Citation Nr: 21021383 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-28 703 DATE: April 12, 2021 ORDER Entitlement to separate compensable rating for nerve impairment is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. At no time during the pendency of this claim has the Veteran had a diagnosis for a nerve impairment. 2. The Veteran does not meet the schedular criteria for a TDIU; the evidence of record does not indicate he cannot perform any employment due solely to his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a separate compensable rating for nerve impairment, secondary to a service-connected lumbosacral strain disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a), 4.71a, Note 1 to Diagnostic Code (DC) 5237. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to September 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a decision review officer (DRO) in May 2014; a copy of the transcript is of record. In a July 2018 Board decision, the issue of an increased rating for a lumbosacral strain disability restored a 40 percent rating and denied a rating in excess of 40 percent. The issue of entitlement to a separate compensable rating for nerve impairment associated with the Veteran’s service-connected lumbosacral strain disability was remanded for a VA examination to determine the nature and severity of any right leg radiculopathy. However, the Veteran failed to report to a March/April 2019 VA examination, and it was rescheduled for June 2019. The new examination was cancelled for good cause, as the record shows the Veteran was hospitalized for several days that month. In August 2019 the RO attempted to contact the Veteran and reschedule his examination; however, was unable to reach the Veteran. There is no indication that the Veteran attempted to reschedule the examination. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Note 1 to the General Rating Formula for Diseases and Injuries of the Spine directs VA to “[e]valuate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code (DC).” 38 C.F.R. § 4.71a, Note 1 to DCs 5237. When there is an approximate balance of positive and negative 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 Veteran. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to a separate compensable rating for nerve impairment is denied. The Veteran’s representative claims in the June 2018 Brief for the Board that the Veteran should be provided a separate compensable rating for radiculopathy of the right lower extremity. By way of background, this matter arose in part because the Veteran’s December 2011 VA examination report indicated that he had radicular pain, or signs or symptoms of radiculopathy. Specifically, the right lower extremity had moderate constant pain and numbness. The VA examiner indicated moderate radiculopathy in the right lower extremity. However, the report did not identify which nerve root was involved. Thus, this case was remanded to assist the Veteran in obtaining evidence to support a compensable rating for nerve impairment. No nerve impairment disability or neurological condition has been diagnosed during the pendency of this claim. In an April 2012 VA addendum opinion to the December 2011 VA examination, the VA examiner opined that the Veteran did not have radiculopathy, as there were no objective findings to support the diagnosis of radiculopathy. She further opined that the December 2011 VA examiner was noting the Veteran’s reported symptoms, rather than providing a radiculopathy diagnosis. Although the Veteran had symptoms attributable to peripheral nerve condition such as mild paresthesias and/or dysesthesias, the June 2014 VA examiner did not find that the Veteran had a peripheral nerve condition or peripheral neuropathy. Muscle strength testing was normal, there was no muscle atrophy, and nerve testing was all normal. In September 2014, the June 2014 VA examiner provided an addendum opinion stating that there were no objective findings to support the diagnosis of radiculopathy. Further, VA examination reports from February 2015, and September 2016 also found that the Veteran does not have radiculopathy. The Board notes that the duty to assist is a two-way street. A claimant may not passively wait for assistance in building a claim, but rather must actively assist VA in assessing his disabilities, for example, attending examinations as scheduled which may provide a better understanding of the disability claimed. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. See C.F.R. 38 § 3.655. Upon review of the evidence of record, the Board finds the April 2012 and September 2014 addendum opinions most probative on the issue of whether the Veteran has a nerve impairment secondary to his lumbar spine disability. To the extent the Veteran contests that a diagnosis was made in his December 2011 VA examination, the Board notes that the April 2012 examiner’s explanation was not rebuffed or challenged by the June 2014 examiner, who is also the same examiner from December 2011. Thus, it reasonable to conclude that the December 2011 VA examiner only intended to write the Veteran’s words, rather than provide a diagnosis. This conclusion is supported by the examiner’s September 2014 addendum opinion in which she states that objectively, there are no findings to support the diagnosis of radiculopathy. Indeed, the Veteran reported sharp pain down his lower legs in a December 2011 correspondence and intermittent shooting pain down his left or right leg to the top of his feet at the June 2014 examination. While he has reported symptoms of pain, the September 2014 addendum