Citation Nr: 1329303 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-32 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a cervical spine sprain, prior to June 11, 2012. 2. Entitlement to a rating in excess of 20 percent for a cervical spine sprain, since June 11, 2012. 3. Entitlement to a rating in excess of 20 percent for a lumbar spine sprain. 4. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). 5. Entitlement to a rating in excess of 10 percent for posterior tibial tendonitis of the left ankle. 6. Entitlement to a rating in excess of 10 percent for posterior tibial tendonitis of the right ankle (but rated 20 percent disabling effective July 2, 2012). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from April 2001 to June 2005. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2010, the Veteran had an informal conference with a Decision Review Officer (DRO) in lieu of a hearing; a copy of the informal conference report is associated with the claims file. In May 2010, the RO issued a Statement of the Case (SOC) increasing the disability rating for the service-connected lumbar spine sprain to 20 percent, retroactively effective October 24, 2007, the date of the Veteran's increased rating claim. The Veteran continued to appeal, requesting an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a Veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). In July 2011, the Veteran testified during a videoconference hearing before the undersigned; a transcript of that hearing is of record. In May 2012, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. Upon remand, the AMC issued another rating decision in March 2013, which increased the disability rating for the cervical spine sprain to 20 percent. The 20 percent rating was made retroactively effective from June 11, 2012, the date of a VA examination. The Veteran continued to appeal, requesting an even higher rating. See AB, 6 Vet. App. at 38-39. The appeal has now been returned to the Board for appellate disposition. The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision, along with her paper claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to higher ratings for cervical, lumbar, and bilateral ankle disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT With resolution of reasonable doubt in favor of the Veteran, her service-connected disabilities are shown to be of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is 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, the disability shall be ratable at 60 percent or more, and 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). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court has held that in determining whether the Veteran is entitled to a total disability rating based upon individual unemployability neither her nonservice-connected disabilities nor her advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. 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 the Veteran can find employment. Id. In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disabilities do not prevent her from performing work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995). The Court stressed that VA has a duty to supplement the record by obtaining an examination, which includes an opinion on what effect the Veteran's service-connected disabilities have on her ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012). In this case, at the time of the AMC's implementation of the Board's grant of a higher rating of 50 percent for migraine headaches, the Veteran met the percentage requirements for consideration of a total evaluation under 38 C.F.R. § 4.16(a). See May 2012 rating decision. The Board must now consider whether the competent evidence otherwise demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due to her service-connected disabilities. Initially, the Board notes that the Veteran is currently unemployed. In her November 2007 TDIU formal application and at her VA examinations, the Veteran reported that she last worked as a certified nurse's assistant (CNA). The Veteran argues that she is currently unable to work as a CNA due to her service-connected disabilities. In this regard, during the July 2011 hearing, the Veteran testified that she has spasms in her ankles that are pretty debilitating, in that she cannot walk. She described a lot of swelling in her ankles about two to three times a week. The Veteran testified that she gets prostrating attacks from her headaches about two to three times a week. She takes prescription medication two times a day. If that does not work, she is supposed to take an additional medication two hours before it gets to the point where she has to go into a dark room. She has to stay away from any type of music, the sun, and any movement with the prostrating headaches. The Veteran stated that the last time she worked was in July 2008 and part of that reason was due to the debilitating attacks from her headaches three to four times a week. In an undated letter, the Veteran's prior employer stated that on numerous occasions from January to July 2007, she had to find someone to cover a shift or allow for an extended lunch due to the Veteran's headaches. She witnessed the Veteran going into an empty room and sitting in the dark for at least an hour with tears in her eyes, rocking back and forth. Unfortunately, she had to let the Veteran go not because of her headaches, but at times she had problems standing on her feet for long periods of time. In an undated letter, the Veteran's daycare provider stated that on several occasions she allowed for late pickups and extra days for care of the Veteran's son due to what the Veteran described as migraine headaches. In a March 2009 letter, a human resources coordinator from Elite Staffing Services stated that the Veteran's last day of work was on October 30, 2007. The Veteran was afforded VA examinations in April 2008. An April 2008 VA foot examination report reflects that the Veteran got pain, soreness, and tenderness under both feet. The VA examiner determined that the Veteran was able to work, but had pain when working. At the April 2008 VA spine examination, the examiner noted that the Veteran was working, but found that the Veteran had pain, tenderness, and spasms over her neck and back. An April 2008 VA neurological examination reflects that the Veteran experienced photosensitivity and phonophotophobia, and needed complete silence for her headaches. She was taking up to six to seven tablets per week to treat her headaches. Since January 2008, she had experienced five episodes at work where she could not perform her duties and took either an early lunch or a break to the let the "pills kick in." The headaches averaged out at 9/10 with a duration of four to five hours on average. For the past six to twelve months, she had sought out emergency room help for her headaches five to six times. The VA examiner's impression was that the migraine headaches make the Veteran more dysfunctional at work compared to when she was in the military. The Veteran was afforded additional VA examinations in April 2010. An April 2010 VA foot examination reveals that the Veteran complained of bilateral foot pain with aching, soreness, tenderness, and swelling in the feet. Prolonged standing and walking more than two hours at a time caused her difficulties. The VA examiner determined that the Veteran was unable to perform work that required prolonged standing and walking, and would need sedentary-type work. An April 2010 VA neurological examination report reflects that the Veteran reported that beginning in January of 2007, her headaches became more intense, were accompanied by nausea, and began to interfere with her ability to work and take care of her son. The headaches were associated with photophobia, phonophobia, nausea, and vomiting. Duration for non-prostrating was about an hour and prostrating from three to twenty four hours. Prostrating headaches included pain, weakness, fatigue or functional loss. Ordinary activity was not possible during a prostrating headache. The VA examiner stated that the Veteran's headaches have increased in severity over time. In an addendum, the VA examiner noted that the Veteran was a full time licensed practical nursing student until January 2010. The headaches did not interfere with her studies; however, while she worked as CNA, she had to call in sick and go home early due to both her headaches and her foot pain and had to leave her job because of this. The VA examiner indicated that the Veteran provides a reliable history of her migraine headaches and their severity, and concluded that the Veteran's headaches were prostrating and impacted her ability to retain employment. An April 2010 VA joints examination revealed that the Veteran had persistent pain and tenderness in the ankles, with some soreness. Prolonged standing and walking bothers her ankles. When she is up on her feet for more than an hour or two at times, she got some aching, pain, and swelling in the ankles and had to get off of them. The VA examiner found that the Veteran would be unable to engage in work requiring prolonged standing and walking and would need sedentary-type work. At the April 2010 VA spine examination, the examiner noted that the Veteran had been unable to find work. The examiner found that the Veteran could not do any work with prolonged standing or repetitive bending and lifting because of her service-connected spine disabilities. The examiner reasoned that repetitive use of the lumbar spine and cervical spine bothered and irritated the Veteran. Repetitive use of the spine also increased the Veteran's pain. Flare-ups of the spine also occurred with heavy use. The examiner determined that the Veteran would be limited to sedentary-type work. The Veteran was afforded additional VA examinations in June 2012. At the VA spine examinations, the VA examiners found that the Veteran's service-connected cervical spine sprain and lumbar spine sprain would limit her to light sedentary work. At the VA feet and ankle examinations in June 2012, the VA examiners determined that the service-connected feet and ankle disabilities impact the Veteran's employment by requiring the Veteran to take additional breaks. The examiner also added to see the previous VA examinations about the difficulty of the service-connected feet disabilities with the Veteran's employment. At the VA scar examination in June 2012, the VA examiner found that the service-connected foot scar did not impact the Veteran's work. The Veteran was provided a social work and industrial survey in June 2012. At the examination, the Veteran reported that her prior employment was as a CNA. The Veteran stated that she last worked in 2008 and had difficulty working due to her migraines. The Veteran stated that her supervisor would give her additional time off from work when she was experiencing a migraine. However, eventually the amount of time she needed exceeded the amount of time off that could be permitted and her position ended. The examiner noted that the Veteran appeared to be eager to be able to work and was interested in obtaining further education that would permit her to be employed in a position where her physical limitations no longer acted as a barrier. The examiner further noted that the Veteran was currently a full-time student and was not employed. The Veteran reported that the decision to stop working outside of the home was partially due to her limited physical capabilities and partially due to the demands placed on her as a single parent. At the VA neurological examination in June 2012, the Veteran reported that she was unable to take the medications required for her service-connected migraine headaches due to the fact that she was currently pregnant. Her headache symptoms of prostrating attacks occurred 3-4 times per week with nausea and vomiting. Following a physical examination of the Veteran and a review of the claims file, to include the other June 2012 VA examinations, the June 2012 VA neurological examiner found that because of the Veteran's service-connected migraine headaches and feet disabilities, the Veteran is "less likely than not to be able to obtain or maintain gainful employment - be it sedentary or physical, due to the time they require her to take from work." The examiner reasoned that as noted in the 2010 VA examination, the Veteran had to quit her job in part due to the service- connected migraine headaches and in part due to the swelling from her service-connected ankle and feet disabilities. The examiner noted the Veteran's statements that her migraine headaches contributed to the majority of the reason for her leaving work because the headaches would not allow her to focus. The examiner also pointed to the Veteran's statement that she has tried other jobs, but after a month or two, the migraines have proven disabling. The examiner noted the Veteran's statement that she has tried telling the potential employer at the time of the interview about the migraines, but she was not hired. Thus, in summary, the June 2012 VA examiner found that the Veteran is "less likely than not to be able to obtain or maintain gainful employment - be it sedentary or physical, due to the time [her service- connected migraine headaches and service-connected feet disabilities] require her to take from work." The Board notes that the June 2012 VA neurological examiner added that she did not include the Veteran's pregnancy- related nausea in forming this conclusion. The examiner also indicated that the Veteran should be able to resume her medications for the migraines after parturition, and at that time, her employment status related to that disability could be reconsidered. In this regard, since the June 2012 VA examination, the Veteran submitted a statement in March 2013 in which she reported that she was currently not pregnant, and thus able to take her migraine headache medications. The Veteran reported that her medications were not helping with the current severity of her migraine headaches. In Jones v. Shinseki, 26 Vet. App. 56 (2012), the Court determined that the Board had erred when it considered the ameliorating effects of medication to evaluate a veteran's disability when those effects were not explicitly contemplated by the rating criteria. The facts in this case are similar as the criteria for establishing entitlement to a TDIU do not contemplate the effects of medication. Accordingly, in light of the June 2012 VA neurological examination findings, reasonable doubt is resolved in favor of the Veteran at this time. Thus, the Board finds that the Veteran's service-connected disabilities preclude her from securing and maintaining substantially gainful employment consistent with her educational and vocational experiences at this time. Thus, entitlement to TDIU is warranted. ORDER Entitlement to a TDIU is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. REMAND As a preliminary matter, the Board notes that in a May 2012 decision, the Board, in pertinent part, denied higher ratings for service connected posterior tibial tendonitis of the left and right ankles, and mild pes planovalgus deformity, left foot and status post lapidue arthrodesis of the first metatarsocumeiform joint with bunionectomy with chronic foot pain, and granted a higher rating of 50 percent for migraine headaches. The Veteran appealed the entire decision to the United States Court of Appeals for Veterans Claims (Court). The claims file, however, shows that all the foregoing issues were erroneously carried forward in a supplemental statement of the case issued in February 2013. Significantly, in a March 2013 rating decision, the Veteran's foot disabilities were reevaluated and awarded higher ratings with effective dates covering the period of appeal that was before the Board at the time of the May 2012 decision. Significantly, in the March 2013 rating decision, the Veteran's right ankle disability was also reevaluated and awarded a higher rating. All these actions occurred while jurisdiction over these issues was with the Court. See Court Order dated May 7, 2013; Joint Motion for Remand dated April 17, 2013. In the Joint Motion for Remand, the parties found that the Board erred by relying on an inadequate examination to deny increased ratings for the bilateral ankle disabilities citing Barr v. Nicholson, 21 Vet. App. 303 (2007) and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (holding that because examiner failed "to address any range-of-motion loss specifically due to pain and any functional loss during flare-ups, the examination lacks sufficient detail necessary for a disability rating, and should have been returned for the required detail to be provided, or the Board should have explained why such action was not necessary"). The parties noted that under 38 C.F.R. § 4.40, "[i]t is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss" and that in order to adequately portray the functional loss of musculoskeletal disabilities, the Court has held that the examination must not only "express an opinion on whether pain could significantly limit functional ability during flare ups or when the [joint] is used repeatedly over a period of time," but also must express any resultant loss in range of motion (ROM) due to pain and weakness during flare- ups or with repetitive use in terms of degrees of additional range of motion loss. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The parties observed that the Veteran's ankles were examined by a VA examiner in April 2010. The examiner noted that the Veteran reported that "[o]ver the years she has had persistent pain and tenderness in the ankles" and that "[p]rolonged standing and walking bothers it." He further noted that the Veteran reported that "[w]hen she is up on her feet more than an hour or two at times she gets some aching, pain, and swelling in the ankles and has to get off of them." Id. The examiner stated that the Veteran "is not able to do any work that requires prolonged standing and walking[] [and] would have to do sedentary work." He also reported that the Veteran could perform "[n]ormal daily activities" and found the range of motion of both her ankles as 10 degrees of dorsiflexion and 40 degrees of plantar flexion. Id. The examiner further stated that "there is pain throughout the range of motion" and "according to DeLuca, repetitive use increased the pain." Id. Additionally, the examiner noted that "[f]lareups occur with prolonged standing." Id. The parties agreed that the Board's statements regarding additional functional loss were inconsistent with the April 2010 VA examination report because the examiner did not provide an opinion regarding additional functional loss. Therefore, because the examiner did not adequately describe any resultant functional loss in range of motion ("ROM") due to pain or flare-ups in terms of degrees, the Board should have returned the report as inadequate or explained why such action was not necessary. See Mitchell, 25 Vet. App. at 44. Additionally, the parties agreed that the Board failed to provide an adequate statement of reasons and bases for its finding that the evidence of record demonstrated only a moderate limitation of motion of the ankles. The parties agreed that the Board did not provide any analysis as to why a 50 percent loss of dorsiflexion (Appellant's dorsiflexion was noted to be 0 to 10 degrees and normal dorsiflexion was noted to be 0 to 20 degrees) is not demonstrative of marked limitation of motion under DC 5271, rendering its statement of reasons and bases inadequate. In light of the foregoing, the Board finds that an opinion regarding additional functional loss should be obtained on the bilateral ankle disabilities as well as the cervical and lumbar disabilities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Return the examination report and claims file to the examiner who conducted the July 2012 VA ankle examination (or another appropriate examiner if unavailable) for an addendum opinion. In regard to the other April 2010 examiner's opinion that "there is pain throughout the range of motion" and "according to DeLuca, repetitive use increased the pain" and that "[f]lareups occur with prolonged standing" and this examiner's July 2012 acknowledgement that the Veteran continues to complain of flare-ups, please address the following: a. Describe any resultant increased functional loss in range of motion on repetitive use due to pain and during flare-ups in terms of degrees in regard to the findings reported on VA examination in April 2010. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. b. Describe any resultant increased functional loss in range of motion during flare-ups in terms of degrees in regard to the findings reported on VA examination in July 2012. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. c. Describe 50 percent loss of dorsiflexion (Veteran's dorsiflexion was noted to be 0 to 10 degrees at the April 2010 VA examination and normal dorsiflexion is noted to be 0 to 20 degrees) as being more reflective of one of the following: moderate or marked. 2. Return the examination report and claims file to the examiner who conducted the June 2012 VA cervical and lumbar examinations (or another appropriate examiner if unavailable) for an addendum opinion. In regard to the other April 2010 examiner's opinion that "there is pain throughout the range of motion" and "according to DeLuca, repetitive use multiple times increased the amount of pain" and that "[f]lareups occur with heavy use" and this examiner's July 2012 acknowledgement that the Veteran continues to complain of flare-ups, please address the following: a. Describe any resultant increased functional loss in range of motion on repetitive use due to pain and during flare-ups in terms of degrees in regard to the findings reported on VA examination in April 2010. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. b. Describe any resultant increased functional loss in range of motion during flare-ups in terms of degrees in regard to the findings reported on VA examination in July 2012. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. 3. After the development requested above has been completed, the AMC/RO should readjudicate the Veteran's claims. If the benefits sought continue to be denied, the AMC/RO should issue a supplemental statement of the case (SSOC) to the Veteran and her representative. Thereafter the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs