Citation Nr: 20004401 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 19-05 804 DATE: January 17, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an initial disability rating greater than 30 percent for forehead scar is denied. Entitlement to a compensable initial disability rating for left upper extremity scars is denied. Entitlement to an initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with cannabis and alcohol use disorder is granted. Entitlement to an effective date earlier than January 28, 2015 for the award of service connection for PTSD is denied. Entitlement to an effective date earlier than January 28, 2015 for the award of service connection for cervical strain is denied. Entitlement to an effective date earlier than January 28, 2015 for the award of service connection for lumbosacral strain is denied. Entitlement to an effective date earlier than January 28, 2015 for the award of service connection for left upper extremity scars is denied. Entitlement to an effective date earlier than January 28, 2015 for the award of service connection for forehead scar is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from November 1, 2016 is granted. Entitlement to TDIU prior to November 1, 2016 is denied. REMANDED Entitlement to an initial disability rating greater than 20 percent for cervical strain is remanded. Entitlement to an initial disability rating greater than 10 percent for lumbosacral strain is remanded. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence weighs against finding that the Veteran has bilateral hearing loss for VA purposes. 2. The Veteran’s forehead scar is not manifested by visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; four or five characteristics of disfigurement. 3. The Veteran’s left upper extremity scars are not manifested by any disabling effects not considered under Diagnostic Codes 7800-04. 4. The Veteran’s PTSD is manifested by occupational and social impairment in most areas. It is not manifested by total social impairment. 5. The Veteran initially filed a service connection claim for PTSD on January 28, 2015. Service connection was awarded effective from that date. 6. The Veteran initially filed a service connection claim for cervical strain on January 28, 2015. Service connection was awarded effective from that date. 7. The Veteran initially filed a service connection claim for lumbosacral strain on January 28, 2015. Service connection was awarded effective from that date. 8. The Veteran initially filed a service connection claim for left upper extremity scars on January 28, 2015. Service connection was awarded effective from that date. 9. The Veteran initially filed a service connection claim for forehead scar on January 28, 2015. Service connection was awarded effective from that date. 10. The Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities from November 1, 2016. 11. The Veteran was able to obtain or retain substantially gainful employment due to his service-connected disabilities prior to November 1, 2016. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 2. The criteria for an initial disability rating greater than 30 percent for forehead scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7800 (2018). 3. The criteria for an initial compensable disability rating for left upper extremity scars have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805 (2018) 4. The criteria for an initial disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2018). 5. The criteria for an effective date earlier than January 28, 2015 for entitlement to service connection for PTSD have not been met. 38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 6. The criteria for an effective date earlier than January 28, 2015 for entitlement to service connection for cervical strain have not been met. 38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 7. The criteria for an effective date earlier than January 28, 2015 for entitlement to service connection for lumbar strain have not been met. 38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 8. The criteria for an effective date earlier than January 28, 2015 for entitlement to service connection for left upper extremity scars have not been met. 38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 9. The criteria for an effective date earlier than January 28, 2015 for entitlement to service connection for forehead scar have not been met. 38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 10. The criteria for entitlement to TDIU from November 1, 2016 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2018). 11. The criteria for entitlement to TDIU prior to November 1, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1996 to February 1999. He appeals two September 2016 rating decisions by the Agency of Original Jurisdiction (AOJ) granting service connection for PTSD with cannabis and alcohol use disorder, cervical strain, lumbosacral strain, forehead scar, and left upper extremity scars effective January 28, 2015. The Veteran disagreed with the ratings and effective date assigned. The decision also denied service connection for hearing loss. In a January 2020 rating decision, the AOJ increased the Veteran’s PTSD rating to 50 percent and forehead scar to 30 percent effective January 28, 2015. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Hearing loss has been interpreted as such disease. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology is required only where the condition noted during service or in the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In the absence of proof of a present disability, there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for service connection that a current disability be present is satisfied when a Veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 322-23 (2007). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran underwent VA examination in August 2016 to determine whether he had bilateral hearing loss for VA purposes. At that examination, the Veteran did not register audiometric testing results exhibiting hearing loss for VA purposes. Specifically, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 10 10 LEFT 10 15 15 10 15 Speech audiometry revealed speech recognition ability of 100 percent in both ears. The Veteran does not have bilateral hearing loss for VA purposes. He is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. The Board finds that determining the etiology of the Veteran’s hearing symptoms is not within the realm of knowledge of a non-expert and concludes that his opinion in this regard is not competent evidence and therefore not probative of whether he has bilateral hearing loss for VA purposes. To that end, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). As such, without a current disability, the Veteran lacks the evidence necessary to substantiate his claim for service connection. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Veteran does not currently have bilateral hearing loss for VA purposes, the Board denies the claim. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. 1. Forehead Scar The Veteran’s forehead scar is rated under Diagnostic Code 7800, for burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7800 was not changed by the August 13, 2018 amendments. Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 square centimeters); skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. The Board finds that the preponderance of the evidence is against the assignment of a rating greater than 30 percent under Diagnostic Code 7800 because he does not have visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features, or; four or five characteristics of disfigurement. Here, the Veteran’s forehead scar is two centimeters long and one centimeter wide; its surface contour is elevated on palpation. See, e.g., October 2018 and August 2016 VA examination reports. However, the approximate area of head, face, and neck with hypo or hyperpigmented areas is two centimeters. Id. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s forehead scar is not deep and non-linear and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does do not cover an area or areas of 144 square inches or greater. Moreover, the Veteran’s forehead scar is not unstable or painful. Therefore, Diagnostic Codes 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018 Diagnostic Code 7805. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial rating greater than 30 percent for forehead scar. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Left Upper Extremity Scars The Veteran’s left upper extremity scars are rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. Here, the left upper extremity scars do not exhibit underlying soft tissue damage, their total area does not exceed 10.5 square centimeters at best, and they are neither unstable or painful. See, e.g., October 2018 and August 2016 VA examination reports. As stated above, VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018 amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s left upper extremity scars under Diagnostic Code 7805 as there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s left upper extremity scars are not of the head, face, or neck, are not deep and non-linear, and are not associated with underlying soft tissue damage. Although they are superficial and not associated with underlying soft tissue damage, the scars do not cover an area or areas of 144 square inches or greater. Moreover, the Veteran’s left upper extremity scars are not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for left upper extremity scars. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. PTSD Here, the Veteran contends that his PTSD is more severe than his assigned disability rating would indicate. The incident in service that caused his PTSD involved a devastating car crash where, as a passenger, he flew through a windshield and sustained various injuries; the other car had two passengers that died. See September 2016 VA examination report. The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria provide that a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Considering all relevant evidence, the Board finds that a disability rating of 70 percent, but no higher, for the Veteran’s service-connected PTSD is warranted. The Veteran has exhibited occupational and social impairment in most areas. Upon examination in July 2019, the Veteran suffered from the following symptoms: (1) depressed mood; (2) anxiety; (3) panic attacks; (4) near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; (5) chronic sleep impairment; (6) flattened affect; (7) difficulty in understanding complex commands; (8) disturbances of motivation and mood; (9) difficulty in adapting to stressful circumstances, including work or a worklike setting; (10) inability to establish and maintain effective relationships; (11) impaired impulse control; and (12) intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. See July 2019 Dr. K.G. disability benefits questionnaire (DBQ). These symptoms did not spring into existence in July 2019. Upon examination almost two years earlier, the Veteran had been depressed “everyday for most of the day since 2011.” See September 2016 VA examination report. Further, the Veteran has had past suicide attempts, but none since 2000. See July 2019 Dr. K.G. mental assessment. Additionally, his memory loss is more accurately described as difficulty with focus and concentration and getting easily distracted. See September 2016 VA examination report. Ultimately, Dr. K.G. found the Veteran experienced occupational and social impairment with deficiencies in most areas that date back to January 28, 2015. See July 2019 Dr. K.G. mental assessment; July 2019 Dr. K.G. DBQ. However, the Veteran has not exhibited total social impairment. The Veteran currently lives with his ex-wife and their four children ranging in ages from 10-16. See July 2019 Dr. K.G. mental assessment. He has a good relationship with his family. See October 2018 VA treatment record. While he does tend to isolate himself socially, he and his ex-wife go out on occasion to a restaurant that is intimate without many people around. See July 2019 Dr. K.G. mental assessment. The Veteran also does not have peristent hallucinations, is not a persistent danger of hurting himself or others and remembers his own name. While the Veteran does exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a rating higher than 70 percent. Hence, the criteria for a finding of a 100 percent evaluation are not met. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms remained constant at 70 percent levels for his PTSD, staged ratings are not warranted. Thus, the evidence is in equipoise and the Board finds that the criteria for an increased rating of 70 percent, but not higher, for PTSD have been met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The Veteran seeks an effective date earlier than January 28, 2015 for the award of service connection for PTSD, cervical strain, lumbosacral strain, left upper extremity scars, and forehead scar. However, a review of the claims file shows that the Veteran did not file a formal or informal application for service connection for any of these claims prior to January 28, 2015. As such, the AOJ has assigned the earliest possible effective date provided by law and an earlier effective date is not warranted. TDIU The issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). 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. 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 because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran contends that he became too disabled to work because of his service-connected disabilities in 2016. See July 2019 Dr. K.G. mental assessment. He became a certified nurse assistant in 2001 and worked in that capacity at various facilities for 15 years afterwards. See September 2016 VA examination report. His Social Security (SSA) earning records show he worked full-time in 2015 and 2016; however, he stopped working sometime in 2016. See May 2019 SSA earnings report. Another VA treatment record shows the Veteran worked as a nurse’s aide until November 2016. See October 2018 VA treatment record (emphasis added). At his September 2016 VA examination, the Veteran said he worked 45 hours some weeks and not at all during others. See September 2016 VA examination report. Based on the totality of the evidence, the Board finds the Veteran worked full-time until November 1, 2016. The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. As explained below, the medical and lay evidence of record shows that the Veteran’s service-connected disabilities prevented him from obtaining substantially gainful employment from November 1, 2016. Throughout the rating period, the Veteran has been service-connected for PTSD, forehead scar, cervical and lumbosacral strains, left upper extremity scars, and right shoulder scars. He has been service-connected for tinnitus from December 9, 2015. Based on a comprehensive orthopedic examination, the Veteran had pain with physical activity and moving his head. See August 2016 VA examination report. Further, at the time of his August 2016 examination, the Veteran’s pain worsened with certain movement and weather changes “which impact[ed] his ability to work as a nurse aid[e] at times since his job [could be] physically taxing.” See August 2016 VA examination report. This orthopedic examination is consistent with his later statements that his neck hurts daily and that he has difficulty walking and standing for prolonged distances and time. See October 2018 VA examination report. As to his psychiatric limitations, Dr. K.G. found the Veteran’s cannabis and alcohol use, which is service-connected because of his PTSD, would lead to numerous safety, behavioral, and competency issues in the workplace. See July 2019 Dr. K.G. mental assessment. Further, his poor focus would result in a loss of productivity daily. Importantly, based on his history of anger leading to control loss and violence, the Veteran would be quick-tempered in a work setting. As a result, the Veteran would be expected to become “confrontational or argumentative toward supervisors or co-workers – even leaving the job site without notice.” Id. Here, a residual function capacity (RFC) questionnaire showed that the Veteran would miss three days or more of work a month due to mental problems. See July 2019 Dr. K.G. RFC. He would also need to leave work early three days or more a month. Importantly, Dr. K.G. found that the Veteran would not stay focused for at least seven hours of an eight-hour workday more than three days per month because of his psychiatric problems. Ultimately, Dr. K.G. opined the Veteran’s PTSD would prevent him from obtaining and maintaining substantially gainful employment because he “cannot tolerate the stress from a competitive work environment or be expected to engage in gainful activity.” See July 2019 Dr. K.G. mental assessment. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical clinician. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical clinician’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the Veteran’s physical symptoms hindered his ability to stand and walk for prolonged periods of time. Additionally, his psychiatric symptoms made it difficult to concentrate and complete tasks and could irreconcilably damage the personal relationships at work needed to perform his duties. Therefore, the Veteran’s service-connected disabilities at least as likely as not prevented him from obtaining and maintaining gainful employment from November 1, 2016. However, as stated above, the Board also notes that the Veteran continued to work full-time until November 1, 2016 as a nurse’s aide and made over $17,000 that year. Such a job does not constitute marginal employment. See Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring). Accordingly, the criteria for TDIU from November 1, 2016, have been met. Further, the criteria for TDIU prior to November 1, 2016 have not been met. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). REASONS FOR REMAND VA afforded the Veteran examinations in August 2016 and October 2018 to assess the current severity of his lumbosacral and cervical strains. However, the Board finds that the examinations are inadequate for adjudication purposes. At both examinations, the Veteran described flare-ups and function loss related to his neck and back strains. However, when determining whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or with repetitive use over time, the October 2018 examiner determined he was unable to say without mere speculation, as “[t]here is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” See October 2018 VA examination report. The examiner also was not able to estimate loss of range of motion for the same reason. Id. In Sharp v. Shulkin, the Court held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran’s flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not “estimate the [Veteran’s] functional loss due to flares based on all the evidence of record (including the [Veteran’s] lay information) or explain why [he or she] could not do so.” 29 Vet. App. 26, 35 (2017). However, the examiner’s opinion is inconsistent with the Veteran’s credible statements regarding his increased pain in cold weather, inability to lift his arms, and impaired ability to walk and stand for prolonged time and distances. See October 2018 VA examination report. Id. Further, the Court in Sharp rebuffs such an explanation, and additional VA examination of the Veteran’s lumbosacral and cervical spine must be scheduled to comply with Sharp. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his cervical and lumbosacral disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. After completing directive #1 above, schedule the Veteran for an examination of the current severity of his cervical and thoracolumbar spine. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). 3. After completing directives #1-2 above to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Salazar, Associate Counsel 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.