INTERVERTEBRAL DISC SYNDROME

MICHELLE P. KATZ · 2022 · Case ID: 22027159

DENIED

Summary

The Veteran, who served in the United States Marine Corps from July 1978 to August 1984, appeals the denial of an increased rating for intervertebral disc syndrome (IVDS) with degenerative arthritis and the denial of Total Disability based on Individual Unemployability (TDIU). The Board found the evidence persuasively against granting an increased rating for the Veteran's lumbar spine condition for any period under review. While the Veteran experienced pain and functional limitations, the evidence did not meet the specific criteria for higher disability percentages, such as significant forward flexion limitations or ankylosis. The Board noted that while the Veteran's service records showed some findings of pain and tenderness, they did not demonstrate the functional loss required for higher ratings. Regarding TDIU, the Board acknowledged the Veteran met the minimum schedular criteria due to his combined disability rating. However, the Board found that the Veteran's consistent employment history since approximately 2014, coupled with additional training and the nature of his work, demonstrated he was not precluded from substantially gainful occupation solely due to his service-connected disabilities. The Board concluded that the evidence persuasively weighed against a TDIU award, making the benefit of the doubt doctrine inapplicable. Therefore, the appeal for increased ratings and TDIU was denied.

Rationale

Evidence persuasively against increased rating for all periods; Symptoms did not meet criteria for higher ratings (20%, 40%, 50%); No ankylosis found; pain did not result in functional loss meeting higher criteria

Service Branch

MARINE CORPS

Special Benefit

TDIU

Docket No.

17-11 811

Full Decision Text

Citation Nr: 22027159
Decision Date: 05/09/22 Archive Date: 05/09/22

DOCKET NO. 17-11 811
DATE: May 9, 2022

ORDER

1. Entitlement to an initial increased rating in excess of 10 percent prior to September 27, 2021, in excess of 20 percent from September 27, 2021 to February 8, 2022, and in excess of 40 percent from February 9, 2022 for intervertebral disc syndrome (IVDS) with degenerative arthritis is denied.

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

FINDINGS OF FACT

1. Prior to September 27, 2021, the Veteran's IVDS with degenerative arthritis is not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

2. From September 27, 2021 to February 8, 2022, the Veteran's IVDS with degenerative arthritis is not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

3. From February 9, 2022, the Veteran's IVDS with degenerative arthritis is not manifested by unfavorable ankylosis of the entire thoracolumbar spine

4. The Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 10 percent prior to September 27, 2021, in excess of 20 percent from September 27, 2021 to February 8, 2022, and in excess of 40 percent from February 9, 2022 for IVDS with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5242-5243.

2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from July 1978 to October 1982 and from October 1982 to August 1984. The Veteran is barred from receiving VA benefits for the latter period of service based upon his character of discharge.

As noted in a January 2022 Board decision, the Veteran's former attorney, J. Michael Woods, Esq., submitted a written motion to withdraw his representation of the Veteran. The Board ruled on this motion in August 2021, granting the motion to withdraw. The Board notified the Veteran and his former attorney of this ruling in an August 2021 letter. Accordingly, the Veteran is, hereby, a pro se appellant in these proceedings

The January 2022 Board decision also found that a September 2021 VA examination was inadequate, noting that although the examiner noted that pain was exhibited on forward flexion, extension, right lateral flexion, right lateral rotation, left lateral flexion, and left lateral rotation, the examiner provided no indication of where pain began on motion. Accordingly, the January 2022 Board decision found that VA failed to ensure that that the examination met the requirements of an adequate examination under Mitchell as directed by September 2021 Board remand. See Mitchell v. Shinseki. See 25 Vet. App. 38, 44 (2011).

However, the Board now finds that the September 2021 VA examination is adequate. Upon further review, the examination report provides information as to where pain begins on motion. In the relevant section denoting range of motion for pain, the examination report advises the examiner to list the degree endpoint, if different than above (emphasis added). As the examiner did not provide a response in this section, this shows that the degree endpoint where pain begins on motion was not different than the previous readings. Accordingly, the examination is compliant with Mitchell, and Board now finds that the September 2021 Board remand directives were substantially complied with.

