Citation Nr: 21039717 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-55 376 DATE: July 1, 2021 ORDER 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) rating is granted. 2. Entitlement to a rating in excess of 20 percent for a back disability is denied. REMANDED 3. Entitlement to service connection for loss of smell and taste is remanded. FINDINGS OF FACT 1. The Veteran's service connected disabilities (sleep apnea, rated 50 percent; vocal cord lesion, 30 percent; degenerative disc disease of the lumbar spine, 20 percent; right lower extremity radiculopathy, 20 percent; left lower extremity radiculopathy, 10 percent; tinnitus, 10 percent; hypertension, 10 percent; and hearing loss and right thumb laceration, 0 percent, each) are rated 80 percent, combined, from July 25, 2008 and 90 percent, combined, from September 26, 2011; they are reasonably shown to have been of a nature and severity that rendered him unable to maintain regular, substantially gainful, employment consistent with his education and experience. 2. The Veteran's low back disability is not shown to have been manifested by flexion limited to 30 degrees or less; ankylosis, compensable neurological manifestations other than bilateral lower extremity radiculopathy, and incapacitating episodes of intervertebral disc syndrome (IVDS) are not shown. CONCLUSIONS OF LAW 1. The schedular criteria for a TDIU rating are met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. 2. A rating in excess of 20 percent for back disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code (Code) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1972 to August 1996. These matters are before the Board of Veterans' Appeals (Board) on appeal of an August 2009 Department of Veterans Affairs (VA) rating decision. The Veteran requested, and was scheduled for, a Board hearing (in October 2018). He did not appear, and there is no evidence of good cause for the failure to appear or that he attempted to reschedule a hearing. His hearing request is considered withdrawn. In March 2019 and November 2019, these matters, and the matter of entitlement to service connection for sleep apnea were remanded for additional development. An August 2020 rating decision awarded service connection for sleep apnea (rated 50 percent, effective July 25, 2008), fully resolving that matter. 1. Entitlement to a TDIU rating is granted. As an initial matter, in a January 23, 2017 VA Form 21-8940, the Veteran asserted he is unable to maintain substantially gainful employment due to his back disability and lumbar radiculopathy. He reported that he could no longer work due to the severity of his pain. A June 2017 rating decision denied a TDIU rating and the Veteran timely initiated an appeal in the matter. While he did not submit a substantive appeal following the October 2018 statement of the case (SOC), he had timely perfected an appeal in the matter of an increased rating for a back disability. A claim for entitlement to a TDIU rating is considered part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Additionally, once entitlement to a TDIU rating is at issue as part of a claim for an increased rating (here, an increased rating for his back disability), a claimant does not need to appeal a denial by the Agency of Original Jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019). Accordingly, the Board has jurisdiction to address the issue of entitlement to a TDIU rating. A TDIU rating may be assigned when the Veteran is, in the judgement of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU may be assigned if the Veteran has two or more service-connected disabilities, when at least one is rated at 40 percent or more and the combined evaluation is 70 percent or more, or, if there is only one service connected disability that is rated at 60 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or from multiple injuries incurred in action will be considered one disability for the purposes of one 60 percent disability or one 40 percent disability. Id. Here, from July 25, 2008, the Veteran's service-connected disabilities have included sleep apnea (rated 50 percent), vocal cord lesion (30 percent), degenerative disc disease of the lumbar spine (20 percent), tinnitus (10 percent), hypertension (10 percent), hearing loss (0 percent), and right thumb laceration (0 percent). From September 26, 2011, the service-connected disabilities have also included right lower extremity radiculopathy (20 percent) and left lower extremity radiculopathy (10 percent). His combined rating has been over 70 percent throughout (80 percent from July 25, 2008 and 90 percent from September 26, 2011); the schedular rating requirement for TDIU in 38 C.F.R. §4.16(a) is met. What remains to be determined is whether the Veteran's service-connected disabilities are of such nature and severity as to have precluded his participation in substantially gainful employment consistent with his education and work experience. In determining whether unemployability exists, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The record reflects the Veteran completed 2 years of college and worked as a manager for a defense commissary agency for approximately 18 years, until he retired in 2015. He denied further education or training. He noted in his January 2017 TDIU application that he became too disabled to work due to his low back pain and lumbar radiculopathy and that the severity of the pain interfered with work performance. Social Security Administration (SSA) records show that the Veteran was awarded SSA disability benefits from December 31, 2015, based essentially on his [service-connected] degenerative disc disease, hypertension, hearing loss, sleep apnea, and vocal cord lesion. In an April 2016 SSA exertion questionnaire, he reported he has to minimize prolonged sitting and standing to reduce pain. He reported that acute pain makes normal movement of his back difficult and that there were several occasions when his wife ad to assist him in getting out of bed. A May 2016 SSA disability determination found the Veteran has the residual functional capacity to occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand/walk 4 hours; sit for 6 out of 8 hours; push/pull limited in his lower extremities due to his extensive lumbar pain radiating into his lower extremities. It was determined that the Veteran demonstrated the maximum sustained work capacity is limited to sedentary work. A VA Form 21-4192, from the Veteran's most recent employer, received April 2017, notes that he worked full-time as manager of a commissary from February 1997 to December 2015. His responsibilities included management of all commissary operations, overseeing work in all other departments to ensure smooth daily operation, and conducting walk throughs and inspections of all departments to ensure compliance. It was noted that the Veteran retired early, on December 31, 2015, due to chronic back pain and ongoing issues to resolve it. As the Veteran had alleged that he was unable to maintain substantial gainful employment due to his back and lumbar radiculopathy disabilities, the AOJ arranged for examinations to assess the disabilities and their impact on employability to be scheduled. On April 2017, the AOJ requested a VA peripheral nerves examination. On a June 8, 2017 Centralized Admin Accounting Transactions System inquiry, the VA peripheral neuropathy examination was cancelled, noting "NO SHOW: The Veteran did not attend their examination." There is no documentation in the Veteran's electronic file of how the examination date notification was transmitted, to include whether the examination notification was mailed to the Veteran (and whether any such mailing was to the correct address), whether he was called by telephone (and whether any such call was to an operating/correct contact phone number). A July 2017 rating decision denied the claim, noting his failure to attend the VA examination. In his March 2018 notice of disagreement, the Veteran asserted he had not received any correspondence other than the June 2017 notification concerning the rating decision and was not informed of the examination. Accordingly, on April 2018, the AOJ arranged for new examinations to assess his back and radiculopathy disabilities. On an October 26, 2018 compensation and pension exam inquiry, the VA back and peripheral neuropathy examinations were cancelled, no reason was given besides a note of "OTHER". The October 2018 SOC continued the denial of the TDIU claim, noting failure to attend the VA examinations. In a November 2018 report of contact, the Veteran requested his examinations be rescheduled for March and he would attend the rescheduled examination. In an April 2019 statement, he reported on October 25, 2018, he was notified by a VA examination service that he had an appointment for VA examinations in Cebu, Philippines; he informed the examiner he was currently in the United States for his wife to undergo orthopedic surgery and would not be certain he could attend the examination in Cebu. He was instructed by the examiner to call the VA office and he request the examinations be rescheduled for March 2018. He did so and provided updated mailing information for his address in the United States; he was informed that he would receive a notification confirming the updated appointment. Following receipt of the April 2019 statement and also pursuant to the March 2019 Board remand, in May 2019, the AOJ scheduled a back, ENT, and respiratory examination. On a May 14, 2019 compensation and pension exam inquiry, the VA examinations were cancelled, noting "Unable to contact Veteran." The November 2019 Board remand found it was unclear whether the Veteran received notice of the rescheduled examinations, good cause was shown, and he should be afforded opportunity for VA examinations. On February 2020 VA back examination, the Veteran reported limited ability to bend, twist, and lift due to low back pain. On February 2020 VA sleep apnea examination, the examiner opined the sleep apnea causes daytime fatigue that limits ability to concentrate and perform work tasks. At the outset, the Board notes while a failure to report to a scheduled VA examination (without good cause) requires that the claim must be denied if the claim is a claim for increase, the Veteran provided an explanation for his failure to appear for the June 2017 and October 2018 examinations scheduled in connection with the instant claim for increase. Notably, he provided (and the Board found) good cause for missing his VA back examinations and the June 2017 VA peripheral nerves examination. While he again missed a rescheduled 2018 VA peripheral nerves examination, he notified the examination scheduler prior to the examination of possible inability to appear, and was advised that he would be contacted about a rescheduled appointment. The Board finds that good cause for his failure to report for the October 2018 examination is shown, and that rescheduling is warranted. See 38 C.F.R. § 3.655. However, the failure to reschedule the peripheral nerves examination does not preclude the TDIU claim from being granted at this time. Although no single examination has found the Veteran is unable to maintain substantially gainful employment, the evidence persuasively shows that his service-connected disabilities, taken as a whole, are such that they preclude him from maintaining any regular, substantially gainful employment. His lumbar spine disability adversely impacts ability to maintain a physically demanding job, as it precludes bending, twisting, and lifting. In addition to the physical limitations due to his back disability, his sleep apnea adversely impacts his ability to concentrate and perform work tasks during the day. Notably, SSA has found the Veteran entitled to SSA disability benefits based on his back, hypertension, hearing loss, vocal cord lesions, and sleep apnea, all of which are service-connected. While SSA disability determinations are based on criteria that are not identical to those in VA claims, their findings regarding the Veteran's physical limitations, and the medical evidence underlying those findings, are probative evidence that supports the Veteran's claim. The Board finds that while the opinions indicate that the service connected disabilities individually do not preclude employment, the cumulative effect of the various disabilities is such that he would be unable to maintain regular substantially gainful employment consistent with his education and work experience primarily as a commissary manager (for 18 years, retiring early due to back disability in 2015); he has not sought employment since). Considering the foregoing, the Board finds it reasonably shown that the Veteran's service-connected disabilities result in limitations incompatible with any regular substantially gainful employment consistent with his education and work experience. Accordingly, the criteria for establishing to a TDIU rating are met; and a TDIU rating is warranted. [The Board notes that due process requires that the AOJ be afforded initial opportunity to decide the downstream issue of the effective date of the award (following any further development indicated)] 2. Entitlement to a rating in excess of 20 percent for a back disability is denied. Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where the appeal is from the initial rating decision assigned with an award of service connection, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's back disability is currently rated under Code 5237. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Code 5237 provides for rating either under the General Rating Formula Diseases and Injuries of the spine (General Formula) or based on incapacitating episodes of IVDS (whichever is more favorable). Under the General Formula, a 10 percent rating is assigned when 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, with muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned 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 not greater than 120 degrees; or, with 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 warranted when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or, with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating when there is unfavorable ankylosis of the entire spine. Under the Formula for Rating IVDS Based on Incapacitating Episodes, ratings are assigned based on the duration of such episodes in the period of a year (in terms of weeks). An incapacitating episode is defined as a period of acute signs and symptoms of IVDS that requires bedrest prescribed by a physician and treatment by a physician. See Note 1 following the criteria for rating on such basis. 38 C.F.R. § 4.71a. Note (1) to the General Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's back disability is rated 20 percent throughout from July 25, 2008 (the effective date of the award of service connection). An August 2009 private treatment record notes no feelings of weakness or bowel/bladder changes. On July 2009 VA examination, lumbar spine degenerative disc disease (DDD) was diagnosed. The Veteran reported a constant ache, shooting pain, stiffness, weakness, and numbness on the side of his right leg to ankle. He reported he treats his back with pain medication, exercises, and heat. He reported he can walk about 10 minutes, has problems getting dressed (he has to sit to don undergarments and putting sox on is painful), and has to take breaks when driving. He denied experiencing flare ups. He reported his occupation is in a supervisory position and does not require lifting. Initial range of motion testing found forward flexion 0 to 60 degrees; extension 0 to 30 degrees; right lateral flexion 0 to 25 degrees; left lateral flexion 0 to 25 degrees; right lateral rotation 0 to 25 degrees; left lateral rotation 0 to 25 degrees. Repetitive use range of motion did not find a reduction in the range of motion or additional functional loss. In his June 2011 substantive appeal, the Veteran reported he is beginning to experience unusually frequent (8 to 10 times) bowel movements daily, and was advised by his private provider to report to the emergency room immediately in the event he could not control bowel or bladder movement. On September 2011 VA examination, lumbar strain and DDD were diagnosed. The Veteran reported flare ups when depending on his activity, he sits at work while he is the commissary store director and walks the store daily for most of the day. Initial range of motion testing found forward flexion 0 to 60 degrees; extension 0 to 30 degrees; right lateral flexion 0 to 30 degrees; left lateral flexion 0 to 30 degrees; right lateral rotation 0 to 25 degrees; left lateral rotation 0 to 25 degrees. There was evidence of painful motion. There was no additional loss of function or range of motion after three repetitions. There were no palpable muscle spasms, abnormal gait, guarding, or abnormal spinal contour, and no other neurologic abnormalities (with the exception of lower extremity radiculopathy). The spine was not ankylosed. While IVDS of the thoracolumbar spine was noted, it was also noted that there were no incapacitating episodes in the last 12 months. No functional loss was noted. Air Force base medical records from August 2009 to August 2016 are silent for findings of abnormal range of motion, ankylosis of the back, urinary loss of control, or reports of a change in urinary frequency. An August 2012 treatment record notes he was having trouble sticking with his exercise routine due to his back. Air Force base treatment records note complaints of worsening pain. See May 2013 and December 2015 Air Force base treatment record. An October 2015 Air Force base treatment record notes he was able to control his bladder and bowel, for the most part. A December 2015 Air Force base treatment record notes there were no reports of uncontrolled bladder/bowel movements. In an April 2016 SSA letter, the Veteran reported that at times he could barely make it to the bathroom to empty his bowels and sometimes soils his underwear. He reported that his providers advised him that surgical intervention might be required if it worsened On January 2017 formal TDIU claim, the Veteran reported he was beginning to experience loss bowel movement control and bladder control. On February 2020 VA examination, DDD, IDVS, and radiculopathy were diagnosed. The examiner opined that IVDS and radiculopathy are common progressions of DDD as pressure on nerves develops due to progression of DDD. The Veteran reported lower back pain, right leg pain with numbness, tingling, and cramping in the legs. He reported limited ability to bend, lift, and twist due to back pain and increased pain during flare-ups. Initial range of motion testing found forward flexion 0 to 70 degrees; extension 0 to 20 degrees; right lateral flexion 0 to 20 degrees; left lateral flexion 0 to 20 degrees; right lateral rotation 0 to 20 degrees; left lateral rotation 0 to 20 degrees. There was evidence of painful motion. There was no additional loss of function or range of motion after three repetitions. The examiner noted while the examination was not being conducted immediately after repetitive use over time or during a flare-up, and opined the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time and with flare-ups. The examiner opined pain, weakness, fatigability did not significantly limit functional ability with repeated use over time. He further opined pain significantly limited functional ability with flare-ups but there is no additional loss of range of motion during a flare up, noting that pain increases during a flare up. There were no palpable muscle spasms, abnormal gait, guarding, or abnormal spinal contour, or any other neurologic abnormalities (with the exception of lower extremity radiculopathy). The spine was not ankylosed. While IVDS of the thoracolumbar spine was noted, it was also noted that there were no incapacitating episodes in the last 12 months. Functional loss was noted as limited ability to bend, twist, and lift due to low back pain. At the outset, the Board finds there has been substantial compliance with its March 2019 and November 2019 remand directives pertaining to the ratings for back disability (addressed below). See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). There is no evidence (and it is not alleged) that the Veteran has experienced incapacitating episodes of IVDS. On September 2011 and February 2020 VA examinations, while it was noted he has IDVS, he has not experienced incapacitating episodes. Separately compensable objective neurological manifestations are not shown (other than bilateral lower extremity radiculopathy which was awarded service connection in an unappealed September 2016 rating decision). While he has provided statements indicating bowel and bladder control issues, his treatment records and VA examinations make no mention of complaints, diagnosis, or treatment pertaining to bowel/bladder control issues. Notably, on February 2020 VA examination, bowel or bladder function impairment were not found. Consequently, further separate ratings for neurological manifestations other than bilateral lower extremity radiculopathy (which is service-connected, and separately rated, and not at issue herein) are not warranted. The Board finds the preponderance of the evidence is against a finding that Veteran's back disability was manifested by symptoms and impairment warranting (or approximating) the next higher (40 percent) rating. The record does not show that thoracolumbar spine flexion was limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (which would warrant the next higher, 40 percent, rating). Notably, the February 2020 examiner specifically indicated there was no additional loss of range of motion on flareups based on the Veteran's statements. Consequently, a rating in excess of 20 percent under the General Formula is not warranted. REASONS FOR REMAND 3. Entitlement to service connection for loss of smell and taste. The Board is aware that this matter was remanded twice before (and regrets the delay inherent with yet another remand). However, responses to prior remands have not been substantially compliant with instructions in previous remands, and corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The November 2019 Board remand found good cause for the Veteran's missing his VA examinations (scheduled pursuant to the March 2019 Board remand) and requested a medical opinion to determine the nature and likely etiology of the Veteran's loss of smell and tasted. Specifically, the examiner was asked to opine whether claimed losses of taste and smell were caused or aggravated by a service-connected vocal cord lesion (claimed as chronic laryngitis). On February 2020 VA ENT examination, anosmia and ageusia were diagnosed. The examiner opined (without including rationale) that vocal lesions do not cause or have an impact on the loss of sense of smell or taste. Additionally, the examiner noted seasonal allergies do cause the loss of sense of smell and taste but there is no record to support this diagnosis. The opinion is not responsive to the Board's remand directives, and corrective action is necessary. See Stegall, 22 Vet. App. 268. The matter is REMANDED for the following: Return the record to the February 2020 examiner for review and an addendum opinion regarding the nature and etiology of his loss of sense of smell and taste [If that provider is unavailable or unable to give an opinion sought, forward the record to another appropriate clinician for review and the opinion sought (and if in such circumstances further examination of the Veteran is deemed necessary, such should be arranged).] Upon review of the record, the consulting provider should: (a.) Identify the likely etiology of the Veteran's loss of sense of smell and taste. Specifically, is it at least as likely as not (a 50 percent or greater probability) that they were (i) related to service, (ii) caused by or (iii) aggravated by (increased in severity due to) the service-connected vocal cord lesion (claimed as chronic laryngitis). [The opinion must address aggravation.] (b.) If it is found that the service-connected vocal cord lesion did not cause, but aggravated, his loss of sense of smell and taste, specify, to the extent possible, the degree of disability (symptoms/ impairment) that has resulted from such aggravation. (c.) If the loss of sense of smell and taste are determined to be unrelated to service and not caused or aggravated by a service-connected disability, identify the etiology considered more likely, and explain why that is so. [The rationale for the response should cite to the clinical data that support the opinion.] Complete rationale for all opinions must be included. If a requested opinion cannot be provided without resort to mere speculation, it must be so stated, and the examiner must explain why speculation is required. The examiner must indicate whether there was any further need for information or testing necessary to make a determination, and further indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.