Citation Nr: 21069992
Decision Date: 11/22/21	Archive Date: 11/22/21

DOCKET NO. 19-24 392
DATE: November 22, 2021

ORDER

Entitlement to an effective date earlier than October 30, 2018, for service connection for right lower extremity radiculopathy is denied.

Entitlement to an effective date earlier than October 30, 2018, for service connection for degenerative arthritis of the spine with intervertebral disc syndrome is denied.

Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to July 10, 2020, is denied.

Entitlement to a 20 percent rating for right lower extremity radiculopathy from July 10, 2020, is granted.

Entitlement to an initial 40 percent rating for degenerative arthritis of the spine with intervertebral disc is granted.

Entitlement to a separate 20 percent rating for right lower extremity sciatic nerve radiculopathy from July 10, 2020, is granted. 

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 9, 2020, is granted.  

REMANDED

Service connection for epistaxis is remanded.

FINDINGS OF FACT

1. The Veteran's VA Form 21-0966, an Intent to File a Claim for Compensation, was received on October 30, 2018.

2. The Veteran's claim for service connection for a back disability was received within one year of his VA Form 21-0966.

3. Prior to October 2018, the record does not contain any correspondence which could be reasonably construed as a claim for service connection for a back disability, to include radiculopathy.

4. Resolving reasonable doubt in the Veteran's favor, the Veteran's lumbar spine disability more closely approximates a limitation of flexion of 30 degrees and/or favorable ankylosis, with pain significantly limiting functional ability with repeated use over time and with flare-ups.

5. Prior to July 10, 2020, the Veteran's right lower extremity radiculopathy manifested by no more than mild incomplete paralysis of the femoral nerve.

6. From July 10, 2020, the Veteran's right lower extremity radiculopathy manifested by no more than moderate incomplete paralysis of the femoral and sciatic nerves.

7. From October 30, 2018, the Veteran's service-connected disabilities preclude him from obtaining or maintaining a substantially gainful occupation. 

CONCLUSIONS OF LAW

1. The criteria for an effective date earlier than October 30, 2018, for service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

2. The criteria for an effective date earlier than October 30, 2018, for service connection for degenerative arthritis of the spine with intervertebral disc syndrome have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

3. The criteria for an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to July 10, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.124a, Diagnostic Code 8526.

4. The criteria for an initial 20 percent rating for right lower extremity radiculopathy from July 10, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.124a, Diagnostic Code 8526.

5. The criteria for an initial 40 percent rating for degenerative arthritis of the spine with intervertebral disc syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

6. The criteria for a separate 20 percent rating for right lower extremity sciatic nerve radiculopathy from July 10, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.124a, Diagnostic Code 8520.

7. The criteria for a TDIU from October 30, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1987 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) from a February 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

Additional VA-generated evidence was also associated with the claims file after the appeal was certified and transferred to the Board. In October 2021, the Veteran's representative agreed to waive AOJ consideration. Therefore, the Board may review the evidence in the first instance. See 38 C.F.R. § 20.1304 (c).

1. Entitlement to an effective date earlier than October 30, 2018, for service connection for degenerative arthritis of the spine with intervertebral disc syndrome is denied.

2. Entitlement to an effective date earlier than October 30, 2018, for service connection for right lower extremity radiculopathy is denied.

The Veteran seeks an earlier effective date for his service-connected back disability and associated right lower extremity radiculopathy. A February 2019 rating decision granted service connection effective October 30, 2018, the date VA received the Veteran's intent to file. For the reasons that follow, the Board finds entitlement to an earlier effective date is not warranted.

In general, the effective date of an award of compensation and rating based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2)(i).

On October 30, 2018, the VA received the Veteran's intent to file. On November 6, 2018, the VA received the Veteran's formal claim for service connection for a back disability. In a February 2019 rating decision, the RO granted service connection for a back disability and right lower extremity radiculopathy. In the June 2019 notice of disagreement, the Veteran asserted entitlement to an earlier effective date. The Veteran and his representative have generally asserted entitlement to earlier effective dates without any argument as to why earlier effective dates are warranted.

After a review of the evidence of record, the Board finds the current assigned effective date of October 30, 2018, is the earliest effective date assignable for service connection. Prior to October 2018, the record does not contain evidence of a claim, formal or informal, or expressed written intent to file a claim for service connection for a back disability and/or radiculopathy.  Therefore, as a matter of law, an effective date cannot be assigned prior to the filing of a claim for compensation. 38 C.F.R. § 3.400.

While the Veteran may have been diagnosed with a back disability and/or radiculopathy prior to October 30, 2018, the record contains no communications from the Veteran showing an intent to apply for benefits until the October 2018 intent to file. Accordingly, the claim for an effective date earlier than October 30, 2018, for the grant of service connection for degenerative arthritis of the spine with intervertebral disc syndrome and right lower extremity radiculopathy is denied. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

3. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to July 10, 2020, is denied.

4. Entitlement to a 20 percent rating for service-connected right lower extremity radiculopathy from July 10, 2020, is granted.

5. Entitlement to an initial 40 percent rating for degenerative arthritis of the spine with intervertebral disc syndrome is granted.

6. Entitlement to a separate 20 percent rating for right lower extremity sciatic nerve radiculopathy from July 10, 2020, is granted.  

The Veteran seeks entitlement to an initial rating in excess of 20 percent for his service-connected degenerative arthritis of the spine with intervertebral disc syndrome (IVDS) and in excess of 10 percent for his service-connected right lower extremity radiculopathy. A February 2019 rating decision granted service connection effective October 30, 2018. The current appeal stems from the initial grant of service connection; therefore, the period on appeal begins October 30, 2018.

The criteria for evaluating spine disabilities were amended effective February 7, 2021. The Veteran's degenerative arthritis of the spine with IVDS is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242.  Diagnostic Code 5242 was not changed by the February 2021 amendments. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012).  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id.  at Note 5. 

IVDS is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Effective February 7, 2021, Diagnostic Code 5243 was amended to reflect that Diagnostic Code 5243 should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; all other diagnoses should be assigned Diagnostic Code 5242. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS with 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 warranted for IVDS with 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 warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.  

Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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.  Id.  at Note 1. 

Diagnostic Codes 5242 and 5243 indicate that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  Id.  at Note 1.  In this case, the Veteran's service-connect right lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8526 for paralysis of the anterior crural nerve (femoral). Under Diagnostic Code 8526, mild incomplete paralysis is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Severe incomplete paralysis is rated as 30 disabling. Complete paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. Id.  

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule.  Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance.  38 C.F.R. § 4.120.  Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of loss or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be mild, or at most, moderate.  The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves."  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017).  

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."  The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

A December 2018 VA treatment record notes right lower extremity monoparesis and pain related to known L4 disc herniation and neuroforaminal stenosis.

The Veteran underwent a VA back examination in January 2019. The examiner diagnosed degenerative arthritis of the spine, IVDS, and radiculopathy. During the examination, the Veteran reported flare-ups of the thoracolumbar spine with sitting for too long and long car trips (over one hour), which he described as muscle spasms on the right side of his back. He also reported loss of functionality such that he cannot sit for any length of time, cannot clean himself after toileting, and cannot use laced shoes. The examination was conducted during a flare. Range of motion testing revealed a combined range of motion of the thoracolumbar spine of 157 degrees and forward flexion to 48 degrees, extension to 14 degrees, right lateral flexion to 22 degrees, left lateral flexion to 29 degrees, right lateral rotation to 14 degrees, and left lateral rotation to 30 degrees. The examiner indicated range of motion contributes to functional loss. The Veteran was able to perform repetitive use testing with additional loss of motion; combined range of motion was 136 degrees, forward flexion to 36 degrees, extension to 14 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 14 degrees, and left lateral rotation to 27 degrees.  The examiner opined that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time.  The Veteran also presented with muscle spasm not resulting in abnormal gait or abnormal spinal contour. The sensory examination revealed decreased right lower leg/ankle sensation to light touch. The examiner characterized the Veteran's radiculopathy as mild and noted mild right lower extremity intermittent pain and mild numbness. No ankylosis was found. The examiner indicated the Veteran has IVDS but has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. 

The Veteran's VA treatment records generally note right lower extremity weakness and decreased sensation due to severe back degenerative disc disease and radiculopathy. See, e.g., March 2019 VA treatment record. A September 2019 VA treatment record notes the Veteran reported a severe exacerbation of symptoms from March 2018 to May 2018 when he was in 'so much pain that he could not rise from the sofa.' A May 2019 neurological consultation report notes normal motor strength without evidence of atrophy or fasciculation. The Veteran displayed diminished right leg sensation to light touch and decreased range of motion, including 'severely decreased' flexion. A January 2020 VA treatment record notes multilevel degenerative disc disease and facet arthropathy.

