Citation Nr: 21031598 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-15 461 DATE: May 24, 2021 ORDER 1. Entitlement to a rating in excess of 30 percent for multi-level degenerative disc disease of the cervical spine is denied. 2. Entitlement to a rating in excess of 10 percent for radiculopathy of the anterior crural nerve (femoral nerve) of the left lower extremity is denied. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), after January 25, 2013, is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran has not demonstrated unfavorable ankylosis of the entire cervical spine. 2. Throughout the period on appeal, the radiculopathy of the anterior crural nerve of the left lower extremity has manifested in mild incomplete paralysis. 3. After January 25, 2013, the Veteran has a combined service connected disability evaluation of 100 percent, and there is no indication that any of his service disabilities alone renders him unemployable. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for the cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, DC 5010-5243. 2. The criteria for a rating in excess of 10 percent for radiculopathy of the anterior crural nerve of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.27, 4.124a, DC 8526. 3. The issue of entitlement to a TDIU from January 25, 2013, is denied. 38 U.S.C. § 1114 (s); 38 C.F.R. § 4.16 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from August 1965 to August 1967. This matter comes to the Board of Veterans Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board, and, in October 2020, the Board remanded this appeal for further development. The Board notes that on the Rating Code Sheet, the RO inadvertently assigned the 40 percent rating previously awarded for radiculopathy of the sciatic nerve of the left lower extremity to that of the anterior crural nerve of the left lower extremity. The Board will proceed with adjudication of the issue as it is phrased above. Additionally, in the February 2021 supplemental statement of the case, the RO listed the issue of entitlement to an increased rating for the service-connected lumbar spine disability as being in appellate status and the Veteran's representative addressed the rating assigned for this disability in an April 2021 brief. However, the Veteran has not appealed this issue, new issues cannot be raised for the first time in a SSOC, and this issue has not been certified to the Board. See 38 C.F.R. §§ 20.200, 20.302(c) (an appeal requires a notice of disagreement and a timely filed substantive appeal after issuance of a statement of the case); 38 C.F.R. § 19.31 (In no case will a supplemental statement of the case will be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the statement of the case.) As such, the issue of an increased rating for the lumbar spine disability is not in appellate status, and will not be addressed. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 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. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 1. Entitlement to a rating in excess of 30 percent for multi-level degenerative disc disease of the cervical spine is denied. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. § § 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. (quoting 38 C.F.R. § 4.40). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. 38 C.F.R. § 4.71a, DC 5237 and Note. A 30 percent rating is assigned for forward flexion of the cervical spine at 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71(a). Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees; extension is zero to 45 degrees; left and right lateral flexion are zero to 45 degrees and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. 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 neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. See 38 C.F.R. § 4.71a, DC 5235 to 5242. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. The Veteran is in receipt of a 30 percent rating for the cervical spine disability under DC 5010-5243. As an initial matter, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for the cervical spine disability based on incapacitating episodes under the IVDS Formula. The Board acknowledges the evidence submitted by the Veteran regarding his prescribed bedrest following his weekly chiropractic appointments. However, the Veteran's combined evaluation for multi-level degenerative disc disease of the cervical spine with radiculopathy of the bilateral upper extremities is 70 percent. The evaluation for IVDS based on incapacitating episodes (doctor prescribed bed rest) having a total duration of at least 6 weeks during the past 12 months is 60 percent. This is the maximum benefit allowed for IVDS based on incapacitating episodes by law. Furthermore, if an evaluation is assigned based on incapacitating episodes, a separate evaluation may not be assigned for loss of motion, radiculopathy, or any other associated objective neurological abnormalities. Separate ratings for IVDS under DC 5243 and the radiculopathy would result in impermissible pyramiding as it would require evaluation of the same disability under various diagnoses. 