Citation Nr: 18157816 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 10-03 257 DATE: December 14, 2018 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 10 percent for mechanical low back pain with degenerative joint disease and degenerative disc disease (low back disability) is remanded. Entitlement to a temporary total rating under 38 C.F.R. § 4.30 is remanded. FINDING OF FACT The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1992 to October 1994 and in the United States Army from January 2002 to May 2005, with additional National Guard service. His decorations include the Purple Heart. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2012 and September 2015, the Board remanded the Veteran’s appeal for additional development. In December 2011, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In July 2017, the Veteran was notified that the VLJ who conducted his hearing was no longer at the Board. He did not request a new hearing. 1. A TDIU is granted. The Veteran reports that he cannot work due to the combined effects of his service-connected disabilities. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16. Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran’s service-connected disabilities consist of a low back disability with a 10 percent evaluation from June 1, 2005, posttraumatic stress disorder (PTSD) with a 30 percent evaluation from June 1, 2005, cervical spondylosis without myelopathy and cervicalgia (neck disability) with a 20 percent evaluation from June 25, 2009, tinnitus with a 10 percent evaluation from June 1, 2005, residuals of a traumatic brain injury (TBI) with a noncompensable evaluation from February 28, 2008, and burn scars of the bilateral upper and lower extremities and cysts of the left upper extremity with noncompensable evaluations from June 1, 2005, for a combined evaluation of 40 percent from June 1, 2005, and 60 percent rating from June 25, 2009. The Board finds that the Veteran has met the threshold schedular requirement for the award of a TDIU under 38 C.F.R. § 4.16 since June 25, 2009, as his service-connected disabilities are considered as “one disability” since they involve multiple injuries incurred in action. See 38 C.F.R. § 4.16(a)(4). Accordingly, this appeal turns on whether the functional impairment associated with these disabilities is of such nature and severity as to preclude substantially gainful employment. The evidence of record reflects that the Veteran was forced to quit his job as a part-time mail carrier on March 6, 2011 due to symptoms caused by his service-connected PTSD and low back disability. See Social Security Administration Determination and Transmittal; December 2011 TWC Application. He graduated high school and attended some college, although he was unable to continue his coursework due to his service-connected disability symptomatology. See June 2013 Treatment Note (noting Veteran had to drop out from college due to anxiety, as well as memory and attentional deficits). The Veteran was briefly employed in a number of part-time jobs since he was unable to continue delivering mail, including as a truck driver and as a railroad conductor, but he had to quit each position due to his service-connected disability symptoms. See December 2011 VA Form 21-4138; see also October 2015 VA Examination Report (Veteran’s pain is exacerbated by, among other things, sitting or standing for too long). The Board notes that the Veteran’s ex-wife, a psychologist, provided an opinion as to the impact of the Veteran’s PTSD on his ability to work. She described how the Veteran had been a creative and energetic person before leaving for Iraq, but that after his return he had serious cognitive limitations that impaired his focus and memory to an extent that negatively impacted his daily activities. S.M.B reported that the Veteran attempted jobs in sales, but that sleep impairment caused by his PTSD and musculoskeletal pain forced him to resign. Subsequently, the Veteran was denied employment with a cable company due to careless errors that he made during the application process. She stated that he was similarly unable to sustain his employment as a private investigator due to his inattention to detail and inability to complete his work in a timely manner. S.M.B. report that while the Veteran was successful for a time as a rural mail carrier due to the simplicity and repetitiveness of the job, his cognitive problems resulted in him forgetting to deliver packages, make wrong turns, and drive in a careless manner. See April 2013 Opinion of S.M.B., Psy.D. The Board observes that S.M.B.’s description of the Veteran’s psychiatric symptomatology is confirmed by the most recent VA psychiatric examination. See April 2013 PTSD Examination Report (noting the Veteran’s problems in school, and PTSD symptoms including social isolation due to anxiety, panic attacks, memory loss, chronic sleep impairment, and difficulty in adapting to stressful circumstances including work or a worklike environment). Based on the evidence of record, the Board finds that the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. In this regard, the Board notes that the Veteran’s work history clearly demonstrates his inability to secure or follow a substantially gainful occupation due to his cognitive impairments, difficulty adapting to stressful situations at work, chronic sleep impairment, and neck and low back pain, and that all of these symptoms stem from his service-connected disabilities. Indeed, the Board emphasizes that the Veteran has attempted to work in solitary, independent environments, such as a rural mail carrier and as a private investigator, but that on each occasion his mental and/or physical impairments ultimately prevented him from maintaining employment. Moreover, the Board notes that the Veteran was unable to initially secure a position as a cable technician due to carelessness in the application process arising from his PTSD symptomatology. The Board emphasizes that the determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Here, after resolving reasonable doubt in the Veteran’s favor, the preponderance of the evidence supports the Veteran’s claim, and a TDIU is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. 2. Entitlement to a rating in excess of 10 percent for a low back disability is remanded. The Veteran presented for VA thoracolumbar spine examinations in June 2008, August 2010, April 2013, October 2015, and January 2017. However, none of the clinicians conducting these examinations performed all the testing described in 38 C.F.R. § 4.59 or explained why such testing was unnecessary or could not be performed. See Correia v. McDonald, 28 Vet. App. 158 (2016); see also October 2018 Informal Hearing Presentation (IHP). Moreover, the January 2017 VA examiner failed to offer any opinion concerning the functional impact of the Veteran’s low back disability, despite the Veteran’s statement that he “cannot do much of anything” because of his back. Cf. DeLuca v. Brown, 8 Vet. App. 202 (1995) (requiring consideration of pain on movement, incoordination, etc. when considering functional loss). Indeed, the Board notes that the January 2017 examiner’s remarks regarding the nature and extent of the Veteran’s low back disability are internally inconsistent, as she stated that the Veteran did not have arthritis despite noting elsewhere in her report that there were degenerative changes in the Veteran’s thoracolumbar spine shown by radiographic imaging. Thus, on remand, a new examination and retrospective opinions are needed.   3. Entitlement to a temporary total rating under 38 C.F.R. § 4.30 is remanded. In the October 2018 IHP, the Veteran’s representative raised the issue of entitlement to a temporary total disability rating pursuant to 38 C.F.R. § 4.30 in connection with the Veteran’s October 2015 low back surgery. See October 2018 IHP at 1-2. The Board observes that the RO has attempted to develop this issue, but was informed by the physician listed by the Veteran that he was not a patient. See December 2016 VA Form 21-0820. The Veteran should be afforded the opportunity to supply the relevant information to substantiate his claim on remand. This matter is remanded for the following: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records, to specifically include records documenting his October 2015 back surgery and any associated period of convalescence. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his low back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. Please specify range of motion measurements in all areas outlined above. 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. The examiner is also asked to address the following: (a) Please provide an opinion as to the full range of motion of the Veteran’s lumbar spine since February 2008 in (1) active motion, (2) passive motion, (3) in weight-bearing and (4) in nonweight-bearing. Please specify range of motion measurements in all areas outlined above. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). (b) Considering the Veteran’s reported history, please also provide an opinion describing functional impairment of the Veteran’s lumbar spine since February 2008, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. Please refer to the June 2008, August 2010, April 2013, October 2015, and January 2017 VA examination reports as to the Veteran’s description of flare-ups. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel