Citation Nr: 1330140 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-19 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased rating, in excess of 40 percent, for a history of chronic low back pain with osteoarthritis of the thoracolumbar spine (lumbar spine disability). 2. Entitlement to an increased rating, in excess of 20 percent, for cervical spine osteoarthritis associated with a history of chronic low back pain with osteoarthritis of the thoracolumbar spine (cervical spine disability). 3. Entitlement to an increased rating, in excess of 10 percent, for right medial epicondylitis (right elbow disability). 4. Entitlement to an increased rating, in excess of 10 percent, for status post release of an entrapped flexor hallucis longus (FHL) of the right lower extremity (right ankle/lower extremity disability). 5. Entitlement to an effective date earlier than January 4, 2006, for the grant of a 20 percent rating for cervical spine disability. 6. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from October 1984 to April 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that granted a 20 percent rating for a service-connected cervical spine disability, effective from January 4, 2006, and denied increased ratings for his service-connected lumbar spine, right elbow, and right ankle/lower extremity disabilities. A February 2008 rating decision denied the Veteran's claim for TDIU, to which he submitted a timely notice of disagreement. A statement of the case was issued in June 2009, but he did not perfect an appeal as to this matter. However, during the subsequent course of the ratings on appeal, the Veteran again also alleged unemployability due to these disorders. See e.g., July 28, 2010 statement from the Veteran. TDIU is an element of the increased rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In April 2008, the Veteran testified during a personal hearing at the RO. A transcript of the hearing is of record. The matters of increased ratings for lumbar and cervical spine and right elbow and ankle disabilities, and an earlier effective date for the grant of a 20 percent rating for cervical spine disability, 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 The Veteran's service-connected disabilities preclude substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.3.340, 4.3, 4.7, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This decision grants entitlement to TDIU. Therefore, no further notice or assistance is required to aid the Veteran in substantiating his claim. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). If a veteran's service-connected disabilities meet the percentage requirements of 38 C.F.R. § 4.16(a), and the evidence of record indicates that he is unable to maintain substantially gainful employment due to his service-connected disabilities, his claim for a total disability rating based on unemployability cannot be denied in the absence of medical evidence showing that he is capable of substantially gainful employment. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In this case, service connection is currently in effect for a history of chronic low back pain with osteoarthritis of the thoracolumbar spine, evaluated as 40 percent disabling; cervical spine osteoarthritis associated with a history of chronic low back pain with osteoarthritis of the thoracolumbar spine, evaluated as 20 percent disabling; and, status post release of an entrapped FHL tendon of the right lower extremity and right medial epicondylitis, each evaluated as 10 percent disabling. The Veteran's combined disability evaluation is 60 percent. Lumbar, cervical and right elbow disabilities affect a single bodily system, the musculoskeletal system, and combine for a 60 percent rating. 38 C.F.R. § 4.25 (2013). The Veteran; therefore, meets the requirements for TDIU. In a July 2002 claim, the Veteran reported working as a builder and driver from 1995 to 1998. He also reported special training as a "Vet Tech (for getting C.D.L.) Class B." In his February 2007, TDIU claim, the Veteran reported that he had worked as a maintenance worker for three years, and last worked in June 2000. He had one year of college education, and had no other special training. During his hearing the Veteran stated that he last worked in approximately 2000 when he performed basic maintenance of local city parks. Id. He was no longer able to do that and also could not sit at a desk. Id. He said that he had been awarded Social Security Administration (SSA) disability benefits and was denied VA vocational rehabilitation benefits because he was not considered a good candidate for rehabilitation. Id. The only medical opinion was provided by a VA physician following examination in April 2007. The physician opined that, while none of the Veteran's service-connected disabilities, by themselves, would prevent sedentary employment, "there is no physical occupation which he can take for which he is now qualified." The examiner further opined that, "given [the Veteran's] general background as well as his present physical condition, it is most unlikely that he would be able to find a sedentary type of occupation which he could perform satisfactorily." The opinion was based solely on the Veteran's low back pain, cervical spine pain, and right ankle/lower extremity and elbow pain. The evidence is at least in equipoise as to whether the service-connected disabilities prevent the Veteran from securing and following substantially gainful employment consistent with his education and occupational experience. Entitlement to TDIU is, therefore, granted. 