The Veteran underwent a VA examination in July 2020. The examiner noted degenerative arthritis of the spine, IVDS, and right lower extremity radiculopathy. During the examination, the Veteran reported pain, numbness to the right lower extremity that starts at the right knee and radiates down, right-sided foot drop, and severe debility. He also reported flare-ups of the thoracolumbar spine, which he described as increased pain. He reported functional loss or impairment, which he described as decreased ability to walk, stand, and sit. 

Range of motion testing revealed a combined range of motion of 110 and forward flexion to 35 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 15 degrees. All ranges of motion included pain. The examiner indicated range of motion contributes to functional loss by causing decrease in bending over, rotating back, and stretching in both directions. Range of motion decreased upon repetitive use testing. The Veteran was able to only perform repetitive use testing with a resulting combined range of motion of 80 degrees and forward flexion to 30 degrees, extension to 5 degrees, bilateral lateral flexion to 15 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 10 degrees. The examiner indicated pain, fatigue, weakness, lack of endurance, and incoordination significantly limit functional ability with repeated use over a period of time and during a flare-up. The examiner described the resulting range of motion as a combined range of motion of 80 degrees and forward flexion to 30 degrees, extension to 5 degrees, bilateral lateral flexion to 15 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 10 degrees. The examiner noted guarding resulting in abnormal gait or abnormal spine contour due to degenerative disc disease and IVDS. 

Sensory examination revealed decreased sensation to light touch at the thigh/knee, lower leg/ankle, and foot/toes. His radiculopathy was characterized as moderate with constant pain, paresthesias and/or dysesthesias, and numbness. No ankylosis was found. The examiner indicated that the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.

After a review of the evidentiary record, and resolving reasonable doubt in the Veteran's favor, the Board finds the preponderance of the evidence weighs in favor of an initial 40 percent rating for degenerative arthritis of the spine with IVDS. 

The January 2019 VA examination reflects forward flexion ranged from 36 to 48 degrees, including with consideration of functional loss due to repeated use over time. However, the Board notes the examiner indicated that during a flare-up or with repeated use over a period of time, the Veteran has to stop activities and lie down to alleviate pain. Resolving reasonable doubt in the Veteran's favor, the Board finds this most nearly approximates fixation of a spinal segment in neutral position and/or favorable ankylosis. Chavis v. McDonough, 34 U.S. App. Vet. 1 (2021). According to Note 5, General Rating Formula for Diseases and Injuries of the Spine, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Favorable ankylosis of the thoracolumbar spine warrants a 40 percent rating. The July 2020 VA examination report otherwise shows forward flexion of the thoracolumbar spine was limited to 30 degrees, with consideration of functional loss. This range of motion warrants a 40 percent rating.

A rating in excess of 40 percent is not warranted as the evidence does not demonstrate unfavorable ankylosis of the entire thoracolumbar spine and/or the entire spine. Unfavorable ankylosis is defined as "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.  The competent evidence does not support a rating in excess of 40 percent actual unfavorable ankylosis of the entire thoracolumbar spine is not demonstrated; the evidence also falls to show the functional equivalent of such as none of the additional complications are present and associated with the lumbar spine disability.

The Board has considered whether an even higher rating under Diagnostic Code 5243 is warranted for the lumbar spine disability; however, the medical evidence has not shown that the Veteran has had incapacitating episodes of IVDS, with a duration of at least six weeks during the past 12 months, and/or specifically, that required bed rest and treatment that has been prescribed by a physician. Thus, an even higher 60 percent disability rating is not warranted for the service-connected lumbar spine disability, under Diagnostic Code 5243.

Furthermore, in considering whether separate, additional ratings are available for the Veteran's lumbar spine disability, the Board reiterates that the General Rating Formula also provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). In this regard, the Veteran has already been service-connected for his associated right lower extremity radiculopathy. No other neurologic abnormalities and or/any other associated lumbar spine conditions have been noted. 

Regarding the Veteran's associated service-connected radiculopathy, after a review of the evidentiary record, the Board finds the preponderance of the evidence weighs in favor of a 20 percent rating for service-connected right lower extremity radiculopathy from July 10, 2020. Prior to July 10, 2020, the Board finds the Veteran's radiculopathy does not more closely approximate the symptomatology required for moderate incomplete paralysis. Prior to July 10, 2020, the competent medical evidence of record reflects that the Veteran's radiculopathy manifested as mild right lower extremity intermittent pain and numbness. 

