Citation Nr: 21068547 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 13-06 514A DATE: November 10, 2021 ORDER Prior to April 11, 2014, entitlement to a disability rating higher than 10 percent for the service-connected cervical spine (neck) disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to April 11, 2014, the service-connected neck disability was manifested by forward flexion greater than 30 degrees, but not greater than 40 degrees. 2. The Veteran is actually employed in a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to April 11, 2014, the criteria for a disability rating higher than 10 percent for the service-connected neck disability were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from August 2001 to August 2011. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In July 2019, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO in Anchorage. At the Board hearing, the Veteran was informed of the basis for the RO's denial of her claims, and she was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. In an October 2019 decision, the Board denied the rating claim for the cervical spine disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Veterans Court). In a July 2020 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's decision in part, and remanded the increased rating claim for the cervical spine disability to the Board for additional development consistent with the Joint Motion. The parties to the Joint Motion agreed that the Board's denial of entitlement to a rating in excess of 20 percent since April 11, 2014, for a cervical spine disorder was not in dispute and should be dismissed. The Board remanded the claim in March 2021, as well as the inferred claim of entitlement to TDIU for additional evidentiary development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal has now returned to the Board. The Board also denied higher ratings for upper extremity neurological disorders prior to February 5, 2019, denied an increased rating for a low back disability since July 7, 2019, denied an increased rating for a left hip disability since July 7, 2019, denied an increased rating for a bowel disability since July 7, 2019, and granted an increased rating for the bowel disability prior to September 3, 2014. The Board's decision with respect to those claims is final. See 38 C.F.R. § 20.1100. It appears that the Veteran has attempted to withdraw the current appeal. In an April 2021 telephone conversation, she related that she wished to withdraw both issues as she was satisfied with her combined rating of 100 percent (Record 04/14/2021). She was notified in June 2021 that any withdrawal must be in writing (Record 06/29/2021). She did not respond. Therefore, the appeal has not been withdrawn. In argument from the Veteran's representative received in September 2021, it is asserted that the issue of TDIU entitlement is moot as the Veteran is rated at 100 percent combined since July 11, 2009 (Record 09/23/2021). The Board does not find this statement to constitute a withdrawal of the claim as terminology indicating a desire to withdraw is not used. The Board finds that the issue is not moot as that benefit might be used to establish entitlement to Special Monthly Compensation (SMC) at the statutory housebound level. 38 C.F.R. § 3.350(i); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). Moreover, the effective date of the 100 percent combined rating does not encompass the entire period on appeal. Increased RatingsLaw and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. The terms examination and reexamination include periods of hospital observation when required by VA. 38 C.F.R. § 3.655(a). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to a disability rating higher than 10 percent for the service-connected neck disability prior to April 11, 2014. The current appeal arises from a claim received at VA on April 13, 2011. In a September 2011 rating decision, VA granted service connection for "cervical degenerative disc disease, spondylosis and cervicalgia with residuals status post discectomy and fusion at C4-5 and C5-6," and assigned an initial disability rating of 10 percent under Diagnostic Code 5242, effective September 1, 2011, the day following service separation. In a June 2020 decision, the rating was increased to 20 percent, effective April 11, 2014. In February 2021, the Board remanded the rating claim to obtain a retrospective opinion regarding her estimated range of motion during flares and with repetitive use over a period of time in satisfaction of the stipulations of the Joint Motion. The examiner was given the discretion to conduct a physical examination if he thought it was necessary. An examination was scheduled in April 2021. However, the scheduling request indicates that the Veteran requested that the examination be cancelled (Record 04/14/2021). As the Board's remand instructions left it to the discretion of the examiner as to whether an examination was necessary, the Board finds that the provisions of 38 C.F.R. § 3.655(b) are for application. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, and the claim is for an increased rating, the claim shall be denied. Here, the benefit sought cannot be established without a current VA examination or reexamination as the Joint Motion specifically found that the medical evidence was inadequate. The examiner was given the discretion to order an examination. The examiner found an examination necessary, and the Veteran declined to report. The veteran has an obligation to cooperate, when required, in the development of evidence pertaining to his claims. The duty to assist is not always a one-way street, nor is it a blind alley. Olson v. Principi, 3 Vet. App. 480, 483 (1992); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA efforts to obtain examinations of the veteran, in order to evaluate her claim fully and fairly have been unsuccessful. Accordingly, denial of the claim is warranted. TDIULaw and Regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to her level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board itself cannot assign an extra-schedular rating in the first instance. The Board's consideration is limited to whether to refer the case to the Director of Compensation and Pension Service for an extra-schedular evaluation. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16(a) are not met). The Board observes that while entitlement to an extraschedular disability rating under 38 C.F.R. § 3.321(b)(1), and entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b), are similar, they are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). A TDIU on an extraschedular basis merely requires a determination that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disability or disabilities. See VAOPGCPREC 6-96. Entitlement to a TDIU an extraschedular basis requires that the Veteran show that service connected disability or disabilities precludes substantially gainful employment; whether the veteran can work in his or her preferred or current position is not the standard. Moreover, VA may find that a veteran is physically capable of substantially gainful employment even if he or she is not currently engaged in such employment. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Veterans Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Veterans Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. Entitlement to TDIU. Service connection is in effect for generalized anxiety disorder rated at 10 percent from September 1, 2011, 30 percent from September 10, 2014, and 50 percent from July 11, 2019; for radiculopathy of the right upper extremity rated at 20 percent from September 10, 2014, and 40 percent from February 5, 2019; for radiculopathy of the left upper extremity rated at 20 percent from September 10, 2014, and 30 percent from February 5, 2019; for degenerative a cervical spine disorder rated at 10 percent from September 1, 2011, and 20 percent from April 11, 2014; for lumbar degenerative disc disease, to include scoliosis, rated at 10 percent from September 1, 2011, and 20 percent from July 7, 2019; for left hip femoral acetabular impingement syndrome (flexion) rated at 10 percent from September 1, 2011; for irritable bowel syndrome rated at 10 percent from September 1, 2011; for left hip femoral acetabular impingement syndrome (extension) rated at 10 percent from July 22, 2015; for left wrist de Quervain's tenosynovitis rated at 10 percent from August 28, 2018; for right ankle degenerative arthritis rated at 10 percent from June 12, 2019; for left ankle degenerative arthritis rated at 10 percent from June 12, 2019; and for hemorrhoids rated at 0 percent from September 1, 2011 and 10 percent from December 20, 2019. The Veteran also has 13 noncompensable disabilities. The combined disability rating is 40 percent from September 1, 2011, 50 percent from April 11, 2014, 80 from September 10, 2014, 90 percent from February 5, 2019, and 100 percent from July 11, 2019. The Board remanded the issue entitlement to TDIU entitlement for adjudication by the agency of original jurisdiction. The August 2020 Supplemental Statement of the Case indicates that this did not occur. Nevertheless, this does not deprive the Board of jurisdiction as TDIU is simply a matter of the rating to be assigned the service-connected disability on appeal. Moreover, her failure to report for VA examination for the neck disability is not dispositive of the claim as TDIU is not based solely on the neck disability. October 2014 and July 2019 Board hearings indicate that the Veteran was working in administrative positions at those times and that her employer made reasonable accommodations for her disabilities. The Veteran has made no assertion that she is not gainfully employed. She has filed no VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) or other documentation asserting unemployability or actual unemployment. In Faust v. West, 13 Vet. App. 342 (2000), the Veterans Court held that where an individual became employed at a substantially gainful occupation, irrespective of the number of hours or days that individual actually works and without regard to her earned annual income prior to her having been awarded TDIU, such employment constitutes, as a matter of law, a substantially gainful occupation and thus "actual employability." Accordingly, the Board finds that, prior to September 10, 2014, the schedular requirements for TDIU were not met. The Board also finds that, during the entire period, the combined service-connected disabilities did not render her unable to secure or follow a substantially gainful occupation. In light of these findings, the Board concludes that TDIU and/or extraschedular referral are not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 371 (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.