38 C.F.R. § 4.14. Therefore, if the Veteran's multilevel degenerative disk disease of the cervical spine was evaluated as IVDS based on incapacitating episodes, the evaluation for the neck disability could at best increase from 30 to 60 percent, however, the ratings for radiculopathy of the bilateral upper extremities would be removed. This would change the combined evaluation for multilevel degenerative disc disease of the cervical spine with bilateral upper extremity radiculopathy from 70 percent to a single evaluation of 60 percent for IVDS based on incapacitating episodes. As such, an award of a separate higher rating for the cervical spine disability under DC 5324 for IVDS based on incapacitating episodes would not afford the Veteran a greater benefit. In July 2015, the Veteran was afforded a VA examination to evaluate the severity of his cervical spine disability. He reported flare-ups due to movement, minimal activity, sitting, and changes in the weather. Flexion was to 5 degrees, with no extension. Bilateral lateral flexion was to 3 degrees, with no bilateral lateral rotation. All ranges of motion exhibited pain and resulted in functional loss. The examiner noted palpable pain in the posterior neck. There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing with no additional limitation of range of motion. However, such testing resulted in pain, weakness, fatigue, and lack of endurance. As the Veteran was not examined after repetitive use over time or during a flare-up, the examiner was unable to determine actual degrees of loss of range of motion during such situations without observation. However, he concluded that pain and weakness could significantly limit functional ability under those circumstances. There was no evidence of muscle spasms or guarding of the cervical spine. Muscle strength testing was normal, with no evidence of muscle atrophy. The examiner noted hypoactive reflexes and decreased sensation in the left upper extremity. There was no ankylosis of the spine. The Veteran did not report any other neurological abnormalities related to the cervical spine condition. The examiner noted the presence of IVDS and that the Veteran had been prescribed bedrest by his treating physician for a few days. He did not use an assistive device related to this condition. In June 2020, the Veteran underwent another VA examination for his cervical spine condition. He described symptoms including pain and stiffness, as well as difficulty using stairs, sitting, walking, and moving his head. He reported frequent flare-ups ranging from moderate to severe, due to standing, sitting, laying down, and bending over. Flexion was to 45 degrees, with extension to 30 degrees. Right lateral flexion was to 20 degrees, with left lateral flexion to 25 degrees. Right lateral rotation was to 60 degrees, with left lateral rotation to 50 degrees. All ranges of motion exhibited pain and resulted in functional loss. There was no pain with weight-bearing. The Veteran was able to perform repetitive use testing, with an additional loss of 5 degrees for left lateral flexion and 10 degrees for right lateral rotation. Pain and fatigue resulted in this additional functional loss. Following repetitive use over time and flare-ups, the examiner estimated that the Veteran would have flexion to 40 degrees, extension to 25 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 50 degrees, and left lateral rotation to 45 degrees. There was evidence of guarding of the cervical spine, which did not result in abnormal gait or abnormal spinal contour. Muscle strength testing, reflex testing, and sensory testing were normal, with no evidence of muscle atrophy. There was no ankylosis or IVDS of the spine. The Veteran did not report any other neurological abnormalities related to the cervical spine condition. He regularly used a cane to assist with ambulation. The Veteran's treatment records contain findings consistent with the VA examination reports. Based on the above, the Board finds that an increased rating in excess of 30 percent for the Veteran's cervical spine disability is not warranted. A rating of 40 percent or higher for the cervical spine requires some form of ankylosis of either the cervical or entire spine. However, the record does not reflect that the Veteran's cervical or entire spine is ankylosed. Although the Veteran's range of motion was significantly limited at the time of the July 2015 VA examination, he indicated that flare-ups occurred due to movement of his head, which indicates that there was movement in his neck. The Board notes that as opposed to limited mobility, ankyloses refers to immobility. See Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007) (ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). In June 2020, he described pain when moving his neck, which again reflects that he did not experience immobility. Thus, as the Veteran reports some mobility in his neck, his statements do not suggest ankylosis of his cervical or entire spine. Additionally, neither VA examiner identified ankylosis of the cervical spine upon examination. Lacking probative evidence of favorable or unfavorable ankylosis of the cervical or entire spine, a rating of 40 percent or higher is not warranted. Consideration has been given to functional impairment and any effects of pain on functional abilities due to the Veteran's service-connected cervical spine disability. As 30 percent is the highest schedular rating for limitation of motion of the cervical spine, (absent ankylosis) the regulatory provisions (38 C.F.R. §§ 4. 