Citation Nr: 21039687
Decision Date: 07/01/21	Archive Date: 07/01/21

DOCKET NO. 15-17 997
DATE: July 1, 2021

ORDER

Entitlement to a rating in excess of 10 percent for recurrent lumbosacral strain is denied, including on an extraschedular basis.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied, including on an extraschedular basis.

FINDINGS OF FACT

1. For the appeal period, the Veteran's lumbosacral strain alone does not result in forward flexion of the thoracolumbar spine greater than 30 degrees, but no greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees.

2. The Veteran's service-connected disabilities, alone, do not prevent him from obtaining and maintaining substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for recurrent lumbosacral strain are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code (DC) 5237.

2. The criteria for a TDIU are not met. 38 U.S.C. § 1155; 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from January 1972 to October 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

The Veteran testified at a Board hearing in July 2018. A copy of the transcript has been associated with the record.

These issues were remanded to the AOJ in January 2019 for additional development. The Board finds that the AOJ substantially complied with remand directives, making another remand unnecessary. The case is ready for adjudication. Stegall v. West, 11 Vet. App. (1998).

1. Entitlement to a rating in excess of 10 percent for recurrent lumbosacral strain

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, is to be avoided. 38 C.F.R. § 4.14. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart, 21 Vet. App. 505. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Under 38 C.F.R. § 4.40, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011), when evaluating the severity of certain disabilities, including disabilities of the spine, VA is generally required to consider whether the disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations, if possible, in terms of additional degrees of range of motion loss. See Mitchell, 25 Vet. App. at 33.

VA examination reports for musculoskeletal disabilities must comply with 38 C.F.R. § 4.59 by evaluating range of motion in the affected joint "for pain on both active and passive motion and in weight bearing and nonweight-bearing...." Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Moreover, VA examiners have the duty to elicit information from the Veteran describing the condition of the relevant joints during flare-ups or episodes when the relevant symptoms are at their most severe. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).

The Board finds that the May 2019 VA examination of the thoracolumbar spine is responsive to the guidance provided in Correia and Sharp, and thus adequate for rating purposes. In this case, the examiner documented pain with weight-bearing and no pain with non-weight bearing. While the passive range of motion was not specifically documented, the Board finds this harmless error as passive movement is assisted motion and would be less limiting than active range of motion. In addition, the examiner did note that there was pain on passive movement, and there is no opposing joint for the spine. Accordingly, the Board finds that a remand for a new examination under Correia is not needed.

The Board similarly finds Sharp compliance. In the May 2019 VA examination, the Veteran reported flare-ups of his thoracolumbar spine. The examiner indicated that there was no additional functional limitation during a flare-up, meaning an estimate of loss of range of motion during a flare-up was not required. As the May 2019 VA examination adequately addressed flares, weight bearing, non-weight-bearing, range of motion of the opposing joint, and active and passive motion, a remand is unnecessary.

The Veteran's spinal disability is rated under Diagnostic Code 5237, which compensates lumbosacral strain, and requires rating under the General Rating Formula for Diseases and Injuries of the Spine ("General Rating Formula") unless evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome (IVDS) is to be rated under whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. However, the VA examinations of record do not show that the Veteran has IVDS, so the General Rating Formula will be applied.

The General Rating Formula DCs 5235-5243 provides for the rating of disabilities of the spine mostly based on limitation of motion. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching around the spine affected by residuals of injury or disease, the relevant parts of the formula for the thoracolumbar spine: a 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of height. 

Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating.

Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating.

Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating. 38 C.F.R. § 4.71a, DC 5242. 

Note (2) provides: (See also Plate V.)  For VA compensation purposes, normal flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  Normal combined range of motion of the thoracolumbar spine is 240 degrees.

The Board acknowledges that the criteria for musculoskeletal disabilities in 38 C.F.R. § 4.71a were amended, effective February 7, 2021, and the "new" schedular criteria are applicable as of that date. 85 Fed. Reg. 76453 (Nov. 30, 2020). However, neither DC 5237 nor the General Rating Formula was changed.

Having reviewed the rating criteria, the Board notes that the issue is whether the Veteran showed limited range of motion attributable to his service-connected disability to warrant a 20 percent rating, which requires forward flexion greater than 30 degrees but not greater than 60 degrees; or, combined range of motion not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

Turning to the evidence, the Board notes that the Veteran was formerly rated for a "chronic low back condition." A November 2006 VA examination diagnosed the Veteran with recurrent back strain, and found that the Veteran's spine was normal with no evidence of arthritis on X-rays. The August 2012 rating decision on appeal changed the Veteran's disability from "low back condition" to "lumbosacral strain."

Social Security Administration (SSA) records have been added to the claims file. The Veteran underwent an SSA evaluation in January 2010. The Veteran's low back was tender to touch. Straight leg test was negative. The Veteran demonstrated normal gait, stable station, and ambulation without assistance, but used a cane for long distances in case of instability. Radiology images showed good alignment of the spine with no degenerative changes and normal vertebral bodies, but he had mild narrowing of the L4/L5 disc space. The Veteran had normal flexion to 90 degrees and normal lateral flexion to 25 degrees. He did not have normal extension, but the range of motion was not reported in degrees.

The Veteran underwent a VA examination in October 2011. He was diagnosed with lumbosacral strain and degenerative disc disease. The Veteran reported increased pain and decreased motion over the years. The pain flared almost daily for hours, and was precipitated by bending, standing over twenty minutes, and sitting for extended periods. Range of motion testing was completed. The Veteran exhibited the most limited motion after repetitive-use testing as follows: flexion to 30 degrees, extension to 30 degrees, right and left lateral flexion to 20 degrees each, right and left lateral rotation to 30 degrees each. Functional loss of the spine included less movement than normal, weakened movement, and pain on movement. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. He had regular use of a cane. Imaging showed mild arthritis and spondylotic changes.

In November 2011, the AOJ obtained a supplemental opinion regarding the nature of the Veteran's back disability. The inquiry was whether the Veteran's new diagnosis of degenerative disc disease (DDD) was a progression of the service-connected lumbosacral strain, a correction of the prior diagnosis, or a separate disability. The examiner explained that DDD was a separate disability. After reviewing the records, the Veteran did not have evidence of DDD in the previous 2006 VA examination and it was a new finding. In the Veteran's case, aging was the source of his DDD. DDD resulted in the decrease of flexion from the 2006 to 2011 VA examinations. 

December 2012 records from Highland Clinic are of record. The Veteran had limited painful range of motion in his lumbar spine. He was diagnosed with an acute lumbar sprain with sudden onset after a fall. The Veteran presented with normal gait, normal paraspinous muscle tone, and no spasms. He had flexion to 30 degrees, extension to 15 degrees, left and right lateral flexion to 10 degrees, and "full" rotation.

At a follow-up December 2012 appointment at Highland Clinic, the Veteran reported that his back pain was back to baseline. The assessment was lumbar sprain or strain "resolved."

In a May 2015 VA Form 9, the Veteran's representative argued that a higher rating was warranted because the Veteran's back pain was constant.

In August 2015, the Veteran's representative argued that, since the SSA found the Veteran permanently and totally disabled, his back disability warranted a higher rating.

The Veteran testified at a Board hearing in July 2018. The Veteran testified that he had problems with constant pain in his back, getting around, and bending over. He testified that his back had gotten worse over the years and he was taking medication for the pain. The Veteran argued that imaging studies did not accurately reflect the severity of his pain and back problems.

The Veteran submitted a written statement in April 2019. He argued that a higher rating was warranted because he hurt his back during service, and he was frustrated that he had to keep proving he was hurt.

The Veteran was afforded a VA examination in May 2019. He reported flare-ups with prolonged standing, walking, sitting, bending, and squatting. Range of motion testing revealed the following: forward flexion to 30 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation to 25 degrees each. The examiner opined that the range of motion itself did not contribute to a functional loss. The Veteran completed repetitive-use testing, with no additional loss of range of motion. Repetitive use over time and flare-ups did not significantly limit functional loss. There was no guarding or muscle spasm of the back. The Veteran had regular use of a back brace and a cane.

In written correspondence dated in May 2019, the Veteran explained that he was seeking a higher rating because of the severity and constant nature of his pain. He explained that X-rays did not reflect the amount of pain of he experienced.

The AOJ obtained a supplemental opinion in January 2020 regarding the nature of the Veteran's service-connected back strain. The examiner reviewed the Veteran's outpatient records, imaging, lay statements, and VA examinations. The examiner explained that spondylitis was a new and separate nonservice related condition that was consistent with aging, and it was not a progression of the Veteran's lumbar strain. The evidence showed that the Veteran did not have back muscle or ligament strain, and it is more likely than not that all his back symptoms were due to lumbar spine DDD and not the service-connected strain. The examiner also explained that there was no exacerbation since the Veteran had no radiological evidence of lumbar strain on MRI, and the Veteran's fall did not impact the severity of the strain since there was no evidence of traumatic fracture or dislocation. The examiner cited literature that explained that lumbosacral strains are temporary and more likely to resolve than disc injuries. Strains affect the muscles, soft tissue, and tendons surrounding the spine whereas degeneration involves the discs, bone, and vertebral joints.

The Veteran submitted a statement in support of his claim in July 2020. He listed military enlisting requirements and disqualifications involving the spine.

Having reviewed the evidence, the Board concludes that a rating in excess of 10 percent for lumbosacral strain is not warranted. First, the Board acknowledges that there are ranges of motion documented that could warrant a rating higher than 10 percent, but the competent evidence shows that the Veteran's limited motion is not attributable to his service-connected lumbar strain. The Veteran's symptomatology is caused by his DDD, which is distinct and not service connected. The first indication that the Veteran had a back disability other than strain was in the January 2010 SSA records, but before that the only disability the Veteran had, and what he was granted service connection for was strain. In October 2011, the Veteran had forward flexion that could warrant a higher rating. However, the November 2011 VA opinion explained that DDD was a new diagnosis and not a progression of strain, and that the worsening of the Veteran's back was attributable to DDD and not strain. Therefore, a higher rating is not warranted for service-connected strain based on the September 2011 VA examination. 

Similarly, the May 2019 VA examination showed limited range of motion that could potentially warrant a higher rating, but the January 2020 examiner also explained that the Veteran's limited range of motion was caused by nonservice connected DDD and spondylitis, not service-connected strain. The January 2020 concluded that the Veteran's lumbosacral strain had resolved and did not cause functional loss. The Board affords the November 2011 and January 2020 VA opinions significant weight in its conclusion that a higher rating is not warranted. The opinions are supported by adequate rationale, explain medical principles, are logical, and are based on review of relevant records and statements.

The Board also finds that the Highland Clinic records do not warrant a higher rating. The records do not comply with Sharp and Correia, as described above. Moreover, the treatment providers indicated that the Veteran had an acute injury in December 2012, which was a post-service fall, which resolved the same month.

The Board has considered the Veteran's reports of his back interfering with work. Considering the Veteran's report of frequency of symptoms, the Board finds that the Veteran's disability picture does not constitute an average impairment most closely approximating the limitation of motion to warrant a higher rating. See 38 C.F.R. § 4.1 ("the percentage ratings represent...the average impairment[.] ...Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations[.]"). The ratings assigned account for the limitations attributable to the Veteran's strain and the impacts on work. 

The Board acknowledges the Veteran's reports of constant and worsening pain, and limitations in bending, walking, and sitting. The Board also acknowledges the Veteran's arguments that imaging studies do not reflect the severity of pain, that a higher rating is warranted based receipt of SSA disability compensation, and regarding enlistment disqualifications based on spinal disability. However, the Board finds that these factors and arguments are insufficient to warrant a higher rating. As noted above, the evidence does not show that the Veteran's pain and limitations are attributable to strain, alone. Moreover, the rating criteria are based on limited motion caused by the Veteran's strain, not severity or duration of pain. Finally, the Board notes that SSA is a separate federal agency with separate and different regulations that allow for consideration of different evidence from VA, and SSA findings are not binding on the Board. The Board is sympathetic to the Veteran's frustration; however, a decision must be made on the competent evidence within the context of VA regulations. As explained above, as the competent medical professionals have explained that the Veteran's nonservice-connected DDD is the source of his symptomatology, the Board must afford those opinions more weight than the Veteran's arguments.

The Board also acknowledges the Veteran's arguments that the nature of his in-service injury should be taken into account, and that he should not have to keep proving he was hurt. The Board does not question the nature of the Veteran's in-service injury. The Veteran's back strain has been service connected since 1975, and the issue before the Board is not service connection. The Veteran filed a claim for an increased rating for his already service-connected back strain in 2011. Therefore, the Board is limited to reviewing the rating assigned for the timeframe after the filing of the claim, and cannot extend back prior to the filing of the claim. See 38 U.S.C. § 5110 (a) (generally, effective date of an award for a rating "shall not be earlier than the date of receipt of the application thereof."). Moreover, the United States Court of Appeals for Veterans Claims (Court) has held that where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's injuries while on active duty are too remote in time to warrant a higher rating for the appeal period beginning in 2011.

Second, the Board finds that a higher rating is not warranted on an extraschedular basis. Prior to engaging in an extraschedular analysis, the Board must determine whether the Veteran is in receipt of maximum benefit under the schedular alternatives. Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). For the reasons stated above, the Board has accounted for all the symptoms of the Veteran's back disability pertaining to limited motion under the schedular alternatives. As the Veteran is rated for the symptoms attributable to lumbosacral strain under the General Rating Formula, the Board finds that the schedular benefits have been maximized.

Additionally, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). 

Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116.

Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95.

The Board notes that the Veteran's claim was referred for extraschedular consideration because it was explicitly raised. However, the extraschedular claim fails on the first prong. The evidence of record does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The schedular criteria for rating the lumbar spine disability specifically provide for ratings based on the presence of painful motion, as noted above, whether or not such pain radiates; limitations of motion of the spine including due to pain and other orthopedic factors that result in functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, Mitchell); and other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991); Deluca v. Brown, 8 Vet. App. 202, 20607 (1995); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011); Sowers v. McDonald, 27 Vet. App. 472 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011).

All the symptomatology and functional impairments described above result from the limitation motion of the thoracolumbar spine, to include as due to pain, stiffness, and all the symptoms described by the Veteran are contemplated in the schedular ratings assigned under the General Rating Formula for Spine Disabilities either directly as limitation of motion, or indirectly as orthopedic factors that limit motion and function. Therefore, the Board finds that the record does not reflect that the Veteran's spine disability is so exceptional or unusual as to warrant the assignment of a higher disability rating on an extraschedular basis.

The extraschedular rating also fails on the second prong. The record does not reflect an unusual or exceptional disability picture with related factors such as marked interference with employment or frequent periods of hospitalization.

In summary, the Veteran's claim for an increased rating, in excess of 10 percent, for his lumbosacral strain is denied, including on an extraschedular bases. The Board finds that the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. Entitlement to a TDIU

Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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. 38 C.F.R. § 4.16 (a). 

The term "unable to secure and follow a substantially gainful occupation" is defined as having two components: one economic and one non-economic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and 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). Consideration may not be given to the Veteran's age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. § §§ 3.341, 4.16, 4.19.

The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). 

If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

A disability rating, itself, is recognition that industrial capabilities are impaired. Van Hoose v. Brown, 4 Vet. App. at 363. Indeed, according to 38 C.F.R. §§ 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. The mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. Id. 

In a decision issued in November 2020, the Director of Compensation Service denied TDIU on an extraschedular basis. The Director's extraschedular decision is one of fact, and is reviewable by the Board on a de novo basis; it may serve to inform the Board's review, but it is not evidence. Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015); see Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) ("[A]lthough the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal."). The Board may assign an extraschedular rating when appropriate, and is only precluded from assigning an extraschedular rating "in the first instance." Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). With respect to the term "in the first instance," the Court has clarified that the Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director. Kuppamala, 27 Vet. App. at 456.

As such, in reviewing the Director's decision de novo, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation because of his service-connected disabilities.

The most recent code sheet shows that the Veteran is service connected for: bilateral hearing loss, rated as noncompensable (0 percent) from August 2016, and 60 percent effective September 30, 2020; lumbosacral strain, rated at 10 percent for the entire appeal period; tinnitus, rated at 10 percent from August 2016; left ureterolithotomy, rated as noncompensable for the appeal period; and status post fracture base of right index finger, rated as noncompensable from August 2016. From September 30, 2020, the Veteran meets the schedular criteria for a TDIU, but prior to that date he does not. Regardless of meeting the schedular criteria for part of the appeal period, the Board finds that a TDIU is not warranted for any part of the appeal period.

The records reflect that the Veteran's work history includes employment as a custodian, store manager, factory work, construction work, timekeeper, forklift operator, donation attendant, and driver for a car rental company. Specifically during the appeal period, the Veteran worked as a donation attendant from 2011 to January 2016, then was unemployed from January 2016 to March 2017, and has been employed as a driver since March 2017.

The Veteran's SSA records show that he was diagnosed with mild spondylosis, hypertension, cardiomegaly, and cholesterolemia. Based on physical examination, the evaluating doctor opined that the Veteran would be able to sit and stand for a full workday and walk without restriction, but would be limited in lifting and carrying objects weighing five pounds or less. The Veteran was able to hold a conversation, respond appropriately to questions, and carry out and remember instructions. The Veteran reported he could walk 30-60 yards before breaking and resuming after 1-3 minutes, and he used a cane, though it was not prescribed.

The October 2011 VA examiner opined that the Veteran's service-connected lumbar strain did not impact his ability to work.

In a written statement dated in August 2015, the Veteran argued that since the SSA found him disabled, he should also receive a TDIU.

The Veteran was afforded a VA examination for his hearing loss and tinnitus in August 2016. The examiner opined that both disabilities impacted the Veteran's ability to work. He had trouble understanding conversations because of hearing loss, and needed more volume and more focus on what was being said. The Veteran's tinnitus was intermittent, but when present, it made it difficult for him to focus.

The Veteran underwent a VA examination for his finger in December 2016. The examiner opined that the Veteran's residuals of the index finger fracture did not impact his ability to work.

In October 2017, the Veteran's Vocational Rehabilitation and Employment (VR&E) records were added to the claims file. However, the Veteran discontinued VR&E services in May 2008, and there are no counseling records that cover the current appeal period.

The Veteran testified at a Board hearing in July 2018. He reported that he was working part time, only 20-25 hours per week, because fulltime work would be too much for his back.

The Veteran had a VA examination for his back in May 2019. The examiner opined that his "back condition" impacted the Veteran's ability to work. Work restrictions may include avoidance of prolonged exertion, heavy lifting, and carrying excess weights.

The Veteran submitted written statements in May 2019. He explained that he was unable to work every day because of back pain.

In January 2020, a VA examiner provided an opinion regarding the impact of the Veteran's strain, alone, on his ability to work. The examiner explained that the Veteran's lumbosacral strain would limit heavy duty occupations, but not light duty or desk-job occupations.

In June 2020, VA received Employment Information in Connection with Claim for Disability Benefits. The form is unsigned, but indicates that the Veteran worked from March 2017 to March 2020 around 6 hours per day and 30 hours per week. The Veteran was on unpaid leave due to lack of business and COVID-19. 

The Veteran underwent another VA examination for hearing loss and tinnitus in October 2020. The examiner opined that both disabilities impacted the Veteran's ability to work. The Veteran tried to read lips, but it was difficult with widespread mask-wearing due to COVID-19. The Veteran also reported that the tinnitus was not constant, and was irritating when present.

After reviewing the evidence, the Board finds that the Veteran's service-connected disabilities alone do not render him unable to obtain and maintain substantially gainful employment. The records reflect that the Veteran possesses the physical and mental abilities to perform occupational tasks. 

The Board acknowledges that the Veteran was unemployed for approximately one year, and that he testified that the work he has done during the appeal period has been part-time. However, there is no indication that he lost a job because of his service-connected disabilities or was otherwise unemployed because of them or on their impact on his physical and mental abilities to work. The employment records show that since March 2020, the Veteran was on leave because of lack work, not because of disability. 

Additionally, while the Veteran experienced back pain which impacts his physical ability to work, the VA examinations of record show that the Veteran's limitations included prolonged exertion and carrying heavy weights, but not limitations in standing or sitting. The limitations he did experience because of his back were also due to the Veteran's nonservice-connected DDD, not his service-connected strain. Overall, the VA examinations of record showed minimal impairment caused by the Veteran's lumbosacral strain alone. As the Board cannot consider nonservice-connected disabilities in awarding a TDIU, it finds that the back strain is not sufficiently limiting to contribute to inability to obtain and maintain substantially gainful employment. Moreover, the SSA evaluation concluded that the Veteran was able to work a full day, and specifically referred to the limitations caused by the Veteran's spondylitis and other nonservice-connected disabilities, not lumbosacral strain. 

With regards to the Veteran's hearing loss and tinnitus, while they do cause impairments in hearing and focus, the Board finds that the assigned ratings during the appeal period address the impact on earning, such as loss of working time from exacerbations or illnesses. However, the evidence does not show any factors above and beyond the assigned ratings that take the Veteran's "particular case outside the norm." Van Hoose v. Brown, 4 Vet. App. at 363. 

Finally, there is no evidence that the Veteran's residuals of ureterolithotomy and right index finger fracture would cause limitations on employment.  

In sum, the Board finds that the Veteran's service-connected disabilities, alone or in combination, do not render him unable to maintain substantially gainful occupation. The benefit-of-the-doubt doctrine does not apply to this claim, as the preponderance of the evidence is against the claim for a TDIU. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Smith, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.