DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

VITO A. CLEMENTI · 2022 · Case ID: 22021055

MIXED

Summary

The veteran, who served in the U.S. Air Force from September 1970 to June 1974, appeals the denial of service connection for cervical spine degenerative arthritis as secondary to his service-connected thoracolumbar spine disorder, and the denial of a total disability based on individual unemployability (TDIU) for the period of March 29, 2007, to October 31, 2016. The Board denied the secondary cervical spine claim, finding that the veteran's gait was normal and that the private medical opinion supporting the claim was of low probative value due to its lack of access to relevant records and failure to consider conflicting evidence. The Board found the VA addendum opinion more probative, which concluded the cervical spine disorder was not caused or aggravated by the thoracolumbar spine disorder due to the direction of gait compensation. The Board granted an extraschedular TDIU from November 1, 2016, to February 25, 2020, and a TDIU under 38 C.F.R. § 4.16(a) from February 26, 2020, onwards. This grant was based on the Veteran's service-connected thoracolumbar spine disorder, right lower extremity radiculopathy, and other conditions, coupled with opinions from Dr. Hamati and a February 2020 VA examiner indicating unemployability, and resolving doubt in the Veteran's favor.

Rationale

Private opinion lacked probative value due to insufficient access to records and failure to consider conflicting evidence.; VA examinations and treatment records indicated a normal gait.; VA addendum opinion found no causal or aggravating link between cervical and thoracolumbar spine disorders.

Service Branch

AIR FORCE

Special Benefit

TDIU

Docket No.

16-15 546

Full Decision Text

Citation Nr: 22021055
Decision Date: 04/07/22 Archive Date: 04/07/22

DOCKET NO. 16-15 546
DATE: April 7, 2022

ORDER

Service connection for cervical spine degenerative arthritis as secondary to service-connected thoracolumbar spine disorder is denied.

An extraschedular total disability rating based on individual unemployability (TDIU) due to service-connected disorders from November 1, 2016 to February 25, 2020 is granted.

A total disability rating based on individual unemployability due to service-connected disorders from February 26, 2020 and continuing thereafter is granted.

FINDINGS OF FACT

1. The Veteran's cervical spine degenerative arthritis was not caused and/or aggravated by his service-connected thoracolumbar spine disorder.

2. From March 29, 2007 to October 31, 2016, the Veteran's ability to work was not limited to marginal employment and the Veteran's service-connected disorders did not preclude him from securing or following a substantially gainful occupation.

3. With resolution of the doubt in his favor, from November 1, 2016 and continuing thereafter, the Veteran's service-connected disorders rendered him unable to secure or follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria to establish service connection for cervical spine degenerative arthritis have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310.

2. The criteria to establish a TDIU due to service-connected disorders from November 1, 2016 and continuing thereafter have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(a), (b).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Air Force from September 1970 to June 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of the Washington, D.C. Regional Office (RO).

In March 2019, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim for a TDIU. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript in the record.

In June 2021, the Board remanded the appeal to the RO for additional action. The RO complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran is in receipt of special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ from July 2, 2018 and continuing thereafter.

Secondary Service Connection Cervical Spine Disorder

Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995).

The Veteran asserts that his cervical spine degenerative arthritis was caused and/or aggravated by his service-connected thoracolumbar spine disorder because of an altered gait and trunk movement. The claim will be denied.

During a November 2007 VA examination not focused on the Veteran's cervical spine disorder, the Veteran denied using assistive devices and reported he could walk more than one mile without difficulty. During August 2008 VA treatment, the Veteran denied any changes in his gait. While being treated by VA in August 2011, the Veteran was observed walking with a normal gait.

The VA examination report and treatment records pertaining to the Veteran's gait are highly probative. Fed. R. Evid. 803(4) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision).

An October 2015 VA treatment record reflects the Veteran's report of neck pain. The VA treating physician noted a 2009 non-VA cervical spine radiograph revealed degenerative joint disease and disc prolapse. An April
. Evid. 803(4) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision).

