Citation Nr: 18143935 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 17-18 453 DATE: October 23, 2018 ORDER New and material evidence having been received; the claim of entitlement to service connection for vertigo (also claimed as dizziness) is reopened. New and material evidence having been received; the claim of entitlement to service connection for depression is reopened. Entitlement to service connection for hearing problem is denied. Entitlement to service connection for an acquired psychiatric disability, to include depression (also claimed as a sleep disturbance), is granted. Entitlement to an earlier effective date than March 29, 2015 for the grant of service connection for cervical strain is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), from July 19, 2017 is granted. REMANDED Entitlement to service connection for vertigo is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to an initial rating in excess of 20 percent for service-connected cervical strain is remanded. Entitlement to a TDIU prior to July 19, 2017 is remanded. FINDINGS OF FACT 1. In a final decision issued in December 1995, the RO denied the Veteran’s claim of entitlement to service connection for dizziness. 2. Evidence added to the record since the December 1995 prior final denial is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran’s claim for service connection for vertigo. 3. In a final decision issued in December 1995, the RO denied the Veteran’s claim of entitlement to service connection for depression. 4. Evidence added to the record since the December 1995 prior final denial is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran’s claim for service connection for depression. 5. The evidence is in equipoise as to whether the Veteran’s depression, resulting from a disease or injury, was incurred in or related to active service. 6. The evidence of record reflects that the Veteran does not have a bilateral hearing loss disability for VA purposes. 7. In December 1995, entitlement to service connection for cervical muscle strain was denied. 8. In March 2015, the Veteran filed to reopen a claim for entitlement to cervical strain. No formal or informal claim to reopen was filed prior to March 29, 2015. 9. From July 19, 2017, the evidence is in equipoise as to whether the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the issuance of a final December 1995 decision, the criteria for reopening the claim of entitlement to service connection for vertigo have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 2. As new and material evidence has been received since the issuance of a final December 1995 decision, the criteria for reopening the claim of entitlement to service connection for depression have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for depression have been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for entitlement to service connection for hearing problems have not been met. 38 U.S.C. §§ 1131 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). 5. The criteria for an effective date earlier than March 29, 2015, for the award of service connection for cervical strain have not been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2017). 6. From July 19, 2017, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from October 1980 to October 1986. In July 2018, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. The Board notes that based on the evidence of record, the Board has re-characterized the Veteran’s claim of entitlement to service connection for PTSD more broadly as a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Lastly, the Board notes that in the representative’s July 2018 Brief, the Veteran’s representative raises the issue of service connection for sleep apnea. The Veteran and his representative are advised that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. Should the Veteran wish to file such a claim, he and his representative should file the claim with the RO on the proper form. I. New and Material Evidence A. General Principles and Regulations In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). B. Vertigo and Depression Here, in a December 1995 rating decision, the RO denied the Veteran’s claim for service connection for dizziness (vertigo) and depression for a lack of a current disability. This decision is final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In March 2015, the Veteran filed a claim for PTSD, which by this decision has been broaden to a claim of service connection for an acquired psychiatric disorder to include PTSD and depression. In September 2015 the Veteran submitted a claim to reopen his claim for service connection for vertigo (dizziness). The evidence of record at the time of the final prior denial in December 1995 included, inter alia, the Veteran’s service treatment records and the Veteran’s lay statements. The evidence submitted and obtained since the December 2015 prior final denial includes VA treatment records, private treatment records, and the Veteran’s lay statements. Upon review, the Board finds this evidence is both new and material sufficient to reopen the Veteran’s claim. As here, the