INTERVERTEBRAL DISC SYNDROME

A.P. ARMSTRONG · 2022 · Case ID: 22043475

GRANTED

Summary

The veteran, who served from December 1961 to January 1988, appeals the denial of an increased rating for his service-connected thoracolumbar spine disability prior to December 20, 2017, and the denial of TDIU. The Board previously remanded the case twice for additional development, including VA spine examinations. In July 2020, the RO assigned a 50-percent rating from December 20, 2017, forward, but denied a higher rating prior to that date. The Board's January 2021 decision denied the pre-December 20, 2017, issue, which was then remanded by the Court of Appeals for Veterans Claims (CAVC) in December 2021. The Board acknowledges the issue of TDIU was reasonably raised by the record, particularly a February 2012 VA examination noting the back condition impacted the veteran's ability to work. For the thoracolumbar spine disability prior to December 20, 2017, the Board found the evidence in equipoise and resolved doubt in the veteran's favor, granting a 40-percent rating. This was based on evidence of limited flexion, antalgic gait, and pain on motion, though the Board noted the evidence did not support unfavorable ankylosis for a higher rating. The Board granted TDIU, finding the veteran's service-connected disabilities, including back and lower extremity radiculopathy, precluded substantially gainful employment, citing evidence of functional limitations, pain, and difficulty walking and performing daily activities.

Rationale

Resolved doubt in Veteran's favor for 40% rating; Forward flexion limited to 30 degrees or less; Antalgic gait with forward flexion at waist to 30 degrees

Special Benefit

TDIU

Docket No.

13-35 075

Full Decision Text

Citation Nr: 22043475
Decision Date: 08/01/22 Archive Date: 08/01/22

DOCKET NO. 13-35 075
DATE: August 1, 2022

ORDER

An evaluation of 40 percent for thoracolumbar degenerative disc disease and degenerative joint disease with thoracolumbar kyphosis and thoracic scoliosis, status post laminectomy (L5-S1) prior to December 20, 2017, is granted.

A total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is granted.

FINDINGS OF FACT

1. Prior to December 20, 2017, the Veteran's service-connected back disability was manifested by forward flexion of the lumbar spine limited from zero to 30 degrees but was not manifested by unfavorable ankylosis, or the functional equivalent, of the entire thoracolumbar spine; there is no evidence the Veteran's intervertebral disc syndrome (IVDS) exhibited incapacitating episodes having a total duration of at least six weeks during the past 12 months.

2. The Veteran's service-connected disabilities preclude gainful employment.

CONCLUSIONS OF LAW

1. The criteria for a 40-percent evaluation for the Veteran's service-connected back disability have been met prior to December 20, 2017. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DCs) 5010-5242.

2. The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1961 to January 1988.

This appeal to the Board of Veterans' Appeals (Board) arose from a May 2012 rating decision, in which a Department of Veterans' Affairs (VA) Regional Office (RO) denied a rating in excess of 20 percent for the Veteran's service-connected of the lumbar spine.

In February 2017, the Veteran testified during a Board video-conference hearing. A transcript of the hearing has been associated with the claims file. However, in December 2021, the Veteran was informed that the judge who conducted the hearing is no longer employed at the Board. The Veteran did not respond with a request for a new hearing.

In October 2017, the Board remanded the claims on appeal to the agency of original jurisdiction (AOJ) for additional development, including to obtain a VA spine examination. In July 2019, the Board again remanded the claim to the AOJ for additional development, to include to obtain a new VA spine examination.

In a July 2020 rating decision, the RO recharacterized the service-connected back disability as one for thoracolumbar degenerative disc disease and degenerative joint disease, with thoracolumbar kyphosis and thoracic scoliosis, status post laminectomy (L5-S1), and assigned a higher 50-percent rating for the Veteran's disability, effective December 20, 2017.

In an August 2020 supplemental SOC (SSOC), the AOJ denied a rating higher than 20 percent prior to December 20, 2017, and a rating higher than 50 percent from December 20, 2017, and returned these matters to the Board for further appellate consideration.

In January 2021, the Board denied an evaluation greater than 20 percent for the Veteran's thoracolumbar spine disability prior to December 20, 2017, and an evaluation greater than 50 percent for his thoracolumbar spine disability from December 20, 2017, forward.

The Veteran appealed the Board's January 2021 denial of his service-connected thoracolumbar spine disability prior to December 20, 2017, to the United States Court of Appeals for Veterans Claims (Court). In December 2021, the Court granted a Joint Motion for Partial Remand (JMPR) vacating that portion of the January 2021 Board decision that denied an evaluation greater than 20 percent for the Veteran's service-connected thoracolumbar spine disability prior to December 20, 2017, and remanded the issue to the Board for further proceedings consistent with
, and an evaluation greater than 50 percent for his thoracolumbar spine disability from December 20, 2017, forward.

