Citation Nr: 18147329 Decision Date: 11/06/18 Archive Date: 11/02/18 DOCKET NO. 15-27 483A DATE: November 6, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from September 3, 2013, is granted. REMANDED Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease (DDD) is remanded. Entitlement to a rating in excess of 10 percent for cervical spine DDD is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the right upper extremity associated with cervical spine DDD is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the left upper extremity associated with cervical spine DDD is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity associated with lumbar spine DDD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 3, 2013, is remanded. FINDING OF FACT From September 3, 2013, the Veteran has had a combined rating of at least 70 percent, with at least one disability rated at 40 percent or more, and his service-connected disabilities have prevented him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met from September 3, 2013. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1986 to August 1986 and from January 1987 to June 1990. These matters come to the Board of Veterans’ Appeals (Board) on appeal from November 2012 and July 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2018 and accepted that hearing in lieu of an in-person hearing before a member of the Board. TDIU from September 3, 2013 The Veteran has reported that his service-connected disabilities have prevented him from securing or following any substantially gainful occupation. From September 3, 2013, the Veteran’s combined rating has been at least 70 percent with a disability, or separate disabilities combinable to at least 40 percent. Therefore, the Board finds that the Veteran has met the schedular criteria for assignment of a TDIU as of September 3, 2013. In addition, the evidence of record reflects that the Veteran has been unable to secure and follow any substantially gainful employment due to his service-connected disabilities. In this regard, the Veteran reported that he was a state Port Authority police officer, but he became too disabled to work in July 2010, at which time his service-connected disabilities prevented him from obtaining and maintaining any form of gainful employment consistent with his two-year college education and past occupational experience as a city police officer and a truck driver. The medical and lay evidence of record showed that the Veteran reported constant back and radiating pain and stiffness. He complained of pins and needles and numbness in his bilateral upper and left lower extremities. He stated that he could not operate machinery or motor vehicles while taking his medications. In an August 2016 statement, a private professional counselor determined that physical restrictions, pain, and medication side-effects resulting from the Veteran’s service-connected disabilities would preclude the Veteran’s employability. Specifically, the counselor reviewed the Veteran’s orthopedic medical records and noted that the Veteran was limited in his ability to lift and reach, could not perform certain movements with his hands and arms or sit for prolonged periods, and experienced distracting levels of pain with movement. In addition, he noted that the Veteran’s medications caused distraction, inattention, and drowsiness. Based on the subjective report of the Veteran and the objective findings in the VA examination reports and medical evidence of record, the Board finds that the Veteran’s service-connected disabilities significantly impact his ability to function in an occupational setting. They result in distracting pain, inattention, drowsiness, and a limitation on his ability to perform physical and sedentary tasks. Additionally, the Board notes that the Veteran had an extensive post-service occupational history in a single, physically demanding field, as a police officer. The Board finds that the Veteran’s physical ability is a critical function for the Veteran’s previous work. Moreover, a private counselor linked the Veteran’s inability to work to his service-connected disabilities. In light of the Veteran’s employment history and the functional limitations described above, the Board finds that he is unable to secure or follow a substantially gainful occupation in accordance with his background and education level as a result of his service-connected disabilities. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted from September 3, 2013. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. The Veteran was last afforded VA examinations in July 2014 for his service-connected back, neck and radiculopathy of the bilateral upper and left lower extremities. Sinc that time, the Veteran indicated that the severity of his service-connected disabilities had increased. Therefore, the Board finds that the Veteran should be provided new VA examinations to determine the current level of severity of all impairment resulting from his service-connected disabilities. Additionally, the Board notes that the issue of entitlement to a TDIU prior to September 3, 2013 is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for a TDIU prior to September 3, 2013 should be deferred pending final disposition of the remaining claims. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected lumbar spine degenerative disc disease. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. 3. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected cervical spine degenerative disc disease. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. 4. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected radiculopathy of the bilateral upper and left lower extremities. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. 5. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 6. Then, readjudicate the appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel