Citation Nr: 1807363 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 10-12 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from February 1982 to September 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board remanded the issue in September 2012 and February 2016. The matter again is before the Board. Based on the completion of the requested development, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As an initial matter, the Board acknowledges that the basis for the prior denial of the claim in an October 2017 Supplemental Statement of the Case (SSOC) was based on the Veteran's failure to submit a completed VA Form 21-8940, as requested on multiple occasions. In that determination, the Agency of Original Jurisdiction (AOJ) noted that this form was necessary to determine the Veteran's employment history. In December 2017, the Veteran reported that she had never received that form and another form was sent on January 4, 2018. The above notwithstanding, VA Form 21-8940 is for the purpose of ascertaining the Veteran's employment and income information. As will be discussed in greater detail below, the evidence clearly indicates that the Veteran is unable to work due to her service-connected disabilities from February 2, 2017, and there is nothing to suggest that she has worked since that time given that she has not worked since 2009 and is in receipt of disability compensation benefits from the Social Security Administration (SSA). As such, the Board concludes that a completed VA Form 21-8940 is not necessary to adjudicate the Veteran's claim at this time. Since the last adjudication of the claim, additional VA medical documents have been associated with the electronic claims file (Virtual VA, in this case). The Veteran has not waived initial consideration of those records by the Agency of Original Jurisdiction; however, as the Veteran's claim is granted in full herein for the period encompassing the new records the Board finds that there is no prejudice to the Veteran in proceeding with an adjudication of the claim. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. FINDING OF FACT Affording the Veteran the benefit of the doubt, the evidence demonstrates that her service-connected disabilities prevent her from securing or following a substantially gainful occupation from February 2, 2017, but no earlier. CONCLUSION OF LAW The criteria for entitlement to TDIU on a schedular basis have been met from February 2, 2017, but no earlier. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor her representative has identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Entitlement to TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2017). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). During the appellate time period, the Veteran is service-connected for depressive disorder, rated as 50 percent disabling from May 5, 2015; degenerative disc disease, rated as 40 percent disabling prior to May 31, 2015, and 20 percent disabling from May 31, 2015; right lower extremity peripheral neuropathy, rated as 10 percent disabling prior to May 31, 2015, as noncompensably disabling from May 31, 2015, to February 14, 2017, and as 20 percent disabling from February 14, 2017; and left lower extremity peripheral neuropathy, rated as 20 percent disabling prior to April 15, 2013, as 40 percent disabling from April 15, 2013, to May 31, 2015, and as 20 percent disabling from May 31, 2015. As noted, to meet the requirement of "one 60 percent disability," disabilities resulting from one common etiology will be considered one disability. In this case, for the period from April 15, 2013, the Veteran's combined disabilities were rated as 60 percent disabling. The Veteran met the schedular requirements from that time, as her low back and radiculopathy disabilities stem from one common etiology. Prior to that date, the Veteran's combined disability rating was 50 percent and she did not meet the schedular requirements for TDIU. The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities render her unemployable. The Veteran was afforded an October 2007 VA examination. The Veteran currently was unemployed and had last worked 1 year previously as a medical biller. She had significant lower back pain, as well as decreased motion, stiffness, weakness, and spasms. The pain was severe and constant. Lower extremity muscle strength was normal. Sensation was normal, but reflexes reduced. Range of motion testing showed forward flexion to 30 degrees, with pain onset at 25 degrees; extension to 18 degrees, with pain onset at 16 degrees; right and left lateral flexion to 19 degrees without pain; right lateral rotation to 22 degrees, with pain onset at 20 degrees; and left lateral rotation to 18 degrees, with pain onset at 15 degrees. The Veteran reported that the reason for her unemployment was pain-related. The examiner noted that the Veteran had significant orthopedic and functional limitations due to pain that would limit her ability to perform physical employment involving lifting more than 50 pounds, frequent bending to lift objects, prolonged ambulation, or climbing stairs. The examiner found that the Veteran did not have significant orthopedic or functional limitations that would limit her ability to perform sedentary employment such as medical billing. A February 2009 VA spine examination is of record. The Veteran reported ongoing back pain with radiation into the buttock and left lower extremity. She had recently been laid off and last worked in accounting. The Veteran reported numbness, paresthesias, and leg or foot weakness. She also described