Citation Nr: 21026786
Decision Date: 05/04/21	Archive Date: 05/04/21

DOCKET NO. 96-41 250A
DATE:  May 4, 2021

ORDER

Entitlement to a rating in excess of 40 percent for the residuals of a thoracic spine injury (thoracic spine disability) is denied.

Entitlement to a rating in excess of 10 percent for chronic lumbar spine strain with degenerative joint disease (DJD) (lumbar spine disability) is denied. 

Entitlement to an effective date earlier than March 27, 2001, for the award of a total disability rating based upon individual employability due to service-connected disabilities (TDIU) is denied. 

Entitlement to an effective date earlier than March 27, 2001, for the award of eligibility to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied. 

FINDINGS OF FACT

1. During the appeal, the Veteran's thoracic spine disability is not manifested by incapacitating episodes having a total duration of at last six weeks during any 12-month period.

2. The Veteran's thoracic and lumbar spine disabilities are not manifested by unfavorable ankylosis of the thoracolumbar spine at any time on appeal. 

3. The Veteran's lumbar spine disability is manifested by x-ray evidence of degenerative changes and objective evidence of pain upon movement of the thoracolumbar spine throughout the appeal, and forward flexion of the thoracolumbar spine was limited to 40 degrees or less since November 28, 2008; an assignment of a higher rating for this disability would amount to impermissible pyramiding. 

4. The preponderance of the evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful occupation by reason of only his service-connected thoracic and lumbar spine disabilities prior to March 27, 2001. 

5. The Veteran did not have a permanent and total service-connected disability prior to March 27, 2001, when he was awarded a TDIU rating. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating in excess of 40 percent for the thoracic spine disability are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5299-5243; 38 C.F.R. § 4.71a, DCs 5293, 5295 (2002). 

2. The criteria for entitlement to a rating in excess of 10 percent for the lumbar spine disability are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1. 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5237-5242; 38 C.F.R. § 4.71a, DC 5293 (2002). 

3. The criteria for an effective date earlier than March 27, 2001, for the award of a TDIU rating are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.156, 3.400, 4.16.

4. The criteria for an effective date earlier than March 27, 2001, for the award of DEA benefits are not met. 38 U.S.C. §§ 3500, 3501, 3510, 5107, 5110; 38 C.F.R. §§ 3.400, 21.3020, 21.3021. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1986 to May 1986 and from April 1987 to February 1990. 

The Veteran's case has a long, complicated procedural history. Specifically, the issue of entitlement to a rating in excess of 40 percent for the thoracic spine disability initially arose from a June 1996 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted an increased rating of 20 percent for this disability, effective from July 12, 1995. A 40 percent rating from that date was awarded in a December 1996 rating decision. The issue of entitlement to a TDIU rating was denied in an October 1998 rating decision and a May 2000 rating decision denied the timeliness of the notice of disagreement (NOD) filed in disagreement with the October 1998 decision. The issue of entitlement to service connection for a lumbar spine disability was denied in a February 2003 rating decision. 

In April 2004, the Board of Veterans' Appeals (Board), in pertinent part, remanded for additional development the issues of entitlement to service connection for a lumbar spine disability, entitlement to a rating in excess of 40 percent for the thoracic spine disability, and entitlement to a TDIU rating. In a December 2005 decision and remand, the Board denied entitlement to a disability rating in excess of 40 percent for the thoracic spine disability and remanded the claims for entitlement to service connection for a lumbar spine disability and entitlement to a TDIU rating. Per a January 2007 Joint Motion for Remand (JMR), the United States Court of Appeals for Veterans Claims (Court) on January 23, 2007, issued an order vacating and remanding the Board's December 2005 decision as to the matter of an increased rating for the thoracic spine disability. The Board's December 2005 remand of the issues concerning were undisturbed by the Court's January 2007 order. The issue of entitlement to a rating in excess of 40 percent for the thoracic spine disability was again remanded by the Board in July 2007.

Although the timeliness of the appeal for entitlement to a TDIU rating was denied in a May 2000 rating decision, the Court has held that a claim for entitlement to TDIU is a rating theory and "not a separate claim for benefits." See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Therefore, in light of the decision in Rice, the Board finds the issue of entitlement to a TDIU rating is part and parcel of the initial claim for an increased rating for the thoracic spine disability, thereby affecting the issue of entitlement to an earlier effective date for the assignment of a TDIU rating currently on appeal.

In an April 2012 decision and remand, the Board denied entitlement to an effective date earlier than July 12, 1995, for a compensable rating for the thoracic spine disability. The Board also remanded the issues on appeal, including entitlement to a rating in excess of 40 percent for the thoracic spine disability, entitlement to a rating in excess of 10 percent for the lumbar spine disability, and entitlement to an effective date earlier than April 15, 2003, for the award of a TDIU rating.

In a March 2016 rating decision, the RO granted an earlier effective date of April 2, 2003, for the award of a TDIU rating and granted an earlier effective date of April 2, 2003, for the grant of eligibility to DEA. In a June 2016 rating decision, the RO awarded an effective date of March 27, 2001, for the grant of entitlement to a TDIU rating and eligibility to DEA. Finally, the RO awarded entitlement to an earlier effective date of May 5, 2000, for service connection for the lumbar spine disability. 

Most recently in February 2018, the Board remanded the matters on appeal in order to: obtain and associate with the claims file outstanding pertinent VA and private medical records; obtain VA vocational rehabilitation training and education (VR&E) records pertaining to the Veteran; schedule the Veteran for a VA examination to determine the severity of his service-connected thoracic and lumbar spine disabilities; submit the claim for entitlement to an earlier effective date for the award of a TDIU rating to the Undersecretary for Benefits or Director of Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 4.16(b) for the period prior to March 27, 2001; and, issue a supplemental statement of the case (SSOC) if any of the issues were denied by the Agency of Original Jurisdiction (AOJ). 

The record shows that the AOJ associated with the claims file pertinent, outstanding medical records on several occasions, including in April 2018 and August 2020. The AOJ received a negative reply to its request for the Veteran's VR&E records in April 2018. The Veteran underwent a VA examination in November 2018 for his thoracic and lumbar spine disabilities. In December 2020, the Executive Director of Compensation Service provided an administrative review for entitlement to a TDIU rating based on 38 C.F.R. § 4.16(b) for the period prior to March 27, 2001. Lastly, the AOJ issued a December 2020 SSOC denying the claims currently on appeal. Accordingly, there was substantial compliance with the Board's February 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998).

The Board notes that in September 2005 the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board notes that the Veteran also testified at a videoconference hearing in August 2003 before a Veterans Law Judge who is not available to participate in a decision on his claim for an increased rating for the thoracic spine disability, but that in correspondence received in September 2011 he waived his right to an additional Board hearing. The third member of the panel participating in the December 2005 and July 2007 Board remands has also retired. As the sole remaining assigned panel member, appellate review by the undersigned Veterans Law Judge is appropriate. See 38 C.F.R. §§ 19.3, 20.707.

Increased Ratings, Generally

The Veteran asserts that the disability ratings assigned for his service-connected thoracic and lumbar spine disabilities should be rated higher than the currently-assigned ratings. Because the evidence pertaining to the severity of these disabilities is located in the same or similar documents, the Board shall analyze them together below. 

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." Based on the procedural posture and evidence in this case, including the April 2012 Board decision noted above, the claim for a higher evaluation for the thoracic spine disability stems from July 12, 1995, and the claim for a higher evaluation for the lumbar spine disability stems from the effective date for the grant of service connection, i.e., since May 5, 2000. 

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 

1. Increased Ratings for the Thoracic and Lumbar Spine Disabilities 

The Veteran's thoracic spine disability is currently evaluated under DC 5299-5243 as 40 percent disabling based on incapacitating episodes and his lumbar spine disability is rated as 10 percent disabling under DC 5237-5242 located in 38 C.F.R. § 4.71a. However, as is discussed further below, the rating criteria for evaluating disabilities of the spine were amended on three occasions during the pendency of this appeal. The Board is required to consider the claim in light of both the former and revised schedular rating criteria to determine whether an increased evaluation for the Veteran's spine disability is warranted. If the amended rating criteria are favorable to the claim, the criteria can be applied only for periods from and after the effective date of the regulatory change. However, the Veteran does get the benefit of having both the old regulation and the new regulation considered for the period after the change was made. See 38 U.S.C. § 5110(g) (2002); VAOPGCPREC 3-00.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 

The provisions of 38 C.F.R. § 4.40 allow for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 

Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." Correia, 28 Vet. App. at 169-70.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that examiners have to offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran's lay statements. The Court explained that an examiner must do all that reasonably could be done in order to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. The Court held in that case that the VA examination was inadequate because the examiner, although acknowledging that the veteran in that case was not suffering from a flare-up at the time of the examination, failed to ascertain adequate information such as frequency, duration, characteristics, severity, or functional loss regarding flare-ups in order to provide the requested opinion. Sharp, 29 Vet. App. at 26. 

Currently, all spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Degenerative arthritis of the spine is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating. 

The Veteran's thoracic spine disability was initially rated under DC 5293 for IVDS. Under the old version for IVDS, a 60 percent evaluation was assigned for pronounced, persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief. A 40 percent evaluation was assigned for severe, recurring attacks with intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2001). 

The first amendment to the Rating Schedule governing the rating of spinal disabilities pertained to the evaluation of IVDS. 67 Fed. Reg. 54,345, 54,349 (Aug. 22, 2002) (effective from September 23, 2002). Under the revised criteria, effective September 23, 2002, IVDS is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, DC 5293, as amended by 67 Fed, Reg. 54345- 54349 (August 22, 2002). 

A 40 percent evaluation is assigned with incapacitating episodes of having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent evaluation is assigned with incapacitating episodes of having a total duration of at least six weeks during the past 12 months. Id.

Note (1): For purposes of evaluations under DC 5293,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. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so.

Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic DCs. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic DC. 

Note (3): If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment.

Additional orthopedic regulations in effect prior to September 26, 2003, included DC 5295, which pertained to lumbosacral strain, and which provided a 20 percent rating where there is evidence of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent rating was assigned for severe lumbosacral strain, with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2002).

Additionally, prior to September 26, 2003, DC 5291, provided a maximum 10 percent rating for limitation of motion of the dorsal spine that was either moderate or severe. 38 C.F.R. § 4.71a, DC 5291 (2002). Favorable ankylosis of the dorsal spine was assigned a 20 percent rating. Unfavorable ankylosis of the dorsal spine warranted a 30 percent rating. 38 C.F.R. § 4.71a, DC 5288 (2002).

The second revisions to the Rating Schedule governing the rating of spinal disabilities became effective on September 26, 2003. At that time, VA amended its Schedule for Rating Disabilities, 38 C.F.R. Part 4, to institute the General Rating Formula, including for lumbosacral strain under DC 5237, spinal stenosis under DC 5238, degenerative arthritis of the spine under DC 5242, and IVDS under DC 5243. As noted above, under the revised criteria, IVDS is evaluated under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. However, assigning separate ratings for a combination of the total duration of incapacitating episodes over the past 12 months and by combining separate evaluations of the chronic orthopedic and neurologic manifestations may not be permitted as it would result in pyramiding under 38 C.F.R. § 4.14 - which prohibits "[t]he evaluation of the same disability under various diagnoses." See Brady v. Brown, 4 Vet. App. 203, 206 (1993); Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (the critical element is if symptoms of one condition are duplicative of or overlapping of another). Thus, a rating for IVDS may not be assigned while at the same time assigning separate ratings for the orthopedic and the neurologic components of IVDS. As is discussed in more detail below, the Veteran's thoracic spine disability is to be rated under the Formula for Rating IVDS Based on Incapacitating Episodes as this method would result in the highest evaluation based on his symptoms. 

Under the General Rating Formula, a 20 percent rating is warranted when 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, 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 rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. 

For VA compensation purposes, 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 normal combined range of motion of the thoracolumbar spine is 240 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 ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2).

The criteria in the Formula for Rating IVDS Based on Incapacitating Episodes did not change following the September 26, 2003, amendments apart from changing the IVDS diagnostic code to DC 5243. See 38 C.F.R. § 4.71a, DC 5243. Note (1) to DC 5243 states that an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 

Lastly, while portions of the rating schedule addressing the musculoskeletal system were most recently revised effective February 7, 2021, the changes to the rating schedule do not affect the DCs pertaining to the Veteran's thoracic and lumbar spine disabilities. 85 Fed. Reg. 230 (Nov 30, 2020). 

During the appeal period, the Veteran was examined by VA on at least eight occasions. While the evidentiary record also includes numerous VA outpatient records showing treatment for various musculoskeletal disorders since 1995, the Board shall discuss the contents of these records in relation to the thoracic and lumbar spine disabilities to the extent that they show evidence that would substantiate a higher disability rating for these disabilities. 

On VA examination in April 1996, the examiner indicated that the claims file was not available for review. The Veteran reported that he had chronic mid-back pain since service and that it had progressively worsened over the previous two years manifested by a sharp, stabbing pain in the posterior thorax area with deep inspirations. On examination, the Veteran identified the painful and hypersensitive area to be around the T4 spinal level. There was no evidence of spinal scoliosis. Forward flexion of the thoracic spine was to 100 degrees. Rotation was to 30 degrees, bilaterally, with complaints of a pinching and burning sensation in the thoracic region. Lateral bending was to 35 degrees, bilaterally with a burning sensation in the thoracic spine. Reflexes were 2+ in the upper extremities, strength was 5/5 in all muscles, and sensation to pinprick was insignificant in the upper extremities. X-ray studies of the thoracic spine showed the articulations were normal, pedicles were intact, and there was no evidence of fracture or bony destruction. The diagnoses included thoracic spine muscle spasm and hyperesthesia.

On VA general examination in July 1997, the Veteran had complaints of mid-back pain and a reported history of herniated nucleus pulposus in the thoracic spine. He was diagnosed with herniated nucleus pulposus of the thoracic spine.

A July 1997 VA orthopedic examination showed that the Veteran had complained of chronic back pain, decreasing strength with minimal exertion, and excessive fatigability. There was no evidence of any postural abnormalities or fixed deformity, and the Veteran was well-developed and well nourished. There was marked pain on forward flexion, both passive and against resistance. Forward flexion of the lumbar spine was to 65 degrees, and from 5 to 10 degrees in the thoracic spine. Extension was to zero degrees in the thoracic spine. Left lateral flexion of the lumbar spine was to 5 degrees, and to 15 degrees on the right. Rotation was to 10 degrees, bilaterally. Strength in the lower extremities was 5/5, and deep tendon reflexes were equal, bilaterally. The diagnoses included chronic thoracic and lumbar spine pain secondary to old injuries with subjective history of excessive fatigability, which was not objectively demonstrated on examination, clinical evidence of weakened movement against resistance and painful motion, and no evidence of incoordination.

In a June 1998 VA examination, the examiner indicated that he had reviewed the entire claims file, including all service and post-service medical records. The examiner provided a detailed description of the Veteran's medical history and the clinical findings on all relevant evaluations. The Veteran reported that he had chronic mid-back pain since an injury in service and that he re-injured his back working construction in May 1996. On examination, the Veteran carried a cane but did not use it for support. His musculature was of normal bulk and volume, proportional to his body build and free of atrophy or fasciculation. However, there was varied power output throughout all four extremities, particularly in the lower extremities, but no convincing pattern of persistent weakness. In all other respects, posture, tone, power, coordination, and the pattern of skilled movement were normal. Reflexes in all extremities were 1+, equal, and symmetrical without lateralized or altitudinal difference. Downward pressure at a load of about one pound caused complaints of mid-back pain.

The Veteran also complained of pain when standing on his toes and heels, squatting, and passive rotation of the pelvis and shoulders without displacement of the spine. Sensation to pinprick and light touch were extremely variable with reports of a patchwork of various sensory loss, which was not delineated anatomically. Straight leg raising was tolerated to 90 degrees, bilaterally. He stood with his spine erect and the sagittal curves were preserved. There was no visible paravertebral muscle spasm, and palpation of the spinous process, adnexal structures, sacroiliac dimples, sciatic notches, supraclavicular fossae, and pen-scapular regions disclosed only a complaint of pain between the spinous processes of T6 to T9 spinal segments. The examiner noted that the complaint of pain was before the palpating finger depressed the skin sufficiently to make contact with any underlying structure. 

During range of motion testing of the cervical spine, the Veteran displayed no movement of the thoracic spine and held himself rigidly during examination of the lumbar spine. Forward flexion was to 90 degrees, facilitated by bending at the hips and knees. To resume the upright position, he walked his hands up his thighs. All movements of rotation and lateral bending were to less than 15 degrees, due to pain. The examiner determined that, except for the cervical spine, the variations in ranges of motion did not appear to be related to any changes in the spine. There was no evidence of spasm, weakness, tenderness, or fixed postural abnormalities. The musculature of the Veteran's back was unremarkable and the neurological examination was normal. He noted that there were a number of features of the examination that were without physiological basis. The sensitivity of the thoracic spine to downward pressure of his head, pain on heel/toe standing, attempting to squat or rise, and pain on simulated rotation, known as Waddell phenomena, are used to differentiate structural from simulated disease, which seemed to be the case here. The sensory abnormalities reported by the Veteran were inconsistent in their anatomical pattern as well as in their physiological pattern as pain and temperature sensations are affected together. The examiner opined that there was no clear cut functional impairment in the Veteran's case.

The examiner also discussed the numerous diagnostic studies and noted that magnetic resonance imaging (MRI) scans of the thoracic spine in June 1996 showed Class 1 disc disease at T6-T7 segments of the subarachnoid space with some counter-clockwise rotation of the spinal cord. The seventh vertebra on anteroposterior views appeared excavated. He opined that there was no relationship between the changes seen in the thoracic spine and the Veteran's multiple complaints. The examiner reiterated that he had reviewed every medical document in the file and noted that the neurological examination was normal despite simulations of disease on the part of the Veteran. He also noted that there was incontrovertible evidence that the Veteran had been doing some sort of physical work judged by the palmar calluses and imbedded foreign material in the skin of the Veteran's hands.

A VA MRI of the thoracic spine in October 2000 compared to a June 1996 study revealed no significant changes. There was a central disc bulge at T6-T7 spinal segments with mild compromise of the anterior dural space. The remaining levels showed no intradural or extradural abnormality. The spinal cord was of normal caliber and showed no abnormal signal intensity. The visualized bony structures were unremarkable.

An October 2000 MRI of the lumbar spine showed an impression of mild central disc bulge at the L4-L5 and the L5-S1 spinal segments which compromised the anterior dural sac; however, there was no evidence of a herniated disc or spinal stenosis. 

A July 2002 VA addendum note to a primary care physician's note showed that the Veteran was seeking pain medication due to his back pain. Specifically, he received Vicodin medication due to his complaints of low back pain, disc bulge in the thoracic region, but with no compromise and no herniated disc. These symptoms were controlled by Vicodin, which made life easier for him. He reported that the back pain was an eight out of a possible 10 and was relieved by pain medication. Movement made his symptoms worse, and he described that he did not have any bladder or bowel disturbances due to his back symptom. He could not bend his toes and could not tiptoe, but he was able to heel walk. The Trendelenburg test was negative and he had no paraspinal muscle tenderness. The straight leg raising test was negative. The medical professional's impression was that the Veteran had low back pain and a herniated disc. 

The Veteran was examined again in September 2004, and the examiner indicated that he had reviewed the claims file and provided a detailed description of the Veteran's complaints and medical history since service. On examination, the Veteran complained of a constant, sharp pain in the thoracic region between his shoulder blades radiating into his arms. The pain was a constant four out of a possible 10,and increased to a level six with activity. The Veteran reported that he was bedridden only once, in 1993, and did not describe any flare-ups or any associated features with the back pain, such as, weight loss, fevers, malaise, dizziness, visual disturbances, numbness, weakness, or any bladder bowel complaints. The Veteran reported that he used a cane about seven times a month and used a back brace on a daily basis. However, he was not wearing one at the time of examination. The Veteran estimated that he could walk about 50 to 100 feet before having to stop and rest because of pain in his back, knees, and other areas. His daily activities, such as putting on a shirt, socks, etc., were slowed by back pain, and he denied engaging in any recreational activities.

On examination, his spine, limbs, posture, gait, position of the head, and curvature of the spine were normal in appearance. The Veteran complained of pain throughout the entire range of motion testing for flexion of the thoracolumbar spine. Forward flexion was to 90 degrees with expressed pain. Extension, lateral flexion, and rotation were to 20 degrees and limited by pain. The Veteran could rise on his heels and toes, but he could not squat because of knee pain. Repetitive movement of the thoracolumbar spine caused increased pain,, fatigue, weakness, and lack of endurance, but there was no visible effect on his range of motion. There was tenderness to palpation of the thoracic spine around the T5-T6 spinal segment, but when told that the disc bulge was at the T6-T7 level, the Veteran reported that there was pain in that area as well. The examiner commented that there was no objective evidence of painful motion, spasm, weakness, or tenderness. There was no fixed deformity or postural abnormality and no episodes of total incapacitation over the past 12 months. Neurological examination of the upper and lower extremities was normal. The examiner commented that he could not offer an opinion regarding any additional range of motion loss or functional impairment during flare-ups. The diagnoses included degenerative disc disease (DDD) of the thoracic spine.

An April 2005 VA primary care physician's note showed that the Veteran complained of pain in the mid-thoracic area. He was diagnosed with lumbago and noted to be on pain medication, which made the Veteran's life better. 

A January 2008 VA examination report for the Veteran's spine showed that the examiner reviewed and commented on the Veteran's pertinent records since at least 1988. The examiner noted that during the January 2008 VA examination, the Veteran was wearing an extension-type (Jewett-type) thoracic brace and that he stood throughout the period of obtaining his history, preferring to stand rather than sitting. He stated that in addition to the brace, the Veteran was utilizing Vicodin and a transcutaneous electrical nerve stimulation (TENS) unit to treat his symptoms. The Veteran reported that his pain was located in the mid-thoracic area and in the mid- and low-lumbar region. The Veteran described his physical activities and the examiner noted that the Veteran's level of activity and functional status was rather minimal. Flare-ups of pain occurred with increased pain with any activity, such as repetitive activity or twisting or moving. The examiner noted that comments on the Veteran's fatigability or weakened movement would be speculative by the examiner due to the Veteran's history, but that there was no indication of loss of coordination as the Veteran's 2006 VA neurology examination showed no incoordination. The examiner noted that the Veteran's thoracic pain significantly limited overall functional abilities throughout the day and at all times. 

A physical examination showed that the Veteran was able to remove his thoracic brace and clothes on his own. He stood erect and he refused to attempt the heel or toe walking stating that these activities would increase his back pain. The examiner stated that any movement, such as when the examiner asked the Veteran to rotate his spine or bend to the right side or left side, were accompanied by severe shrieking and complaining of pain and withdrawal from the Veteran in which he moved his body away from the examiner's palpating hand because of pain. The examiner provided an example that when the Veteran rotated his head, he had to clutch the wall because of sudden increases in pain. Therefore, the examiner noted that although the Veteran was asked to rotate ot the right or left, it was virtually zero in that the Veteran stated he could not do this. The examiner noted that the right and left lateral bending was to 10 degrees, which was measured with a goniometer. Forward flexion was to 40 degrees, and extension was to zero degrees. However, the examiner noted that the Veteran complained of pain in all movements tested. The examiner noted that there was no thoracic muscle spasm on light touch. X-rays of the thoracic spine demonstrated very slight marginal spur formation at the T10 spinal segment, which was of no significance. Disc spaces appeared normal and there was normal alignment. X-rays of the lumbar spine, including oblique views, showed normal facet joints, normal pars interarticularis, with rather minor spurs seen on the vertebral body of L3 and L4 spinal segments, which was of no significance. Disc spaces were normal. The examiner diagnosed the Veteran with thoracic pain, which was previously diagnosed as degenerative disease of thoracic spine.

A November 2008 VA examination showed that the Veteran complained of pain in his thoracic and lumbar spine. A physical examination showed that the Veteran was wearing a Jewett thoracic brace and preferred to stand during the course of the examination. He was alert and while talking did not appear in severe distress; however, any attempt by the examiner of any movements of the Veteran's spine elicited a severe response of pain and very halting and jerking movements. The examiner noted that removing the Veteran's shirt and brace caused such increased pain. The Veteran's examination was limited to his observation and recording his range of motion. The Veteran did stand erect with his brace removed. There was 10 degrees of rotation to the right, zero degrees of rotation to the left. Forward flexion was to 40 degrees and then the Veteran had to put his hands to his knees in order to assume an upright position. There was zero degrees of extension, zero degrees of right lateral bending, and zero degrees of left lateral bending. All movements were associated with jerking and sudden muscular contractions and movements of the back ,and there was pain complained of with all movements. Muscles in the lumbar and thoracic spine were tender throughout. The examiner diagnosed the Veteran with thoracic pain and chronic lumbar strain. 

