Citation Nr: 18142709 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-28 980 DATE: October 16, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. Entitlement to an effective date prior to April 20, 2009 for the grant of service connection for left lower extremity radiculopathy is denied. REMANDED Entitlement to a disability rating in excess of 40 percent for chronic low back pain with degenerative changes is remanded. Entitlement to service connection for a bilateral upper extremity disability, to include as secondary to service-connected low back pain with degenerative changes, is remanded. Entitlement to an initial disability rating in excess of 10 percent, and a disability rating in excess of 20 percent from February 24, 2012, for left lower extremity radiculopathy is remanded. Entitlement to an initial disability rating in excess of 30 percent for unspecified depressive disorder with anxiety distress is remanded. FINDINGS OF FACT 1. The Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. 2. Left lower extremity radiculopathy was not diagnosed as secondary to the Veteran’s service-connected back disability prior to April 20, 2009. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU throughout the appeal period have been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). 2. The criteria for an effective date prior to April 20, 2009 for service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a September 2018 statement of the case, the Agency of Original Jurisdiction (AOJ) adjudicated a claim of entitlement to an effective date prior to February 24, 2012 for the 20 percent disability rating for left lower extremity radiculopathy. The Board finds this contention is not a separate issue, but part and parcel of the Veteran’s claim for an initial disability rating in excess of 10 percent, and a disability rating in excess of 20 percent from February 24, 2012, for left lower extremity radiculopathy. In a March 2012 rating decision, the AOJ granted entitlement to service connection for depression, effective December 9, 2011. In a July 2012 claim, the Veteran sought entitlement to service connection for anxiety. In a September 2015 rating decision, the AOJ indicated the Veteran’s service-connected disability was now characterized as unspecified depressive disorder with anxiety distress, but denied entitlement to a disability rating in excess of 30 percent. In the December 2015 notice of disagreement, the Veteran indicated disagreement with the effective date of the award for unspecified depressive disorder with anxiety distress. However, the September 2015 rating decision indicated the effective date remained December 9, 2011 for unspecified depressive disorder with anxiety distress. In the July 2012 notice of disagreement, the Veteran did not indicate disagreement with the effective date assigned for depression, and the December 2015 notice of disagreement was not timely as to the March 2012 rating decision. 38 C.F.R. § 20.302(a). Further, neither the Veteran nor his representative contends there was clear and unmistakable error in the March 2012 rating decision regarding the effective date assigned. Accordingly, because there can be no free-standing claim for an earlier effective date, the Board finds a claim of entitlement to an earlier effective date for the grant of service connection for unspecified depressive disorder with anxiety distress is not currently before the Board. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). 1. Entitlement to TDIU In May 2012, the Veteran filed an informal claim for TDIU. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record. During the February 2012 VA examination, the Veteran reported he could not work because of his back disability. Accordingly, the Board finds the Veteran’s claim for entitlement to TDIU is part and parcel of his claim for an increased disability rating for his back disability. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is currently service connected for chronic low back pain with degenerative changes, rated as 40 percent disabling; unspecified depressive disorder with anxiety distress, rated as 30 percent disabling; left lower extremity radiculopathy, rated as 20 percent disabling; and tinnitus, rated as 10 percent disabling. The Veteran’s current combined rating is 70 percent. See September 2015 rating decision. Accordingly, the Veteran meets the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a). The Board finds that the totality of the evidence of record indicates the functional impairments caused by the Veteran’s service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation. The evidence of record indicates the Veteran did not complete high school. Following active duty service, the Veteran was trained and worked as a barber, security guard, bus driver, and in autobody and lawn care. The Veteran last worked in 2003. See, e.g., September 2016 Dr. S.G.B. vocational opinion; August 2015 VA mental disorders examination report; February 2014 Dr. A.H.F. mental disorder Disability Benefits Questionnaire (DBQ); see also March 2008 Social Security Administration decision. In a September 2016 vocational opinion, Dr. S.G.B. indicated she had reviewed the Veteran’s entire claims file, and noted pertinent evidence of record during the appeal period, to include VA mental health and back examination reports and an August 2016 statement from the Veteran’s roommate. Dr. S.G.B. stated that research finds that most employers will tolerate variable rates of absence, however most employers allow for no more than eight days per year. Depending on the industry in which a worker is employed, these figures for off-work time can range from half a day per month to a high of one day per month. Dr. S.G.B. noted the Veteran would be expected to miss more than this based on the reports of his physical and mental symptoms, the results of the evaluations, and his prior work history, and that this has been the case since filing his claim. Dr. S.G.B. stated the opinion of the January 2013 VA back examiner indicated the Veteran could not sustain work activity and thus would exceed tolerated absences. See also March 2014 Medical Opinion Re: Ability to Do Work-Related Activities (completed by Dr. H.S.); February 2014 Medical Opinion on Service-Connected Impairments Re: Ability to Do Work-Related Activities (completed by Dr. A.H.F.). Dr. S.G.B. further stated that an additional study found that as reported by a study of human resources managers and executives, the acceptable absence rate was no more than three percent of the total expected work hours, which equates to slightly over seven days per year. The need to arrive late or leave work early was considered the same as a missed day by most study participants. Dr. S.G.B. stated this again is beyond the capabilities of the Veteran, citing to the January 2013 VA examiner’s opinion. Dr. S.G.B. stated similar findings were reported for time off task due to concentration issues, and Dr. S.G.B. opined that the Veteran would likely exceed that due to his physical and emotional symptoms impacting his concentration and persistence at a work task. Dr. S.G.B. stated this was due to his pain, position shifts, episodes of flare-ups, and irritability documented in the file and the VA examination reports. See also March 2014 Medical Opinion Re: Ability to Do Work-Related Activities; February 2014 Medical Opinion on Service-Connected Impairments Re: Ability to Do Work-Related Activities. In summary, Dr. S.G.B. stated the Veteran’s major area of limitations appear to be mental and physical activities involved in sustaining work, which she opined are extremely limiting for the Veteran. She noted the August 2015 VA back examiner opined that the Veteran has physical limitations on occupational functioning, and the January 2013 VA examiner’s opinion that the Veteran is unable to secure or maintain substantially gainful sedentary or physical employment due to his back disability. Dr. S.G.B. further noted the February 2012 VA mental health examiner opined that the Veteran had occupational impairment with occasional decreases in efficiency and intermittent periods of an inability to perform occupational tasks. Finally, Dr. S.G.B. noted the indication by the Veteran’s roommate that the Veteran requires assistance performing his daily living tasks. Dr. S.G.B. ultimately concluded the Veteran is totally and permanently precluded from performing work at a substantially gainful level due to the severity of his service-connected disabilities, and stated the record supports this finding as far back as the date of filing. Accordingly, the Board finds that the evidence of record indicates it is at least as likely as not the manifestations of the Veteran’s service-connected physical and psychological disabilities impair his ability to maintain the focus and concentration necessary to successfully complete occupational tasks throughout a full work day, and would cause him to leave early and/or miss days of work so often that it would not be tolerated by an employer in order to maintain a substantially gainful occupation. Therefore, based on the evidence of record and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the totality of the evidence of record indicates the functional impairments caused by the Veteran’s service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation, and entitlement to TDIU is warranted throughout the appeal period. Finally, although the Veteran has been awarded entitlement to TDIU, the Board has found that entitlement to TDIU is based on the combined effects of multiple service-connected disabilities, and is not based on a single disability. Therefore, the Veteran does not have a single service-connected disability rated as 100 percent disabling. Accordingly, the Board finds the issue of entitlement to special monthly compensation at the housebound rate has not been raised. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley v. Peake, 22 Vet. App. 280 (2008)). 2. Entitlement to an effective date prior to April 20, 2009 for the grant of service connection for left lower extremity radiculopathy In the September 2015 rating decision, the AOJ granted entitlement to service connection for left lower extremity radiculopathy as secondary to the service-connected chronic low back pain with degenerative changes, effective April 20, 2009. The Veteran contends he is entitled to an earlier effective date. See September 2018 VA Form 9; December 2015 notice of disagreement. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). Prior to March 24, 2015, under former 38 C.F.R. § 3.157, the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. See Norris v. West, 12 Vet. App. 413, 417 (1999). In a February 2009 rating decision, the AOJ granted entitlement to service connection for chronic low back pain with degenerative changes. An April 20, 2009 VA primary care outpatient note included the Veteran’s report that his back would pop and his buttocks would start burning, and he would get numbness down both legs. The practitioner assessed chronic back pain and sciatica. The Board finds that because the April 20, 2009 VA treatment note indicated treatment for the Veteran’s service-connected back disability, that was the date of receipt of a claim under 38 C.F.R. § 3.157. Further, the Board finds that entitlement to service connection for left lower extremity radiculopathy as secondary to the service-connected back disability arose as of the date of that claim, as the evidence of record indicates that was the first date sciatica was diagnosed as an objective neurologic abnormality secondary to the service-connected chronic low back pain with degenerative changes. 