Citation Nr: 21071289 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 13-26 479 DATE: November 30, 2021 ORDER Entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease is denied. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is denied. INTRODUCTION The Veteran served on active duty from November 1977 to September 1979. The Veteran died in February 2018. The Veteran's daughter has been substituted as the Appellant. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO)in St. Petersburg, Florida. In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The Board most recently remanded these claims in June 2021 for additional development. The appeal has been remitted to the Board. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's service-connected lumbar degenerative disc disease is manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 2. The preponderance of the evidence is against findings that the Veteran's service-connected lumbar spine disability is productive of incapacitating episodes at any point during the pendency of the appeal. 3. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbar degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for TDIU are not met on a schedular basis, and referral for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b) is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Lumbar Degenerative Disc Disease Preliminarily, in June 2021, the Board remanded the above-captioned claims for additional development. Specifically, the Board directed the RO to confirm the Appellant's mailing address, email address, and telephone number. According to a June 2021 report of general information, the RO was able to contact the Appellant and verify the requested forms of contact. Thereafter, the RO re-adjudicated the claims, issued an August 2021 supplemental statement of the case, and remitted the appeal to the Board. The Board finds that the RO substantially complied with the remand directives and, thus, another remand for corrective action is not required. Throughout the pendency of this appeal, the Veteran's service-connected lumbar degenerative disc disease has been assigned a 20 percent rating. Disabilities of the thoracolumbar spine are rated under a General Rating Formula (Formula). 38 C.F.R. § 4.71a. The Formula ratings apply with or without symptoms such as pain, stiffness, or aching. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted it there is unfavorable ankylosis of the entire thoracolumbar spine. The Formula provides for a separate rating for any associated objective neurologic impairment. Effective February 7, 2021, the Formula was amended for certain spine disabilities. However, the Veteran's disability has been diagnosed as lumbar degenerative disc disease with associated bilateral lower extremity radiculopathy, which has been rated under Diagnostic Code 5243 throughout the pendency of this appeal. Diagnostic Code 5243 was not amended and, thus, adjudicating the claim herein is not prejudicial to the Appellant. Neither the Veteran nor the Appellant has asserted, and the evidence does not otherwise support finding the presence of ankylosis, be it favorable or unfavorable. As such, a rating in excess of 20 percent is not warranted on this basis for any distinct period throughout the pendency of this appeal. The Veteran underwent a VA examination in August 2010. Range of motion testing administered during the examination showed that the Veteran's forward flexion was from zero degrees to 60 degrees and zero degrees to 20 degrees for extension, bilateral lateral rotation, and bilateral lateral flexion. This range of motion included measurements by the examiner after repeat range of motion testing, and functional impairment with repeat use over time. Although the Veteran reported flare-ups every 2 to 3 weeks, this examination occurred years before it was required that examiners include estimations of limitations during flare-ups. Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, according to the Veteran, during a flare-up, he would lose an additional 40 percent range of motion. Even accepting the Veteran's estimation as accurate, a further reduction of his forward flexion by 40 percent during flare-ups results in forward flexion of 36 degrees. During the August 2010 examination, and as evidenced by treatment reports and the Veteran's lay reports and testimony, he experienced pain, worse with activity; fatigue; decreased motion; stiffness; weakness; and spasm. Clinical testing demonstrated normal muscle strength in each tested aspect, with no evidence of muscle atrophy. Further, the Veteran's reflex examinations were normal. In September 2017, the Board remanded the Veteran's claim in order to provide him another VA examination. While in remand status, the Veteran died before the requested VA examination occurred. Ultimately, the Board requested that a VA examiner review the evidence of record in order to provide an opinion as to the severity of the Veteran's lumbar degenerative disc disease between the August 2010 VA examination and his death. The following opinion was rendered by a VA examiner in October 2020: In response, the severity of the claimant's 'lumbar degenerative disc disease'...was likely mild to moderate in nature. Given that this author did not have the opportunity to either exam[ine] or interview the claimant, medical record review, particular previous imaging, was heavily considered. The most recent MRI of the lumbar spine region in 2011 described the disease as mild in nature, 'small broad-based protrusion pairs of the left L5-S1.' The MRI does not reveal spinal cord effacement or other findings suggestive of sever[e] lumbar pathology. The treatment course for the claimant's lumbar pathology does not suggest a greater severity either. There is no evidence of interventional procedure or surgical intervention for the disc disease that might be expected in greater than moderate symptoms. In 2013, the claimant apparently transferred all back care out of the VA which may account to the paucity of any recent lumbar medical notes, 'states that he is going to management at Florida Medical [May 17, 2013] and would like the pain medication just to get him through to that date.' A very important point to make is that prior to the claimant's death he was undoubtedly in severe back pain[,] however it was not due to his lumbar pathology (inclusive of his radiculopathy). A medical synopsis by a VA physician who apparently was able to review the claimant's recent medical notes indicate that throughout 2017 the claimant had prolonged admissions for bacteremia resulting in infection of the thoracic spine T5-T6 level (osteomyelitis) and his musculature (abscess). First, the thoracic spine is anatomically distinct from the lumbar spine and are not synonymous terms with one another. Second, the cause of the vertebral bone and disc destruction at the thoracic spine level was due to wide ranging infection (bacteremia). This destruction resulted in neurologic compromise of the lower extremities as the claimant developed a secondary thoracic transverse myelitis due to this infection. The neurologic compromise in the lower extremities was unlikely due to the radiculopathy but rather his thoracic spine transverse myelitis. Even with consideration of the Veteran's reported symptoms, functional impairment, and symptoms during flare-ups, the Board finds that the preponderance of the evidence does not meet or more nearly approximate a limitation of forward flexion to 30 degrees. Consequently, a rating in excess of 20 percent is not warranted for any distinct period during the pendency of this appeal. Because the Veteran's disability has been diagnosed as intervertebral disc syndrome the disability Incapacitating Episodes Formula is for application. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Incapacitating Episodes Formula provides for a 20 percent when incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. A 40 percent evaluation is assigned when incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum of 60 percent is assigned for when incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Incapacitating Episodes Formula, Diagnostic Code 5243. For purposes of evaluation under the Incapacitating Episodes Formula, 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). If intervertebral disc syndrome is present in more than one spinal segment and the effects in each spinal segment are clearly distinct, each segment is evaluated on the basis of incapacitation episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. Id. at Note (2). The evidence does not support finding that the Veteran's lumbar spine intervertebral disc syndrome caused incapacitating episodes as defined by VA. Additionally, the August 2010 VA examiner did not determine that the Veteran's service-connected lumbar degenerative disc disease resulted in incapacitating episodes. The evidence does not otherwise demonstrate episodes of bed rest prescribed by a physician and treatment by a physician due this disability. Consequently, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected lumbar degenerative disc disease is productive of incapacitating episodes at any point during the pendency of the appeal. TDIU A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in 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, 168 (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). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran is service connected for lumbar degenerative disc disease, with a 20 percent rating; right lower extremity radiculopathy, with a 20 percent rating; left lower extremity radiculopathy, with a 10 percent rating; tinnitus, with a 10 percent rating; and separate noncompensable ratings for left ear otitis media and bilateral hearing loss. Because the Veteran's right and left lower extremity radiculopathy are associated with his lumbar degenerative disc disease, they are considered a single disability for purposes of TDIU calculations. 38 C.F.R. § 4.25. Moreover, because the right and left lower extremity radiculopathy affect the Veteran's legs, the bilateral factor is applicable. 38 C.F.R. § 4.26. Accordingly, 20 percent for the Veteran's right lower extremity radiculopathy, combined with 10 percent for his left lower extremity radiculopathy equals 28. To that, 10 percent of 28 (or 2.8, rounded up to 3) is added to 28, resulting in 31 for the Veteran's bilateral lower extremity radiculopathy, with consideration of the bilateral factor. Id. Combing this 31 with the 20 percent rating for the Veteran's lumbar degenerative disc disease results in 45, which means the Veteran has a disability rated at 40 percent or more. The question then becomes, do the Veteran's disabilities, when combined, result in an overall rating of 70 or more. Continuing with the 45 that resulted from the previous combination, the Veteran has one 10 percent rating remaining. Combining 45 with 10 percent for the Veteran's tinnitus results in 51. Rounding 51 to the nearest number divisible by 10 results in an overall percentage of 50. Thus, the Veteran does not meet the schedular criteria under 38 C.F.R. § 4.16(a) for any period throughout the pendency of this appeal. However, TDIU is warranted whenever service-connected disabilities cause unemployability pursuant to 38 C.F.R. § 4.16(b), although the Board is precluded from awarding TDIU under 38 C.F.R. § 4.16(b) without first referring the matter to the Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Thus, the issue before the Board is whether a remand for referral for extraschedular consideration for TDIU is warranted. The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray, 31 Vet. App. at 66; see also Smiddy v. Wilkie, 32 Vet. App. 350, 358 (2020). According to an October 2004 TDIU claim, the Veteran was employed on a full-time basis as a truck driver until May 1989; an occupation that he been engaged in for 10 years at that point. The Veteran also indicated that he completed four years of high school. In the claim and an attached statement, the Veteran identified three disabilities that prevented him from securing or following any substantially gainful employment: neck/cervical spine, back/lumbar, and bilateral hearing loss. To date, service connection has not been granted for a neck or cervical spine disability. According to Social Security Administration records, the Veteran's primary diagnosis was "back problems," while his secondary diagnoses were major depression, borderline personality, obesity, and back pain. To date, service connection has not been granted for a psychiatric disability, a personality disorder, or obesity. According to the Veteran's DD 214, his military occupational specialty was Engineer Equipment Mechanic, and it indicated that he obtained a GED instead of graduating from high school. The evidence of record demonstrates that he was involved in a motor vehicle accident in 1989, which resulted in a variety of injuries, including back and neck injuries. However, according to an August 2010 VA examination report, the Veteran reported that the accident occurred in 1991, and that he has been unemployed since then (19 years at that point). There was no indicated that the Veteran was employed from August 2010 to his death in February 2018. In this case, the evidence shows that the Veteran's service-connected disabilities impacted his employment and perhaps made it difficult for him to continue in his role as a truck driver. Even assuming that the service-connected disabilities made it difficult to continue working in this capacity, the evidence does not show that the Veteran was unable to do another substantially gainful job for which he is qualified through his education and work history. For the foregoing reasons, the preponderance of the evidence is against entitlement to TDIU. The benefit of the doubt doctrine is therefore not for application in this case, and the claim for TDIU must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.340. The Veteran's assigned disability ratings for his service-connected disabilities do not meet the initial threshold percentage requirements for consideration of TDIU under 38 C.F.R. § 4.16 (a). Therefore, the Board is precluded from considering TDIU in the first instance under § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). However, as the preponderance of the evidence does not demonstrate that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation, the benefit of the doubt doctrine is not for application in this regard and remand for referral of the matter for consideration of entitlement to TDIU on an extraschedular basis is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.340, 4.16(b). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.