fatigue, decreased motion, stiffness, and spasms. Pain was severe and constant, but without incapacitating episodes. The Veteran was able to walk one quarter of a mile and was engaged in a home exercise program with a personal trainer. The Veteran's gait was described as antalgic. There was objective evidence of spasm, pain with motion, tenderness, and weakness. Lower extremity muscle strength was between 4 and 5 out of 5, depending on the muscle group. Muscle tone was normal and there was no atrophy. Sensation was decreased to light touch in the left lower extremity. Range of motion testing showed forward flexion to 12 degrees, extension to 10 degrees, left lateral flexion to 15 degrees, left lateral rotation to 12 degrees, right lateral flexion to 10 degrees, and right lateral rotation to 12 degrees. There was objective evidence of pain on active range of motion. The back disability would have significant effects on her usual occupation due to decreased mobility, problems with lifting and carrying, weakness or fatigue, and pain. The Veteran was afforded a VA spine examination in April 2009. The examiner noted review of the claims file. The Veteran reported constant pain, with little relief from medication or treatment. There were occasional radiation and sensation changes in the left lower extremity. The Veteran denied incapacitating episodes or flare-ups. She denied any interference with her job duties, but she was limited in how long she could sit, stand, bend, or walk. On examination, range of motion testing showed forward flexion to 45 degrees, extension to 10 degrees, right side flexion to 15 degrees, left side flexion to 20 degrees, right rotation to 20 degrees, and left rotation to 15 degrees. There were complaints of pain in all planes of motion, but there was no additional loss of motion on repetitive motion testing. In December 2009, the Veteran reported severe back pain that radiated into the left lower extremity. The pain was exacerbated by standing and walking, while it was relieved by lying supine only and pain medication. The Veteran could not quantify her pain and stated only that it was a "10 on a good day." On examination, lower extremity muscle strength was 4 to 5 out of 5, depending on the muscle group. Sensation was intact. The Veteran tended to shift her weight while walking and was unable to do tandem or heel to toe walking due to pain. A March 2010 VA peripheral nerves examination is of record. The examiner noted review of the claims file. The Veteran reported moderately severe low back pain with intermittent back muscle spasm and radiation into the left lower extremity with numbness and weakness in that extremity. On examination, right lower extremity muscle strength was normal and between 4 and 5 out of 5 on the left. Reflexes were normal in the bilateral knees and hypoactive in the bilateral ankles. The Veteran's gait was slow and antalgic to the left. She had difficulty with heel and toe walking, as well as with a tandem gait. There was mild to moderate tenderness to palpation of the back with forward flexion to 45 degrees, extension to 12 degrees, lateral flexion to 15 degrees, and lateral rotation to 18 degrees. Passive range of motion showed forward flexion to 55 degrees. There was decreased sensation on the entire left leg. The examiner concluded that the lower back pain was "average and moderately severe and recurrent from time to time." The left lower extremity radiculopathy was mild to moderate. Because of the continued pain and lumbar radiculopathy symptoms, the examiner noted that there would be some effect on her physical and sedentary employment status. VA treatment records from 2010 document physical therapy treatment for the Veteran's ongoing back pain without significant improvement. That said, the Veteran was noted to have functional movement in all planes of motion with pain on lumbar extension and oblique extension bilaterally. Reflexes were normal, other than the quadriceps were they were hypoactive. Sensation was decreased in the left lower extremity in general and in the right great toe. Lower extremity strength was between 3 and 5 out of 5, depending on the muscle group. A June 2013 VA back examination is of record. The Veteran reported that in June 2011 she had sacroiliac injections without relief. There was constant severe pain over the low back that radiated to both thighs and the pelvis. The Veteran did not use a back brace. She was unable to walk for more than 100 yards, sit for more than 15 minutes, or stand for more than 15 minutes. The Veteran avoided stairs. The Veteran reported that she had last worked in June 2009 in medical billing, but was unable to sit in front of a computer for any prolonged period of time and taking enough medication to ease the pain resulted in her being fuzzy headed. There were pain flare-ups without known precipitating factors that occurred with frequency, but no regularity, during which time she stayed in bed but not as directed by a physician. Range of motion testing could not be completed because the Veteran was unable to stand unsupported and range of motion testing resulted in her becoming even more unsteady on her feet. There was tenderness to palpation, but lower extremity muscle strength was normal, with no evidence of muscle atrophy. Sensation was decreased in the left lower extremity. The Veteran made constant use of a cane. The examiner noted that the Veteran's back disability impacted her ability to work as discussed above. The Veteran underwent a VA back examination in June 2014. The examiner noted review of the claims file. The Veteran reported worsening pain since her last examination in June 2013. She reported recent right anterior thigh pain and persistent left lower extremity pain involving the entire thigh and calf. The Veteran also experienced intermittent tingling over the bilateral buttocks, with subjective weakness in the lower extremities. The Veteran denied flare-ups related to the back. On examination, forward flexion was to 45 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 25 degrees. In all planes of motion, pain onset was at the endpoint of motion. There was no change with repetitive use testing. Muscle strength was normal in the bilateral lower extremities, but reflexes were absent in the bilateral knees and ankles. Sensation was decreased in the bilateral lower extremities. There was mild intermittent pain, paresthesias, and numbness in the bilateral lower extremities. The Veteran regularly used a cane. The examiner concluded that the Veteran's thoracolumbar spine disability did not impact her ability to work. In May 2015, the Veteran was afforded a VA examination for her back disability. The Veteran reported worsening low back pain along with constant tingling in the left lower extremity since the last VA examination. She was going to start chiropractic treatment soon. The Veteran denied flare-ups related to the back. On testing, forward flexion was to 40 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 25 degrees. There was pain noted on examination in all planes of motion, but the examiner concluded that it did not result in functional loss. There was no evidence of pain on weight-bearing, but there was tenderness to palpation of the lumbar paraspinals. There was no further loss of motion on repetitive use testing. There was no evidence of guarding or muscle spasms. Lower extremity strength was normal. Reflexes were normal at the knees, but absent at both ankles. Sensory examination was normal in the right lower extremity, but decreased in all areas on the left side. Straight leg raising tests were positive on the left and negative on the right side. There was no evidence of radiculopathy of the right lower extremity, but there was moderate intermittent pain, paresthesias, and numbness in the left lower extremity. The Veteran regularly used a cane. This examiner noted that the back disorder did not impact her ability to work. A June 2015 VA mental health examination is of record. The examiner noted review of the claims file and that the Veteran's mental health symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran denied educational or occupational impairments prior to her physical decline and development of depressive mood symptoms. Currently occupational impairment was due to disturbances of motivation and mood; difficulty in establishing and maintaining effective work relationships; intermittent periods of irritability and decreased patience resulting in negative social interactions; decreased concentration; periods of acute anxiety; and, chronic sleep disturbances resulting in daytime fatigue and mental slowness. During the examination, her gait was noted to be slow and the Veteran appeared to be physically uncomfortable and required a cane for stability and for support while walking. The Veteran appeared strained and sleep-deprived and her affect was predominantly flat, which was congruent with her reports of feeling depressed. Otherwise, she was fully oriented with normal thought processes. A July 2016 EMG showed no evidence of lumbar radiculopathy and, as such, surgery was unlikely to provide relief for any radiculopathy symptoms. She was noted to ambulate with a walker. On testing, the Veteran had full strength in the bilateral upper and lower extremities, with decreased sensation in the left lower extremity. A February 2, 2017, VA contract examination for mental disorders is of record. The examiner noted review of the electronic claims file and described the Veteran's mental health symptoms as resulting in occupational and social impairment with reduced reliability and productivity. The Veteran reported that after separation from service she had worked as a bank teller for 1 year, then as a computer operator from 1985 to 1993. After giving birth to her daughter, the Veteran returned to school where she completed a program in medical billing. She then worked in medical and dental billing from 2001 to 2009. She stopped working due to depression and pain that resulted in multiple absences from work. Reported symptoms included depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The Veteran was able to sleep for no more than 20 minutes at a time and spent 20 to 24 hours per day in bed. She had loss of appetite and difficulty concentrating at times. She also described sadness, crying spells, irritability, loss of interest, loss of pleasure, social withdrawal, and apathy. Because of problems dealing with others she tended to isolate herself. The examiner concluded that the Veteran would have difficulty performing simple and complex tasks, learning new tasks, maintaining a regular schedule, having to learn tasks, making decisions in a work setting, relating with others, and dealing with stress. A February 14, 2017, VA contract examination for her back and radiculopathy disorders is of record. The examiner noted review of the civilian records and electronic claims file. The Veteran described her condition as "much worse." On examination, the Veteran had loss of motion of the thoracolumbar spine and pain in all planes of motion. Forward flexion was to 40 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 15 degrees. Pain was noted on examination, but not the specific point of onset of pain in any plane of motion. Repetitive motion testing resulted in no further loss of motion. That said, the Veteran reported that pain, weakness, and lack of endurance limited her functional ability with repeated use over time. The Veteran described the additional limitation as increased pain and decreased endurance and strength, rather than any predictable or usual change in range of motion. Any limitation of range of motion is variable, depending on the severity of episodes and duration and type of activity. The Veteran reported flare-ups that resulted additional functional loss due to pain and weakness. Muscle strength in the lower extremities was between 4 and 5 out of 5, depending on the muscle group. There was no muscle atrophy. Reflexes were normal in the bilateral knee and absent in the bilateral ankles. Sensation was decreased in both lower extremities. In addition, there was constant severe pain, paresthesias, and numbness in both extremities. She regularly used a cane or walker. The examiner concluded that the Veteran's back and radiculopathy conditions were severe enough to markedly limit her ability to perform sedentary and physical activities of employment. She was unable to sit for a long period in one position, stand for long, walk far, walk without assistance, bend to lift, twist her torso, lift or carry objects of significant weight, or manipulate objects by pulling or pushing. The examiner concluded that these disabilities would preclude her ability to secure and sustain substantially gainful employment. The Board finds that the lay and medical evidence establishes that the Veteran has been unable to obtain or retain substantially gainful employment from February 2, 2017, the date of her most recent mental health examination. The evidence demonstrates that her mental health symptoms result in difficulty performing simple and complex tasks, learning new tasks, maintaining a regular schedule, having to learn tasks, making decisions in a work setting, relating with others, and dealing with stress. The spine examination several days later showed significant problems with the low back and radiculopathy affecting both lower extremities. The radiculopathy symptoms were noted to be severe in both extremities, which represents a significant worsening from prior examinations. In addition, the Veteran reported that her low back and radiculopathy problems were "much worse" than at the time of prior examinations. Such lay reports were borne out in the medical examination. The examiner detailed how the Veteran's back and radiculopathy problems were severe enough to markedly limit her ability to perform sedentary and physical activities of employment. She was unable to sit for a long period in one position, stand for long, walk far, walk without assistance, bend to lift, twist her torso, lift or carry objects of significant weight, or manipulate objects by pulling or pushing. The Board recognizes that it is not definitive from the record that the Veteran's low back and radiculopathy problems observed several days later were present at the time of the mental health examination, given her reports that she was unable to sleep for more than 20 minutes at a time due to pain, the Board will afford her the benefit of the doubt that the back and radiculopathy symptoms also were present at the time of the mental health examination. As such, the Board concludes that the above evidence demonstrates that the combination of all these disabilities is such that the Veteran has been unable to obtain or retain substantially gainful employment from February 2, 2017. The Board has considered whether entitlement to TDIU is warranted for the period prior to February 2, 2017. The Board recognizes that the symptoms documented during the above examinations that were the basis for finding entitlement to TDIU warranted likely did not begin on the day of the examinations; however, there is no clear evidence in the record that would permit the assignment of an earlier date. The lay and medical evidence document a "much worse" overall condition from those examinations, but it is unclear precisely when such symptoms started. The prior mental health examination, in June 2015, documented that the Veteran appeared to be sleep-deprived, but the examiner did not specifically attribute the problems to back and/or radiculopathy symptoms. Indeed, a prior May 2015 VA back examination report indicated that the Veteran's back and radiculopathy disabilities did not result in functional loss and testing showed only moderate radiculopathy symptoms in one lower extremity, with no problems in the other extremity. . Prior to that examination the Board also finds no evidence that the Veteran could not work due solely to her service-connected disabilities. Since 2009 when the Veteran reported ceasing work, her combined disability evaluation ranged from 60 to 90 percent, contemplating some effect on employment, especially mobility. She clearly had considerable difficulty due to symptoms related to her service-connected disabilities, but such problems were contemplated in the assigned disability ratings. The Board considers the severe bilateral radiculopathy symptoms, along with the ongoing back and mental health symptoms documented in February 2017 to be more severe to the point that only from that time did her service-connected disabilities, in concert, render her unable to obtain or retain substantially gainful employment. ORDER Entitlement to TDIU is granted from February 2, 2017. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs