Citation Nr: 21026412
Decision Date: 05/03/21	Archive Date: 05/03/21

DOCKET NO. 13-22 256
DATE: May 3, 2021

ORDER

Entitlement to an increased rating in excess of 20 percent for lumbar strain with degenerative joint disease is denied.

Entitlement to a total disability evaluation based on individual unemployability (TDIU) on a schedular or extraschedular basis is denied.

FINDINGS OF FACT

1. The lumbar spine degenerative joint disease disability is manifested by forward flexion of the thoracolumbar spine more than 30 degrees but not greater than 60 degrees; there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  There was neither ankylosis nor any incapacitating episodes during the period on appeal, nor neurological manifestations not accounted for in other disabilities.

2. The evidence of record does not show that the Veteran's service-connected disabilities alone preclude him from obtaining or maintaining substantially gainful employment consistent with his level of education and work history on a schedular or extraschedular basis.  

CONCLUSIONS OF LAW

1. The criteria for an increased rating in excess of 20 percent for a lumbar spine disability have not been met or approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242 (2020).

2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2020).REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1974 to August 1977.

This case comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran testified in a Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2016.  A transcript of that hearing is of record.

In April 2017 and July 2020, the Board remanded the issues of the Veteran's service-connected lumbar spine and TDIU.  The directed examinations having been accomplished, the issues are again before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 

When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009).  In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991).  Here, the Board notes that TDIU is part of this claim and will be discussed below.  There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i).  The Board finds that consideration of SMC is not inferred by the record, and as such will not be discussed.

Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020).  

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below 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 Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Increased Schedular Rating 

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.    

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.  

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id.  The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").  

The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158 (2016).

Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).  In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given.  It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner.  Id.

The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code."  Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016).   

The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes.  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.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity."  See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

The assignment of a particular diagnostic code is "completely 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 the demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

The terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Lumbar Spine Disability  Legal Standards

The Veteran's lumbar spine disability is currently rated under Diagnostic Code 5237 and Diagnostic Code 5242, covering degenerative arthritis of the spine.  All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion, or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. 38 C.F.R. § 4.71a, General Formula.  Under the General Formula, the spine is evaluated with or 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. Id.

According to the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or, vertebral body fracture with loss of 50 percent or more of the height.  38 C.F.R. § 4.71a.

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Id.

A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id.  

A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  Id.

In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

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 the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also Plate V (2020).

The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes:

Note (1):  Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id.  

Note (5):  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 neurological symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis).  Id.  

The rating schedule also includes criteria for evaluating intervertebral disc disease (IVDS).  When rated based on incapacitating episodes, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  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.  38 C.F.R. § 4.71a, DC 5243.  The Board notes the Veteran's lumbar back disability is currently rated using range of motion rather than IVDS because the former results in a higher rating.

VA's schedule of musculoskeletal rating changes, found in 38 C.F.R. § 4.71a, was modified with the changes in effect on February 7, 2021.  See 85 Fed. Reg. 76453 (Nov. 30, 2020).  A small modification was also made to Diagnostic Code 5003, which was announced in a corrected final rule.  See 85 Fed. Reg. 85523 (Dec. 29, 2020).  Pertinent to this particular appeal, Diagnostic Code 5003 was modified in its title to now read "Degenerative arthritis, other than post-traumatic."  Diagnostic Code 5242 is now titled "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)."  The title of Diagnostic Code 5243 is now "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses."  Id.  No other changes in 38 C.F.R. § 4.71a are applicable for this particular appeal.

Lumbar Spine Disability  Evidence and Analysis 

The Veteran seeks a higher evaluation for his service-connected degenerative arthritis of the lumbar spine.  The Veteran currently has an evaluation of 20 percent for his lumbar disability effective from July 13, 2005.  The Veteran has asserted that a higher evaluation is warranted because of the degree of pain and physical limitations he endures on a daily basis, per his lay statements.  

In the course of the appeal, the Veteran was granted service connection for bilateral lower extremity radiculopathy related to the service-connected lumbar back, with a current rating for each the right and left lower extremity of 20 percent.  The Veteran has not appealed the ratings for his lower extremity radiculopathy, and as such, they will not be discussed further.

The Veteran filed his claim for increased ratings on September 10, 2010.  As such, the Board will focus on the disability level of his lumbar spine disability from one year immediately preceding the claim.  See 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) (stating that in assessing the present level of disability, the relevant temporal focus is from one year immediately preceding the filing of the increased-rating claim); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's medical treatment records show that he established primary care for his back disability at the VA Medical Center Bay Pines, Florida in July 2011 after not receiving any medical care or taking any medication since 2008.  His initial treatment record that same month and year shows a chief complaint of throbbing pain, with objective examination showing normal posture and head position.  Gait was noted as abnormal, but there was no evidence of abnormal spinal curvature or spasms.  Range of motion was noted in flexion to 35 degrees, extension to 20 degrees, left lateral flexion to 25 degrees, right lateral flexion to 15 degrees, and bilateral rotation to 20 degrees.

The Veteran had an MRI in December 2011 with VA and diagnostic testing revealed degenerative discopathy with mild, diffuse, disk bulging at L2-L3, and L3-L4, L4-L5, and L5-S1; prominent epidural lipomatosis at L4 and L5 levels associated with moderate central canal stenosis L4-L5; moderate central canal stenosis and hypertrophic changes of the facette with bilateral neuroforaminal stenosis and nerve-root impingement.

The Veteran had another MRI in February 2013. The MRI results showed multilevel facet hypertrophy most prominent to the right L5-S1 level. There was also foraminal stenosis, which was most prominent at the left L2-3, bilaterally at the L3-L4, and on the right side at L4-L5, and right L5-S1. There were degenerative changes throughout the lumbar spine along with abnormal signal involving the T11-L2, and L5, which did not significantly change since his previous MRI in 2011. 

The Veteran was afforded a VA examination in November 2013. The Veteran complained of chronic low back pain. Objective examination showed range of motion of flexion to 60 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, and bilateral rotation to 20 degrees. The examiner reported pain on active range of motion, without additional limitations after repetitive use. There was tenderness on palpation of the lumbosacral area. There was guarding without resulting abnormal gait or spinal contour. There was no evidence of intervertebral disc syndrome (IVDS). Strength in the lower extremities was normal. Sensory exam was normal. Reflexes were normal. The examiner reported that the Veteran had functional loss after repetitive use in the form of less movement than normal, pain in movement, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. The examination was negative for signs and symptoms due to radiculopathy and bowel issues, and no ankylosis was reported. At the time of the November 2013 VA examination, the Veteran was using a cane regularly but did not report wearing a back brace. The Veteran's back disability was noted to have a functional impact on his ability to work, namely limited walking (1 block), standing (15 min), and sitting (15 min). The Veteran was also unable to lift or bend. 

The Veteran received a VA examination in August 2017. The examination noted complaints of increasing constant pain and stiffness in the lower back, and pain radiating to both legs constantly. The Veteran denied having any surgeries or flare-ups. Objective examination showed range of motion of flexion to 70 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, and bilateral rotation to 20 degrees. Pain was noted on examination, but it did not cause functional loss. There was also no functional loss after repetitive use testing. No guarding, muscle spasms or ankylosis were reported, reflexes were normal as was the sensory exam. The examiner reported that the Veteran had mild radicular pain in the bilateral lower extremities involving the sciatic nerve. The examination was positive for IVDS but there were no reported episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran reported that he used a cane constantly due to his back disability. This examiner noted that the Veteran's back disability did not impact his ability to work.

The Veteran received another VA examination for his lumbar back in January 2021.  The previous diagnosis of lumbar strain, chronic, with degenerative joint disease primarily at L4-S1.  The Veteran reported chronic back pain and also flareups of the thoracolumbar spine occurring daily, precipitated by prolonged standing and sitting or walking.  Functional loss was described as difficulty with heavy lifting and limited range of motion of the lumbar back in all axes.  Active range of motion was 60 degrees in forward flexion, 20 degrees in extension, and 20 degrees each in right and left lateral flexion, and right and left lateral rotation.  Pain on motion was noted in all measurements.  Passive range of motion was the same in all measurements as the active range of motion figures.  There was no objective evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue.  After repetitive use testing, range of motion was 55 degrees in forward flexion, 15 degrees in extension, and 15 degrees each in right and left lateral flexion, and right and left lateral rotation.  Estimated range of motion after a flareup was 45 degrees in forward flexion, 10 degrees in extension, and 10 degrees each in right and left lateral flexion, and right and left lateral rotation.  There was no guarding or muscle spasm noted.  Muscle strength was five on a scale of five.  No ankylosis was noted and there were no other neurological abnormalities noted beyond existing lower extremity radiculopathy.  No IVDS was noted.  The Veteran regularly used a brace and a cane to assist in ambulation.

1. Entitlement to an increased rating in excess of 20 percent for lumbar strain with degenerative joint disease

For the period on appeal, the Board finds the relevant rating criteria are met as to a rating of 20 percent for the Veteran's lumbar spine disability, but no higher.  An evaluation of 20 percent is granted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  The Board notes an evaluation of 20 percent for this period, but no higher, is based upon the worst recorded range of motion of 35 degrees in forward flexion in this period.  

A higher evaluation of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  While IVDS was noted during this period, there were no incapacitating episodes or periods of bed rest prescribed by a physician due to IVDS.

Additionally, the Board has considered the statements regarding flareups by the Veteran, but based on the medical evidence, even with estimates of motion loss in terms of degrees during periods of flare-ups, the criteria for higher evaluations based on range of motion have not been met or approximated.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).

Therefore, the Board finds that the preponderance of evidence is against assigning a rating in excess of 20 percent for the lumbar back degenerative joint disease disability.  See 38 C.F.R. § 4.71(a), Diagnostic Codes 5237, 5242; see also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's lumbar back disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings were considered but are not warranted beyond those already assigned, as noted in the discussion above.  See Hart, 21 Vet. App. at 505.

TDIU

It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16.  A total disability exists where there is any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.

Generally, TDIU is awarded on a schedular basis, which requires that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).  

Legal Standards

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 degree in education and his part-time work as a tutor).  

When considering a TDIU, the overriding issue is unemployability, not unemployment.  The sole fact that a veteran is unemployed for non-service- connected reasons, or has difficulty obtaining employment because of economic circumstances, is not enough for a TDIU grant.  A high schedular rating, in itself, is recognition that the impairment makes it difficult to obtain and retain employment.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can, in fact, find employment.  See 38 C.F.R. §§ 4.1, 4.15.  As noted, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  The Veteran's employment history, his educational and vocational attainment, and his particular disabilities are to be considered in making a determination on unemployability.

The VA General Counsel has concluded that VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated as totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances.  Thus, the criteria include a subjective standard.  It was also held that unemployability is synonymous with the inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91 (1991).  

"Substantially gainful employment" contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment.  Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  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 nonexertional) 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, 31 Vet. App. at 73-74.

As noted above, in determining whether the veteran is entitled to individual unemployability, neither his non-service-connected disabilities nor his advancing age may be considered.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  Thus, in deciding the claim, the Board may not favorably consider the effects of the non-service-connected disabilities with respect to their degree of interference with his employability.

Indeed, the Court stated that in order for a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes his case outside of the norm.  The sole fact that he is unemployed or has difficulty obtaining employment is not enough.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  See Van Hoose v. Brown, supra.  If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability.  See Gary v. Brown, 7 Vet. App. 229 (1994).

A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor.  38 C.F.R. § 4.3.

As noted, consideration may not be given to the impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19. However, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.10.

Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) on a schedular or extraschedular basis

Schedular TDIU

A total disability rating for individual unemployability may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent.  38 C.F.R. § 4.16(a).

Service connection has been previously established for degenerative joint disease, lumbar spine with IVDS, rated at 20 percent disabling from July 13, 2005 forward.  The Veteran is also rated for left and right lower extremity radiculopathy currently evaluated at 20 percent disabling for each extremity, each effective from January 18, 2021.  The Veteran is rated at 10 percent for each foot for plantar surface calluses, and has noncompensable ratings for a finger injury, scars, and tonsillectomy residuals.  With bilateral factors included in the calculation, the Veteran has an overall 60 percent combined rating from January 18, 2021, and only 40 percent prior to that date.

Thus, the Veteran does not meet the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), due to the lack of a single disability at 60 percent or more, or a combined 70 percent overall with at least one disability at 40 percent or more. Consequently, a TDIU rating on a schedular basis under 38 C.F.R. § 4.16(a) is not warranted.  See Sabonis v. Brown, 6 Vet. App. 426 (1994). 

Extraschedular TDIU

If the above percentage thresholds are not met, the Veteran's claim may still be referred to the Director, Compensation Service for consideration of an extraschedular rating, when the evidence of record shows that Veteran is "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities."  38 C.F.R. § 4.16(b).

For the TDIU claim, the Veteran has a 60 percent rating overall, with the primary disabilities being the lumbar back with the associated bilateral lower extremity radiculopathy.  The Board notes that it is precluded from an assigning an extraschedular rating in the first instance, as previously discussed.  See Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  The question for the TDIU claim in this appeal is, then, whether the evidence indicates unemployability sufficient to warrant a referral for an opinion regarding extraschedular consideration for a TDIU.  Colayong v. West, 12 Vet. App. 524, 537 (1999); see Bagwell v. Derwinski, 9 Vet. App. 337, 339 (1996).

The Veteran's employment history reflects that he has worked as a telemarketer, security guard, and pizza delivery driver. The Veteran holds a high school degree as well as an Associate's Science degree in Social and Human Service, which he obtained in May 2017. The Veteran's records also show that as of late 2017, he has been enrolled in a Bachelor of Applied Science Program pursuing a major in Health Services Administration. 

On an Income-Net Worth and Employment Statement, dated July 2005, the Veteran reported that he was terminated from his job as a telemarketer on account of his diabetes and hypertension disabilities for which he is not service-connected. During the September 2016 hearing, the Veteran testified that he was terminated from his job as a telemarketer because he could not sit for a long period of time and was not allowed to stand while performing the job. Elsewhere, the Veteran stated that he was terminated because he did not get along with his colleagues. 

During an April 2008 social work consultation, the Veteran reported that he was working in a printing press, that he had low back pain and that he had difficulties performing his job functions. The Veteran also expressed interest in receiving vocational rehabilitation, learning a new occupation, and finding stable employment. 

During a substance abuse treatment program assessment in June 2011, the Veteran reported that his goal was to find a desk job. 

An October 2011 State agency consultant opined that the Veteran had the residual functional capacity to lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk six hours in an eight-hour day, sit for six hours in an eight-hour day, and had an unlimited capacity to push and/or pull consistent with a light exertional level. 

The record reflects that the Veteran has been denied for Social Security disability twice. The Veteran's Social Security disability benefits claims were based on his back and feet disabilities, diabetes, high cholesterol, and high blood pressure. The Veteran's most recent Social Security denial was in May 2013. The Social Security Administration (SSA) denied the Veteran's claim because the Veteran's conditions were not deemed severe enough to keep him from working. With regards to the Veteran's back disability, the SSA concluded that the evidence did not support the degree of limitation alleged by the Veteran because the alleged limitations were inconsistent with the Veteran's activities, including attending school four days a week, studying, going to the library, attending frequent appointments at the VA Hospital, driving to and from school, attending AA and NA meetings, and self-sufficiency with most activities of daily living. 

Per the Veteran's SSA records, his primary care physician opined in August 2011 that the Veteran was limited to occasional stooping and kneeling, but had no restrictions on climbing, balancing, reaching, handling, or fingering. She indicated that the Veteran could stand, but would need short breaks in between, and that he was limited to standing continuously for one hour. She also indicated that he was limited to lifting and/or carrying a maximum of 10 pounds. 

The November 2013 VA examiner opined that the Veteran's back disability had an impact on his ability to work in that the disability limited the Veteran's walking (1 block), standing (15 min), and sitting (15 min). The Veteran was also unable to lift or bend. In the August 2017 VA examination, the examiner opined that the Veteran's back disability did not impact his ability to work. 

During the September 2016 hearing, the Veteran testified that he experienced consistent pain in his lower back and as a result, he was unable to sleep at night, and that "the movement, prolonged sitting, prolonged standing, prolonged walking is almost an impossibility; five minutes at most before I have to rest or sit. If I sit five minutes at most, I have to stand. The only comfort that I have is to lay down on my back with my feet in the air." 

Records from the VA Vocational Rehabilitation and Employment program indicate that in February 2018, the Veteran's Vocational Rehabilitation and Employment program was interrupted because the Veteran stopped participating in the program and started attending school on his own. In a June 2018 letter, the Veteran was notified that he was no longer entitled to receive VA Vocational Rehabilitation and Employment services and assistance because it has been declared that he has met Rehabilitation Status and has chosen to pursue further education instead of pursuing specific employment. The Veteran's records also contain documentation showing that he took college courses from May to July 2018.

The Veteran's most recent VA lumbar back examination from January 2021 show the functional effects of his service connected lumbar back with associated bilateral lower extremity radiculopathy to be back pain, limited range of motion, and difficulty with prolonged walking and bending over to pick up heavy items.

The Board has reviewed the evidence of record. The Board finds when taken as a whole the preponderance of the evidence showing the Veteran's education level, his skill set, the findings of the VA Vocational Rehabilitation and Employment program, the medical evidence to include the Social Security records, and the Veteran's testimony show he is employable. Some effect was noted regarding functional impact, indicating some degree of impairment.  However, during this entire period, no VA medical examiner or treatment provider opined or remarked that the Veteran was totally precluded from gainful employment.  Specifically, the evidence in the record shows that Veteran has achieved collegiate level education with marketable skills and has been enrolled in further college courses in pursuit of a new occupation and skill-set, so that he can achieve his goal of working at a "desk job."  The Veteran's contention that prolonged sitting is almost an impossibility and that he can only sit for five minutes at a time is inconsistent with his activities given that college course lectures generally can last anywhere from 1 to 3 hours and have limited breaks. According to the VA Vocational Rehabilitation and Employment program, the Veteran reached Rehabilitation Status in 2018, meaning the Veteran is considered equipped with the skills necessary to find employment. The SSA has also determined that the Veteran's disabilities are not severe enough to keep him from working. The Veteran's primary care physician indicated in August 2011 that he was limited in standing for long periods, but she did not indicate that the Veteran had any limitations sitting for long periods of time, as would be required in a sedentary occupation.   

Finally, the record contains inconsistent lay statements from the Veteran regarding the basis for his inability to secure and maintain substantially gainful employment.  See Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam).  Even though the Veteran had physical limitations for non-service-connected disabilities, the Veteran had the mental ability to gain higher education achievements, with demonstrated reliability and productivity in that regard.  See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019); see also Withers v. Wilkie, 30 Vet. App. 139 (2018).

The ultimate responsibility for determining the effects of disabilities on the question of employability rests with the adjudicator and not a medical examiner.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  Here, the Board finds that the evidence of record does not demonstrate that the service-connected disability of record alone renders the Veteran unemployable.  For this particular period, the Board notes limited effects of the Veteran's diagnosed lumbar back disability with associated lower extremity radiculopathy, but it does not rise to the level of total impairment.  The Board notes and acknowledges the limitations of the Veteran's other diagnosed conditions, to include his diabetes and substance abuse history.  However, those other disabilities are not service-connected, and are thus not pertinent to the Veteran's claim for a TDIU.  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Under these circumstances, the Board concludes that extraschedular referral for TDIU is not warranted.  Gilbert, supra.

Based on the foregoing, the Board finds that referral to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is not warranted because the most credible, competent, and probative evidence of record does not reflect that the Veteran is unable to follow or secure substantially gainful employment due his service-connected disability for the entire period on appeal.  See also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (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).

 

 

MICHAEL A. PAPPAS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Setter, 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.