opinion reports that the Veteran had two appointments scheduled for an EMG and did not appear. Although he provided good cause for missing an examination and the RO attempted to rescheduled, there is no indication that the Veteran attempted to reschedule the appointment either. Thus, findings from VA examinations and/or tests, which could have supported the Veteran’s claim are not present. Upon review of the Veteran’s treatment records, the Board finds there to be no credible diagnosis of a nerve condition. Service treatment records are silent for complaints, treatment, or diagnosis for this condition. VA treatment records do not show a current diagnosis of the right lower extremity radiculopathy. Moreover, a June 2020 rating decision denied service connection for right lower extremity radiculopathy for lack of a current diagnosis. In the March 2021 Brief, the Veteran’s representative asserted that the Veteran is entitled to secondary service connection for nerve impairment because the radicular pain is often secondary to compression or inflammation of a spinal nerve. While the Veteran believes he has a current diagnosis for a nerve condition, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the Board gives more probative weight to the competent medical evidence of record. Service connection is limited to those cases where disease or injury has resulted in a disability. In the absence of proof of a current disability for which service connection is sought, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, because there is no indication in the record that the Veteran has had a diagnosis for a nerve impairment at any time during the course of this appeal, the claim for entitlement to a separate compensable rating and service connection for this claimed condition must be denied. 2. Entitlement to a TDIU is denied. On November 15, 2011, the Veteran filed an increased rating claim for his service-connected lumbosacral strain. During the pendency of the appeal, at his December 2011 VA back examination, the Veteran asserted unemployability due to his back disability. In April 2012, VA received the Veteran’s VA Form 21-8940. He asserts that his service-connected back disability renders him unable to secure and follow substantially gainful employment and states that he last worked full-time in 2005. The Veteran’s claim for TDIU stems from his increased rating claim received October 29, 2010. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. In cases where the schedular criteria are not met, an extraschedular rating is for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321, 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). Rating boards will refer to the Director of the Compensation Service (Director) for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran’s sole service-connected disability is lumbosacral strain (rated noncompensable from September 20, 1989 and 40 percent from February 4, 2008). Thus, his service-connected disability does not meet the schedular criteria for a TDIU per 38 C.F.R. § 4.16(a). Nevertheless, the Board must consider whether the evidence warrants referral to the Director of Compensation Service for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). An assessment for extraschedular referral requires consideration of the Veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Unemployability associated with advancing age or intercurrent (i.e,. non-service connected) disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough, as a schedular rating provides recognition of such. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The schedular criteria contemplate compensating a veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. See 38 C.F.R. § 4.1. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. The Board has considered whether referral for entitlement to TDIU on an extraschedular basis is warranted. Upon review of the lay and medical evidence of record, the Board finds referral for extraschedular consideration of a TDIU is not warranted. The Veteran’s VA Form reflects that he has four years of high school education and a four-year college education. He also has education and training in computer robotics and robotics technology. The Veteran reports his last full-time employment ended in 2005. There are no VA Forms 21-4192 of record for consideration. The Veteran’s DD 214 shows his military specialty was tactical wire operations specialist. Regarding economic and non-economic considerations – such as his physical disabilities, the evidence of record suggests that the Veteran can secure and follow substantially gainful employment, performing a job with earnings that are above the poverty threshold. The evidence of record does not demonstrate that his service-connected back disability precludes him from obtaining and maintaining substantially gainful employment consistent with his work history, training, education, and skills. A December 2011 VA back examination indicates the Veteran’s back disability interferes with prolonged standing and/or walking, lifting, and sleeping. He reports inability to work due to calling sick from work because of his lower back pain flare-ups. An April 2012 VA addendum to the December 2011 examination indicates that the Veteran’s back strain does not affect his functional impairment in any capacity except for severe physical labor. A February 2015 VA back examination indicates the Veteran is unable to perform physical work due to a combination of back diseases. Likewise, a September 2016 VA back examination indicates the Veteran is unable to accomplish a physical type of job. The Veteran’s lay reports and buddy statements indicate that, while he has been able to obtain employment, he has also had to quit jobs due to his back disability. He states in a December 2011 correspondence that he quit his part-time job at Walmart in 2009 because he could not stand at the counter for a period and that he has not worked since. In a December 2011 statement, the Veteran’s mother indicates that he “is a very intelligent computer technician;” has trouble keeping a job because of his disability; very seldom drives and has difficulty entering and exiting vehicles. She notes that “all he desires to do these days is sit in front of the TV or his computer.” She further notes in an April 2012 statement that the Veteran has been terminated from multiple jobs because he would either report to work late or leave early because of his back pain. VA treatment records, however, show that although the Veteran has had periods of unemployment, he has been employable, maintained employment, and his symptoms of back pain have not been of the severity to warrant extraschedular referral. The Veteran, who holds a college degree and as noted above is a computer technician, also worked as a freelance graphic designer and was taking classes in web design. The Veteran’s July 2014 VA treatment records indicate that he walked on treadmills for exercise; requested a back brace from his VA physician to use at work because he “sits in front of a computer.” March 2019 VA treatment records indicate that the Veteran has had ongoing employment, traveling out of town for work, sometimes weeks at a time. The evidence demonstrates that the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual do not preclude the Veteran from sustaining gainful employment.  See Ray, 31 Vet. App. 58. Although the Veteran reported physical limitations with lifting, bending, sitting, standing, walking, VA examiners and medical treatment records do not corroborate such. While the examiners have noted the Veteran’s report of limitations and some have acknowledged that they have a functional impact on the Veteran’s ability to work, the examiners have not indicated that these factors are of such a severity that the Veteran is unemployable. Rather, the examiners have indicated that he cannot perform ‘severe’ or physical labor. This, is reiterated in a July 2016 VA treatment note where the Veteran’s physician stated, “I hold that [the Veteran] has the ability to work, albeit not in physical labor.” To the extent the Veteran contends that the December 2011 VA examiner reported his unemployability, the Board notes that the April 2012 addendum opinion states otherwise. Likewise, the Board considered the mental ability-factors noted in Ray, to include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. 58. However, the competent and contemporaneous evidence of record does not demonstrate that the Veteran suffers from these conditions to an extent that would preclude him from working, particularly in an office setting. The record demonstrates that the Veteran receives mental health counseling; however, he is not service connected for a mental disability. As such, the mental ability-factors in Ray are not shown to impact the Veteran’s employability. Upon review of the various reports of occupational impairment from the VA examiners, the Board finds that although the Veteran’s back disability may cause pain that at times flares-up, it does not impair his ability to work. Specifically, none of the VA examiners or the Veteran’s physicians reported that his back disability precludes him from securing and maintaining gainful employment. In contrast, the Veteran reported in a December 2018 mental health note that he had not worked for some time due to his increased drug/alcohol use. Given the entirety of the evidence of record, the Board finds that there is not persuasive evidence of unemployability such that a referral to the Director is warranted for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b) for the entire period on appeal. With his work history and experience, the Veteran can obtain and maintain gainful employment in an office setting that requires less physical activity and request reasonable accommodations. The Veteran reports and the evidence demonstrate he is computer literate. Thus, he can pursue employment that offers remote work, which would allow him to work from home. This would eliminate commuting to and from work as the Veteran’s mother has reported his difficulty with riding in, entering and exiting vehicles; though, the record shows he travels for work. Nevertheless, considering the Veteran’s past work history, training, and skills, and considering the medical evidence and lay statements in this case, the Board finds the Veteran can secure and maintaining substantially gainful employment. Accordingly, an award for TDIU is not warranted. The Board has reached this conclusion as the competent and probative evidence fails to show that the Veteran’s service-connected back disability alone would reasonably preclude substantially gainful employment that is consistent with his education and prior work history. The Board has considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim. As such, that doctrine is not applicable. There is not compelling evidence that the Veteran’s service-connected disability renders him unable to secure and follow a substantially gainful occupation. For this reason, entitlement to TDIU is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert at 55-57 (1990). Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.