Citation Nr: 21070262
Decision Date: 11/23/21	Archive Date: 11/23/21

DOCKET NO. 15-24 849
DATE:   November 23, 2021

ORDER

Entitlement to a rating in excess of 40 percent for chronic lumbosacral strain is denied. 

Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is denied.

FINDINGS OF FACT

1. For the entire period on appeal, the Veteran's lumbar spine strain has been resulted in limitation of forward flexion of the thoracolumbar spine to, at worst, 20 degrees, but has not been characterized by unfavorable ankylosis of the entire thoracolumbar spine nor intervertebral disc syndrome requiring medically prescribed bedrest with incapacitating episodes having a total duration of at least six weeks during the past 12 months.

2. The preponderance of the evidence does not show that the Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment due to service-connected disability at any time during the period on appeal.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 40 percent for chronic lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.59, 4.71a, Diagnostic Code 5237.

2. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from December 1979 to December 1982, and in the United States Marine Corps from June 1989 to September 1993. 

These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) St. Petersburg, Florida. Jurisdiction of this appeal is currently with the RO in Phoenix, Arizona. 

In March 2020, the Board issued a decision denying entitlement to a rating in excess of 40 percent for chronic lumbosacral strain. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2021 Order, the Court granted a Joint Motion for Partial Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion.

This case was most recently before the Board in June 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the Board instructed that a VA examination be conducted to determine the nature and severity of the Veteran's chronic lumbosacral strain and that the Veteran be provided with an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). Such an examination was conducted in August 2021 and a June 2021 letter requested that the Veteran complete a VA Form 21-8940. The Board therefore determines that there has been substantial compliance with its previous remand. The case has now been returned to the Board for appellate action.

The Board also notes that in a July 2017 rating decision, the Veteran was granted entitlement to service connection for left lower extremity radiculopathy and assigned an initial rating. The Veteran has not indicated he disagreed with the rating or effective date assigned. Therefore, that issue is not currently on appeal. There has been no other appeal filed after the issuance of the July 2017 rating decision for the issue of entitlement to service connection for left lower extremity radiculopathy. Therefore, this issue is not currently before the Board for its consideration.

Increased Rating  Chronic Lumbosacral Strain

The Veteran asserts that he should have a higher ratings for his chronic lumbosacral strain as his disability is worse than contemplated by the currently assigned rating. Specifically, the Veteran asserts that he warrants a higher rating because VA should not use a rating chart but rather take into consideration his inability to work, spinal disk problems diagnosed by another doctor, worsening symptoms, and psychiatric symptoms secondary to his chronic lumbosacral strain. See Correspondence, July 10, 2015. 

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). 

The veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. 

The Veteran's lumbar spine disorder is evaluated pursuant to Diagnostic Code 5237 as 40 percent disabling throughout the period on appeal. 38 C.F.R. § 4.71a. Diagnostic Code 5237 is part of the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). 

Under the General Rating Formula, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for unfavorable ankylosis of the thoracolumbar spine. Id. A maximum schedular 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id.

Note (1) to the General Rating Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 

Note (2) to the General Rating Formula (See also Plate V.) states: for VA compensation purposes, 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 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. 

The General Rating Formal also provides alternative rating criteria for intervertebral disc syndrome (IVDS). Under the Formula for Rating IVDS based on Incapacitating Episodes, a 10 percent is assigned with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent rating is assigned with incapacitating episodes having a total duration of at least two weeks but less than 4 weeks during the past 12 months. Id. A 40 percent rating is assigned with incapacitating episodes having a total duration of at least four weeks but less than 6 weeks during the past 12 months. Id. A maximum schedular 60 percent is warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Here, there is no evidence or allegation that the Veteran's disability has resulted in IVDS requiring prescribed bed rest with incapacitating episodes having a total duration of at least six weeks during the past 12 months. On this basis, the Board finds that it need not further discuss these alternative rating criteria. 

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 the spinal segment in a neutral position (zero degrees) is indicative of favorable ankylosis, not unfavorable ankylosis.

In exceptional cases, an examiner may state that due to age, body habits, 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 if the individual's range of motion findings fall short of what is considered normal generally. Provided that the examiner supports his conclusion with an explanation, the examiner's assessment will be accepted.

The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the present case, the Veteran's claims for increased rating stem from a claim filed in January 2015. Moreover, Diagnostic Code 5237 is unchanged under the revised criteria. The appropriate criteria are discussed below. 

Turning to the evidence, the Veteran was afforded a VA examination in April 2014. At that time, the Veteran stated there was pain, difficulty bending over, inability to sit or stand for long periods, and only able to lay on his side when laying down. He stated the symptoms were "all the time" and there was pain all the time, with difficulty bending. He denied back surgery, bowel or bladder incontinence, and endorsed the use of over the counter medication as needed for severe pain. The Veteran denied flare-ups of the thoracolumbar spine. 

Upon physical examination in April 2014, range of motion measurements were as follows: forward flexion to 75 degrees, with pain at 75 degrees; extension to 25 degrees, with pain at 25 degrees; bilateral lateral flexion to 30 degrees or greater each, with no objective evidence of painful motion; and bilateral lateral rotation to 30 degrees or greater each, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions; there was no additional limitation of range of motion of the thoracolumbar spine following repetitive-use testing. The Veteran did not have functional loss or functional impairment of the thoracolumbar spine. The Veteran was not shown to have localized tenderness or pain to palpation, muscle spasm, or abnormal gait. Muscle strength testing was normal; the Veteran did not have muscle atrophy. Reflex examination was normal. Sensory examination was normal. Straight leg raising test was negative bilaterally. The Veteran did not have radiculopathy. Ankylosis was not shown. The Veteran did not have any other neurologic abnormalities or findings related to his thoracolumbar spine. The Veteran did not have intervertebral disc syndrome. He denied the use of any assistive deices as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis.

Other pertinent findings in April 2014 showed the Veteran was not having a flare-up on examination that day, and it would be speculative to report additional range of motion loss and whether pain, weakness, fatigability during flare-up or following repetitive-use over a period of time; gait was normal, he was able to walk on tiptoes, heels, do tandem gait, one legged stance; Romberg's test was normal; dressing and undressing was independent; he flexed over fully for socks and to change from sitting to standing positions. Diagnostic imaging studies documented arthritis without thoracic vertebral fracture with loss of 50 percent or more of height. The examiner remarked the Veteran retired two months prior from working as a mechanic, and worked part-time driving for a parts store; he was independent with self-care, driving, house chores, and walked for exercise. 

The Veteran was afforded a VA examination in April 2015. At that time, the Veteran reported chronic daily pain that varied in degree; flares that occurred with prolonged sitting; flares that would last an hour to an entire night; and treatment of flares with a tens unit and laying on his side. The Veteran reported functional loss or functional impairment an inability to mow the lawn due to pain with pulling and pushing motions; limited fishing due to inability to cast and pain with sitting or standing.

Upon physical examination in April 2015, range of motion measurements were as follows: forward flexion was to 40 degrees; extension was to 10 degrees; bilateral lateral flexion was to 30 degrees each; right lateral rotation was to 30 degrees; and left lateral rotation was to 25 degrees. Range of motion itself contributed to a functional loss due to difficulty bending over and putting on shoes. Pain was noted on forward flexion, extension, and left lateral extension and noted to cause a functional loss. There was no evidence of pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the lumbar spine. The Veteran was able to perform repetitive-use testing with at least three repetitions; there was not additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive-use over time; the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive-use over time. The examiner was unable to say without resulting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repetitive-use over a period of time because the examiner only witnessed three repetitions. The examination was not conducted during a flare-up; the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups. The examiner was unable to stay without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups because the Veteran was not having a flare at that time, and therefore it would be speculative to report additional range of motion loss. 

In April 2015, the Veteran was shown to have muscle spasm, localized tenderness, and guarding that did not result in an abnormal gait or abnormal spinal contour. Additional factors that contributed to the disability included disturbances of locomotion, interference with sitting, and interference with standing. Muscle strength testing was normal; there was no muscle atrophy. Reflex examination showed hypoactive bilateral ankle deep tendon reflexes. Straight leg raising test was negative bilaterally. The Veteran did not have radicular pain or any other symptoms due to radiculopathy. Ankylosis was not shown. The Veteran did not have any other neurologic abnormalities or findings related to his thoracolumbar spine. The Veteran did not have intervertebral disc syndrome (IVDS).The Veteran endorsed the regular use of a brace as a normal mode of locomotion, and a cane to prevent falls when walking. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The examiner remarked the Veteran's back impacted his ability to work due to inability to mow his yard and having to buy fish instead of catching them himself; and he slowed down at his mechanic job; light duty was not available at work. 

The Veteran was afforded a VA examination in May 2017. At that time, the Veteran reported his back had worsened and he was restricted in his work; he reported increased pain, stiffness, decreased range of motion, and left lower extremity radiculopathy. The Veteran endorsed flare-ups of the back that was described as pain. He reported functional loss and functional impairment of the spine that was described as inability to exercise, being careful when fishing, no baseball or any other physical activities, giving up being a mechanic, only handing out tools at work, and taking a cut in pay and hours at work. 

Upon physical examination in May 2017, range of motion measurements were as follows: forward flexion was to 40 degrees; extension was to 10 degrees; right lateral flexion was to 10 degrees; left lateral flexion was to 15 degrees; right lateral rotation was to 20 degrees; and left lateral rotation was to 10 degrees. Range of motion itself did not contribute to a functional loss. Pain was noted on examination on rest and nonmovement. There was moderate tenderness of the paraspinous muscles in the left lumbar region. There was evidence of pain with weight-bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions; there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive-use over time; the examination was medically consistent with the Veteran's statements describing functional loss with repetitive-use over time. Pain, weakness, and fatigue was shown to significantly limit functional ability with repetitive-use over a period of time. The Veteran was not examined during a flare-up; the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. Pain, weakness, and fatigue was shown to significantly limit functional ability during a flare-up. The examiner was unable to describe in terms of range of motion because the Veteran was unable to replicate the estimated limitation at the time of examination due to its episodic variability. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine; muscle spasm was shown to result in abnormal gait or abnormal spine contour; localized tenderness did not result in abnormal gait or abnormal spinal contour; and guarding was not present. Additional factors contributing to the disability included less movement than normal, disturbance of locomotion, interference with sitting, and interference with standing. 

Muscle strength testing in May 2017 showed active movement against some resistance on the left side; the Veteran did not have muscle atrophy. Reflex examination showed absent deep tendon reflexes on the left side. Sensory examination showed decreased sensation to light touch in the left thigh and knee. Straight leg raising test was positive on the left side. The Veteran had moderate intermittent pain and paresthesias and/or dysesthesias, and severe numbness in the left lower extremity. The examiner found the Veteran had moderate incomplete paralysis of the left lower extremity. Ankylosis was not shown. The Veteran did not have any other neurologic abnormalities or findings related to his thoracolumbar spine. The Veteran had IVDS that resulted in episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months; the Veteran purported episodes of bed rest having a total duration of at least 1 week but less than 2 weeks during the past 12 months. The Veteran denied the use of any assistive device as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. Diagnostic testing results documented arthritis without thoracic vertebral fracture with loss of 50 percent or more of height. The examiner remarked the Veteran's back impacted his ability to work because he should refrain from participating in tasks that required him to repetitively flex, extend, or rotate; should be accommodated with the use of a chair and should be allowed to readjust as needed; and it would be optimal for him to find a desk job. 

In May 2017, there was objective evidence of pain when the back was used in nonweight-bearing. Passive range of motion could not be performed or was not medically appropriate. 

The Veteran was afforded a VA examination in August 2021. At that time, the Veteran reported his symptoms had worsened with more pain, stiffness, and pain down his left leg. He reported he had quit his job a few years prior due to difficulty with bending in or over vehicles, working overhead, and lifting. He now worked in the tool room and handed out tools at the same place of business part-time. Pain was located on the lower back and down his left leg with intermittent numbness and tingling; his left leg pain is intermittent, and his low back pain was constant. Flare-ups were denied because the low back pain was constant, to include at rest or when sitting. Daily average low back pain was rated as a 10 out of 10 pain intensity, constant, and flare-ups were denied as pain was present every day. He stated he could not bend over. The Veteran reported functional loss or functional impairment that was described as walking restricted to a few blocks; he was able to drive; sitting was limited to 30 to 40 minutes; having to alternate positions at work; and lifting was quite restricted. 

Upon physical examination in August 2021, range of motion measurements were as follows: forward flexion was to 20 degrees; extension was to 10 degrees; right lateral flexion was to 5 degrees; left lateral flexion was to 10 degrees; right lateral rotation was to 15 degrees; and left lateral rotation was to 15 degrees. Range of motion itself did not contribute to a functional loss. Pain was exhibited on all range of motion measurements. The examiner noted that, when the Veteran was sitting and went to standing, his back forward flexion was 30 degrees; and on actual range of motion testing, the Veteran had minimal effort on forward flexion to about 10 degrees. Therefore, the examiner averaged and provided forward flexion range of motion measurement to 20 degrees. Passive range of motion measurement testing was performed; there was no additional limitation of motion specifically attributable to pain, weakness, fatigability, incoordination, or other. There was evidence of pain on weight-bearing, nonweight-bearing, active motion, passive motion, on rest or nonmovement, that caused a functional loss. The examiner again remarked that the Veteran provided minimal effort on movement on range of motion testing. There was mild bilateral tenderness in the lower paralumbar back L5-S1. 

In August 2021, the Veteran was able to perform repetitive-use testing with at least three repetitions; there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive-use over a period of time; the procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repetitive-use over time. The Veteran did not have localized tenderness, guarding, or muscle spasm of the thoracolumbar spine. Additional factors contributing to the disability included less movement than normal. Muscle strength testing was normal; there was no muscle atrophy. Reflex examination showed hypoactive deep tendon reflexes in the bilateral knees and ankles. Sensory examination showed decreased sensation to light touch in the left foot and toes. Straight leg raising test was negative bilateral. The Veteran had moderate symptoms of radiculopathy in the left lower extremity. Ankylosis was not shown. The Veteran did not have any other neurologic abnormalities or findings related to his thoracolumbar spine. The Veteran had IVDS that did not result in any episodes of acute signs and symptoms due to IVDS that required bedrest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran endorsed the regular use of a brace and cane as an assistive device as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The examiner remarked the Veteran's back impacted his ability to work due to walking restricted to a few blocks; he was able to drive his car; sitting was limited to about 30 to 40 minutes; prolonged standing was limited if not standing in one spot, but could stand for about 30 to 40 minutes; having to alternate positions in his current job; and lifting was quite restricted. 

Further review of the record shows that the Veteran receives treatment at VA medical centers and from private treatment providers for various disabilities, to include his chronic lumbosacral sprain. However, there is no indication from the treatment notes of record that the Veteran has reported symptoms of such disorders that are worse than those noted in the various VA examination reports and treatment records of record. 

Based on the foregoing, and applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for the Veteran's chronic lumbosacral sprain at any time during the period on appeal. 

In this regard, the Veteran's chronic lumbosacral sprain has been manifested by decreased range of motion of the lumbar spine and significant pain, with functional loss and impairment with walking, prolonged standing and sitting, and difficulty bending over or lifting. As noted herein, however, in order to warrant a rating in excess of 40 percent under the applicable rating criteria, the Veteran's disability must be manifested by unfavorable ankylosis of the entire thoracolumbar spine. The clinical evidence, however, establishes that the Veteran has retained motion in his spine, although with noted complaints of pain. He has not contended otherwise. By definition, the fact that the Veteran's spine manifests some range of motion is evidence of the absence of unfavorable ankylosis. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure"). The evidence further reflects that he exhibits none of the indicia of ankylosis as set forth in 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, note (5), such as a limited line of vision, restricting opening of the mouth, etc. There is no evidence or allegation that there has been ankylosis during the appeal period. Specifically, the April 2014, April 2015, May 2017, and August 2021 VA examination reports found no evidence of ankylosis of the thoracolumbar spine. Absent a finding of unfavorable ankylosis, which has not been shown by the evidence of record, a rating in excess of 40 percent is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5237.

Moreover, the Board recognizes that the Veteran also has a diagnosis of IVDS as indicated by the VA examination reports. Notably, the Veteran was not shown to require periods of medically prescribed bedrest, with the exception at his May 2017 VA examination. At his May 2017 VA examination, the Veteran was shown to have IVDS that resulted in episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. However, even in consideration of the May 2017 VA examination, the Veteran has not been shown to have IVDS that resulted in episodes of bed rest having a total duration of at least 6 weeks in the past 12 months such that a rating in excess of 40 percent is not warranted. At all other times, the Veteran was shown to either have IVDS that did not require medically prescribed bed rest, or did not have IVDS. See 38 C.F.R. § 4.71a, Diagnostic Codes 5243.

While VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4. 40, 4.45, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Similarly, Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016) are not for application because those decisions pertain to the adequacy of examinations as they relate to range of motion findings, but range of motion findings are not relevant here because they cannot result in a higher rating. In addition, the Veteran does not contend, and the evidence does not reflect, that he has suffered from incapacitating episodes due to IVDS that would warrant a higher than 40 percent rating at any time during the period on appeal.

Nevertheless, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, supra and Sharp v. Shulkin, supra. In this case, the April 2014, April 2015, and May 2017 VA examinations were conducted prior to Correia and Sharp and provides only partial information as described above. Pain was noted on examination in the VA examination reports. The effect of pain on range of motion is described above. Regarding repeated use over time, the Board notes that April 2014, April 2015, and May 2017 VA examiners conducted repetitive-use testing and concluded that there was no additional limitation in range of motion. Regarding flare-ups, the Veteran denied flares in April 2014, and the functional loss and impairments of flare-ups were described in the April 2015 and May 2017 VA examination reports. Therefore, the Board finds that all information required for rating purposes was provided. The April 2014 and April 2015 VA examiners indicated that the Veteran reported pain. The May 2017 VA examiner noted that there was no evidence of pain with weight-bearing and passive range of motion testing and non-weight bearing testing could not be performed or was not medically appropriate; additionally, the Veteran denied flare-ups at the April 2014 VA examination. The May 2017 VA examiner indicated that the examiner was unable to describe in terms of range of motion because the Veteran was unable to replicate the estimated limitation at the time of examination due to its episodic variability. Therefore, the examinations of records are adequate for rating purposes.

The Board has also considered that the Rating Schedule specifically provides that neurological symptoms are to be rated separately under the appropriate diagnostic code. In this case, service connection has been awarded for radiculopathy of the left lower extremity, which is not currently on appeal before the Board. The available evidence does not demonstrate diagnoses of any other neurological conditions related to the Veteran's chronic lumbosacral sprain. Thus, a separate evaluation for additional neurological disability, namely bowel or bladder impairment, is not warranted.

In making its determination in this case, the Board acknowledges the Veteran's belief that his chronic lumbosacral sprain is more severe than reflected by the currently assigned rating. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such condition.

The Board has also considered whether a staged rating under Fenderson, supra, is appropriate for the Veteran's service connected chronic lumbosacral sprain; however, the Board finds that the Veteran's symptomatology has been stable throughout the appeal period. Therefore, assigning a staged rating for such disability is not warranted. Furthermore, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the higher rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Finally, the Board notes the arguments of the Veteran that he should have a higher ratings for his chronic lumbosacral strain because VA should not use a rating chart but rather take into consideration his inability to work, spinal disk problems diagnosed by another doctor, worsening symptoms, and psychiatric symptoms secondary to his chronic lumbosacral strain. See Correspondence, July 10, 2015. However, the objective medical evidence demonstrates that the Veteran was not shown to have unfavorable ankylosis of the thoracolumbar spine or IVDS that required a total of six weeks of medically prescribed bed rest in the past 12 months at any time during the period on appeal. Additionally, as discussed above, the April 2014, April 2015, May 2017, and August 2021 VA examiners too into consideration the Veteran's reports of pain, limited range of motion, functional loss, physical impairments, and interference with daily activities such as prolonged standing and sitting, when taking into consideration the severity of his chronic lumbosacral sprain. While the Veteran had reports of functional loss, pain, difficulty with bending, difficulty with prolonged standing and sitting, interference with work, and some interference with lifting and daily activities, such as fishing and mowing the lawn, those functional impairments are considered in the General Rating Schedule and incorporated in the disability rating assigned. Those findings, which are consistent with VA outpatient records do not show the Veteran's chronic lumbosacral sprain was manifested by unfavorable ankylosis of the thoracolumbar spine or IVDS requiring six weeks of medically prescribed bedrest in the past 12 months at any time during the appeal period. 38 C.F.R. § 4.59 , Diagnostic Code 5237. This argument is therefore without merit.

The Veteran's belief that he is entitled to a higher rating for his chronic lumbosacral sprain is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran's general belief that he is entitled to a higher rating. The Veteran's lumbar spine range of motion measurements are as noted above. There was no additional loss of motion after repetition. Moreover, to the extent that the Veteran alleges that he is entitled to a higher rating due to pain, interference with standing, balance and ambulation problems, and difficulty walking and other symptoms reported, the Board notes that such symptoms are contemplated under the current rating assigned. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for higher ratings than those assigned have been met. Additionally, the Board notes the arguments of his representative that the VA examination reports of record are inadequate because they must consider the impact of fatigability, incoordination, pain on movement of the joint, and must take into consideration Sharp. See Appellate Brief, October 15, 2021. Specifically, the Board notes that there is no indication the testing was invalid for rating purposes, nor did his representative provide any support for his arguments that the VA examination reports are inadequate in any way. Rather, the examiners found that the testing results were appropriate and accurately reflected the severity of his chronic lumbosacral sprain; the VA examiners indicated the effects of pain, fatigability, and incoordination as indicated above. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. These arguments are therefore without merit.

The above determination is based on consideration of the applicable provisions of VA's rating schedule. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Here, however, the Veteran has reported that he had to retire due to his service-connected lumbosacral strain. This raises the specter of possible entitlement to a higher rating on an extraschedular basis. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). 

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1).