evidence submitted and obtained since the December 1995 prior final denial relates to unestablished facts necessary to substantiate the claims. With respect to the Veteran’s claim for vertigo, the evidence shows the Veteran had in-service complaints of vertigo and continued to have complaints of vertigo since service. Specifically, in a January 2012 VA treatment record, the Veteran went to the emergency room with complaints of a dizzy spell. Additionally, with respect to the Veteran’s claim for depression, as discussed in more detail below, the medical evidence establishes that the Veteran’s depression is at least as likely as not related to his service. Given such, the Veteran’s claim for service connection for vertigo and claim for depression are reopened. Again, the Board notes that the Veteran’s claim for depression has been included in the Veteran’s claim for service connection for an acquired psychiatric disorder to include PTSD and depression. II. Service Connection A. General Principles and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). B. Acquired Psychiatric Disorder As previously discussed above, the Veteran’s claim for service connection for PTSD, has been broaden to a claim for an acquired psychiatric disability to include PTSD and depression. Furthermore, with respect to the Veteran’s depression, as previously discussed above, as new and material evidence has been received, the Veteran’s claim for depression is discussed on its merits below. Here, in terms of the first element of service connection, the Veteran has been diagnosed with depression and PTSD. Thus, the first element of service connection has been satisfied. With respect to the second element of service connection, an in-service occurrence or event, the Veteran attributes his mental disorders to an in-service December 1985 event. The Veteran describes that while he was abroad the USS Jouett, in December 1985, the ship encountered turbulent weather, as large waves struck the ship causing the Veteran to be thrown into a gyroscope, striking his head and neck and losing consciousness. With respect to his event, the Board notes that previously the Veteran stated that this event occurred on July 22, 1984. Given such, the Joint Services Records Research Center (JSRRC) was unable to confirm this event based on the July 22, 1984 date. However, the Veteran has clarified that the date of the incident was in December 1985 and this date is corroborated by two buddy statements. Affidavits of S.K.G. and C.T. confirm that in December 1985, the USS Jouett encountered turbulent weather which resulted in the Veteran becoming injured. With respect to the Veteran’s claim for depression, this in-service occurrence is sufficient to satisfy the second element of service connection. However, with respect to the Veteran’s claim for PTSD, this in-service occurrence would not be sufficient. In regards to the second element of PTSD, credible supporting evidence that the claimed in-service stressor actually occurred, the Board finds that generally lay testimony alone is insufficient to establish that a stressor occurred, unless there are specific scenarios in which lay testimony alone is sufficient. For example, under 3.304 (f)(2), when a veteran is a combat veteran and under 3.304(f)(4), when the stressor is related to fear of hostile military or terrorist activity, lay testimony is sufficient to establish a stressor occurred. However, here, the evidence does not support, nor does the Veteran contend that he was a combat veteran or that this in-service occurrence was related to fear of hostile military or terrorist activity. As described, the in-service occurrence was due to turbulent weather. Thus, the second element of PTSD is not satisfied. In terms of the Veteran’s depression, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s depression is related to his in-service occurrence. Here in a December 2017 VA examination for mental disorders, the VA examiner opined that the Veteran’s depression was less likely than not incurred in or caused by the claimed in-service event. The rationale provided was that the Veteran’s separation examination did not note any mental disorders. The VA examiner also noted that while it does appear that the Veteran is depressed, his depression may be due to some other cause. Conversely, in an August 2018 Disability Evaluation in Neurology report, the Veteran’s private neurologist opined that the Veteran’s depression is related to his service and his chronic pain from the injuries received in December 1985 aboard the USS Jouett. The neurologist’s opinion is based on the Veteran’s in-service injury, his ongoing symptoms since the injury, and the medical attention he sought at the time for his physical and psychological sequalae. Based on the foregoing, the Board finds that the August 2018 Disability Evaluation in Neurology report, which links the Veteran’s depression to an in-service event supports a finding that the Veteran’s depression is at least as likely as not related to the Veteran’s service. Thus, the third element of service connection is satisfied. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for an acquired psychiatric disorder, to include depression is warranted. C. Hearing Problems The Veteran contends that he suffers from hearing loss due to his active service. Specifically, the Veteran attributes his hearing problems to an in-service event that occurred on December 1985 as described above. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 264 (2015) (“By internal agency materials, the Secretary has made clear that sensorineural hearing loss is considered subject to § 3.309(a) as an ‘[o]rganic disease[] of the nervous system.’“); 38 C.F.R. § 3.309 (a) (2017) (“Chronic diseases.... Other organic diseases of the nervous system.”). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease such as sensorineural hearing loss is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the question for the Board is whether the Veteran has a current disability. The Board concludes that the evidence of record does not show audiometric findings that meet the criteria for bilateral hearing loss under VA regulations. Thus, the requirement for a current disability has not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). Although the Veteran’s service treatment records reflect complains of hearing problems during service, the Veteran’s entrance and separation examination reports reveal normal audiometric findings at entrance and upon separation of service. The Veteran was afforded a VA audiological examination in February 2017. The VA examiner noted that the puretone audiometric results were not valid for rating purposes as the results were deemed inconsistent and unreliable. However, the VA examiner was able to test the Veteran’s hearing based on the Maryland CNC world list. The Veteran’s speech discrimination score is 100 percent in both his right and left ears. The VA examiner concluded that the use of the speech discrimination score is appropriate for the Veteran. Based upon the results of this examination, the Maryland CNC Test scores were greater than 94 percent in both ears. Consequently, the Veteran’s results do not meet the criteria for impaired hearing under VA regulations. 38 C.F.R. § 3.385. The Veteran was afforded a VA audiological examination in October 2017. The VA examiner noted that the puretone audiometric findings were not valid for rating purposes. The voluntary speech reception threshold and the pure tone average are not in agreement. However, the VA examiner was able to test the Veteran’s hearing based on the Maryland CNC world list. The Veteran’s speech discrimination score is 100 percent in both his right and left ears. The VA examiner concluded that the use of the speech discrimination score is appropriate for the Veteran. Based upon the results of this examination, the Maryland CNC Test scores were greater than 94 percent in both ears. Consequently, the Veteran’s results do not meet the criteria for impaired hearing under VA regulations. 38 C.F.R. § 3.385. In addition to the objective audiological findings, the Board has considered the Veteran’s contentions that he has bilateral hearing loss. Upon consideration of the Veteran’s lay statements as to the Veteran’s subjective hearing loss, the Board finds that his statements are outweighed by the objective audiological findings. Again, while laypersons are competent to report general symptoms such as hearing loss, the specific audiological findings from the audiograms afforded during service and post service are more probative of the etiology of the Veteran’s hearing loss for VA purposes. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Lastly, as the medical evidence fails to show a diagnosis of hearing loss (such as sensorineural hearing loss) within the time period specified under 38 C.F.R. 3.307 and 38 C.F.R. 3.309(a), service connection on a presumptive basis is also not warranted. Considering the above, the Board finds that the probative evidence of record does not demonstrate that the Veteran has bilateral hearing loss, and it finds that the first element of service connection has not been met. In the absence of evidence of a current hearing disability that meets VA standards, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223.225 (1992); 38 C.F.R. § 3.385 (2008) (for VA purposes, “impaired hearing will be considered to be a disability” only when hearing loss examination results reach certain auditory thresholds). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). The evidence must show that the Veteran currently has the disability for which benefits are being claimed. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. III. Earlier Effective Date A. General Principles and Regulations The Veteran contends that the effective date of the grant of service connection for cervical strain should be earlier than March 29, 2015. Except as otherwise provided, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. If a claim is received within one year following separation, the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). However, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 B. Cervical Strain Here, the Board acknowledges that the Veteran originally filed a claim for a cervical spine disability in September 1995. Subsequently, a December 1995 rating decision denied the Veteran’s claim for service connection for a cervical spine disability. The Veteran did not appeal, nor was new and material evidence received, within one year of notification of such decision. Absent a showing of clear and unmistakable error, which has not been shown or alleged here, this decision is final. 