The Veteran appealed the Board's January 2021 denial of his service-connected thoracolumbar spine disability prior to December 20, 2017, to the United States Court of Appeals for Veterans Claims (Court). In December 2021, the Court granted a Joint Motion for Partial Remand (JMPR) vacating that portion of the January 2021 Board decision that denied an evaluation greater than 20 percent for the Veteran's service-connected thoracolumbar spine disability prior to December 20, 2017, and remanded the issue to the Board for further proceedings consistent with the JMPR. In granting the JMPR, the Court did not disturb the Board's grant of entitlement to a 50-percent rating from December 20, 2017, forward, for the Veteran's service-connected thoracolumbar spine disability.

The Board notes a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits of the underlying disability. Id at 454. The Board finds the record raises the issue of a TDIU in this matter. See February 2012 VA Examination Report (Noting a finding the Veteran's back condition impacted his ability to work, and the Veteran reported last working as a high school security officer seven years prior but had to quit because he was having trouble walking for extended periods). In light of the evidence showing the Veteran reported his back disability kept him from working, VA must adjudicate the issue of entitlement to a TDIU.

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007).

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied if the evidence persuasively weighs against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see 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). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

1. An evaluation of 40 percent for thoracolumbar degenerative disc disease and degenerative joint disease with thoracolumbar kyphosis and thoracic scoliosis, status post laminectomy (L5-S1) prior to December 20, 2017, is granted.

Here, the Veteran's service-connected thoracolumbar spine disability has been assigned a 20-percent rating prior to December 20, 2017, and a 50-percent rating from December 20, 2017, forward under DCs 5010-5243, which is the date of his non-initial increased rating claim. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is
olumbar degenerative disc disease and degenerative joint disease with thoracolumbar kyphosis and thoracic scoliosis, status post laminectomy (L5-S1) prior to December 20, 2017, is granted.

The Board notes during the pendency of the Veteran's increased rating claim on appeal, the rating criteria for evaluating arthritis and certain musculoskeletal disabilities were amended effective February 7, 2021. See 85 Fed. Reg. 76,453-76,469 (Nov. 30, 2020); 85 Fed. Reg. 85,523-85,524 (Dec. 29, 2020); 86 Fed. Reg. 8,142-8,144 (Feb. 4, 2021). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held the Board may not apply a current regulation prior to its effective date unless the regulation specifically provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). Accordingly, because the issue on appeal before the Board is entitlement to an increased rating prior to December 20, 2017, which is prior to the effective date of the amended regulations, the amended regulations are not for application in the present case and the Board will only address the prior regulations and diagnostic criteria. See id.

Prior to the regulatory change, the relevant rating criteria were as follows.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) are made 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.

Under the General Rating Formula, a 20-percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion (ROM) of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40-percent rating is available when there is forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50-percent rating is available for unfavorable ankylosis of the entire thoracolumbar spine. A 100-percent rating is available for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DCs 5235-5243.

Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (5).

When evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula
or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (5).

When evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021).

IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243.

Under the Formula for Rating IVDS, a 20-percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40-percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60-percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1).

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, and disuse atrophy.

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability, and painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weightbearing and nonweightbearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).

A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining an estimate of motion loss in terms of degrees could not be given. Id.

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

Turning to the evidence of record, the Veteran received a VA examination in February 2012. A diagnosis of IVDS was noted. The Veteran reported a risk of flare-ups on bending or reaching and pain on use of his back to include when walking.

Initial
8 Vet. App. 202, 207-08 (1995). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

Initial range of motion measurements showed flexion to 60 degrees with painful motion beginning at 60 degrees. Extension was to zero degrees with painful motion beginning at zero degrees. Right lateral flexion was measured to 20 degrees with painful motion beginning at 20 degrees. Left lateral flexion was measured to 15 degrees with painful motion beginning at 15 degrees. Right lateral rotation was measured to 30 degrees or greater with painful motion beginning at 30 degrees or greater. Left lateral rotation was measured to 30 degrees or greater with painful motion beginning at 30 degrees or greater. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test forward flexion was noted to end at 35 degrees, extension to zero degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees or greater, and left lateral rotation to 30 degrees or greater.

Additional limitation in range of motion of the back following repetitive-use testing was noted. Functional loss or functional impairment of the back was also noted in the form of less movement than normal; weakened movement; excess fatigability; pain on movement; disturbance of locomotion; interference with sitting, standing, and weightbearing; and it was noted the Veteran walks with an antalgic gait with forward flexion at the waist to about 30 degrees. Localized tenderness or pain to palpation was noted on examination. Guarding or muscle spasm of the spine was noted, which caused an abnormal gait and an abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. Aside from lower extremity radiculopathy, no other neurologic abnormalities were noted.

IVDS with incapacitating episodes of at least two weeks but less than four weeks were noted. Assistive devices were not used. Diagnostic testing showed arthritis, but a vertebral fracture was not found. A moderately severe condition of the lumbar spine was noted that had increased since the previous examination. The Veteran's back condition was found to impact his ability to work. It was noted the Veteran's back pain allows him to only walk 200 feet before having to stop, he was only able to lift 15 pounds, and he last worked as a high school security officer seven years prior but had to quit because he was having trouble walking for extended periods. The narcotic pain medication he took for his back pain was also found to impact his ability to work.

A February 2012 lumbar spine MRI report notes the Veteran experiences back pain and radiculopathy at a rating of nine on a scale of zero to 10. The degree of weakness was noted to be at a five. The duration of his symptoms was stated to have existed for over one year. The report notes he avoids activities that aggravate his symptoms.

The Veteran reported on his December 2013 VA Form 9 that he had been on medication over the prior four years or longer for his back condition, and without this medication, he would probably be in the hospital on a regular basis. He indicated experiencing daily pain even without medication. He stated he avoided certain movement to try to prevent severe back pain. He highlighted that each time he had an MRI, the results showed the condition had worsened. The Veteran then noted that because of his condition, he could not hold a job and reported difficulty with day-to-day activities around his home, including with walking.

In July 2014, the Veteran presented to the emergency room with complaints of an increase in back pain and without the use of an assistive device. On examination, it was noted his back was straight with no listing or pulling of muscles to the right or left. No radiation into either leg or loss of bowel or bladder function was reported. The Veteran reported being able to walk a city block per day.

A December 2014 primary care note shows the Veteran reported persistent back pain in addition to an increase in pain over the prior seven months. The report states, with medication, the Veteran obtained a 30-percent decrease in pain with an ability to walk and carry on with usual functions. In October 2016, the Veteran reported complaints of chronic back
2014, the Veteran presented to the emergency room with complaints of an increase in back pain and without the use of an assistive device. On examination, it was noted his back was straight with no listing or pulling of muscles to the right or left. No radiation into either leg or loss of bowel or bladder function was reported. The Veteran reported being able to walk a city block per day.

During the February 2017 Board hearing, the Veteran reported his service-connected back condition had worsened since 2012. He testified his condition impacted his ability to conduct day-to-day activities such as walking.

An August 2017 pain assessment note shows the Veteran presented with chronic low back pain that radiated to the back of both his legs. The Veteran indicated his pain to be a three out of 10. He further indicated standing, walking, bending, and reaching overhead exacerbated his pain. A September 2017 consult note shows the Veteran worked on his old car, went fishing, and was active at home, but gave up mowing due to back pain.

As noted above, a 40-percent rating is warranted for forward flexion of the thoracolumbar spine at 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. Resolving doubt in the Veteran's favor as to the degree of disability, the Board finds the next higher rating of 40 percent is appropriate for the Veteran's back disability prior to December 20, 2017. The February 2012 VA back examination shows forward flexion limited to 35 degrees on post-repetitive-use testing. The examination also revealed the Veteran walked with an antalgic gait with forward flexion at the waist to about 30 degrees, which evidences a potentially additional limitation in range of motion. In his December 2013 VA Form 9, the Veteran reported that he would experience significant complications with his back if he did not take pain medication. Similarly, the treating provider in December 2014 noted that the Veteran obtained about a 30 percent decrease in pain with the ability to walk and carry on usual function with the use of pain medications. The Board cannot consider the ameliorating effects of medication when assigning a disability rating unless the rating criteria expressly includes consideration of medication. See Jones v. Shinseki, 26 Vet. App. 56, 62-64 (2012). The December 2014 provider's estimate that the Veteran obtained 30 percent decrease in pain with resulting increase in functional capacity provides sufficient information to conclude that the Veteran would have had less than 35 degrees of flexion with repetitive use but for the pain medication. Thus, the Board will resolve doubt in favor of the Veteran and find his disability more closely approximated forward flexion of the thoracolumbar spine at 30 degrees or less.

However, the Board finds the evidence of record is against a rating in excess of 40 percent for the Veteran's service-connected back disability prior to December 20, 2017. As noted, a rating in excess of 40 percent under the General Rating Formula for the Spine requires a showing of unfavorable ankylosis of the thoracolumbar spine or unfavorable ankylosis of the entire spine. The record lacks any evidence of a finding of ankylosis of the thoracolumbar spine. The Board, however, acknowledges consideration must still be given to whether the Veteran was functionally ankylosed. Chavis, supra. Yet, there is no evidence showing that the Veteran was functionally limited consistent with fixation of the thoracolumbar spine. Rather, the evidence shows despite pain and other functional limitations, he was able to move his back and it was not fixed in one position. Indeed, the Veteran has not asserted that his back was fixed in one position consistent with unfavorable ankylosis at any point, including during flare-ups.

The Board acknowledges the Veteran's statements of functional limitation and use of medications and has considered that evidence in the award of the 40 percent disability rating. Furthermore, as discussed in granting the TDIU claim below, the Board has considered the effects on his ability to secure or maintain substantially gainful employment. However, these reports do not support a finding of fixation of the spine analogous to unfavorable ankylosis to allow for a higher disability rating.

Regarding neurological impairment, the Board observes the Veteran is service connected for right and left lower extremity radiculopathy associated with his service-connected back disability during the
Veteran has not asserted that his back was fixed in one position consistent with unfavorable ankylosis at any point, including during flare-ups.

Regarding neurological impairment, the Board observes the Veteran is service connected for right and left lower extremity radiculopathy associated with his service-connected back disability during the period in discussion. The evidence, including the VA examination and lay statements, does not show the Veteran experienced any other neurologic abnormalities. Thus, the Board finds no basis to award any other separate rating for neurological manifestations.

Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. While the Veteran has been diagnosed with IVDS, the evidence from the February 2012 VA examination report reflects the Veteran did not have incapacitating episodes having a total duration of at least six weeks during the past 12 months to warrant a 60-percent rating. Moreover, the Board notes that the Veteran receives ratings for radiculopathy in his lower extremities separate from the rating for his back based on limitation of motion. He is better served by these separate ratings than a single rating based on incapacitating episodes. Therefore, a rating in excess of 40 percent under the rating schedule for IVDS is not appropriate.

Accordingly, for the above reasons, the Board resolves reasonable doubt in the Veteran's favor that a 40-percent evaluation is warranted for his service-connected back disability prior to December 20, 2017.

2. A TDIU as a result of service-connected disabilities is granted.

A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

The Veteran is service connected for his low back, left and right lower extremity radiculopathy, left knee medial meniscus tear, degenerative arthritis of the right knee, surgical scar of the back, and dyspepsia associated with the back disability. Based on the above grant, his combined disability rating was 70 percent, which satisfies the threshold requirements throughout the review period for the rating of the back. See 38 C.F.R. § 4.16(a).

In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). See Rice, 22 Vet. App. at 452 (noting that, while "the rating schedule is based on the 'average impairment in earning capacity caused by a disability,'... entitlement to TDIU is based on an individual's particular circumstance").

Turning to the evidence of record, the February 2012 VA Examination Report documents findings of functional loss and functional impact from the Veteran's service-connected back condition due to less movement than normal; weakened movement; excess fatigability; pain on movement; a disturbance of locomotion; interference with sitting, standing, and weightbearing; and ambulating with an antalgic gait with forward flexion limited to 30 degrees. The examiner found the Veteran's service-connected back disability impacted his ability to work, and the Veteran reported last working as a high school security officer seven years prior but having to quit because he was having trouble walking for extended periods. During the February 2013 general medical examination, the Veteran reported
an individual's particular circumstance").

A December 2017 back examination notes the Veteran reported he was unable to perform household chores, yard work, and had an unstable gait. The examiner found the Veteran's functional impacts affect his ability to work. The report also notes the Veteran experienced severe constant right lower extremity pain.

A December 2019 VA examination report notes the Veteran experienced severe radiculopathy of both the right and left lower extremities due to severe constant bilateral lower extremity pain, moderate bilateral lower extremity paresthesias and/or dysesthesias, and moderate bilateral lower extremity numbness. The Veteran reported the exacerbation or aggravation of flare-ups of his back occurs as a result of the consequence of the following activities: sitting; driving or riding (noting he must change positions every five or ten minutes); reaching, which he avoids; prolonged standing, walking greater than one or two feet; squatting or kneeling, which he avoids; repetitive bending or twisting of the spine, which he is unable to do; lifting or carrying greater than one pound; pushing or pulling, which he is unable to do; going up and down stairs, which he avoids; using ladder, which he is unable to do; and prolonged operating foot or hand controls, which he is unable to do. Consequently, the examiner found the Veteran's functional impacts affect his ability to work.

The Board finds the evidence is at least in equipoise as to whether the Veteran's service-connected back disability and service-connected disabilities of the lower extremities render him unable to secure or follow a substantially gainful occupation. Specifically, the Veteran's limited ability to walk more than short distances would interfere with jobs similar to that as a security officer or in other jobs such as customer service or retail environments. Accordingly, taking into consideration his ongoing pain and functional limitations experienced due to his service-connected disabilities and regular use of pain killers, it is unlikely the Veteran would be able to find substantially gainful employment based on the qualifications from his work history. Thus, compensation for TDIU is warranted.

A.P. Armstrong

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Buck Denton

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.

Analyze in VA Law Explorer