Citation Nr: 21041454 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-57 336 DATE: July 9, 2021 ORDER Entitlement to a rating greater than 40 percent for degenerative disc disease at L5-S1 is denied. Entitlement to individual unemployability is denied. FINDINGS OF FACT 1. The Veteran's degenerative disc disease at L5-SI is not manifested by unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes totaling at least 6 weeks in any 12-month period. 2. The Veteran's service-connected degenerative disc disease at L5-S1 does not render her unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 40 percent for degenerative disc disease at L5-S1 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5242 (2020). 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Navy from October 2000 to September 2004. These matters come before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied, in pertinent part, entitlement to a compensable rating for degenerative disc disease at L5-S1, service connection for posttraumatic stress disorder (PTSD), and headaches. The Veteran submitted a Notice of Disagreement (NOD) in June 2015. In September 2015, the RO granted an initial rating of 40 percent effective September 12, 2014 for her service-connected degenerative disc disease at L5-S1. Before the matter was certified to the Board, in a November 2016 rating decision, the RO granted service connection for PTSD and assigned an initial 70 percent rating, effective September 12, 2014. The award of service connection for PTSD constitutes a complete grant of the benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). Thus, the claim of service connection for PTSD is not before the Board. A Statement of the Case (SOC) was issued in November 2016. The Veteran perfected an appeal by submitting a timely VA Form 9 in November 2016. In her VA Form 9, the Veteran explicitly stated that she was only appealing the claim for an increased rating for her degenerative disc disease at L5-S1. Thus, the claim of service connection for headaches is not before the Board. Although the Veteran did not appeal the claim of entitlement to individual unemployability (TDIU) that was denied in a February 2017 rating decision and called in August 2020 to withdraw her appeal for TDIU, the claim was inferred, in a limited scope as an element of the increased rating claim on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also 38 C.F.R. § 20.204(b) ("Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing"). Increased Ratings 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. § 4.1. Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 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. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. 1. Entitlement to a rating greater than 40 percent for degenerative disc disease at L5-S1 The Veteran contends that her degenerative disc disease at L5-S1 ("degenerative disc disease") warrants a rating greater than 40 percent as she cannot do normal functions, such as bending, lifting, squatting, and standing, without extreme pain. In addition to the 40 percent rating for her degenerative disc disease, she is also in receipt of separate ratings stemming from the same service-connected disability, specifically her left lower extremity radiculopathy rated at 20 percent; left lower extremity radiculopathy rated at 10 percent; right hip pain syndrome rated at 10 percent; and left hip pain syndrome rated at 10 percent. The Veteran's separate ratings secondary to her degenerative disc disease are currently not before the Board. Earlier effective date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and an appellant can only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because the proper effective date for an award based on claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). The Veteran was originally assigned a non-compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5243, effective September 2, 2004. On September 12, 2014, her claim for "nerve problems to left leg sec[ondary] to back cond[ition]" was received, and the RO, in a September 2015 rating decision, assigned a 40 percent rating under Diagnostic Code 5242, effective September 12, 2014, the date of the receipt of her claim. The increase was based on the results of an August 2015 VA examination. The file does not contain any lay or medical evidence that factually ascertains an increase in disability up to one year prior to the date of claim. As the date entitlement arose for the higher rating is later than the date of receipt of the claim, the Veteran is in receipt of the earliest effective date possible for her 40 percent rating under 38 C.F.R. § 3.400 (o)(2). A rating greater than 40 percent for service-connected degenerative disc disease The weight of competent and credible evidence is against the assignment of a rating in excess of 40 percent under Diagnostic Code ("DC") 5242 for the Veteran's service-connected degenerative disc disease. 38 C.F.R. § 4.71a, DC 5242. A rating of 40 percent is warranted when the evidence demonstrates: unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted when the evidence demonstrates unfavorable ankylosis of the entire thoracolumbar spine, and a rating of 100 percent is warranted when the evidence demonstrates unfavorable ankylosis of the entire spine. Id. Additionally, spine disabilities based intervertebral disc syndrome (IVDS) with incapacitating episodes may be rated under 38 C.F.R. § 4.71a, DC 5243. A rating under DC 5243 is warranted when the evidence demonstrates: incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent); incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent). 38 C.F.R. § 4.71a, DC 5243. Put another way, barring evidence demonstrating unfavorable ankylosis of the entire thoracolumbar spine or a diagnosis of IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a rating greater than 40 percent is not warranted for her degenerative disc disease. The Veteran was afforded a VA examination for her degenerative disc disease in August 2015. The examiner found that the Veteran did not have ankylosis, but that she had IVDS requiring no bed rest prescribed by a physician and treatment by a physician in the past 12 months. In a December 2016 VA examination, the examiner found that the Veteran did not have ankylosis of the spine nor IVDS of the thoracolumbar spine. In a February 2021 VA examination, the examiner found that the Veteran did not have ankylosis of the spine nor IVDS of the thoracolumbar spine. The Board notes that although the Veteran initially stated that her back disability will get worse in November 2016, in November 2018, during counseling, she reported that she considered her physical condition to be "stable" and "not worsening." Thus, there is no medical evidence of ankylosis or IVDS requiring bed rest of at least 6 weeks during the past 12 months. The Veteran also reported that she believed her condition to be stable and that her physical condition, implicitly including her degenerative disc disease, was not worsening. For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a rating greater than 40 percent for the Veteran's service-connected degenerative disc disease have not been met or more nearly approximated. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to individual unemployability (TDIU) The Veteran initially stated that she had to resign due to her service-connected disabilities. As discussed above, her claim of entitlement to TDIU was denied in a February 2017 rating decision which she did not appeal. The remaining question of entitlement to TDIU is thus limited in scope and asks whether the evidence of record shows that the Veteran was unable to obtain and sustain substantial employment from September 12, 2014, due to the Veteran's degenerative disc disease, as the current claim of TDIU was inferred from the claim of a rating greater than 40 percent for degenerative disc disease. See Rice, 22 Vet. App. at 453-454 ("a request for TDIU ... involves an attempt to obtain an appropriate rating for a disability ... either as part of the initial adjudication of a claim or ... as part of a claim for increased compensation"). Despite limiting the scope of the issue, however, the analysis below also applies to the broader question of entitlement to TDIU as pertinent evidence of record was not equally limited in its scope. Returning to the service-connected disability in question, in addition to the 40 percent rating, she is also in receipt of separate ratings stemming from the same service-connected degenerative disc disease, specifically her left lower extremity radiculopathy rated at 20 percent; left lower extremity radiculopathy rated at 10 percent; right hip pain syndrome rated at 10 percent; and left hip pain syndrome rated at 10 percent effective September 12, 2014. Combined, they amount to a 70 percent rating meeting the threshold percentage requirement for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a) for the period on appeal. The Veteran is also in receipt of a 100 percent rating effective August 18, 2020. The receipt of a 100 percent schedular rating for service-connected disabilities, however, does not necessarily render moot any pending claim for a TDIU. See Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation under 38 U.S.C. § 1114(s). See id. Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010) (requiring VA to assess all of the claimant's disabilities to determine whether entitlement to SMC under 38 U.S.C. § 1114(s) is established whenever a Veteran with a total disability rating is subsequently awarded service connection for any additional disability or disabilities even in the absence of an express claim for SMC). TDIU VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified 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. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Regardless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: 1) the veteran's history, education, skill, and training; 2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, considering factors that may be relevant that include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with factors that may be relevant that include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of a TDIU for her disabilities stemming from her degenerative disc disease. In November 2016, the Veteran stated that her back disability, in conjunction with her PTSD, prevented her from securing or following any substantially gainful occupation. In February 2017, she submitted a VA Form 21-4192 where her employer stated that she was "medically laid off" on January 20, 2016. In November 2018, her counseling report noted that the Veteran last worked as a custodian "in 2015 but quit because it was aggravating her back." She "confirmed" that she was "now ready to start getting back into the workforce" as her inability to work was partly due to her pregnancy and taking care of her family including her children and her father who passed away. In her work history, she reported that she worked as a custodian until July 2016 and that she quit because the job contributed to her back pain. The Veteran was concerned to return to a position requiring extensive lifting, bending, or squatting as she did not want to aggravate her back. She reported that she had difficulty lifting over 10 pounds, walking for extended periods of time, and that she needed to alternate between sitting and standing. The counselor determined that the Veteran was unemployed but had overcome impairment to employability. The counselor cited the Veteran's successful work history in management positions, marketable degrees, and qualifications to work in a less physical capacity as bases for finding that she had overcome her vocational impairment. The Veteran served in the Navy as a postal clerk and earned a Bachelor of Science degree in technical management and an associate degree in fashion merchandising. Her resume posted to the file in November 2018 shows considerable work experience in positions other than requiring physical labor. Notwithstanding the current rating for a mental health disorder, these positions required interaction with others in the workplace. In conclusion, the counselor found that the Veteran did not have a serious employment handicap and thus not entitled to an employment handicap. In March 2020, the Veteran reported that she "quit to be the primary caregiver for her two children" rather than citing her service-connected disabilities. She reported "weird phases" every few weeks or monthly when she withdraws and has low motivation but then feels fine. She reported using exercise as therapy. Here, the central inquiry is whether the Veteran's service-connected degenerative disc disease is of sufficient severity to preclude her from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad, 5 Vet. App. at 529. As a result, the Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran's service-connected degenerative disc disease preclude her from obtaining or engaging in substantially gainful employment. Based on the evidence in the claims file, the Board believes that the symptomatology associated with the service-connected degenerative disc disease is appropriately compensated via the combined 70 percent rating for orthopedic disabilities which she is currently assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified 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." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired). In addition, the Veteran and her counselor agree that she is capable of work, albeit in a specific setting that is within her capabilities. In sum, the Board has found the Veteran to not be unemployable due to her service-connected degenerative disc disease. Notwithstanding the rating and episodic symptoms of her mental health disability, the weight of lay and medical evidence including the vocational counselor, her resume, and outpatient mental health evaluations do not show that her mental health disability even if combined with other disabilities precludes gainful employment, particularly in small group low stress settings or by telework . Accordingly, the criteria for entitlement to a TDIU are not met. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yun, 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.