38 C.F.R. §§ 3.104, 19.118, 19.153. The Veteran filed a claim to reopen his claim for service connection for a cervical spine disability on March 29, 2015. The Veteran’s claim was subsequently reopened and granted effective the date of the Veteran’s claim to reopen, March 29, 2015. As set forth above, the law provides that the effective date of an award of compensation based on a claim reopened after a final adjudication shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400 (q)(2). Given such, the earliest effective date for this claim is March 29, 2015. A review of the evidence does not show any informal or formal claims to reopen filed prior to March 29, 2015. There is no legal basis upon which to assign an earlier effective date for the grant of service connection under the facts of this case. See Flash v. Brown, 8 Vet. App. 332, 340 (1995) (“When a claim to reopen is successful and the benefit sought is awarded upon re-adjudication, the effective date is the date of the claim to reopen”). The Board acknowledges that the Veteran’s service treatment records reveal that the Veteran was treated for a cervical muscle strain. However, a mere treatment for a condition without an intent to file for benefits is not sufficient to warrant an earlier effective date. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006) (“The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit.”). In addition, upon review of the medical records associated with this claims file, the Board finds there is no indication in these records that the Veteran was requesting a determination of entitlement or evidencing a belief in entitlement to a VA benefit that would warrant an effective date prior to March 29, 2015. See 38 C.F.R. § 3.1 (p). In sum, for the reasons expressed above, the Board finds that the preponderance of the evidence is against the claim of entitlement to an earlier effective date than March 29, 2015 for service-connected cervical strain. As such, the benefit-of- the-doubt doctrine is not for application, and the claim is denied. IV. TDIU A. General Principles and Regulations A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). 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 disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). For a veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran’s education, employment history, and vocational attainment. See Pederson v. McDonald, 27 Vet. App. 276, 281 (2015). B. Analysis In this case, in terms of whether the minimum schedular requirements for TDIU are met, the Veteran is service-connected for radiculopathy, right upper extremity at 20 percent prior to July 19, 2017 and 40 percent thereafter; for radiculopathy of the left upper extremity at 30 percent from April 26, 2017; for cervical strain at 20 percent, and for tinnitus at 10 percent from September 14, 2015. Thus, prior September 14, 2015, the Veteran had a combined rating of 20 percent, from September 14, 2015 to April 26, 2017, the Veteran had a combined rating of 60 percent and from July 19, 2017, the Veteran had a combined rating of 70 percent. Here, for the period from July 19, 2017, because the Veteran’s service-connected disabilities combine to a rating of at least 70 percent with at least one disability rated at 40 percent, the Veteran has met the schedular requirements. For the period prior to July 19, 2017, because the Veteran’s combined rating for that period is not at least 70 percent, the Veteran has not met the schedular requirements for the period prior to July 19, 2017. For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16 (b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to the Director of Compensation is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Factors to be considered include, but are not limited to, the veteran’s service-connected disabilities, employment history, and educational and vocational attainment. 38 C.F.R. § 4.16 (b); Pederson, at 281. The Board will address the period prior to July 19, 2017, in the remand portion. From July 19, 2017 The evidence reflects that the Veteran last worked full-time with BAE systems on December 2, 2016. See VA Form 21-4192. Based on the evidence of record, the Board finds the evidence is in equipoise as to whether the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities from July 19, 2017. Here, the Veteran’s VA examination reports, although noting a functional impairment due to the Veteran’s service-connected disabilities, do not indicate that the Veteran’s service-connected disabilities impair the Veterans ability to obtain or follow substantially gainful employment. Conversely, in an August 2018 Vocational Evaluation report, a rehabilitation counselor reviewed the Veteran’s case to determine whether it was at least as likely as not that the Veteran’s service-connected impairments prevent him from securing and following substantially gainful employment. The counselor noted that the Veteran has held approximately 20 different jobs from which he either walked away from or was fired. He walked away from some jobs because he was unable to sustain his attention and concentration. In the last three to four years his neck and upper extremity pain resulted in loss of function. He was fired for the same reason. Out of the 20 different jobs, 15 were as a security guard and five were as a production machine attendant. He also worked as a rigger from June 1998 through December 5, 2016. The rehabilitation counselor noted the Veteran’s inability to work began on 12/05/16. The rehabilitation counselor noted that the Veteran has substantial loss of function in both upper extremities that limit his ability to reach, handle, finger, lift, and carry. All his previous occupations required the frequent use of both upper extremities to lift, carry, reach, handle, and finger. The Veteran is not able to concentrate and maintain attention for one third of the work day. Thus, the rehabilitation counselor opined that it is at least as likely as not that the Veteran’s service-connected impairments prevent him from securing and following substantially gainful occupation. The counselor added that it is at least as likely as not that this has been in effect since he stopped working on December 5, 2016. Thus, it appears that the Veteran’s ability to perform the physical acts of employment are substantially impaired, given that the Veteran cannot reach, handle, finger, lift, carry, or maintain concentration. Therefore, the Board finds that based on the Veteran’s credible lay statements as to the symptomatology of his service-connected disabilities, coupled with the collective impact of the Veteran’s service-connected disabilities, the August 2018 Vocational Evaluation report, and the medical treatment records, as discussed above, together, all support a finding that the evidence is in equipoise that that the Veteran was unable to secure and follow a substantially gainful occupation by means of his service-connected disabilities from July 19, 2017. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran’s favor, entitlement to a TDIU for the period from July 19, 2017, is warranted. REASONS FOR REMAND A. Service Connection for Vertigo Upon reopening the Veteran’s claim for service connection for vertigo, the Board finds that additional development is warranted. Specifically, since the Veteran has yet to be afforded a VA examination to determine the etiology and nature of his vertigo, one should be conducted. Here, the Veteran’s service treatment records show that the Veteran complained of vertigo and dizziness from December 1985 to January 1986. Subsequently, the Veteran’s post-service treatment records, in a January 2012 VA treatment note reveal that the Veteran was seen in the emergency room for a dizzy spell. Lastly, the Veteran contends that his dizziness and vertigo have been present since his discharge from service. Given such, an examination is warranted. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). B. Service Connection for TBI With respect to the Veteran’s claim for service connection for TBI, the Board finds additional development is warranted. Here, the Veteran attributes his TBI to a December 1985 in-service incident, described above, during which the Veteran injured his head. The Board notes that the Veteran has not been afforded VA examination to determine the nature and etiology of his TBI. Recently, in an August 2018 non-VA Disability Evaluation in Neurology report, the Veteran’s private neurologist noted a diagnosis of TBI. Although the neurologist appears to attribute this diagnosis to the Veteran’s in-service injury, no rationale was provided as to the basis of this opinion. Furthermore, the neurologist suggests that the Veteran be assessed by a medical doctor specifically trained to evaluate TBI, board-certified in Brian Injury by the American Board of Psychiatry and Neurology. Thus, he Board finds that although a diagnosis is present and the Veteran’s attributes his TBI to the December 1985 incident, a nexus opinion with a sufficient rationale is required. C. Increased Rating for Cervical Strain After reviewing the record, the Board finds that additional evidentiary development is necessary prior to final adjudication of the Veteran’s claim for an initial rating in excess of 20 percent for service-connected cervical strain. Specifically, because the Board finds that the VA examination reports of record are inadequate in light of Sharp v. Shulkin, 29 Vet. App. 26 (2017), a remand is warranted for the reasons discussed below. See 38 C.F.R. § 19.9. The Veteran was most recently afforded a VA examination in connection with his increased rating claim for his service-connected neck disability in July 2017. However, in Sharp, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Sharp, 29 Vet. App. 26. The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 16 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). Here, the Veteran’s July 2017 VA examination report reflects a positive indication of flare-ups. Although the VA examiner noted there is overall functional impairment with flares, such as it is getting harder for the Veteran to turn his head, like when driving, and impairment to physical activities, there was no estimation of the frequency and duration of such flare-ups, as well functional impairment resulting therefrom, or an estimation of loss of range of motion during flare-ups. In light of Sharp, a new examination is necessary. D. TDIU In terms of the period prior to July 19, 2017, as previously stated, the Veteran’s service-connected disabilities do not meet the percentage requirements for a schedular TDIU, as the Veteran’s combined disability rating for this period is not at least 70 percent. Regardless, however, of whether the percentage requirements of 38 C.F.R. § 4.16 (a) are met, entitlement to a TDIU on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). Here, based on the previously discussed evidence, specifically the August 2018 Vocational Evaluation report, which reflects that since December 5, 2016, it is at least as likely as not that the Veteran’s service-connected impairments prevent him from securing and following substantially gainful occupation, it appears that prior to July 19, 2017, the Veteran’s service-connected disabilities at least as likely as not impair him for securing and following substantially gainful occupation. The Board, therefore, will remand the claim of entitlement to a TDIU for the period prior to July 19, 2017, for referral to the Director of the Compensation and Pension Service in accordance with 38 C.F.R. § 4.16 (b) for consideration of whether a TDIU is warranted on an extra-schedular basis. The matters are REMANDED for the following action: 1. Schedule the Veteran with an appropriate medical professional to determine the nature and etiology of the Veteran’s claimed vertigo. After review of the case file, the VA examiner is asked to address the following: (a) Whether the Veteran’s claimed vertigo is related to or caused by his active service. The examiner should discuss the Veteran’s lay statements regarding the history, chronicity, and continuity of symptomatology, to include the Veteran’s ongoing reports of dizziness and vertigo. S/HE should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. The VA examiner is asked to address the Veteran’s December 1985 in-service incident. The VA examiner is also asked to discuss the Veteran’s in-service complaints to include a January 31, 1986 note, in which the Veteran’s chief complaint is “continuous vertigo.” 2. Request a medical opinion from a qualified medical professional, preferably a neurologist that is board certified in brain injury, which after reviewing the medical evidence and lay statements, to include the Veteran’s lay statements and buddy statement, addressing the following: (a) Whether the Veteran’s diagnosis of TBI is at least as likely as not related to his naval service, to include the December 1985 incident described by the Veteran and in the buddy statements. If the examiner determines that a diagnosis of TBI does not exist, a medical explanation must be provided. 3. Schedule the Veteran for a VA examination to ascertain the severity of his service-connected cervical strain. The examiner should review the claims file. After examining the Veteran and conducting any studies and/or tests deemed necessary (including range of motion testing, which would include pain on both active and passive motion and in weight-bearing and nonweight-bearing), the examiner should fully describe all symptomatology and functional deficits associated with this condition. The examiner is specifically asked to set forth the extent of any functional loss due to weakened movement, excess fatigability, incoordination, pain on use, swelling, deformity, or atrophy of disuse. ANY ADDITIONAL IMPAIRMENT ON USE OR IN CONNECTION WITH FLARE-UPS SHOULD BE DESCRIBED IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS. THE EXAMINER SHOULD SPECIFICALLY DESCRIBE THE SEVERITY, FREQUENCY, AND DURATION OF FLARE-UPS; NAME THE PRECIPITATING AND ALLEVIATING FACTORS; AND ESTIMATE, PER THE VETERAN, TO WHAT EXTENT, IF ANY, SUCH FLARE-UPS AFFECT FUNCTIONAL IMPAIRMENT. This query should be accomplished regardless of whether the Veteran is experiencing a flare-up at the time of testing or not. THE EXAMINER SHOULD ALSO REVIEW THE PRIOR August 2015 VA EXAMINATION AND PROVIDE A RETROSPECTIVE OPINION AS TO THE VETERAN’S FLARE-UPS BASED ON THE AFOREMENTIONED (SHARP). IF UNABLE TO PROVIDE THIS RETROSPECTIVE TESTING, THE EXAMINER SHOULD STATE WHY AND PROVIDE A REASONED EXPLANATION FOR THE DETERMINATION. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 4. Refer to the Director, Compensation and Pension Service, the matter of whether a TDIU prior to July 19, 2017, is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). Should the Director indicate that further evidentiary development is required, such development should be undertaken. A supplemental statement of the case should be issued as required by regulation. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel