Citation Nr: 21006315 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-15 696 DATE: February 3, 2021 ORDER The claim for a total disability rating for compensation based on individual unemployability (TDIU) is granted. REMANDED The claim for a rating in excess of 20 percent for intervertebral disc syndrome and arthritis of the thoracolumbar spine for the period from January 14, 2014, to September 29, 2019, is remanded. The claim for a rating in excess of 40 percent for intervertebral disc syndrome and arthritis of the thoracolumbar spine for the period beginning September 30, 2019, is remanded. The claim for an initial rating in excess of 20 percent for radiculopathy of the sciatic nerve of the left lower extremity associated with intervertebral disc syndrome and arthritis of the thoracolumbar spine is remanded. The claim for an initial rating in excess of 20 percent for radiculopathy of the sciatic nerve of the right lower extremity associated with intervertebral disc syndrome and arthritis of the thoracolumbar spine is remanded. The claim for an initial rating in excess of 20 percent for radiculopathy of the femoral nerve of the left lower extremity associated with intervertebral disc syndrome and arthritis of the thoracolumbar spine is remanded. The claim for an initial rating in excess of 20 percent for radiculopathy of the femoral nerve of the right lower extremity associated with intervertebral disc syndrome and arthritis of the thoracolumbar spine is remanded. The claim for a rating in excess of 10 percent for degenerative arthritis of the left knee is remanded. The claim for a rating in excess of 10 percent for degenerative arthritis of the right knee is remanded. FINDINGS OF FACT 1. Service connection is in effect for intervertebral disc syndrome and arthritis of the thoracolumbar spine, rated as 40 percent disabling; radiculopathy of the sciatic nerve of the left and right lower extremity, each extremity rated as 20 percent disabling; radiculopathy of the femoral nerve of the left and right lower extremity, each extremity rated as 20 percent; degenerative arthritis of the left knee, rated as 10 percent disabling; degenerative arthritis of the right knee rated as 10 percent disabling; pseudofolliculitis barbae (PSB), rated as 10 percent disabling, a painful scar of the interior right forearm, rated as 10 percent disabling; bilateral plantar fasciitis, rated as 10 percent disabling, and a laceration scar of the interior right forearm, rated noncompensable; the service connected disabilities combine to be 90 percent disabling. 2. The Veteran reports education through four years of high school and work experience as a security guard and cook; he stated that he became too disabled to work in March 2009. 3. It is at least as likely as not that service-connected disability has precluded the Veteran from securing and following substantially gainful employment. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for TDIU are met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1982 to November 1986. I. Procedural Background First with respect to the claim for TDIU, an August 2017 Board of Veterans’ Appeals (Board) decision denied a claim for TDIU, as well as a claim for an increased rating for PFB. The Veteran appealed these denials to the U.S. Court of Appeals for Veterans Claims (Court). In June 2018, the Court granted a Joint Motion for Remand (JMR) that vacated the Board’s August 2017 denial of the claims for TDIU and an increased rating for PFB and remanded these matters for compliance with instructions provided in the JMR. The claim for an increased rating for PFB was again ultimately denied by the Board in a May 2019 decision that also made the determination that adjudication of the claim for TDIU had to be deferred pending the completion of a hearing before a Veterans Law Judge requested by the Veteran. The Veteran was scheduled for such a hearing in March 2020, but he withdrew his request for this hearing in a statement received in March 2020 that also requested review of his appeal by the Board. With respect to the remaining issues on appeal, the Veteran perfected an appeal with respect to claims for increased ratings for lumbar spine and right and left knee disabilities by way of a timely substantive appeal following a March 2016 statement of the case (SOC) that addressed these issues. This SOC also denied a claim for TDIU and service connection for a right foot disability. As service connection for bilateral plantar fasciitis was thereafter granted by a December 2019 rating decision, the appeal with respect to the claim for service connection for a right foot disability has been rendered moot. The December 2019 rating decision also granted service connection for radiculopathy of the sciatic and femoral nerves of the left and right lower extremity as secondary to the service connected lumbar spine, and the undersigned has found that the propriety of the initial 20 percent ratings assigned for such disability are on appeal to the Board as matters intertwined with the claim for an increased rating for the service connected lumbar spine disability. As a final matter, while the aforementioned December 2019 rating decision, as well as a March 2020 rating decision, adjudicated claims for increased ratings for the service connected lumbar spine and knee disabilities after the passage of the Appeals Modernization Act (AMA), and the Veteran requested Higher-Level of these claims under the AMA in February 2020, the appeals with respect to these increased rating claims remain in the Board’s Legacy Appeal system as the Veteran’s appeal was not an eligible opt in stage for review under the AMA given the fact that the SOC addressing these issues was completed prior to February 19, 2019, the date on which the AMA became effective. 38 C.F.R. §§ 3.2400(c)(2) (2020). II. Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. For the purpose of determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities resulting from a common etiology and disabilities affecting a single body system are considered to be one disability. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether Unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is “that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests “a living wage.” Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined “substantially gainful employment” as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) (“marginal employment shall not be considered substantially gainful employment”). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to her service-connected disabilities, but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). III. Analysis Service connection is in effect for intervertebral disc syndrome and arthritis of the thoracolumbar spine, rated as 40 percent disabling; radiculopathy of the sciatic nerve of the left and right lower extremity, each extremity rated as 20 percent disabling; radiculopathy of the femoral nerve of the left and right lower extremity, each extremity rated as 20 percent; degenerative arthritis of the left knee, rated as 10 percent disabling; degenerative arthritis of the right knee rated as 10 percent disabling; PSB, rated as 10 percent disabling, a painful scar of the interior right forearm, rated as 10 percent disabling; bilateral plantar fasciitis, rated as 10 percent disabling, and a laceration scar of the interior right forearm, rated noncompensable. The service-connected disabilities combine to be 90 percent disabling. As such, the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are met. On a VA Form 21-8940 “Veteran’s Application for Increased Compensation Based on Unemployability received in July 2010, the Veteran reported education through four years of high school and work experience as a security guard and cook. He stated therein that he became too disabled to work in March 2009. The record does reflect that the Veterans has been awarded Social Security benefits on the basis of disability, to include that resulting from his service connected back and knee disabilities. In addition to statements from the Veteran as to his inability to work due to his service connected back and knee disabilities, the Veteran submitted statements from his son, daughter in law, and a friend in March 2020 in support of these contentions. Severe back and knee disability is also documented by medical evidence, to include a November 2019 VA examination of the lumbar spine which indicated the Veteran had constant back pain that radiated to his legs that prevents prolonged standing or the Veteran ever feeling “comfortable.” Severe limitation of lumbar spine motion with pain was shown at this examination and it was noted that the Veteran regularly used a cane. The November 2019 examiner stated that the Veteran’s lumbar spine disability limited his ability to work to the extent that he had an inability to bend, kneel, squat, or engage in repetitive lifting, pushing, pushing, or pulling. He was also said to have an inability for prolonged standing, walking, sitting and that he would require frequent breaks and days off. An October 2019 VA examination of the knees also reflected significant disability associated with pain, decreased mobility and flexibility, and swelling. The knee disabilities were said at this examination to require the use of knee braces, a cane, and steroid injections every four months. The October 2019 examiner stated that the Veteran’s knee disabilities interfered with his ability to work due to bilateral severe osteoarthritis that limited his mobility and rendered him unable to walk for greater than a city block without the need to stop and rest and chronic right knee swelling that precluded going up and down ladders or squatting without assistance. The examiner stated the Veteran’s knee disabilities precluded duties that would require prolonged standing or walking. The record also includes a January 2016 opinion to assess the Veteran’s employability finding that while he would not do well in a position that required prolonged standing, extensive walking, repetitive bending, or heavy lifting, he could perform a job that was “mostly clerical or technology related.” However, in light of the progression of the Veteran’s lumbar spine disability since this opinion was completed as documented by the November 2019 VA examination set forth above—and the conclusion by the November 2019 VA examiner that the Veteran’s lumbar spine disability would preclude prolonged sitting and require frequent breaks and days off—the undersigned concludes that there is sufficient evidence of record to find that the Veteran cannot secure and follow substantially any gainful employment due to his service connected lumbar spine disability, thereby warranting entitlement to TDIU. 38 C.F.R. § 4.16(a). All reasonable doubt in this regard has been resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.   REASONS FOR REMAND The October 2019 VA examination to assess the severity of the Veteran’s service- connected knee disabilities and the November 2019 VA examination to assess the severity of the Veteran’s service connected lumbar spine disability did not contain the range of motion findings required by Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, and as the record does not otherwise reflect VA examinations that reflect such findings, the Agency of Original Jurisdiction (AOJ) will be requested to afford the Veteran VA examinations addressing the claims for increased ratings for the service connected lumbar spine and knee disabilities that contain the range of motion findings required by Correia. The remand of these claims will also afford the AOJ the opportunity to ensure that the current findings with respect to flare-ups required by Sharp v. Shulkin, 29 Vet. App. 26 (2017) are obtained. In addition, the VA clinician who conducts the examination of the lumbar spine will be requested to provide the clinical information necessary to determine the proper rating to be assigned for the service connected radiculopathy of the sciatic and femoral nerves of the left and right lower extremity under 38 C.F.R. § 4.124a; namely, whether such results in complete or incomplete paralysis, and the degree of any such incomplete paralysis shown. For the reasons stated above, this case is REMANDED for the following action: Afford the Veteran VA examinations to determine the severity of service-connected lumbar spine and knee disabilities that contain the range of motion findings required by Correia and the findings with respect to flare-ups required by Sharp. The lumbar spine examination should include assessments of the degree to which the service-connected radiculopathy of the sciatic   and femoral nerves of the left and right lower extremity results in complete paralysis or “severe,” “moderately severe,” “moderate,” or “mild” incomplete paralysis. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Andrew Ahlberg, 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.