbar spine and bilateral lower extremity and his service-connected thoracic spine vertebral fractures. As such, the Board must deny those claims. Increased Rating Claim In April 2014, the Veteran initiated a claim for an increased rating for his service-connected thoracic spine disability. The General Rating Formula for Diseases and Injuries of the Spine holds that for Diagnostic Codes (DCs) 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the cervical spine, forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Veteran's service-connected thoracic spine disability is currently evaluated pursuant to DC 5235, which provides a rating for vertebral fractures or dislocations. Turning to the provisions of the General Rating Formula for Diseases and Injuries of the Spine, the Board again notes a 40 percent rating is warranted when forward flexion of the thoracolumbar spine is limited to 30 degrees or less. A higher rating is only warranted when unfavorable ankylosis of the spine is present. In the course of this appeal, the Veteran has been provided several VA back examinations in August 2014, July 2015, and June 2019. However, during each of those examinations the examiners found the Veteran did not exhibit ankylosis. In the August 2019 remand, the Board requested an additional VA examination to assess the severity of the Veteran's disability, but the Veteran refused to attend that examination in April and July 2021. Pursuant to 38 C.F.R. § 3.655 (b), when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. In this case, the Board finds a rating in excess of 40 percent is simply not warranted, because the evidence of record has not shown the Veteran has experienced unfavorable ankylosis of the thoracolumbar spine at any time. Therefore, this claim must be denied. TDIU Entitlement In December 2014 the Veteran initiated a claim for entitlement to a TDIU rating. In this respect, the Board notes the Veteran has been assigned a 100 percent schedular rating for his mood disorder since February 2014. Aside from this disability, the Veteran is service-connected for his thoracic spine vertebral compression fractures, with a disability rating of 40 percent. He is also service connected for impotence, which is noncompensably evaluated. Throughout the period of the appeal, the evidence fails to show the manifestations from either his thoracic spine disability or impotence, either individually or in concert have been sufficiently disabling as to preclude him from engaging in substantially gainful employment. In this respect, the Board observes the phrase "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components; one economic and the other non-economic. Ray v. Wilkie, 31 Vet. App. 58, 73-74 (2019). The economic component contemplates 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. The non-economic component contemplates the veteran's ability to follow and secure employment. In this regard, due consideration must be given to their history, education, skill and training; physical ability, both exertional and non-exertional, to perform the types of activities (e.g. sedentary, light, medium, heavy or very heavy) required by the occupation at issue; and mental ability to perform the activities required by the occupation at issue. Given sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (11th ed.) (2003). The evidence indicates the Veteran has completed two years of college. He has also owned and operated his own restaurant since 2018. Though there is some evidence indicating the Veteran's thoracic spine disability causes problems with prolonged sitting and lifting of heavy objects, these impairments have not been deemed so disabling as to preclude the Veteran from engaging in substantially gainful sedentary employment. Indeed, the evidence shows the Veteran has been able to operate his own business for several years. Further, as noted above, in the August 2019 remand, the Board requested an additional VA examination and functional impairments medical opinion assessing the severity of the Veteran's service-connected disabilities, but the Veteran refused to attend that examination in April and July 2021. Pursuant to 38 C.F.R. § 3.655 (b), when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. Based on the foregoing, the Board finds the evidence of record weighs against a finding that the Veteran was precluded from procuring or maintaining a substantially gainful occupation during the appeal period. As such, the claim must be denied. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.