From July 10, 2020, the Board finds the Veteran's radiculopathy more closely approximates the symptomatology required for moderate incomplete paralysis. Since July 10, 2020, the competent medical evidence of record reflects that the Veteran's radiculopathy has manifested as moderate constant pain, paresthesias and/or dysesthesias, and numbness. See July 2020 VA examination. A rating in excess of 20 percent is not warranted as the evidence of record does not demonstrate severe incomplete paralysis or paralysis of the quadriceps extensor muscles.

Additionally, from July 10, 2020, the Board finds the Veteran is entitled to a 20 percent rating for moderate incomplete paralysis of the sciatic nerve. In this regard, the findings from the July 2020 VA examination report shows evidence of right lower extremity sciatic nerve involvement manifested by decreased sensation and foot drop, which supports the assignment of a 20 percent rating for right lower extremity sciatic nerve disability as of the date of the VA examination. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board notes a separate rating under Diagnostic Code 8520 is not warranted prior to July 10, 2020, as the evidence of record does not demonstrate sciatic nerve radiculopathy. The first objective evidence of sciatic nerve impairment comes from the July 2020 VA examination. In the absence of a clinical diagnosis and objective findings, a separate compensable rating is not warranted prior to July 10, 2020. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. 

The Board has considered all other potentially applicable diagnostic codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different diagnostic code is not warranted.

In conclusion, after resolving reasonable doubt in the Veteran's favor, the Board finds entitlement to an initial 40 percent rating for service-connected degenerative arthritis of the spine with IVDS; an initial 20 percent rating for service-connected right femoral nerve radiculopathy from July 10, 2020; and a separate 20 percent rating for right lower extremity sciatic nerve radiculopathy from July 10, 2020, is warranted. However, the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for service-connected right lower extremity radiculopathy prior to July 10, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

7. Entitlement to a TDIU prior to March 9, 2020, is granted.  

The RO granted a TDIU effective March 9, 2020, the date of the Veteran's claim for an increased rating for posttraumatic stress disorder (PTSD) was received. However, the period on appeal begins October 30, 2018, the effective date of his increased rating claims decided herein. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018).

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a).

The Court recently defined the term "unable to secure and follow a substantially gainful occupation" to have two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019).

The central inquiry is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. § 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration shall be given to the Veteran's level of education, special training, and previous work experience. Therefore, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. § 3.341 (a), 4.16 (a), 4.19.

Prior to March 9, 2020, the Veteran is service connected for PTSD (50 percent prior to March 9, 2020, and 70 percent thereafter); degenerative arthritis of the spine (40 percent from October 30, 2018); tinnitus (10 percent from February 28, 2011); and right lower extremity radiculopathy (10 percent prior to July 1, 2020, and 20 percent thereafter). From October 30, 2018, the Veteran is in receipt of an 80 percent combined rating. Thus, the Veteran has met the schedular criteria for a TDIU from March 30, 2018.

The Veteran's DD Form 214 reflects a military occupational specialty of psychiatric specialist with completion of the general medical orientation course and the psychiatric specialist course. His March 2020 VA Form 21-8940 indicates the Veteran last worked full-time and became too disabled to work in February 2018. He noted past employment as a medical interpreter, medical support assistant, and a secretary.  He completed three years of college. 

The Veteran's VA treatment records generally reflect complaints of back pain and right lower extremity pain and numbness. See, e.g., December 2018 VA examination. The January 2019 VA examiner indicated that the Veteran's back condition impacts his ability work because his pain would interrupt his duties. The examiner noted the Veteran must stand to alleviate pain and the constant need to stand interrupted his computer work. The examination also indicates the Veteran must stop activities and lie down during flare-ups or with repeated use over time. The Veteran reported being unable to clean himself after toileting. The January 2019 examiner also noted mild right-sided radiculopathy. A January 2020 VA treatment record indicates the Veteran has increased pain with prolonged sitting and walking that improves with lying down. He also reported numbness and weakness from the knee down.

The Veteran's Social Security Administration (SSA) records reflect that he was found to be permanently disabled from February 1, 2018, due to his stroke, back disability, and PTSD. His SSA records include a May 2019 neurological consultation, which notes pain with standing for more than 15 minutes. The Veteran was alert and oriented with normal speech and intact judgment. A May 2019 residual functional capacity (RFC) assessment found the Veteran did not have the residual functional capacity to perform his prior relevant work, including exertional and postural limits. The RFC assessment reflects the Veteran was limited to unskilled work that SSA specifically referred to as "sedentary in nature" according to their definition.