38 U.S.C.A. §§ 1155, 5107(b). ORDER Entitlement to a TDIU is granted. REMAND VA has not yet obtained all of the SSA records mentioned at the Veteran's hearing. VA has a duty to obtain them. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran's VA vocational rehabilitation file is also not of records. It appears there are also additional relevant VA treatment records outstanding. VA has a duty to obtain that record. 38 U.S.C.A. §§ 5103A(a),(b). The Veteran has also been reported to have received Workers Compensation related to lumbar sprain in December 1999 and July 2000. Workers Compensation records could be relevant to the claim and should be obtained. The Veteran testified that he experienced daily headaches associated with cervical spine pain. Headaches were reported on VA examinations in March 2006, and April 2007. It is unclear whether headaches are a neurologic manifestation of the cervical spine disability, and if so, its severity. The most recent examinations for the right ankle and elbow disabilities were in 2007. The Veteran's April 2008 suggests that these disabilities may have worsened since the last examination. A new examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA vocational rehabilitation file and associate it with his claims file. 2. Obtain the SSA administrative decision and all records considered in conjunction with its award of SSA disability benefits to the Veteran and any subsequent disability determinations regarding him. 3. After obtaining any needed authorizations obtain all worker compensation records, including medical records, pertaining to the Veteran's employment with the City of Salem, Department of Recreation. 4. Obtain all records of the Veteran's VA treatment for the disabilities at issue, including the December 2008 and November 27, 2009 EMG/NCV studies and January 5, 2010 operative report of the Veteran's back surgery 5. If any records cannot be obtained notify the Veteran; tell him what efforts were made; and inform him of any further actions that will be taken with regard to the claim. 6. Afford the Veteran new orthopedic and neurologic examinations to evaluate his cervical spine, low back, right ankle and right elbow disabilities. a. The examiner should provide ranges of motion of the relevant joints in degrees. b. The examiner should also provide an opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare-ups. The examiner should express this opinion in terms of the degree of additional range-of- motion loss (in degrees) due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. c. The examiner should report whether there is ankylosis and if present, the angle at which the joint is held. d. The examiner should address the following: i. Lumbar and Cervical Spine: 1. Whether there is any ankylosis, either favorable or unfavorable, of the Veteran's entire thoracolumbar or cervical spine. 2. Whether the Veteran has intervertebral disc syndrome of the lumbar or cervical spine and, if so, identify the number of incapacitating episodes involving physician-prescribed bed rest, if any, within the last 12-month period. 3. The examiner should also identify any associated neurological deformities associated with the service-connected lumbar or cervical spine disorder, to include any radiculopathy or neuropathy of the upper and lower extremities, and any associated bladder or bowel impairment. 4. The severity of each neurological sign and symptom must be reported, if such exists, as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves. 5. The neurological examiner should specifically comment on whether headaches are a symptom of the service-connected cervical spine osteoarthritis. If so, what is the frequency of the headaches, and prostrating attacks, and whether they are productive of severe economic inadaptability? ii. Right Elbow: Is there impairment of the ulna without loss of bone substance or deformity or without loss of bone substance and marked deformity? iii. Right Ankle/Lower Extremity: Is there moderate, moderately severe, or severe, impairment of Muscle Group XI? Is limitation of motion moderate or marked? Is there no remaining function other than that which would be equally well served by amputation with prosthesis at the site of election? 7. If any benefit sought on appeal is not fully granted, issue a supplemental statement of the case return the case to the Board, if otherwise in order. 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). 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. 2013). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs