Citation Nr: 21071631 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-37 890 DATE: December 1, 2021 ORDER Prior to July 13, 2018, an initial disability rating of 20 percent, but no higher, for degenerative disease of the thoracolumbar spine is granted. Since July 13, 2018, a disability rating in excess of 40 percent for degenerative disease of the thoracolumbar spine is denied. A total disability rating based on individual unemployability (TDIU) prior to June 1, 2011 is denied. FINDINGS OF FACT 1. Prior to July 13, 2018, the Veteran's lumbar spine disability was manifested by muscle spasms resulting in an abnormal gait, as well as pain with functional loss approximating flexion no greater than 60 degrees. 2. Since July 13, 2018 the lumbar spine disability has not been manifested by unfavorable ankylosis or intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks. 3. Prior to June 1, 2011, the Veteran's service-connected disabilities did not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to July 13, 2018, the criteria for an initial 20 percent rating, but no higher, for the lumbar spine disability were met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, Diagnostic Code (DCs) 5242-5237. 2. Since July 13, 2018, the criteria for a rating in excess of 40 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, DCs 5242-5237. 3. Prior to June 1, 2011, the criteria for entitlement to a TDIU were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the Army National Guard of West Virginia on active duty for training from June 1984 to August 1984 and June 1985 to August 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. Higher Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The Board's analysis will focus specifically on what evidence is needed to substantiate the claim, and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The probative evidence here is limited and largely consists of the VA examination reports discussed below. The Veteran's treatment records were considered, but generally do not contain the specific information sufficient for rating the disability under the applicable rating criteria. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Ratings of 50 percent and 100 percent are assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine, or of the entire spine, respectively. Under the Formula for Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, ratings are assigned based on the quantity and duration of incapacitating episodes over a prior 12-month period. For purposes of evaluation under this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Under this Formula, a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months, a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks, and a 60 percent rating is warranted if the total duration is at least six weeks. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, and normal extension, bilateral lateral flexion, and bilateral lateral rotation is zero to 30 degrees. These rating criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Ankylosis is the complete immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988). Note (5) in DCs 5235-5242 further explains that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are separately rated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code, 5242, 5243, at Note (1). Effective February 7, 2021, changes were made to the regulations pertaining to the spine. The revised regulations specify that DC 5242 pertains to degenerative arthritis, degenerative disc disease other than IVDS (also, see either DC 5003 or 5010). DC 5243 pertains to IVDS and provides that the diagnostic code is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; DC 5242 is to be assigned for all other disc diagnoses. DC 5244 was added to the rating schedule and provides ratings for complete traumatic paralysis. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, 5244). In January 2010, the Veteran filed a claim for service connection for a lumbar spine disability. In an August 2010 rating decision, the VA Regional Office denied the claim. The Veteran perfected an appeal of that denial. During the pendency of the appeal, in a September 2014 rating decision, the VA Regional Office granted service connection and assigned a 10 percent rating for the Veteran's lumbar spine disability, effective January 21, 2010. The Veteran perfected an appeal of the rating assigned. In May 2018, the Board remanded the claim for further development. In a September 2019 rating decision, the VA regional office granted a higher rating of 40 percent for the lumbar spine disability, effective September 16, 2019. In May 2021, the Board remanded the claim for further development. In a September 2021 rating decision, the VA regional office amended the effective date for the 40 percent rating, and assigned an earlier effective date of July 13, 2018. As such, at issue in the appeal is the Veteran's entitlement to a rating in excess of 10 percent prior to July 13, 2018, and in excess of 40 percent since that date. The appeal stems from his January 2010 underlying claim for service connection. With regard to the neurological manifestations of the disability, the Veteran has been in receipt of a separate disability rating for peroneal nerve dysfunction