40, 4.45) pertaining to functional loss are not for application. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board has considered Correia v. McDonald, 28 Vet. App. 158 (2016), which holds that 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. However, given the Veteran is receiving the maximum rating based on limitation of motion of the cervical spine, and a higher rating requires unfavorable ankylosis of the entire cervical spine, which is not present, there is no prejudice in any VA examination that may have failed to comply with § 4.59 as interpreted in Correia. Additionally, the Veteran has not reported any neurological abnormalities, to include bladder or bowel impairment not already separately rated. The Board notes that the Veteran has been separately rated for radiculopathy of the bilateral upper extremities associated with his cervical spine disability. However, as he has not expressed disagreement with the ratings assigned to these disabilities, they are not currently before the Board. In the April 2021 brief, the Veteran, through his representative, contended that his cervical spine disability warranted an extraschedular rating. As such, the Board has considered whether the Veteran's cervical spine disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321 (b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321 (a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321 (b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Veteran's cervical spine disability picture was not so unusual or exceptional in nature as to render the schedular evaluation assigned for this disability inadequate. This condition is primarily manifested by pain and limited motion, with reports of stiffness and flare-ups. Examination reports also indicated excess fatigability, weakened movement, lack of endurance, guarding, less movement than normal, as well as interference with sitting, standing, bending over, and laying down, based upon the Veteran's reported symptomatology. This disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, which specifically contemplates pain, stiffness, aching, limited motion, ankylosis, muscle spasm, guarding, abnormal spinal contour, abnormal gait, tenderness, and vertebral fractures. See 38 C.F.R. § 4.71a. In addition, 38 C.F.R. § 4.45 indicates the following are also considered in rating joints: reduction of normal excursion of movements in different planes, including less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing. The Board notes the Veteran's contentions that his prescribed bedrest warrants an extraschedular rating. However, the limited motion, pain, and associated symptomatology requiring such bedrest is contemplated by the rating criteria. Even though all of the noted effects, may not be explicitly written in the assigned diagnostic code, the rating schedule for Diseases and Injuries of the Spine is written so broadly and inclusively so as to compensate for all associated symptoms and functional effects. As such, the criteria listed in 38 C.F.R. § 4.71a, along with the guiding principles in 38 C.F.R. § 4.45, reasonably contemplate the symptoms exhibited by the Veteran. As the Veteran's cervical spine disability symptoms are contemplated by the Rating Schedule, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321 (b)(1); Thun, 22 Vet. App. 111. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for the cervical spine disability. 2. Entitlement to a rating in excess of 10 percent for rating for radiculopathy of the anterior crural nerve (femoral nerve) of the left lower extremity is denied. The Veteran is in receipt of a 10 percent rating for radiculopathy of the anterior crural nerve in left lower extremity under DC 8526. Paralysis of the anterior crural femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8526. (Neuritis and neuralgia of that group are evaluated under DCs 8626 and 8726. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the nerve with paralysis of the quadriceps extensor muscles warrants a 40 percent disability rating. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). In February 2015, the Veteran was afforded a VA examination to evaluate the severity of his radiculopathy of the lower extremities. He reported difficulty walking and using stairs due to his leg pain. The examiner noted moderate constant pain and severe intermittent pain in the left lower extremity, as well as moderate numbness and paresthesias and/or dysesthesias. Muscle strength was normal, with no evidence of muscle atrophy. Reflexes of the left lower extremity were normal, but the Veteran demonstrated decreased sensation. The Veteran's gait was antalgic, but he did not use an assistive device for ambulation. The examiner concluded that the Veteran's radiculopathy of the anterior crural nerve resulted in mild incomplete paralysis. In June 2020, the Veteran underwent another VA examination for his radiculopathy. He described paresthesias, cramping, and shooting pain in his leg on an intermittent basis. These symptoms inhibited his ability to stand, sit, walk, and participate in physical activities. The examiner noted mild intermittent pain, as well as paresthesias and/or dysesthesias in the left lower extremity. Muscle strength testing was normal, with no evidence of muscle atrophy. Reflexes were normal and there was decreased sensation in the upper left thigh. The Veteran's gait was normal, and he regularly used a cane to assist with ambulation. The examiner concluded that there was no evidence of paralysis of the anterior crural nerve in the left lower extremity. At a January 2021 VA examination for the Veteran's lumbar spine disability, the examiner noted moderate radiculopathy of the left lower extremity. The Veteran's treatment records contain findings consistent with the VA examination reports. Based on the above, the Board finds that the disability is primarily manifested by impairment of motor functions, sensory disturbance, and pain. Indeed, the February 2015 VA examiner concluded the radiculopathy related to the left anterior crural nerve was no more than mild in severity, while the June 2020 examiner did not find any paralysis related to the left anterior crural nerve. Although the January 2021 VA examiner concluded the radiculopathy of the left lower extremity was moderate in nature, he did not indicate that the anterior crural nerve itself resulted in moderate incomplete paralysis. The Board also finds that the most probative evidence of record is against a finding that the disability manifested with trophic changes, loss of reflexes of the knee, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for radiculopathy of the anterior crural nerve of the left lower extremity. 3. Entitlement to a TDIU, from January 25, 2013, is moot. A TDIU may be assigned where the schedular rating is less than total, when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent. 38 C.F.R. § 4.16 (a). In calculating whether a Veteran meets that required schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16 (a). In any event, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b); see 38 C.F.R. §§ 3.340, 3.341, 4.15. In this regard, in Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon a Veteran's actual industrial impairment. In a pertinent precedent decision, VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria for determining unemployability include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). As an initial matter, the Board finds that in general terms, the question of a TDIU rating has been rendered moot for the period after January 25, 2013 (when the 100 percent combined schedular disability rating began). A TDIU on or after January 25, 2013, would result in duplicate counting of disabilities. The Board notes; however, special monthly compensation (SMC) may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that TDIU is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). In addition, SMC is available where a veteran is granted TDIU based on a "less than total" rating for only one disability and subsequently obtains service connection for multiple other disabilities that combine to 60 percent." Bradley at 293. Here, the Veteran has contended that the combination of his service connected disabilities renders him unemployable. In view of that, to award a TDIU rating for the period since January 25, 2013 (when the 100 percent combined schedular disability rating began) would result in duplicate counting of disabilities. 38 C.F.R. § 4.14. As neither Bradley nor Buie is applicable, the question of entitlement to a TDIU rating has been rendered moot by the 100 percent combined schedular disability rating for all service-connected disabilities that has been in effect from January 25, 2013, which is prior to the appeal period. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). The Board finds that there is no indication that any of his service-connected disabilities alone renders him unemployable. Hence, entitlement to TDIU is for the period beginning on January 25, 2013 is denied. See 38 U.S.C. § 1114 (s). Prior to January 25, 2013 To the extent that the Veteran seeks a TDIU prior to January 25, 2013, as mentioned in the September 2020 brief, the February 2019 Board decision denying entitlement to TDIU for that period is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2020). Final Board decisions are not subject to review except as provided by statute, such as appeal to the Court or review based upon a CUE motion. 38 C.F.R. § 20.1100 (b), 20.1400 (2016). The Veteran did not appeal the February 2019 Board decision to the Court of Appeals for Veteran's Claims (Court), file a clear and unmistakable error (CUE) motion regarding that decision, or file a claim to reopen a previously denied claim of entitlement to TDIU prior to January 25, 2013. As such, that matter is not currently before the Board. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.