In the April 2009 NOD, the Veteran's representative at the time asserted in general terms that the Veteran's lumbar spine disability should be assigned a disability rating in excess of 10 percent. 

In a June 2009 statement, the Veteran's wife stated that the Veteran had back pain that made it painful for him to sit for any extended amount of time. She stated that he also had muscle spasms and that he could not go a day without his pain medication. Likewise, the Veteran's daughter and friend provided statements with similar contentions in June 2009 regarding the Veteran's back pain symptoms. 

A June 2010 VA primary care physician's note showed that the Veteran complained of back pain that was a five or six out of a possible 10. He was noted to have spondylosis of the spine. He told the medical professional that Vicodin was previously helping but no longer. The medical professional noted that the Veteran could sit from back problems and that he had a back brace. A physical evaluation showed that his back was limited in flexion and extension of the spine. Straight leg raising tests were positive at 90 degrees, he could not perform the Trendelenburg test, and he had limited range of motion. He was diagnosed with low back pain and was noted to be using a TENS unit. He was instructed to stop Vicodin use and start using Gabapentin, Flexeril, and tramadol. 

A July 2011 VA primary care note showed similar physical evaluation findings. The Veteran's back was limited in flexion and extension of the spine. The straight leg raising test was positive at 90 degrees, the Veteran could not perform the Trendelenburg test, and he had limited range of motion. An MRI of the lumbar spine from July 2011 showed mild spondylosis of the L3 and L4 spinal segments. 

An April 2012 VA pain rehabilitation clinic note showed that the Veteran's gait was antalgic and that he slightly favored his right leg, but that he ambulated without assistance. He refused to try to heel walk or toe walk but was able to step up bilaterally. His lumbar spine showed loss of normal lordosis. The Veteran would not allow the medical professional to perform palpation as any touch produced a dramatic reaction. The medical professional noted that pain flared with any cardinal movement, including flexion, extension, and with requests to twist his trunk. 

A June 2013 MRI of the lumbar spine showed a multilevel, wide-based disc bulge associated with endplate osteophyte complex, hypertrophy of the ligamentum flavum and facet joint arthropathy causing bilateral foraminal stenosis and moderate spinal stenosis.

A January 2016 VA nursing note showed that the Veteran complained of chronic lumber DDD, lumbar foraminal stenosis, and sarcoidosis. 

A November 2016 VA primary care note showed that the Veteran reported receiving an epidural injection of the lumbar vertebrae in August 2016. He was diagnosed with chronic pain and noted to be on hydrocodone. He reported pain of seven out of a possible 10.

A May 2017 VA primary care note showed that the Veteran had a recent lumbar surgery in February 2017 of micro decompression at the L2 to L5 spinal segments. 

A December 2017 VA primary care note showed that the Veteran was diagnosed with chronic lumbar pain with stenosis and that he was utilizing Flexeril and hydrocodone medication to treat his symptoms. A June 2018 VA primary care note also showed that the Veteran was using Flexeril and hydrocodone for his lumbar spinal stenosis symptoms, and that the medication was helping alleviate his symptoms. Very similar symptoms and complaints were noted in December 2018, December 2019, and July 2020 VA primary care notes. 

Following the Board's February 2018 remand instructions, the Veteran underwent a VA examination for his thoracolumbar spine in November 2018. He was diagnosed with chronic lumbar spine strain with DJD and residuals of a mid-thoracic injury, as well as status-post motor vehicle accident and lumbar surgery. The Veteran requested to stand for the interview due to back pain. The examiner noted that the Veteran was a poor to moderate historian and that the examination of the back was very limited due to pain avoidance behaviors. The Veteran reported that he had daily, chronic back pain, located in the midline, middle, and low back, which radiated into the right lower extremity. The Veteran reported that his back symptoms became worse after his motorcycle accident in July 2014. The Veteran reported that he had flare-ups caused by prolonged sitting that increased pain in the back, which radiated to the right lower extremity. He was noted to be taking daily opioids for pain and that he could no longer work in his construction and trucking jobs due to his back pain. The Veteran reported that his flare-ups manifested with increased lower back pain with bending and that functional loss or functional impairment of the thoracolumbar spine manifested as lower back pain due to bending and prolonged standing. 

Initial range of motion testing showed forward flexion of the thoracolumbar spine to 30 degrees, extension to 5 degrees, right and lateral flexion to 10 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 10 degrees. Pain was noted on all range of motion testing The examiner noted that the limitation in motion contributed to functional loss in that the Veteran did not bend at the waist to remove his socks and shoes. There was evidence of pain on weight bearing and tenderness to palpation in the right paraspinal muscle. The Veteran was unable to perform repetitive use testing with at least three repetitions due to pain. The Veteran had guarding of the thoracolumbar spine that did not result in an abnormal gait or abnormal spinal contour. The examiner noted that the Veteran's back had pain, stiffness, and was guarded due to the service-connected disability, and was aggravated by the 2014 motor vehicle accident. The examiner noted that the Veteran's disability interfered with his sitting and standing. Muscle strength testing of the lower extremities showed normal strength and there was no evidence of muscle atrophy. Reflex and sensory examinations also showed normal results. While the straight leg raising test was positive on the right side, it was negative on the left. The examiner noted that the Veteran had mild intermittent pain in the right lower extremity affecting the sciatic nerve. The examiner noted that there was no ankylosis in the spine during the examination and that the Veteran did not have any incapacitating episodes of IVDS in the previous 12 months. The examiner noted that the Veteran exhibited Waddell's non-organic signs, overreaction during physical examination, and unexplainable neurologic deficits, but he did not have superficial or widespread tenderness, or pain on simulated axial load or top-of-head pressure. 

The examiner opined that the thoracolumbar spine symptoms impacted the Veteran's activities of daily living and functional ability to work due to very limited range of motion of his thoracolumbar spine. The examiner noted that the Veteran reported that he was unable to put his socks back on due to back pian. The Veteran stated that he has always worked at a physical job until he was no longer able to do so because of his back pain. The examiner noted that the Veteran would likely be limited in the ability to continue his occupation of physical labor type employment given his long history of back complaints, which were likely aggravated by the 2014 motor vehicle accident and the resulting surgery. The examiner noted that the Veteran would likely be able to function in an occupational role that allowed for position changes, and included the ability to sit to stand for comfort, limited pushing, pulling, bending, and lifting. The examiner noted that activities of daily living that required prolonged bending, such as bathing or dressing, increased the Veteran's low back pain. The examiner further commented that prolonged movement of the thoracolumbar spine more likely than not resulted in excess fatiguability of the involved anatomical area, which resulted in increased pain and range of motion limitations. Lastly, the examiner determined that the Veteran did not have ankylosis, either favorable or unfavorable, noted or objectively verified during the November 2018 examination or at any time prior to that after a review of the evidence, which included the VA examination reports from April 1996, July 1997, June 1998, September 2004, January 2008, November 2008, and May 2016. 

Given this evidence, the Board finds that during the appeal, the Veteran's thoracic spine disability has not manifested with incapacitating episodes having a total duration of at last six weeks during any 12-month period. Specifically, the evidence does not show that the Veteran experienced any incapacitating episodes, or periods of bed rest prescribed by a physician and treatment by a physician, since July 1995. See 38 C.F.R. § 4.71a, DC 5293 (2002); 38 C.F.R. § 4.71a, DC 5243. In fact, the Veteran reported to the September 2003 VA examiner that he had only been bedridden once, which occurred in 1993. Thus, the preponderance of the evidence is against a finding that the Veteran thoracic spine disability manifested with incapacitating episodes having a total duration of at last six weeks during any 12-month period on appeal. 

Furthermore, the preponderance of the evidence is against a finding that the Veteran's thoracic and lumbar spine disabilities have manifested with unfavorable ankylosis of the thoracolumbar spine at any time on appeal. Likewise, although the Veteran's lumbar spine disability has manifested with x-ray evidence of degenerative changes in the lumbar spine and objective evidence of pain upon movement of the thoracolumbar spine throughout the appeal, and forward flexion of the thoracolumbar spine was limited to 40 degrees or less since at least November 28, 2008, an assignment of a higher rating for this disability would amount to impermissible pyramiding. Specifically, a review of all the evidence of record, including the VA examination reports from April 1996, July 1997, June 1998, September 2004, January 2008, November 2008, May 2016, and November 2018, as well as the VA treatment records, does not show that the Veteran had any symptoms of ankylosis in the thoracic or lumbar spine during the appeal. See Colayong v. West, 12 Vet. App. 524 (1999) (defining ankylosis as an "immobility and consolidation of a joint due to disease, injury, or surgical procedure"). In fact, the November 2018 VA examiner specifically determined that her review of the evidence also showed that there was no ankylosis noted or objectively verified in the reviewed evidence or during the November 2018 VA examination. While the evidence shows that the forward flexion of the thoracolumbar spine was less than 60 degrees since the November 2008 VA examination, which would warrant a rating in excess of 10 percent under the General Rating Formula for the lumbar spine, assigning a higher disability rating under the General Rating Formula would amount to impermissible pyramiding as the Veteran is already rated under the Formula for Rating IVDS Based on Incapacitating Episodes for these symptoms. See 38 C.F.R. §§ 4.14, 4.71a, DCs 5237-5242, 5243. 

The Board has considered whether higher ratings should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria but determines that higher ratings are not warranted for the Veteran's disability picture. The range of motion testing conducted during the medical evaluations considered the thresholds at which pain limited motion. The Veteran reported that he had flare-ups of his symptoms and the medical examinations showed the presence of any additional functional impairment due to such symptoms as pain, pain on repeated use, fatigue, weakness, lack of endurance, and incoordination. However, even though there is evidence of reduced overall range of motion in the thoracic and lumbar spinal regions, and even after considering the effects of pain and functional loss, the Veteran's thoracic and lumbar spine disabilities did not manifest with favorable or unfavorable ankylosis or incapacitating episodes having a total duration of at last six weeks during any 12-month period on appeal. Thus, higher ratings under 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria are not approximated in the Veteran's disability picture. 

In sum, the preponderance of the evidence is against entitlement to a rating in excess of 40 percent for the thoracic spine disability and entitlement to a rating in excess of 10 percent for the lumbar spine disability. See 38 C.F.R. § 4.71a, DCs 5299-5243, 5237-5242; 38 C.F.R. § 4.71a, DCs 5293, 5295 (2002). The benefit-of-the-doubt rule does not apply, and the Veteran's claims are denied. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Earlier Effective Dates, Generally

The Veteran contends that an effective date prior to March 27, 2001, should be granted for the TDIU rating and DEA benefits because his service-connected thoracic spine and lumbar spine disabilities precluded him from following or securing gainful employment. Specifically, in in numerous statements throughout the appeal, including in the May 2000 statement from the Veteran's previous representative, the Veteran has asserted that the TDIU rating should be assigned from July 12, 1995, as the claim for entitlement to a TDIU rating was part and parcel of the claim for an increased rating for the thoracic spine disability. 

The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). 

This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. For claims specifically reopened on the basis of new and material evidence after a final disallowance under 38 C.F.R. § 3.156(a), the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p).

VA must look to all communications from a claimant that may be interpreted as applications or claims  formal and informal  for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). 

For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. 

Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. Even with respect to informal claims, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (for claims received prior to March 24, 2015).

2. Early Effective Date for the Award of a TDIU Rating

In addition to the regulations noted above, the law regarding effective dates states that unless specifically provided otherwise, the effective date of an award based on a claim for increase of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). A claim for a TDIU rating, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. See Rice, 22 Vet. App. at 447. As noted above, the Board has already determined that the claim for entitlement to a TDIU rating prior to March 27, 2001, stems from the Veteran's increased rating claim for the thoracic spine disability; thus, the claim period stems from July 12, 1995, to March 26, 2001. 