An October 2015 VA treatment record reflects the Veteran's report of neck pain. The VA treating physician noted a 2009 non-VA cervical spine radiograph revealed degenerative joint disease and disc prolapse. An April 2016 VA treatment record also reflects the Veteran's report of neck pain. A May 2016 non-VA treatment record titled "Orthopedic Associates of Muskegon" authored by Yousif Hamati, M.D., also reflects the Veteran's report of neck pain. Dr. Hamati noted the Veteran's VA cervical spine radiograph revealed spinal canal stenosis and foraminal stenosis. Dr. Hamati opined that the "arthritis in [the Veteran's] neck would be related to the back problem because of the way [the Veteran] has walked all of these years."

Dr. Hamati's medical opinion as to secondary service connection is of low probative value. The physician apparently did not have the Veteran's treatment records, as are reviewed above and Dr. Hamati did not provide separate findings and rationale as to causation and/or aggravation or consider the Veteran's prior VA examination and medical records reflecting a normal gait. Atencio v. O'Rourke, 30 Vet. App. 74 (2018) (holding that for secondary service connection, a medical opinion should not combine causation and aggravation as separate findings and rationale should be provided); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that a thorough and contemporaneous medical examination is one which considers records of prior medical treatment so that the evaluation of the claimed disability will be a fully informed one).

In a July 2016 VA treatment record, the Veteran again reported neck pain. A November 2016 VA cervical spine radiograph revealed multilevel cervical intervertebral degenerative disc disease and multiple levels of significant central canal spinal stenosis. In June 2017, a report from the "Orthopedic Associates of Muskegon" authored by Dr. Hamati reflects the Veteran's report of neck pain. Dr. Hamati noted that a recent VA cervical spine radiograph revealed mild disc bulge and mild to moderate spinal canal stenosis.

The November 2018 and September 2019 VA examiners diagnosed the Veteran with cervical spine degenerative arthritis. However, the VA negative etiology opinions were inadequate, and the Board remanded the claim in June 2021 for an addendum. However, significantly as to the Veteran's current contentions, VA treatment records dated July 2021 and August 2021 reflect the Veteran's gait was stable without assistance.

In a September 2021 VA addendum, the examiner opined that the Veteran's cervical spine disorder was not caused by his service-connected thoracolumbar spine disorder because the lumbar spine affects the lower thoracic spine. The examiner noted that although Dr. Hamati suggested a relationship between the Veteran's cervical spine and lumbar spine due to gait compensation, the VA examiner reported that the altered movement does not migrate up, it migrates down towards the thoracic spine. The examiner opined that the Veteran's cervical spine disorder was not aggravated by his service-connected thoracolumbar spine disorder because the relevant medical records did not indicate any aggravation of the Veteran's cervical spine disorder because of his thoracolumbar spine disorder.

The September 2021 VA addendum is highly probative because the examiner considered the Veteran's medical history as evidenced by referring to the Veteran's relevant medical records and discussed Dr. Hamati's conflicting opinion.

The examiner described the Veteran's cervical spine disorder in sufficient detail as evidenced by explaining that, contrary to Dr. Hamati's opinion that the Veteran's gait compensation migrated towards the cervical spine, the Veteran's gait compensation migrated down the thoracic spine and not towards the cervical spine. The VA examiner provided a negative etiology opinion based on accurate and complete understanding of the Veteran's medical history with sufficient rationale. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); Prejean v. West
's cervical spine disorder in sufficient detail as evidenced by explaining that, contrary to Dr. Hamati's opinion that the Veteran's gait compensation migrated towards the cervical spine, the Veteran's gait compensation migrated down the thoracic spine and not towards the cervical spine. The VA examiner provided a negative etiology opinion based on accurate and complete understanding of the Veteran's medical history with sufficient rationale. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (upholding Board determination that VA examination reports were more probative because they were more thorough and detailed, discussed the conflicting opinions, and examiners had access to the claims file).

The evidence is not in approximate balance between that favoring the claim and against the claim. As noted, Dr. Hamati's positive medical opinion as to secondary service connection was of low probative value. The September 2021 VA examiner opined that the Veteran's cervical spine degenerative arthritis was not caused and/or aggravated by his service-connected thoracolumbar spine disorder. There is no reasonable doubt, and the claim is denied.

TDIU

TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Under the law, all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b).

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Id.

The rating period as to TDIU begins on March 29, 2007, when the Veteran filed his claim of service connection for a lower back disorder, a cardiac disorder, and diabetes mellitus. Although the claims were initially denied, the Veteran appealed, and the RO ultimately granted service connection for the back disorder in September 2012 during a period where the Veteran's claim for TDIU was pending. Throughout, the Veteran has consistently maintained that his back is very painful and causes an inability to consistently hold a job.

The Veteran's service-connected disorders include:

Coronary artery disease rated 30 percent disabling from July 2, 2017 and continuing thereafter;

Diabetes mellitus type II rated 20 percent disabling from July 2, 2018 and continuing thereafter;

Thoracolumbar spine disorder rated 10 percent disabling from March 29, 2007 to February 25, 2020 and 20 percent disabling from February 26, 2020 and continuing thereafter;

Right lower extremity radiculopathy rated 10 percent disabling from November 1, 2016 and continuing thereafter;

Left lower extremity radiculopathy rated 10 percent disabling from February 26, 2020 and continuing thereafter;

A heart surgery scar rated noncompensable from August 13, 2018 and continuing thereafter, and;

A thoracolumbar spine surgical scar rated noncompensable from March 29, 2007 and continuing thereafter.

The Veteran has met the schedular criteria under § 4.16(a) effective February 26, 2020. In June 2021, the Board granted service connection for coronary artery disease (CAD) and diabetes mellitus type II (DM) due to the Veteran's presumed exposure to herbicide agents disabilities resulting from a common etiology. Under the combined ratings table, the Veteran's CAD and DM meet the schedular criteria of at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.
13, 2018 and continuing thereafter, and;

A thoracolumbar spine surgical scar rated noncompensable from March 29, 2007 and continuing thereafter.

However, the Veteran does not meet the schedular criteria under § 4.16(a) from March 29, 2007 to February 25, 2020. In VA advisory opinions dated May 2017 and November 2020, the Director of Compensation Service recommended denial of an extraschedular TDIU under § 4.16(b).

Substantially gainful employment includes an economic component and a non-economic component. Ray v. Wilkie, 21 Vet. App. 58, 69 (2019). 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. Ray, 31 Vet. App. at 72. 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 types 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. Id.

The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. Thus, the central question is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

Social security administration (SSA) records show that the Veteran graduated high school in June 1970. The Veteran did not attend college and did not complete any type of special job training, trade, or vocational school. From August 1982 to December 2002, the Veteran worked 40 hours per week as a forklift operator at a grocery warehouse distribution center. The Veteran described his duties as a forklift operator involved loading trucks with pallets of groceries while sitting, standing four hours per day, sitting four hours per day, "minimal lifting" of cases of groceries, and wrapping grocery pallets with stretch wrap. The Veteran lifted 50 pounds as the heaviest weight and frequently lifted at least 25 pounds.

In an August 2003 non-VA treatment record authored by Todd L. Helle, M.D., Dr. Helle indicated that the Veteran was not "total or permanently disabled but can work gainfully with some significant lumbar restrictions." The Veteran's restrictions included no episodic lifting greater than 20 pounds, no repetitive lifting greater than 10 pounds, no repetitive bending at the waist, no prolonged stooping, no repetitive twisting at the waist, no episodic twisting while under load, sitting and/or standing option, and overtime at the Veteran's discretion.

Dr. Helle's opinion concerning the Veteran's capability of performing the physical and mental acts required to be employed is highly probative because Dr. Helle physically examined the Veteran, had an accurate and complete understanding of the Veteran's medical history, and considered the Veteran's relevant medical records in determining that despite some lumbar restrictions, the Veteran was not total or permanently disabled and could work gainfully. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012).

In December 2003, the SSA found that as of December 2002, although the Veteran was unable to perform the requirements of his past relevant work as a forklift operator, he "retains the
and complete understanding of the Veteran's medical history, and considered the Veteran's relevant medical records in determining that despite some lumbar restrictions, the Veteran was not total or permanently disabled and could work gainfully. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012).

In December 2003, the SSA found that as of December 2002, although the Veteran was unable to perform the requirements of his past relevant work as a forklift operator, he "retains the residual functional capacity to lift and/or carry up to 10 pounds frequently and up to 20 pounds on occasion, sit for six hours out of eight, stand and/or walk for at least two but less than six hours out of eight, with bending, twisting, and stooping limited to a less than occasional basis."

In a March 2007 non-VA treatment record titled "Shelby Family Care Center" authored by Steven R. Lessens, M.D., a lumbar spine physical examination revealed no kyphosis, no lordosis, full range of motion, normal stability, strength, and tone.

The November 2007 VA examiner noted that the Veteran's low back pain was triggered by repetitive motion, lifting heavy objects, and pushing heavy objects. The Veteran did not use assistive devices and could walk without assistance. An August 2008 VA treatment record noted the Veteran's low back pain, however, the Veteran reported having "little trouble so long as he is not overly active." During the August 2011 VA thoracolumbar spine examination, the Veteran reported working part time at a golf course. The Veteran indicated having low back pain and trouble with lifting objects, however, the Veteran noted he was "assigned different duties."

The SSA findings, VA and non-VA treatment records discussed above are probative as to the Veteran's physical and mental ability to perform the activities required as a forklift operator because despite the documented lumbar spine symptoms, the Veteran indicated having "little trouble so long as he not overly active" which is consistent with Dr. Helle's and the SSA's finding that the Veteran can gainfully work and that he retains the residual functional capacity to physically and mentally perform the activities required as a forklift operator.

In his October 2012 VA Form 21-8940, Application for Compensation Based on Unemployability, the Veteran reported that his service-connected thoracolumbar spine disorder impacted full time employment and that he became too disabled to work in December 2002. The Veteran worked full time as a forklift operator from August 1982 to December 2002 and part time on a golf course from April 2005 to October 2012. The Veteran reported applying to two jobs in March 2003 for a managerial position and in June 2003 as a forklift operator but received no response.

In a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability, the Veteran's former employer Benona Shores, LTD reported employing the Veteran from May 2004 to October 2012 at a golf course for three hours per day and twelve hours per week. The Veteran's duties included "light duty, no heavy lifting, and breaks as needed." The former employer indicated offering the position to the Veteran "as a friend of the family on a can-do basis." The Veteran stopped working because he "felt his back condition was getting worse and could no longer perform the job duties."

A September 2014 VA treatment record reflects the Veteran's report of low back pain and discomfort. In a February 2015 non-VA letter, Dr. Lessens noted that "due to [the Veteran's] severe back disease and chronic pain, he cannot sustain any activity for more than a few minutes without resting." Dr. Lessens did not distinguish between the Veteran's service-connected thoracolumbar spine disorder and non-service-connected cervical spine disorder, and his opinion as to unemployability is speculative, general, and/or inconclusive in nature, and therefore is of low probative value. Obert v. Brown, 5 Vet. App. 30, 33 (1993); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).

VA treatment and non-VA treatment records dated October 2014 to October 2016 reflect the Veteran's treatment for several non-service-connected disorders, such as neck pain, headaches, radiculopathy, and hypertension.

The Veteran's employment at Benona Shores Golf Course was marginal employment because the position was offered to the Veteran on a part time basis and "as
spine disorder, and his opinion as to unemployability is speculative, general, and/or inconclusive in nature, and therefore is of low probative value. Obert v. Brown, 5 Vet. App. 30, 33 (1993); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).

The Veteran's employment at Benona Shores Golf Course was marginal employment because the position was offered to the Veteran on a part time basis and "as a friend of the family on a can-do basis" and therefore does not constitute substantially gainful employment. 38 C.F.R. § 4.16(a). Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016) (holding that when the issue is raised that the veteran's ability to work might be limited to marginal employment, the Board must address that matter and explain why the evidence does not demonstrate that the veteran is incapable of more than marginal employment).

However, the Veteran was capable of more than marginal employment from March 29, 2007 to October 31, 2016 as evidenced by the Veteran's education, skill, training, physical and mental capability to perform the activities required as a forklift operator shown by SSA records, Dr. Helle's employability opinion, and VA and non-VA treatment records dated March 2007 to October 2016. Additionally, although the Veteran reported applying to two jobs in March 2003 for a managerial position and in June 2003 as a forklift operator but received no response, such action indicates that the Veteran has difficulty finding employment but does not show that he is incapable of performing the physical and mental acts required to be employed, and therefore, does not warrant assignment of a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

On November 1, 2016, the Veteran underwent VA electromyography (EMG) testing due to right lower extremity radiating pain. The EMG revealed chronic right L5 radiculopathy. The Veteran was diagnosed with right lower extremity radiculopathy and issued a "single point cane and ice pick attachment from prosthetic stock." The VA medical record is highly probative concerning the Veteran's lack of physical ability to perform the types of activities required as a forklift operator due to his diagnosis of right lower extremity radiculopathy and issuance of assistive devices. Significantly, in March 2017, the RO granted service connection for right lower extremity radiculopathy and assigned a 10 percent disability rating effective November 1, 2016.

In a January 2017 VA treatment record, the VA treating physician noted the Veteran's recurrent and progressive low back pain resulted from walking and general physical activity. The Veteran could walk half a mile before symptoms onset. The Veteran has trouble sleeping in a bed and instead sleeps on a couch with both knees bent toward his chest. In a March 2018 non-VA treatment record titled "Orthopedic Associates of Muskegon," Dr. Hamati indicated that the Veteran was not employable and there was nothing the Veteran can do other than conduct gentle stretching and strengthening exercises pertaining to his thoracolumbar spine disorder.

During the February 2020 VA thoracolumbar spine examination, the examiner opined that the Veteran's thoracolumbar spine disorder impacted his ability to work due to trouble with walking, standing, sitting, use of stairs, driving, lifting, and carrying. The examiner noted the Veteran's inability to vacuum and fatigue during food preparation.

The evidence is not in approximate balance between that favoring the claim and against the claim as to an extraschedular TDIU from March 29, 2007 to October 31, 2016. During that period, the Veteran's ability to work was not limited to marginal employment for several reasons. Dr. Helle indicated that the Veteran was not "total or permanently disabled but can work gainfully" with some thoracolumbar spine restrictions. Additionally, the SSA found that the Veteran "retains the residual functional capacity to lift and/or carry up to 10 pounds frequently and up to 20 pounds on occasion, sit for six hours out of eight, stand and/or walk for at least two but less than six hours out of eight, with bending, twisting, and stooping limited to a less than occasional basis." In an August 2008 VA treatment record, the Veteran reported having "little trouble so long as he is not overly active" as to his low back.
to work was not limited to marginal employment for several reasons. Dr. Helle indicated that the Veteran was not "total or permanently disabled but can work gainfully" with some thoracolumbar spine restrictions. Additionally, the SSA found that the Veteran "retains the residual functional capacity to lift and/or carry up to 10 pounds frequently and up to 20 pounds on occasion, sit for six hours out of eight, stand and/or walk for at least two but less than six hours out of eight, with bending, twisting, and stooping limited to a less than occasional basis." In an August 2008 VA treatment record, the Veteran reported having "little trouble so long as he is not overly active" as to his low back. Further, VA treatment records revealed, for the relevant appellate period, that the Veteran's thoracolumbar spine disorder exhibited full range of motion, normal stability, strength, and tone. Such evidence demonstrates that the Veteran was capable of more than marginal employment and that his service-connected disorders did not render him unemployable from March 29, 2007 to October 31, 2016. There is no reasonable doubt, and the claim is denied.

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However, the Board will grant an extraschedular TDIU from November 1, 2016 to February 25, 2020 and a TDIU under § 4.16(a) from February 26, 2020 and continuing thereafter based on the benefit-of-the-doubt doctrine. A VA treatment record dated November 1, 2016 reflects the Veteran's diagnosis of right lower extremity radiculopathy and issuance of assistive devices. Additionally, the Veteran was service connected for right lower extremity radiculopathy effective November 1, 2016. Although VA treatment records, for the relevant appellate period, indicate that the Veteran could engage in some physical activity, Dr. Hamati and the February 2020 VA examiner opined that the Veteran is not employable due to his service-connected thoracolumbar spine disorder. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an extraschedular TDIU and a TDIU under § 4.16(a) is warranted, and the claims are granted.

Vito A. Clementi

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Cohen, Counsel

The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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