Increased Ratings

Disability evaluations are determined by evaluating the extent to which
. 38, 44 (2011).

Increased Ratings

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC.

Procedural History

In the February 2017 rating decision currently on appeal, service connection for degenerative arthritis of the thoracolumbar spine was granted, and the Veteran was assigned a 10 percent rating effective August 5, 2011. In the June 2019 rating decision, the 10 percent rating was continued. In the September 2021 Board decision, an effective date earlier than August 5, 2011 for the award of service connection for degenerative arthritis of the thoracolumbar spine was denied. In the November 2021 rating decision, the Veteran was granted a 20 percent rating, effective September 27, 2021. In the January 2022 Board decision, the issue was remanded for a new VA examination. In the March 2022 rating decision, the issue was recharacterized as IVDS with degenerative arthritis, and the Veteran was assigned a 40 percent rating, effective February 9, 2022.

Rating Criteria

The Veteran's lumbar spine disability is rated under DC 5242-5243. With or without symptoms such as pain (whether or not
5, 2011 for the award of service connection for degenerative arthritis of the thoracolumbar spine was denied. In the November 2021 rating decision, the Veteran was granted a 20 percent rating, effective September 27, 2021. In the January 2022 Board decision, the issue was remanded for a new VA examination. In the March 2022 rating decision, the issue was recharacterized as IVDS with degenerative arthritis, and the Veteran was assigned a 40 percent rating, effective February 9, 2022.

Rating Criteria

The Veteran's lumbar spine disability is rated under DC 5242-5243. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 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 the height. 38 C.F.R. § 4.71a, DCs 5235 to 5242.

A 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent evaluation is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation is assigned for 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 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id.

For VA compensation purposes, normal forward 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id.

The Board notes that, effective February 7, 2021, the rating schedule for evaluating musculoskeletal disabilities was amended in parts. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to clarify that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242.

The Board acknowledges that intervertebral disc syndrome (IVDS) may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS). See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS. For the purposes of evaluations under the Formula for Rating IVDS, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Notably, however, the probative evidence of record, does not document that the Veteran's IVDS with degenerative arthritis has resulted in incapacitating episodes for any period on appeal; as such, DC 5243 is not for application.

1. Entitlement to an initial increased rating in excess of 10 percent prior to September 27, 2021, in excess of
.R. § 4.71a, DC 5243, Formula for Rating IVDS. For the purposes of evaluations under the Formula for Rating IVDS, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Notably, however, the probative evidence of record, does not document that the Veteran's IVDS with degenerative arthritis has resulted in incapacitating episodes for any period on appeal; as such, DC 5243 is not for application.

Prior to September 27, 2021

The Board has carefully reviewed the evidence of record and finds that the evidence persuasively is against the award of an initial increased rating in excess of 10 percent for IVDS with degenerative arthritis prior to September 27, 2021. The reasons follow.

The evidence shows that the Veteran's IVDS with degenerative arthritis is manifested with pain and limitation of motion, but does not result in 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 spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, to warrant a 20 percent rating. At worst, the February 2017 VA examination found a normal range of motion, noted pain on the examination but found that it does not result in functional loss, with pain on forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. There was objective evidence of localized tenderness at the L4-5 vertebra, with a severity of five out of 10. Evidence of pain with weight bearing was found, and the Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss or loss or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time, but the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain was found to significantly limit functional ability with repeated use over a period of time, although it was unable to be described in terms of range of motion, as during repetitive use, the examiner stated that the Veteran's range of motion decreases depending on strenuous activities.

The Veteran reported flareups and stated that his low back pain is worse when getting up from a prone position and he must roll over to get up from his bed. The Veteran stated that his pain is also increased with prolonged standing, sitting and during sexual activities. The examination was not conducted during a flareup, although the examination was medically consistent with the Veteran's statements describing functional loss during a flareup. Pain and weakness significantly limited functional ability with flare ups, and the examiner noted that during flare up episodes, the Veteran's range of motion decreases depending on strenuous activities, so the Veteran's functional loss could not be described in terms of range of motion.

