Citation Nr: 20002148 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 14-44 116 DATE: January 9, 2020 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since May 13, 2013, is granted. REMANDED The issue of entitlement to an increased disability rating for a lower back disability is remanded. FINDING OF FACT Since May 31, 2013, the Veteran’s impairment caused by her service-connected disabilities renders her unable to obtain or maintain gainful employment. CONCLUSION OF LAW Effective May 31, 2013, the criteria to establish entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.10, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from May 1988 to November 1988. Pursuant to a joint motion for partial remand (JMPR) filed by VA and the Veteran, in November 2019 the Court of Appeals for Veterans Claims (CAVC) vacated the Board’s July 2018 decision and remanded it to the Board for compliance with its instructions. In part, the parties agreed the issue of entitlement to a TDIU was improperly referred to the Agency of Original Jurisdiction (AOJ) and should be adjudicated by the Board on remand. The issue of entitlement to a TDIU is decided below and the remaining issue of entitlement to an increased rating for a lower back condition is remanded for further development consistent with the November 2019 JMPR. Entitlement to a TDIU A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). 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; such cases should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). Provision 38 C.F.R. § 4.16 (a) establishes that the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. Service-connected disability compensation is in effect for urinary incontinence associated with hemi sacralization of the right half of the L5 vertebrae with lumbar degenerative joint disease (DJD) at 60 percent disabling; hemi sacralization of right half of L5 with lumbar DJD at 20 percent disabling; bilateral lower extremity radiculopathies at 20 percent disabling for each limb; and bilateral patellofemoral compression syndrome at 10 percent disabling for each knee. Effective October 2009, the combined rating for these disabilities was 70 percent. Effective September 6, 2017, her combined rating is 90 percent. The initial threshold requirements for entitlement to TDIU are thus met. The question for consideration is whether the Veteran can perform the physical and mental acts required by employment. In November 2019, the Veteran submitted an opinion from a vocational specialist. The examiner indicated she reviewed the entire VA claims file and conducted a telephone interview with the Veteran. The Veteran reported that because of her service-connected bilateral knee conditions, she is unable to sit for more than 30 minutes at a time, stand for more than five to seven minutes at a time without needing to lean on something for support, or walk more than five minutes before needing to rest. She stated she can lift approximately ten pounds but is unable to lift this amount of weight repeatedly. In addition, her back pain limits her ability to bend over and pick up objects. She stated she is unable to climb the steps to her front door and has difficulty performing household chores. She further reported that her urinary incontinence requires her to use the restroom at least 12 to 15 times per day. She reported frequent involuntary leakage and voiding which requires the use of protective undergarments. The Veteran reported graduating high school and completing a certification program in medical administration. With respect to employment history, she reported her last job was as a cashier checker from approximately December 2008 to April 2009. Before that, she worked as a telemarketer, cab driver, wireworker and fast food manager. She held six different positions between October 2004 and April 2009. The examiner reviewed Social Security Administration (SSA) records which indicated she had not had any earnings since 2009. After reviewing VA treatment records and examination reports, the vocational examiner opined the Veteran’s service-connected urinary incontinence significantly impacts her ability to secure and follow substantially gainful employment at any skill or exertional level. Specifically, examiner concluded that the Veteran is unable to focus for at least two hours at a time throughout the workday, attend to work tasks free from distractions, refrain from taking unscheduled breaks, or produce a minimal amount of work while on the job. The examiner further opined that the Veteran’s nighttime voiding would negatively impact her ability to sleep, leading fatigue and lethargy during the day that further hinders concentration. In addition, the examiner opined the Veteran’s knee conditions restrict her ability to bend, stoop, stand or sit for prolonged periods of time. Based on the medical evidence, the examiner concluded the Veteran’s service-connected disabilities cause her to be unable to perform even “sedentary work,” as defined by the Dictionary of Occupational Titles (D.O.T.). The Board finds that the Veteran’s service-connected disabilities have caused her to be unable to secure and follow substantially gainful employment consistent with her education and occupational experience, including sedentary work. Her musculoskeletal disabilities coupled with urinary incontinence present such a severe impairment that her case is “outside the norm” with respect to a similar level of disability under the rating schedule. See Van Hoose, 4 Vet. App. at 363; 38 C.F.R. §§ 4.1, 4.15. Accordingly, a TDIU will be granted, effective May 31, 2013, the date the Veteran’s claim was received. REASONS FOR REMAND The issue of entitlement to an increased disability rating for a lower back disability is remanded. Remand is necessary to obtain a new VA lower back examination that complies with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA lower back examination, consistent with VA rating protocols, to determine the severity of her lower back disability. The entire claims file, including a copy of the Remand and November 2019 JMPR, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. *The examiner must test active and passive range of motion and provide weight-bearing and non-weight-bearing information, or detail why such testing cannot be performed. Range of motion should be expressed in terms of degrees for active AND passive motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. *It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion caused by flare-ups of the Veteran’s disabilities (if the Veteran is not experiencing a flare-up at the time of the examination, the examiner should ask the Veteran to describe the frequency, severity, duration, and type of symptoms experienced during flare-ups and provide an opinion, based on that information). The examiner’s comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss or loss during flare-ups should be expressed in degrees of additional range of motion loss. If there is pain during range of motion testing, the examiner MUST state the degrees where the pain starts. *In summary, the following five items should be described in degrees 1) active range of motion 2) passive range of motion 3) where the pain starts during active range of motion 4) where the pain starts during passive range of motion, and 5) range of motion during flare-ups (which MUST be estimated if the examination is not conducted during a flare-up). A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. It must be made clear that such a finding is based on a lack of knowledge among the medical community at large and not insufficient knowledge of the specific examiner. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 2. Following the review and any additional development deemed necessary, readjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. (Continued on the next page)   The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.