Citation Nr: 18159283 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-46 018A DATE: December 18, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. FINDING OF FACT 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. 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 military service from July 2002 to May 2003, with additional active duty for training in the Army and Navy Reserves. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Entitlement to a TDIU The Veteran has reported that his service-connected disabilities have prevented him from securing or following any substantial gainful occupation. 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. 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 has held management- and supervisory-equivalent positions with the military, public school system, and federal government. He indicated that he became too disabled to work in October 2013, at which time his service-connected disabilities prevented him from obtaining and maintaining any form of gainful employment consistent with his college education. Specifically, the Veteran stated that, in addition to his non-service connected disabilities, he has experienced back pain that prevents him from full-time work. He reported that he was unable to tolerate prolonged sitting, that strong prescriptions for pain impaired his ability to work with children or drive, and that use of cane limited his ability to stand, carry or lift objects, and walk. In August 2013, the Veteran’s treating physician recommended that the Veteran resign due to his medical condition and use of prescription medications. The Veteran was afforded a VA examination in January 2014. The examiner found that the Veteran’s back disability had progressed. He noted that the Veteran’s back disability made it difficult to bend or twist at the waist, lift weight, and walk. He stated that there were contributing factors of pain, weakness, fatigability and/or incoordination and additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. In August 2016, a private orthopedic surgeon reviewed the Veteran’s medical records and noted that by 2013, the Veteran was finding it difficult to continue to work due to progressive back pain. The Veteran reported that his pain level was so high that he could not function without taking Oxycodone. The orthopedic surgeon noted that narcotics such as Oxycodone could cause serious side effects, including drowsiness, mental confusion, difficulty concentrating, and fatigue. He pointed out that, in December 2005, the Veteran’s treating physician determined that the Veteran had difficulty sitting, was unable to sit for more than twenty minutes without escalating back pain, and required a cane to walk. Additionally, he noted that the January 2014 VA examiner found it was medically necessary that the Veteran use a cane to reduce his chance of falling from muscle weakness in his left lower extremity. The orthopedic surgeon concluded that the Veteran was unable to perform any type of full-time employment, even in a job where he could alternate sitting and/or standing. Additionally, the Veteran submitted lay statements from his former coworkers in which they observed the Veteran’s limited ability to walk, sit, and stand due to his service-connected disabilities. The Veteran’s last employer noted that he resigned due to his health in October 2013. Based on the subjective report of the Veteran and the objective medical findings, the Board finds that the Veteran’s service-connected disabilities significantly impact his ability to function in an occupational setting. In this regard, the Veteran’s back disability and bilateral radiculopathy of the lower extremities limited his ability to sit, stand, and walk, and he experienced additional limitation of functional ability during flare-ups or after repeated use over time. In addition, the Veteran’s pain medications impaired his ability to function at work. 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. 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 claim on appeal is decided. The Veteran has contended that his right shoulder disability is related to his active service. Specifically, the Veteran indicated that he injured his shoulder during service in 2003. Service treatment records are silent for any in-service complaints of, treatment for, or diagnosis of a right shoulder disability. Post-service treatment records documented that the Veteran was diagnosed with a right shoulder disability. However, the Veteran complained of right shoulder pain in May 2006 following a motor vehicle accident (MVA) in November 2005. Additionally, the Veteran’s private physician noted that, the Veteran was involved in a MVA in May 2007 and injured his right shoulder. A May 2007 MRI revealed minimal to marked degenerative changes. In January 2014, the Veteran was afforded a VA examination. The examiner opined that the right shoulder disability was less likely than not incurred in or caused by the Veteran’s active service. However, the examiner questioned the RO’s request for a nexus opinion on a secondary basis. In this regard, the examiner noted that the Veteran had reported that his right shoulder disability began during his active service in 2003. However, the examiner pointed out that VA stated that the Veteran was involved in an MVA and an MRI revealed old joint disease in 2007. The examiner added that X-rays taken at the VA examination showed evidence of distal clavicular bony fragmentation. The examiner concluded that none of the evidence had anything to do with the Veteran’s back disability. The Board finds the January 2014 VA examination inadequate as the examiner did not provide a rationale for his nexus opinion on a direct basis. As such, the Board finds that a remand is warranted for a new VA examination to determine the nature an etiology of the Veteran’s right shoulder disability. The matter is 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 nature and etiology of any currently present right shoulder disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present right shoulder disability is etiologically related to the Veteran’s active service. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining claim on 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