As a general matter, TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 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, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

The record shows that prior to March 27, 2001, the Veteran's service-connected thoracic spine disability was rated as noncompensable (zero percent) from February 23, 1990, to July 11, 1995, and as 40 percent disabling since July 12, 1995. Additionally, the Veteran's lumbar spine disability has been rated as 10 percent disabling since May 5, 2000. His combined disability rating was zero percent prior to July 12, 1995, 40 percent from July 12, 1995, to May 4, 2000, and 50 percent since May 5, 2000; thus, the threshold requirements for entitlement to a TDIU rating on a schedular basis are not met for the period prior to March 27, 2001. 38 C.F.R. § 4.16(a).

When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). As is discussed in more detail below, following the Board's February 2018 remand instructions, the AOJ referred the Veteran's claim for entitlement to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b) in October 2020. In December 2020, the Executive Director of Compensation Service provided an administrative review for entitlement to a TDIU rating based on 38 C.F.R. § 4.16(b) for the period prior to March 27, 2001. 

In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). 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 nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a).

In reaching a determination of entitlement to a TDIU rating, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 

In the December 1996 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran asserted that the injury to his thoracic spine prevented him from securing or following any substantially gainful occupation. He stated that he last worked full time on May 14, 1996, and that he became too disabled to work on that date. He stated that the most he ever earned in in one year, in 1995, was $17,500.00 as a carpenter. He reported that he worked for five employers between 1990 and May 1996. He stated that he worked as a carpenter/laborer between 1990 and 1992, earned $900.00 per month, and lost 14 days from illness during that time. Likewise, he worked for another employer as a carpenter/laborer in 1992 for 32 to 40 hours per week, he earned $900.00 per month, and he did not lose any time from work due to illness. From 1992 to 1994, he worked for another employer in the same capacity for 26 to 45 hours per week, he earned $1,050.00 per month, and he did not lose any time from work due to illness. He worked 40 to 48 hours per week from October 1994 to April 1995 for another company in maintenance and as a cashier, where he earned $800.00 to $900.00 per month and did not lose any time from work due to illness. He stated that he worked between 30 to 60 hours per week from March 1995 to May 1996 as a carpenter/laborer for another employer where he earned between $2,000.00 to $3,000.00 per month and lost 10 days from work due to illness.

The Veteran stated that he finished sophomore year in high school. He also reported that from 1990 to 1994, he received additional on-the-job education as a carpenter, but this training was not a formal class. The Board notes that additional evidence in the record, including a June 2009 VA case manager's encounter note and the September 2005 Board hearing testimony, showed that the Veteran earned his general education development (GED) degree. He remarked that his back injury, which he received in the Army, required him changing occupations. He stated that a doctor had not released him to return to work and that he could not tell when he would twist the wrong way, which would cause even more pain than he already was feeling. 

In another December 1996 statement, the Veteran noted that he last worked on May 14, 1996, because of his spinal injury and he felt that he should be awarded a 100 percent rating because he was off work. He stated that he worked for a company as a carpenter crew boss and that he sought VA vocational rehabilitation benefits because he was unable to work. As noted above, the AOJ received a negative reply to its request for the Veteran's VR&E records in April 2018.

During the August 2003 Board hearing testimony, the Veteran stated that he reinjured his back in 1996. He testified that he worked on and off, and that a friend gave him a job driving a dump truck, but he lost this job because he could not make it into work for a week due to his back symptoms. He testified that no one would hire him due to his upper back symptoms. He also stated that he attempted to get a job as a clerk in a gas station but that he was unable to change out or lift the soda and drinks inventory for a long period of time. The Veteran provided similar testimony during the September 2005 Board hearing. 

In addition to this lay evidence, the claims file includes an April 1996 VA examination report for the thoracic spine, which showed that the Veteran reported that he was employed full time as a construction worker performing carpentry since 1990. He reported that he did not have any absenteeism from work. Likewise, an August 1996 VA physical therapy initial evaluation report showed that the Veteran was employed as a carpenter. The Veteran reported that on May 14, 1996, his back symptoms were exacerbated and that a medical doctor took him off work duty. 

A July 1997 VA general medical examination showed that the Veteran reported that he was unemployed since May 14, 1996, and that he worked as construction carpenter before that date. He stated that he lost his job as a carpenter because of his back symptoms and his knees. 

In September 1997 records from the Social Security Administration (SSA), the Veteran asserted that he was unable to work due to arthritis in his neck, knees, hips, elbows, memory loss and difficulty concentration, and back problems. Likewise, an April 1998 SSA determination noted that the Veteran had not engaged in substantial gainful activity since at least September 1996 and that he had a severe personality disorder, substance abuse in remission, and degenerative disc and joint disease. SSA personnel determined that the Veteran was unable to perform his past relevant work as a construction laborer, retail stock clerk, truck driver, or farmworker. The Board notes, however, that service connection was not in effect for the Veteran's disorders located in his knees, neck, hips, elbows, and psychiatric symptoms prior to March 27, 2001. The Board further notes that in an October 2004 decision, SSA determined that the Veteran was disabled for SSA purposes since November 1, 2003.

In a June 1998 VA social worker's note, the Veteran reported that he worked steadily as a carpenter for different construction companies until he reinjured his back while tearing out a skylight in 1996. He reported that he was enrolled in a VA vocational rehabilitation program in 1997, but that he suffered a fall and lost his short term memory for four months. He told this medical professional that he did not think that he could find employment because he found it difficult to sit for long periods of time and could not do any lifting or heavy work. 

In a June 1998 VA examination report, an examiner determined that there was incontrovertible evidence that the Veteran had been doing some sort of physical work judged by the palmar calluses and imbedded foreign material in the skin of the Veteran's hands.

In the Substantive Appeal to the Board (VA Form 9), which was received by VA on March 27, 2001, the Veteran asserted that he was unable to find a job due to his back and psychiatric symptoms. He stated that he wore back and knee braces, used pain medication that impeded his ability to operate heavy machinery and driving, and used a TENS unit. 

As noted above, entitlement to a TDIU rating was granted, effective March 27, 2001, due to the Veteran's thoracic and lumbar spine disabilities, as well as his major depressive disorder, which has been rated as 50 percent disabling since March 27, 2001. The Board further notes that an April 2020 rating decision discontinued entitlement to TDIU rating, effective May 1, 2020, because the evidence of record, including evidence from SSA, showed that the Veteran earned wages above the poverty threshold in 2017. Overall, the record since March 2001 indicates that he was employed on several occasions. For example, a November 2008 VA examination report for noted that the Veteran last worked driving a tractor about three years prior, i.e., in November 2005, but he reported in a June 2009 VA case manager's note that he last worked full time in April 1996. Likewise, a July 2020 VA primary care note showed that the Veteran had to "turn in his truck because he could not make payments." 

Given this evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful occupation by reason of only his service-connected thoracic and lumbar spine disabilities prior to March 27, 2001. Initially, all of the evidence of record, including the Veteran's statements in the December 1996 VA Form 21-8940, shows that the Veteran was gainfully employed as a carpenter/laborer during the period from July 12, 1995, to May 14, 1996. Thus, a TDIU rating is not warranted during this period. 

Regarding the Veteran's education, training, skills, and work history, the Veteran has established that he has GED. His past work experience involved working as a carpenter, laborer, foreman and/or crew boss, truck driver, and a store clerk. The Board notes that in multiple SSA records, the Veteran asserted that he was unable to work due to his knees, neck, hips, elbows, and psychiatric symptoms and disorders, in addition to his thoracolumbar spine symptoms; however, the record shows that these other disorders were not service connected prior to March 27, 2001. Accordingly, the Board may not consider the functional impact of these nonservice-connected disorders on the Veteran's ability to secure or maintain gainful employment prior to March 27, 2001. 

The Board finds that the Veteran's job history prior to March 2001 demonstrates a capacity for learning, training, adaptation, and working effectively with others that were not hindered by his service-connected disabilities and which would have allowed for transition to a type of employment that was different from a laborer or carpenter. Upon review of all lay and medical evidence, the Board finds that the Veteran's level of disability, given his education, training, and experience, would not have rendered the average person unable to secure or follow substantially gainful employment of some type based solely on his service-connected disabilities prior to March 27, 2001. Van Hoose, 4 Vet. App. at 363. The Board acknowledges the Veteran's statements that the impact of his thoracic and lumbar spine disabilities precluded him from working in such a manual labor job such as working as a carpenter due to back pain, or that he could not sit for long periods of time due to his service-connected spinal disabilities. Moreover, the Board acknowledges that the Veteran had trouble securing or maintaining a gainful employment from May 14, 1996, to March 26, 2001. However, as referenced above, the fact that he was unemployed or had difficulty obtaining employment is not enough. The question is whether or not the Veteran was capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. 

Prior to March 27, 2001, there were jobs that were less physically demanding or that entailed being able to sit and/or stand with frequent intervals. For example, the Veteran could have worked in a more sedentary type job that does not necessarily require a high level of specialized skill or knowledge such as a telemarketer prior to March 27, 2001; such jobs that are repetitive, with structure, would not have necessarily involved new tasks or novel concepts, would have allowed the Veteran to take breaks as needed, and would not have exceeded the physical limitations addressed above. Moreover, the Veteran has been shown to interact with medical professionals in a positive and productive manner, which would indicate that he could have interacted with customers; thus, certain customer-facing retail positions would also have been within the Veteran's physical abilities based on his work history, education, and impact of his service-connected thoracic and lumbar spine disabilities. For example, the Veteran's physical and mental abilities would also be adequately suited for work which would encompass administrative tasks, which the Veteran was capable of doing based on his past job experience. These types of jobs would not have required heavy lifting or exertion and would have allowed the Veteran to vary between sitting and standing, as necessary. This is evidence against a finding that the Veteran was precluded from all forms of substantially gainful employment prior to March 27, 2001. 

The Veteran has experienced occupational impairment as a result of his service-connected disabilities, which was reflected in his combined total rating of 40 percent from July 12, 1995, to May 4, 2000, and as 50 percent disabling from May 5, 2000, to March 26, 2001. However, the Board finds that the preponderance of the evidence is against a finding that the Veteran was precluded from all forms of substantially gainful employment prior to March 27, 2001, due only to his service-connected disabilities. Accordingly, the benefit of the doubt doctrine is not for application, and the claim for entitlement to an effective date earlier than March 27, 2001, for the award of a TDIU rating is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.16; Gilbert, 1 Vet. App. at 54-56.

3. Earlier Effective Date for the Award of Eligibility to DEA Benefits 

The Veteran contends that he met the basic eligibility requirements for DEA benefits prior to March 27, 2001, at which time he was granted a TDIU rating. Specifically, the Veteran and his attorney have contended in general terms that the Veteran's entitlement to DEA benefits should be made effective prior to March 27, 2001, because the Veteran was entitled to a TDIU rating prior to this date, which would establish a permanent and total service-connected disability. 

For the purposes of DEA benefits, basic eligibility exists if a veteran was discharged from service under conditions other than dishonorable, and if he has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021(p). There are other avenues through which basic eligibility may be granted; however, they involve factors not applicable here, e.g., the death of a veteran or if a veteran is currently on active duty. Id. 

Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long-standing that are actually totally incapacitating will be regarded as permanently and totally disabling on the probability that permanent improvement under treatment is remote. The age of the disabled person may be considered in determining permanence. See 38 C.F.R. § 3.340(b). Once permanence is established, a veteran need not undergo further VA examination in order to retain her rating for the permanent disability. See 38 C.F.R. § 3.327(b)(2)(iii).

The Board finds that the Veteran did not have a permanent and total service-connected disability prior to March 27, 2001, when he was awarded a TDIU rating for his service-connected major depressive disorder, thoracic spine disability, and lumbar spine disability. As determined above, the Board finds that entitlement to a TDIU rating prior to March 27, 2001, is not warranted. The record shows that prior to this date, the Veteran's thoracic spine disability was rated as noncompensable from February 23, 1990, to July 11, 1995, and as 40 percent since July 12, 1995. The Veteran's lumbar spine disability has been rated as 10 percent disabling since May 5, 2000. Thus, none of the Veteran's service-connected disabilities were determined to be total and permanent in nature or 100 percent disabling prior to Mach 27, 2001.

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Since eligibility for DEA benefits is predicated on a finding of permanent and total disability, the effective date of such eligibility cannot precede the date permanent and total disability was awarded, which was March 27, 2001, in this case. Accordingly, entitlement to an effective date earlier than March 27, 2001, for the award of eligibility to DEA benefits under 38 U.S.C. Chapter 35 is denied as a matter of law. Where the law, rather than the facts, is dispositive, the benefit-of-the-doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Hodzic, 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.