of the right leg since January 21, 2010, throughout the entire appeal period. Since July 13, 2018, he has been in receipt of separate ratings for left leg radiculopathy (effective September 16, 2019), and right leg radiculopathy (effective July 13, 2018). The Veteran was notified of the rating decisions awarding service connection for these neurological disabilities, and of his appellate rights. He has not appealed any aspect of those determinations, and the Board finds that the matters of entitlement to a higher rating for these disabilities are not within the scope of the claim on appeal. See Chavis v. McDonough, 34 Vet. App. 1 (2021). However, pursuant to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board will determine whether any additional separate neurological ratings are warranted at any point in the appeal period. Turning to the evidence, in a May 2009 VA primary care record, the Veteran's physician noted he had a "mild" decrease in the range of motion of his back. On VA examination in September 2010, the Veteran reported that his back pain was aggravated by bending, lifting, and rainy weather. He reported having severe flare-ups of back pain, occurring weekly and lasting for hours. His pain was improved by both rest and medication. He was able to walk for up to a quarter of a mile and used a cane for assistance. He had no bowel or bladder impairment. The examiner documented the presence of muscle spasms and that the Veteran had an antalgic gait. There were no incapacitating episodes of spine disease. There was no ankylosis. Flexion was to 75 degrees, extension was to 15 degrees, left lateral flexion and left lateral rotation were to 25 degrees, and right lateral flexion and right lateral rotation were to 20 degrees. There was pain on motion but no additional loss of motion on repetitive use. On neurological assessment, the only abnormal finding was decreased sensation of the right peroneal nerve and a positive Lasègue's sign on the right. Reflexes were normal bilaterally, and the left leg showed no neurological abnormalities. A motor examination was normal bilaterally. In a September 2017 VA primary care record, the Veteran's physician noted that he had a full range of motion of the thoracic and lumbar spine. In May 2018, the Board remanded the claim in order to provide the Veteran with a current examination and findings pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016). On VA examination on July 13, 2018, the Veteran denied having flare-ups of back pain. He reported that he could not walk due to a partial left foot amputation, but he would be unable to lift more than 20 pounds due to his back if he was able to get up. On examination, flexion was to 70 degrees, and extension, bilateral lateral flexion, and bilateral lateral rotation were to 20 degrees. There was pain on examination but it did not result in functional loss. There was no evidence of pain with weight bearing. The Veteran was unable to perform repetitive-use testing because he was wheelchair-bound due to his left lower extremity. The examiner noted that the examination had been conducted with assistance. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time or during flare-ups. On neurological testing, the examiner diagnosed radiculopathy of the bilateral lower extremities affecting the sciatic nerve. The Veteran also had impairment of the peroneal nerve bilaterally, and the femoral nerve on the right. There were no other neurological abnormalities associated with the spine. There was no ankylosis of any portion of the spine. There was no intervertebral disc syndrome of the spine. The Veteran used a wheelchair constantly due to complex regional pain syndrome of the left lower extremity condition alone. The examiner noted that the left leg/foot disability, a separately-service connected condition, was unrelated to lumbar radiculopathy. There was no objective evidence of pain in non-weight bearing status. The Veteran's range of motion in active and passive motion were the same. On VA examination in September 2019, the Veteran denied having flare-ups of back pain. He reported that he was unable to pick up objects from the ground due to his back condition. He experienced disturbance of locomotion, interference with standing, and interference with sitting due to the disability. On examination, flexion was to 30 degrees, extension and bilateral lateral flexion were to 15 degrees, and bilateral lateral rotation was to 20 degrees. There was pain on motion and in weight-bearing status. The Veteran could not perform repetitive use-testing due to pain. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time or during flare-ups. On neurological assessment, the examiner diagnosed bilateral radiculopathy involving the sciatic nerve. The examiner found there was no current impairment of the right popliteal nerve. There were no other associated neurological abnormalities. There was no ankylosis of the spine. While the Veteran had intervertebral disc syndrome, he had not experienced incapacitating episodes. He used a cane for balance due to amputations of the left toes. In May 2021, the Board noted the July 2018 VA examiner's statement that the Veteran required assistance during the examination. The Board remanded the claim for an opinion attempting to address what kind of assistance was given to the Veteran in July 2018, his range of motion without assistance, and whether he used a wheelchair due to his lumbar spine disability. On VA examination in September 2021, the Veteran reported having low back pain radiating into the lower extremities. He had flare-ups occurring every two months, and lasting from several days to two weeks. His pain was severe during flare-ups. He reported he could generally not lift objects off the floor due to back pain. His range of motion could not be assessed because he was wheelchair-bound due to a below-the-knee amputation of the left leg which was unrelated to the spine disability. There was no objective evidence of pain. Repetitive-use testing could not be performed. The procured evidence, including statements from the Veteran, did not suggest that pain, weakness, fatigability, or incoordination significantly limited his functional ability with repeated use over time or during flare-ups. On neurological assessment, the examiner diagnosed radiculopathy affecting the lower extremities affecting the sciatic nerve. There were no other associated neurological abnormalities. The examiner found there was no ankylosis of any portion of the spine. While the Veteran had intervertebral disc syndrome, he had not experienced incapacitating episodes. With regard to the inquires posed by the Board in May 2021, the examiner noted that the July 2018 VA examination report itself did not clarify the type of assistance provided to the Veteran, and as such, it was not possible to resolve that matter. He noted however, that on the September 2019 examination that he himself had performed, dated 14 months after the July 2018 examination, no assistance was rendered to the Veteran. He opined that the range of motion noted on that examination report could reliably be used as the most accurate estimation of what the range of motion would have been in July 2018 had assistance not been rendered. As for the Veteran's use of a wheelchair, he noted that the Veteran had previously used a cane due to amputation of his left toes, and was currently using a wheelchair due to a below-the-knee amputation of the left leg. He stated it was conceivable that the Veteran used a wheelchair in July 2018 for the same left foot disabilities. 1. Prior to July 13, 2018, an initial disability rating of 20 percent, but no higher, for degenerative disease of the thoracolumbar spine is granted. Considering the pertinent evidence in light of the governing legal authority, the Board resolves any doubt in favor of the Veteran and finds that a rating of 20 percent for the lumbar spine disability prior to July 13, 2018 most nearly approximates the severity of his disability for this time period. The evidence during this portion of the appeal period is limited. The only VA examination conducted prior to July 13, 2018 is that dated from September 2010, and as discussed above, there are few treatment records containing information sufficient for rating the disability. The next higher rating of 20 percent is assigned where there is evidence of muscle spasm or guarding resulting in an abnormal gait or spinal contour. The September 2010 VA examiner documented the fact that the Veteran had muscle spasms and an antalgic gait. While it is unclear from the report whether the abnormal gait was due directly to the muscle spasms, the examiner did not indicate otherwise and provided this information in connection with an assessment of the Veteran's lumbar spine symptomatology. As such, any doubt will be resolved in favor of the Veteran. Moreover, the examiner noted severe flare-ups of back pain, occurring weekly and lasting for hours. While flexion was to 75 degrees on examination, the Board finds that the Veteran's pain and functional loss during his weekly flare-ups approximated flexion not greater than 60 degrees, as also contemplated by a 20 percent rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). However, the preponderance of the evidence is against the assignment any higher rating for this time period. A higher rating of 40 percent requires favorable ankylosis of the entire thoracolumbar spine, or flexion limited to 30 degrees or less. As for flexion, the May 2009 primary care provider described the Veteran's limitation of motion as "mild," the September 2010 VA examiner found flexion was to 75 degrees, and the September 2017 primary care provider noted a "full" range of motion of the thoracic and lumbar spine. As for ankylosis, the September 2010 examiner explicitly stated there was no ankylosis, and the VA treatment records of May 2009 and September 2017 are consistent. Additionally, the Board does not find that the evidence supports a functional equivalent of ankylosis. See Chavis, 34 Vet. App. at 1. Functionally, the Veteran was able to walk for up to a quarter of a mile, and he did not have weakness or unsteadiness. There was no history of falls, fatigue, or stiffness. His posture and head position were normal, and there was symmetry in appearance. On examination, there was pain on motion but no additional loss of motion on repetitive use. In short, the Veteran's pain and functional impairment were considered in awarding the 20 percent rating above. However, his pain and functional impairment did not approximate the level of severity described by the next higher rating with either ankylosis of the entire thoracolumbar spine, or flexion limited to 30 degrees or less. As such, the evidence does not support the assignment of a rating higher than the already-assigned 20 percent evaluation due to limited motion of the spine. As for consideration of a higher rating on the basis of "incapacitating episodes," the VA examiners found the Veteran did not have incapacitating episodes of spine disease. The Veteran's treatment records similarly do not indicate that he was prescribed bed rest by a physician due to the service-connected lumbar spine disability. As such, the criteria for a higher evaluation under Diagnostic Code 5243 have not been met. As for consideration of a separate rating on the basis of neurological manifestations of the disability, the September 2010 VA examiner found no neurological abnormalities related to the service-connected lumbar spine disability other than the already service-connected impairment of the right peroneal nerve. For the foregoing reasons, the Board finds that a 20 percent disability rating, but no higher, is warranted for the lumbar spine disability prior to July 13, 2018. The preponderance of the evidence is against the assignment of any further ratings based on neurological abnormalities associated with the disability. In reaching this decision, the Board considered the doctrine of reasonable doubt. 2. Since July 13, 2018, a disability rating in excess of 40 percent for degenerative disease of the thoracolumbar spine is denied. Considering the pertinent evidence in light of the governing legal authority, the Board finds the preponderance of the evidence is against a rating in excess of 40 percent for the lumbar spine disability since July 13, 2018. As noted, higher ratings of 50 percent and 100 percent require evidence of unfavorable ankylosis of the entire thoracolumbar spine, or of the entire spine, respectively. VA examiners in July 2018, September 2019, and September 2021 explicitly determined the Veteran does not have ankylosis of the spine. The functional equivalent of ankylosis also has not been shown. See Chavis, 34 Vet. App. at 1. The July 2018 examiner noted that while there was pain on examination, it did not result in functional loss. The Veteran could not perform repetitive use testing only because of a separate and unrelated disability. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time or during flare-ups. There was no objective evidence of pain in non-weight bearing status, and the Veteran's range of motion in active and passive motion were the same. On VA examination in September 2019, the Veteran denied having flare-ups. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time or during flare-ups. The September 2021 examiner noted flare-ups that occurred every two months. The procured evidence, including statements from the Veteran, did not suggest that pain, weakness, fatigability, or incoordination significantly limited his functional ability with repeated use over time or during flare-ups. As for the Veteran's use of a wheelchair, the record consistently shows that this is due to his separate and unrelated disabilities of the left foot and leg. Thus, while the Veteran clearly experiences pain and functional loss, the Board cannot find that it approximates the level of severity as described by a 50 percent or higher rating due to limited motion of the spine. The Board thus finds that pain and functional loss have already been considered in assigning the current rating. As for consideration of a higher rating on the basis of "incapacitating episodes," the VA examiners found the Veteran did not have incapacitating episodes of spine disease. The Veteran's treatment records similarly do not indicate that he was prescribed bed rest by a physician due to the service-connected lumbar spine disability. As such, the criteria for a higher evaluation under Diagnostic Code 5243 have not been met. As for consideration of a separate rating on the basis of neurological manifestations of the disability, the September 2019 and September 2021 VA examiners found no neurological abnormalities related to the service-connected lumbar spine disability other than those for which he is already service-connected. To the extent the July 2018 VA examiner noted impairment of the peroneal nerve bilaterally, and the femoral nerve on the right, these findings are isolated among the remainder of the record. The preponderance of the evidence is thus against a finding of any additional neurological abnormalities associated with the lumbar spine disability. For all the foregoing reasons, the Board finds the preponderance of the evidence is against a rating higher than 40 percent for the lumbar spine disability since July 13, 2018, as well as any further ratings for associated neurological abnormalities. In reaching this decision, the Board considered the doctrine of reasonable doubt. 3. A TDIU prior to June 1, 2011 is denied. Throughout the appeal, the Veteran has reported that he has been unable to work because of his lumbar spine disability. See, e.g., September 2017 Application for Increased Compensation Based on Unemployability (VA Form 21-8940). As such, the Board finds a claim for a TDIU has been raised in connection with the underlying January 2010 claim for a higher rating for the service-connected lumbar spine disability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the Veteran was awarded a TDIU effective June 1, 2011, as the claim was not granted for the entire appeal period, however, it remains on appeal. Harper v. Wilkie, 30 Vet. App. 356, 362 (2018 VA will grant disability compensation based upon individual unemployability when the evidence shows that the Veteran is precluded, by reason of his or her service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. For the portion of the appeal period dated prior to June 1, 2011, the minimum schedular criteria were not met. During this time period, the Veteran's service connected disabilities included the following: left foot disability (20 percent disabling), lumbar spine disability (20 percent disabling by way of the award herein), and peroneal nerve dysfunction of the right leg (10 percent disabling). The Veteran's combined disability rating was less than 60 percent by application of 38 C.F.R. § 4.25. Nonetheless, it is VA's policy that all Veterans who are unable to secure a substantially gainful occupation by reason of service-connected disabilities "shall be rated totally disabled." See 38 C.F.R. § 4.16(b). The Court has held that the Board has no power to award a TDIU under 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director, Compensation Service (Director) for consideration of an "extraschedular rating". Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board finds, however, that no referral is warranted. The record shows that the Veteran has a high school degree. He has alternatively reported that he last worked full-time in either 1985 or 1998, and his employment history prior to these dates is unknown. See VA Forms 21-8940. In December 2000, the Social Security Administration found the Veteran disabled primarily due to disorders of the muscle, ligament, and fascia affecting the left arm, and secondarily due to borderline intellectual functioning with psychiatric diagnoses. On VA examination for the lumbar spine in September 2010, the examiner noted that the Veteran last worked in 1998 and stopped working because of psychiatric problems. The lumbar spine disability was noted to have an impact on the performance of physical activities only. On VA examination for the left foot in September 2010, the examiner noted that the disability decreased mobility, and caused weakness, pain, and fatigue. The Veteran was unable to stand or walk for prolonged periods of time. The examiner noted that the Veteran last worked in 1998 and stopped working because of psychiatric problems. The left foot disability prevented sports, had a moderate effect on exercise and traveling, a mild effect on chores and shopping, and no effect on recreation, feeding, bathing, dressing, toileting, grooming, or driving. Prior to June 1, 2011, the minimum schedular criteria were not met and although he was not working, the impact of the Veteran's service-connected disabilities on his ability to secure or follow substantially gainful employment was minimal. He had no audio limitations, no visual limitations, and no mental limitations due to service-connected disabilities. The Social Security Administration awarded disability benefits due exclusively to non-service connected disabilities. As such, referral for consideration of an extraschedular TDIU prior to June 1, 2011 is not warranted. Since June 1, 2011 As noted, the Veteran has been awarded a TDIU since June 1, 2011. VA's duty to maximize a claimant's benefits requires additional consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s), referred to below as "SMC(s)." SMC(s) is available to veterans who have a single disability rated as total, and a separate disability(ies) that amount to 60 percent. 38 U.S.C. § 1114(s). A TDIU rating can qualify for compensation at the 38 U.S.C. § 1114(s) rate, so long as the TDIU is based on a single disability. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). The single disability requirement of SMC(s) means one disability. The rater cannot use 38 C.F.R. § 4.16(a) to "build" a single disability. Id. The Veteran has already been awarded SMC(s) from June 5, 2015 to October 1, 2015. While this award of SMC(s) does not cover the entirety of the appeal period dated since June 1, 2011, other than during brief periods in which he received temporary total ratings, the Veteran has not had any disability rated at or above 60 percent as is required to meet the rating threshold for TDIU based on a single disability. During his periods of temporary total ratings, other than during the period in 2015 during which he was already awarded SMC(s), he did not have separate disabilities amounting to 60 percent. See September 2021 Rating Decision Codesheet (most recent codesheet). As such, it is not necessary to determine whether, at any other point in the appeal period dated since June 1, 2011, one of the Veteran's disabilities could have supported a TDIU finding on its own (i.e., whether one disability by itself precluded him from obtaining or maintaining substantially gainful employment). A further award of SMC(s) is simply not possible. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.