38 C.F.R. §§ 3.400(o), 4.71(a), Note (1). Accordingly, the Board finds that an effective date prior to April 20, 2009 for the grant of service connection for left lower extremity radiculopathy is not warranted. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Accordingly, the claim is denied. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 40 percent for chronic low back pain with degenerative changes is remanded. The record indicates the Veteran sees a non-VA physician for treatment of his chronic back pain, to include prescription pain medications. See, e.g., September 2016 VA physical therapy consultation note. A remand is required to allow VA to obtain authorization and request these records. During the February 2012 VA examination, the Veteran reported experiencing radiation of his back pain into his right hip and thigh. The VA examiner reported the Veteran’s muscle strength was reduced in his bilateral hips and knees, and the Veteran experienced severe intermittent pain in his right lower extremity. The VA examiner indicated severe involvement of both the right and left sciatic nerves. Upon VA examination in August 2015, the VA examiner again indicated the Veteran had reduced muscle strength in the bilateral hips, and hypoactive deep tendon reflexes on the right. However, the August 2015 VA examiner indicated no radiculopathy in the right lower extremity. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected back disability, to include clarification as to the presence of right lower extremity radiculopathy. 2. Entitlement to service connection for a bilateral upper extremity disability, to include as secondary to service-connected low back pain with degenerative changes, is remanded. The Veteran contends he has a current disability of the bilateral upper extremities secondary to his service-connected back disability. See March 2010 informal claim. On remand, the VA back examiner should address whether the Veteran has a current upper extremity disability caused or aggravated by his service-connected back disability. 3. Entitlement to an initial disability rating in excess of 10 percent, and a disability rating in excess of 20 percent from February 24, 2012, for left lower extremity radiculopathy is remanded. Because a decision on the remanded issue of entitlement to an increased disability rating for the Veteran’s back disability could significantly impact a decision on the issue of entitlement to increased disability ratings for left lower extremity radiculopathy, the issues are inextricably intertwined. A remand of the claim for increased initial disability ratings for left lower extremity radiculopathy is required. 4. Entitlement to an initial disability rating in excess of 30 percent for unspecified depressive disorder with anxiety distress is remanded. An August 2015 VA mental disorders examination indicated the Veteran’s service-connected unspecified depressive disorder with anxious distress did not result in occupational and social impairment as severe as that indicated in a February 2014 Mental Disorders DBQ completed by Dr. A.H.F. However, the Veteran’s VA treatment records indicate the Veteran’s disability may have worsened since the August 2015 VA examination, as there are indications of paranoid ideation and an assessment of psychosis not otherwise specified. See, e.g., September 2016 VA psychiatry medication management note. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his unspecified depressive disorder with anxiety distress. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any non-VA physician who provides treatment, including prescription pain medications, for his back disability. Make two requests for the authorized records from any identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s updated relevant VA treatment records. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current manifestations and severity of his back disability and radiculopathy of the left lower extremity. a) The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the back disability and left lower extremity radiculopathy under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to chronic low back pain with degenerative changes and left lower extremity radiculopathy, and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. b) The examiner should specifically address whether the Veteran’s back disability is manifested by right lower extremity radiculopathy, and to the degree possible, clarify the findings of the February 2012 and August 2015 VA back examiners. c) The examiner should also identify with specificity any disability of the right and/or left upper extremity currently manifested, or manifested at any time since March 2010. The examiner should specifically address the VA treatment records indicating findings of right ulnar neuropathy in February 2006. d) For each right and left upper extremity disability, the examiner should opine whether the disability is at least as likely as not (i.e. probability of 50 percent or greater) caused by the Veteran’s service-connected back disability. e) For each right and left upper extremity disability, the examiner should opine whether the disability is at least as likely as not (i.e. probability of 50 percent or greater) aggravated by the Veteran’s service-connected back disability. Aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected unspecified depressive disorder with anxiety distress. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his unspecified depressive disorder with anxiety distress alone. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Delhauer, Counsel