The Veteran was found to have guarding or muscle spasm of the thoracolumbar spine, not resulting in abnormal gait or abnormal spinal contour. The Veteran had tightness lasting about 24 36 hours. The Veteran had localized tenderness at the L4-5 vertebral level, not resulting in abnormal gait or abnormal spinal contour, and with no guarding.

In a November 2012 VA treatment record, the Veteran's lumbar range of motion was found to be within normal limits, with reduced muscle strength between L2-L5 on the right. In a December 2013 VA treatment record, the Veteran complained of pain with flexion/extension in the parathoracic region. In an April 2014 VA treatment record, it was documented that the Veteran's back was tender to palpation at L4-5.

As mentioned in the September 2021 Board decision, the March 2019 VA examination was found to be inadequate. Accordingly, it shall not be considered within the context of this analysis.

The Board concludes that the evidence persuasively is against an increased rating greater than 10 percent prior to September 27, 2021, as even with consideration of functional factors, the evidence does not show 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 spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, which is the criteria needed for a 20 percent rating. Examination results throughout the appeal period show that the Veteran had normal muscle strength, normal reflexes in his lower extremities, and normal range of motion. Taking into account the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in 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 spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, which would be required for a finding that the Veteran was entitled to a 20 percent disability rating. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran's disability picture for this appeal period.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial disability rating in excess of 20 percent for IVDS with degenerative arthritis prior to September 27, 2021 is warranted. Rather, the evidence persuasively weighs against an increased rating. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

From September 27, 2021 to February 8, 2022

The Board has carefully reviewed the evidence of record and finds that the evidence persuasively is against an award of an increased rating in excess of 20 percent for IVDS with degenerative arthritis from September 27, 2021 to February 8, 2022. The reasons follow.

From September 27, 2021 to February 8, 2022, the evidence shows that the Veteran's IVDS with degenerative arthritis was manifested by pain and limitation of motion, but did not result in forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, to warrant a 40 percent rating. At worst, a September 2021 VA examination shows lumbar spine forward flexion to 40 degrees, extension to 25 degrees, right and left lateral flexion zero to 30 degrees, lateral rotation to the right and left to 30 degrees. Pain was noted on forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. Limitation of motion due to pain was found to have the same degree endpoints for each measurement. The examiner documented that no ankylosis was found.

Passive range of motion testing was performed, and the degree endpoints were found to be the same as the active range of motion. Pain was noted on forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. Once again, limitation of motion due to pain was found to have the same degree endpoints for each measurement.

Evidence of pain was found on the examination, resulting in functional loss. The examiner documented that the Veteran had pain and discomfort rated as a seven out of 10 and difficulty walking, standing, and sitting for extended periods of time. The Veteran also had trouble bending and twisting, as well as lifting heavier items. The examiner reported that he used a cane for occasionally for long distance walking. The Veteran stated that his pain has worsened, and he experienced this daily. No objective evidence of crepitus was found, but there was objective evidence of localized tenderness, with hammer tenderness at the midline lumbar, with a severity of nine of out 10. No additional loss of function or range of motion was found after three repetitions under repetitive use testing. The Veteran was not examined immediately after repeated use over time, but procured evidence suggested that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repeated use over time. After repeated use over time, the examiner estimated forward flexion to 40 degrees, extension to 25 degrees, right and left lateral flexion zero to 30 degrees, lateral rotation to the right and left to 30 degrees.

The Veteran denied experiencing flareups and was not examined during a flareup, but the procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with flareups. The Veteran was found to have guarding or muscle spasm of the thoracolumbar spine, but it did not result in abnormal gait or abnormal spinal contour. The examiner documented moderate to moderately severe narrowing of the L3-L4, L4-L5, and L5 -S1 discs, and a computed tomography (CT) scan in 2014 was negative for spinal stenosis or neural foraminal narrowing.

The Board has considered the effects of the Veteran's symptoms, including pain and functional loss, and concludes that the evidence is persuasively against a finding of symptoms comparable to forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, which is the criteria needed for a 20 percent rating. Examination results throughout the appeal period show that the Veteran had normal muscle strength and reflexes in his lower extremities, and had forward flexion to 40 degrees even with consideration of the impact of functional impairment. Thus, consideration of the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in forward flexion of the thoracolumbar spine to 30 degrees or less or symptoms comparable to ankylosis, and the Veteran has not specifically alleged symptomatology producing the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Thus, a higher rating under the pertinent rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 is not approximated in the Veteran's disability picture for this appeal period.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an increased rating in excess of 20 percent for IVDS with degenerative arthritis from September 27, 2021 to February 8, 2022 is warranted. Rather, the evidence persuasively weighs against an increased rating. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch, 21 F.4th 776.

From February 9, 2022

The Board has carefully reviewed the evidence of record and finds that the evidence persuasively is against the award of an increased rating in excess of 40 percent for IVDS with degenerative arthritis from February 9, 2022. The reasons follow.

The evidence shows that the Veteran's IVDS with degenerative arthritis is manifested with pain and limitation of motion, but does not result in unfavorable ankylosis of the entire thoracolumbar spine, to warrant a 50 percent rating. At worst, the Veteran's forward flexion was limited to 25 degrees, and no ankylosis of the spine was found, as found in the February 2022 VA examination. The February 2022 VA examination showed forward flexion to 25 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 25 degrees, with pain at the endpoints of all ranges of motion. The Veteran reported having functional loss or functional impairment, including but not limited to after repeated use over time. The Veteran reported that he had difficulty with ambulating lengthened distances, extended standing, sitting, carrying, and lifting. The Veteran denied experiencing flareups.

Passive range of motion testing was performed, with the same ranges of motion found as with active motion. There was pain at the endpoints of all ranges of motion and with weight bearing, which caused functional loss. No crepitus was found, but the examiner documented that objective evidence of localized tenderness or pain on palpation was indicated, resulting in moderate discomfort with palpation of the lower lumbosacral spine.

The Veteran could perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion. He was examined immediately after repeated use over time, but there was no evidence to suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repeated use over time. The Veteran had the same range of motion measurements with repeated use over time, based upon actual measurements performed by examiner, with pain noted at the endpoints. Although there was IVDS of the spine, there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.

The Board concludes that the evidence does not support a finding that the Veteran's lumbar spine disability was manifested by unfavorable ankylosis of the entire thoracolumbar spine from February 9, 2022, which is the criteria needed for a 50 percent rating. Examination results throughout the appeal period show that the Veteran had forward flexion to 25 degrees with consideration of the impact of pain. Taking into account the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in unfavorable ankylosis of the entire thoracolumbar spine, and the Veteran has not specifically alleged symptomatology producing the functional equivalent of ankylosis. Chavis, 34 Vet. App. 1. Thus, an increased rating greater than 40 percent is not warranted under the pertinent rating criteria.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an increased rating in excess of 40 percent for IVDS with degenerative arthritis from February 9, 2022 is warranted. Rather, the evidence persuasively weighs against an increased rating. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch, 21 F.4th 776.

TDIU

A TDIU rating may be warranted when a Veteran demonstrates the inability to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. See 38 C.F.R. § 4.16(a). Minimum disability rating percentages must be shown for the service-connected disabilities, alone or in combination, to qualify for consideration for a TDIU award under § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability rendering a combined rating of 70 percent or more. Id.

The question of unemployability or the veteran's ability or inability to engage in substantial gainful activity, must be examined in a practical manner. The crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant.

Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist,
, at least one disability must be rated at 40 percent or more, with sufficient additional disability rendering a combined rating of 70 percent or more. Id.

Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.

The Board shall consider the nature of the employment and the reason for any termination. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19.

The record must reflect some factor that takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment.

2. Entitlement to a TDIU

The Board has carefully reviewed the evidence of record and finds that the evidence persuasively is against the award of TDIU. The reasons follow.

The Veteran meets the minimum disability rating percentage threshold for consideration of schedular TDIU. 38 C.F.R. § 4.16(a). The Veteran is currently service-connected for IVDS with degenerative arthritis, rated as 40 percent disabling; posttraumatic stress disorder with major depression and cocaine use disorder, rated as 30 percent disabling; right lower extremity radiculopathy, sciatic nerve, rated as 20 percent disabling; left knee chondromalacia patella, rated as 10 percent disabling; right knee chondromalacia patella, rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling. These issues present a combined rating of 80 percent evaluation. Thus, as the Veteran has at least one disability rated at least 40 percent with an additional disability that creates a combined evaluation of at least 70 percent, he meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a).

In a December 2012 VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability, the Veteran reported that he was entitled to TDIU based upon his back disability. The Veteran reported that he last worked as an exterminator in 2001. The Veteran reported that he completed four years of high school, with no other education and training before he became too disabled to work. However, in an April 2014 VA treatment record, the Veteran reported that he underwent two years of Air Force community college. In a June 2019 VA examination for PTSD, it was reported that in 2011, after the Veteran was released from jail, he went into a program to be trained on mechanical work for heavy equipment. Thus, it appears that the Veteran has some additional training in addition to his high school education.

In an April 2014 VA treatment record, the Veteran stated he was starting employment at VA in the kitchen, but by September 2014, the Veteran reported that he was unemployed. From the time of a December 2014 VA treatment record onwards, the Veteran has consistently reported stable employment. In a May 2017 VA treatment record, the Veteran reported working "a lot" of hours at VA. In a February 2018 VA treatment record, the Veteran was documented to be working as an EMS worker. A June 2019 PTSD VA examiner noted that the Veteran was working at the Cincinnati VA Medical Center as a medical support assistant in the call center. The Veteran's reports of mostly consistent employment for several years with additional training establishes that the Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities.

In a June 2019 VA examination for mental disorders, the examiner stated the Veteran appeared to be functioning effectively in social and occupational realms. This evidence weighs against a finding that the Veteran is precluded from securing or following a substantially gainful occupation due to his service-connected
" of hours at VA. In a February 2018 VA treatment record, the Veteran was documented to be working as an EMS worker. A June 2019 PTSD VA examiner noted that the Veteran was working at the Cincinnati VA Medical Center as a medical support assistant in the call center. The Veteran's reports of mostly consistent employment for several years with additional training establishes that the Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities.

In a June 2019 VA examination for knee conditions, the examiner found that the Veteran's bilateral knee disabilities impacted his ability to work, stating that the Veteran had difficulty with prolonged standing, although noting that the Veteran's current job did not require activity. The Veteran reported that he switched to this position due to difficulty with standing.

In a June 2019 VA examination for tinnitus, the Veteran reported his tinnitus does influence his daily life and occupational work environment. He reported that he has stress in his work environment because of his tinnitus. In a March 2020 VA treatment record, the Veteran reported that worked at a VA call center. In an April 2020 VA treatment record, the Veteran reported that he continued to work at the hospital because his job required him to work in person. In a September 2021 VA treatment record, the Veteran reported that he performed office work at VA.

In a February 2022 VA examination for back conditions, the examiner found that the Veteran's IVDS with arthritis impacted his ability to work, noting that he had difficulty with ambulating lengthened distances, extended standing, sitting, carrying, and lifting. Although this examination documented some physical limitations, not all forms of work require ambulating lengthened distances, extended standing, sitting, carrying, and lifting.

The Board has considered the opinions of the medical professionals; however, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a).

The Board has carefully reviewed the evidence of record and finds that the evidence persuasively is against a finding that the Veteran is precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. The most recent evidence of record shows that the Veteran is currently working full-time, and the lay and medical evidence does not establish that his service-connected disabilities render him unemployable and unable to obtain and maintain substantially gainful employment at any time during the appeal period. The Board finds that the competent medical evidence addressing the impact of the Veteran's service-connected disabilities on his occupational functioning is the most probative evidence regarding his employability. Although the Veteran was periodically unemployed during the appeal period, the record reflects that the Veteran has been regularly employed with the same employer in various positions since approximately 2014, and has education and training in a variety of fields of work. The evidence therefore establishes that the Veteran is not unemployable due solely to his service-connected disabilities.

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For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a TDIU is warranted. Rather, the evidence persuasively weighs against a TDIU. The benefit of the doubt doctrine is therefore not for application. Lynch, 21 F.4th 776.

MICHELLE P. KATZ

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Husain, 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.

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