The Veteran is service connected for other disabilities. In this regard, in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), the United States Court of Appeals for the Federal Circuit held that in the extraschedular context consideration had to be given to the collective impact of multiple service-connected disabilities. However, effective January 8, 2018, VA amended that regulation to overturn that holding and explicitly resume its' longstanding interpretation that consideration was given only to individual service-connected, separately and not cumulatively. See Final Rule, 82 Fed.Reg. 57830, 57,835(Dec. 8, 2017); see also proposed revision 81 Fed.Reg. 23228, 23232 (Apr. 20, 2016). This revision is applicable to all applications for benefits that are received by VA on or after January 8, 2018 or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit (Federal Circuit) on January 8, 2018. In Thurlow v. Wilkie, No. 16-3633, slip op. (U.S. Vet. App. Sept. 12, 2018) (precedential panel decision) the Veterans Court held that this regulatory amendment was validly made applicable to cases pending before the Court. 

While the rating criteria for any service-connected disorder do not specifically list virtually every possible symptom which may be experienced, they address the extent of involvement in determining the impact of the disability and the evidence before the Board does not establish that a mere description of symptoms not listed in the Rating Schedule or merely describing how symptoms impact specific functional activities necessarily creates a substantially different picture than that encompassed by the rating criteria. 38 C.F.R. § 4.1 provides that percentage ratings represent the average impairment in earning capacity resulting service-connected disorders in civil occupations and that "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations [italics added] or illnesses proportionate to the severity of the several grades of disability." 

As to any contention, express or implied, that because the rating criteria are silent as to effects of occupational and daily activities, the rating schedule does not contemplate the total disability picture, this is insufficient to conclude that the rating criteria are inadequate because this is precisely what the rating criteria are designed to do and the appellant has not demonstrated that the rating schedule is otherwise inadequate in any way. See 38 C.F.R. §§ 3.321(a), 4.1; see also Dedrick v. Shinseki, No. 13-1166, slip op. at 9 (U.S. Vet. App. Apr. 4, 2014) (nonprecedential memorandum decision). 

The statements or findings of impaired function as to certain activities pertain to the functional limitations that are contemplated by the governing Diagnostic Criteria and corresponding regulations, e.g., pain, painful motion, limitation of motion, weakness, numbness, and reduced strength. Specifically, a wide rating of signs and symptoms are contemplated in the applicable rating criteria, including pain, loss of motion, painful motion, muscle spasm, ankle jerks, and other neurological findings as to strength and sensory function. Logic dictates that all of these types of symptoms will, necessarily, impact upon functional activities. Thus, both the symptoms and the anticipated limitation of functional activities are contemplated by the rating criteria. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In fact, 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. Also, 38 C.F.R. § 4.59 requires consideration of such matters as sciatic neuritis, unstable or malaligned joints, and crepitation. The level of severity and symptomatology of the Veteran's service-connected thoracolumbar disability has been carefully compared with the established criteria found in the rating schedule.

The Veteran's thoracolumbar spine disability has manifested in painful movement, and limited movement due to pain and during flare-ups. The schedular criteria for rating the lumbar spine disability specifically provide for ratings based on the presence of painful motion, whether or not such pain radiates; limitations of motion of the spine including due to pain and other orthopedic factors that result in functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, Id., Mitchell, Id.); and other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and, when applicable, on the basis of incapacitating episodes. 

It must be noted that specific functional activities as to which the Veteran may be expected to have some impairment are addressed in the Rating Schedule. As to functional impairment related to cooking, such impairment does not usually involve using the lumbar spine in bending, and mostly involves usage of the shoulder and arm. To the extent that cooking requires forward flexion, such specific measure of motion is explicitly part of the schedular rating criteria. 

As for functional impairment with dressing oneself, the specific acts of bending or twisting of the back that may be required to dress oneself and to engage in fishing are contemplated by the schedular rating criteria based on limited and painful motion. To the extent that dressing oneself requires forward flexion of the lumbar spine, such forward flexion is explicitly part of the schedular rating criteria and a schedular rating may be based on forward flexion alone. To some lesser extent, dressing oneself and fishing may require lumbar extension, lateral flexion, and rotation, which are all part of the schedular rating criteria under combined range of motion of the thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Spine Disabilities, and Plate V.

As to functional impairment with respect to exercise, to the extent that exercise involves prolonged standing, sitting, walking, bending, disturbance of locomotion, or instability of station, such functional impairment has been considered by the Board and is contemplated under the schedular rating criteria. See 38 C.F.R. § 4.45 (disturbance of locomotion, instability of station, and interference with sitting, standing, and weight-bearing are considered as functional limitation under the schedular rating criteria). 

As to functional impairment with respect to grocery shopping, or shopping generally, as well as lifting, including the lifting of day-to-day objects, the slight lateral or twisting movements required for lifting objects such as groceries or other day-to-day objects (to the extent the lifting is performed by the back rather than only arms and shoulders) may suggest lifting of the objects in the position of slight forward flexion, although simply lifting objects may equally involve minimal back flexion or movement when lifting by primarily using the legs, arms, and shoulders. As such, to the extent that these activities may involve forward flexion of the lumbar spine, it is explicitly part of the schedular rating criteria and a schedular rating may be based on forward flexion alone. To the extent that lifting shopping items or other items may require lumbar extension, lateral flexion, and rotation, such movements are part of the schedular rating criteria under combined range of motion of the thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Spine Disabilities, Plate V. 

As to functional impairment with respect to house cleaning, to the extent that this cleaning involves any thoracolumbar motion, all limitations of motion of the thoracolumbar spine in any direction, including in flexion, extension, lateral flexion, and rotation of the spine are considered in arriving at a rating for the orthopedic manifestations of a spinal disorder. See 38 C.F.R. § 4.71a, Plate V. 

Interference with sitting is considered as part of the schedular rating criteria and, likewise, interference with standing and weight-bearing, as well as instability of station, are considered as part of the schedular rating criteria. Prolonged walking is part of the schedular rating criteria which contemplates disturbance of locomotion and interference with weight-bearing because prolonged walking necessarily involves weight-bearing. See 38 C.F.R. § 4.45. 

As for functional impairment with respect to forward or lateral bending, such impairment is specifically contemplated in the schedular rating criteria. Forward flexion is explicitly part of the schedular rating criteria and a schedular rating may be based on forward flexion alone. Lateral bending is part of the schedular rating criteria under combined range of motion of the thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Spine Disabilities, Plate V. 

The slight forward flexion movement required to push or walk behind a mower, and the slight lateral or twisting movements required for mowing are contemplated by the schedular rating criteria based on limitation of motion, to include as due to pain or other orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors, which are incorporated into the schedular rating criteria. See 38 C.F.R. § 4.71a, General Rating Formula for Spine Disabilities, Plate V. 

Interference with standing and weight-bearing, as well as instability of station, are considered as part of the schedular rating criteria under 38 C.F.R. § 4.45. To the extent that prolonged standing causes incidental pain in the lumbar area, such pain is considered as part of the schedular rating criteria, to include as due to orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors such as weakness, incoordination, and fatigability, which are incorporated into the schedular rating criteria as applied to the particular diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Also, prolonged walking is part of the schedular rating criteria under 38 C.F.R. § 4.45, which contemplates disturbance of locomotion and interference with weight-bearing because prolonged walking necessarily involves weight-bearing. 

The minimal forward flexion of the back required to position oneself for standing by using the legs (as lifting is primarily performed with the legs, rather than the back) is contemplated by the schedular rating criteria based on limitation of motion, and specifically forward flexion, to include as due to pain and other orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors such as weakness or weakened movement, incoordination, and fatigability, which are incorporated into the schedular rating criteria. See 38 C.F.R. § 4.71a, General Rating Formula for Spine Disabilities, Plate V. 

To the extent that any of these activities causes incidental pain in the lumbar area, such pain is considered as part of the schedular rating criteria, to include as due to orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors such as weakness or weakened movement, incoordination, and fatigability, which are incorporated into the schedular rating criteria as applied to the particular diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (the schedular rating criteria contemplate limitation of spine motion with or without symptoms such as pain, whether or not it radiates); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, No. 14-0217 (Vet. App. Feb. 12, 2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria).

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for the Veteran's service-connected chronic lumbosacral sprain, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 

Entitlement to a TDIU 

The Veteran asserts he is entitled to a TDIU. Specifically, his representative asserts that the aggregate effect of multiple service-connected disabilities renders him unemployable, and that there is no evidentiary basis in the record to support a finding that the Veteran can perform light and sedentary work. See Appellate Brief, October 15, 2021.

Additionally, as noted above, in February 2021, the Court granted a Joint Motion for Partial Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion. In that Joint Motion, the Court determined that the issue of entitlement to a TDIU has been raised by the record and has been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). In this regard, the Court noted that the May 2017 VA examination report indicated the Veteran should refrain from employment tasks that required him to repetitively flex, extend, or rotate his thoracolumbar spine; should be accommodated with the use of a chair when needed and be allowed to readjust positioning while at work as needed; and the Veteran may find it optimal to seek employment at a desk job, and avoid housing construction labor or warehouse stocking. 

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b).

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16.

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In the instant case, service connection is currently in effect for chronic lumbar strain rated as 40 percent disabling from May 10, 20015; bilateral hearing loss rated as 20 percent disabling from December 10, 2013 to September 20, 2016, and 40 percent thereafter; left lower extremity radiculopathy rated as 20 percent disabling from May 9, 2017; status post bunionectomy rated as 10 percent disabling from September 22, 1994; and tinnitus, rated as 10 percent disabling from August 25, 1997.

Therefore, his combined rating for the relevant period on appeal was 60 percent from July 12, 2010 to September 20, 2016; 70 percent from September 20, 2016 to May 9, 2017; and 80 percent thereafter. Thus, the schedular criteria are not met prior to September 20, 2016 and have been met thereafter. 

However, when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to appropriate VA officials for consideration of assignment of a TDIU rating. 38 C.F.R. § 4.16(b). 

Initially, the Board notes that in a June 2021 Board remand, the AOJ was directed to request the Veteran to complete and submit an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) in support of his claim for entitlement to a TDIU. In a June 2021 correspondence, the AOJ requested and attached such form from the Veteran. See Subsequent Development Letter, June 30, 2021. The requested form was not returned by the Veteran, and in a September 2021 Supplemental Statement of the Case, the AOJ denied entitlement to a TDIU. See Supplemental Statement of the Case, September 7, 2021. To date, the Veteran has not submitted a VA Form 21-8940 in support of his claim, which would have provided relevant information regarding his claim of entitlement to a TDIU. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). While failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to properly address a claim for TDIU.

The Board notes that the Veteran's physical limitations and functional impact of his service-connected chronic lumbosacral strain are discussed in the preceding section and incorporated herein.  

Turning to the evidence, at an April 2014 VA audiological examination, the examiner noted the Veteran's bilateral hearing loss impacted his ability to work. In this regard, the Veteran described difficulty hearing speech and in groups or with noise. The examiner noted the Veteran's tinnitus did not impact his ability to work. 

At an October 2016 VA audiological examination, the examiner noted the Veteran's bilateral hearing loss impacted his ability to work. In this regard, the Veteran reported he was constantly asking, "what?" and indicated that with background noise, he could not hear. The Veteran wore amplification in his right ear. The examiner noted the Veteran's tinnitus impacted his ability to work because it bothered the Veteran. 

Here, the evidence is against finding that the Veteran is precluded by his service connected disability from obtaining and maintaining any form of gainful employment consistent with his education, experience, and skillset. The record is absent as to the Veteran's highest level of education and current employment status and/or employment history. However, the Board notes that at his August 2021 VA examination for his back, the Veteran indicated that he was employed. See VA examination report, August 31, 2021 (indicating the Veteran had to change positions at his current job due to his chronic lumbosacral strain). During service, the Veteran's military occupational specialty (MOS) included field artillery systems mechanic. 

The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

Based on the foregoing, the Board finds that the Veteran is not entitled to a TDIU at any time prior during the period on appeal. The Board has carefully considered the Veteran's statements regarding the effects of the aggregate effects of impairment of his service-connected disabilities, to include back pain and limited range of motion, on his employability. Although the Veteran experienced limitation as a result of his service-connected chronic lumbosacral strain, bilateral hearing loss, and tinnitus, and this disability has been found to cause some impact on his daily functioning and earning capacity, that impact was considered in the schedular ratings currently assigned. Simply stated, if he did not have impairment with his service-connected disabilities, there would be no basis for the combined ratings during the period on appeal. Thus, such disabilities are not shown to render the Veteran unable to secure or follow a substantially gainful occupation. The fact that he was having impairments or difficulties does not provide a basis to grant TDIU. Further, the Veteran himself asserted that he was currently employed. Because the record is unclear as to the Veteran's education level, prior employment history, certifications or trainings obtained, and skillset, the Board cannot determine whether the Veteran is unemployable overall or in what capacity. 

The Board acknowledges the statements of the Veteran and his representative that the aggregate effect of multiple service-connected disabilities renders him unemployable, and that there is no evidentiary basis in the record to support a finding that the Veteran can perform light and sedentary work. See Appellate Brief, October 15, 2021. However, as noted above, the Veteran himself is currently employed in spite of the current symptoms and aggregate effect of his various service-connected disabilities and there is no evidence to suggest that he is unable to secure or follow a substantially gainful employment because he has not participated in the development of his claim. This argument is therefore without merit. 

(Continued on the next page)

 

Therefore, based on the foregoing, the Board finds that, while the service-connected bilateral disabilities result in some impairment in occupational functioning, which is represented by his currently assigned ratings, such do not render him unable to secure or follow a substantially gainful occupation, separately or in the aggregate. Therefore, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and a referral for extraschedular consideration for a TDIU is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mariah N. Sim, 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.