In February 2020, the Veteran's private physician, M.B., M.D., noted the Veteran's past jobs involved spending long periods of time sitting; managing schedules; filing appropriate paperwork and documents; interacting with coworkers; supervisors, and clients. However, the Veteran is unable to sit for long periods of time and spends most of his day laying on his back. M.B. noted treatment records reflect severe back pain that interferes with sleep and radiculopathy that resulted in intermittent foot drop. Treatment records also reflect pain is worse with sitting and causes difficulty with walking. A May 2018 treatment record indicates the Veteran is mostly bedbound, only getting up to go to the bathroom to limit movement in his back. M.B. noted the Veteran reported his pain is very distracting and caused him to make mistakes when he was still working. M.B. noted his PTSD also creates difficulty getting along with others. She indicated the SSA found the Veteran disabled from February 1, 2018 as a May 2019 RFC assessment indicates his back pain and radiculopathy would cause him to be off task 25 percent of the time or more and he can only sit for 10 minutes and stand for 30 minutes at a time. She further noted his associated medications cause grogginess. Finally, M.B. opined that the Veteran's service-connected impairments more likely than not prevent him from maintaining substantially gainful employment since at least October 30, 2018.

A February 2020 private report from the Veteran's psychologist indicates that reexperiencing symptoms would reduce his productivity due to inability to focus on work tasks and would contribute to increased work absences. His avoidance symptoms would interfere with his ability to interact appropriately with his peers in a workplace setting. Arousal and reactivity symptoms would also make him more reactive to normal workplace stressors and interpersonal conflicts. Additionally, negative thoughts and feelings would contribute to an increased risk for suicidal thoughts and ongoing depressive symptoms that would decrease his work productivity. 

After a review of the evidentiary record, the Board finds the preponderance of evidence weighs in favor of a TDIU from October 30, 2018. The competent evidence of record demonstrates that the Veteran's service-connected disabilities would likely preclude him from obtaining or maintaining a substantially gainful occupation consistent with his educational and occupational background. Generally, the evidence shows that the Veteran's service-connected disabilities result in physical and mental limitation, such as increased pain with prolonged sitting or standing and difficulty focusing. Thus, resolving reasonable doubt in the Veteran's favor, his service-connected disabilities reasonably rendered him unable to secure and follow a substantially gainful occupation consistent with his educational and occupational background since October 30, 2018. 38 U.S.C. § 5107; 38 C.F.R. §3.102. Accordingly, the claim for TDIU is granted from October 30, 2018.

REASONS FOR REMAND

8. Service connection for epistaxis is remanded.

The Veteran seeks service connection for epistaxis due to his service in Southwest Asia. Remand is required to obtain an addendum medical opinion. 

The Veteran had active service in Saudi Arabia from November 1990 to April 1991.  Therefore, he is considered a Persian Gulf veteran.  38 C.F.R. § 3.317(e).

The Veteran reports experiencing nose bleeds intermittently since approximately 2012. See November 2012 VA treatment record.  A January 2019 VA examination indicates the Veteran's symptoms are diagnosed as epistaxis.  The examiner opined that the Veteran's epistaxis was less likely than not incurred in or caused by service because it is a disease with a clear and specific etiology and diagnosis. The examiner noted that chemical exposure can cause nose bleeds; however, the Veteran did not report nose bleeds until 2012. There are no notes documenting epistaxis between his date of discharge and 2012 and/or notes of nose bleeds during active duty. Finally, the examiner noted that epistaxis due to environmental exposure is typically an acute event, not a condition that develops years after exposure. The Board notes that whether the etiology and/or pathophysiology of a disease is inconclusive is a determination that must be made with respect to the Veteran's specific case and must not simply consider the etiology and pathophysiology of the disease or disability population as a whole. See Stewart v. Wilkie, 30 Vet. App. 383 (2018). Accordingly, on remand, a medical opinion must be obtained to discuss these matters.

The matters are REMANDED for the following action:

Schedule the Veteran for an examination to determine the nature and etiology of his epistaxis.  The examiner is asked to provide responses to the following:

A)	Is the etiology of the Veteran's epistaxis (1) inconclusive, (2) partially understood, or (3) fully understood?

This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole.

B)	Is the pathophysiology of the Veteran's epistaxis (1) inconclusive, (2) partially understood, or (3) fully understood?

This determination must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole.

(Continued on the next page)

 

C)	If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's epistaxis was incurred in, or is otherwise related to, his active service?

A complete rationale must be provided for all opinions expressed.

 

 

D. JOHNSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M.Aoughsten, Associate 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.