Citation Nr: 20009745 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 18-46 041A DATE: February 6, 2020 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected tinnitus is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a disability rating in excess of 50 percent on an extraschedular basis for service-connected bilateral pes cavus is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected left upper extremity radiculopathy is remanded. Entitlement to a disability rating in excess of 10 percent prior to September 29, 2017 and in excess of 30 percent thereafter for service-connected degenerative joint disease and intervertebral disc syndrome (IVDS) of the cervical spine is remanded. Entitlement to an effective date earlier than October 15, 2010 for the grant of service connection for degenerative joint disease and IVDS of the cervical spine is remanded. Entitlement to an effective date earlier than October 15, 2010 for the grant of service connection for bilateral pes cavus is remanded. Entitlement to an effective date earlier than October 15, 2010 for the grant of service connection for left upper extremity radiculopathy is remanded. Entitlement to an effective date earlier than October 15, 2019 for the grant of service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran has been assigned a 10 percent rating for tinnitus, which represents the maximum rating authorized under the applicable diagnostic criteria. 2. The Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for the Veteran’s service-connected tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § §§ 1155, 5107; 38 C.F.R. § §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Air Force from January 1975 to January 1980. These issues are on appeal from August 2013 and April 2014 rating decisions. Among other things, the April 2014 rating decision, continued a previous denial of service connection for adjustment disorder with depressed mood. The Veteran disagreed with the denial of service connection in his June 2014 notice of disagreement. A subsequent rating decision granted service connection for adjustment disorder with depressed mood. In July 2019, the Veteran filed a Decision Review Request: Higher Level Review (VA Form 20-0996) indicating disagreement with the evaluation and effective date of the award. The RO promulgated an SOC in April 2019, then a rating decision granting an earlier effective date for the assigned rating in August 2019. The Veteran then filed a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and selected the Direct Review lane. Accordingly, as this separate appeal is part of the Appeals Modernization Act (AMA) appeals process, the Board will not address it herein, and it will be adjudicated in a future Board decision. 1. Entitlement to a disability rating in excess of 10 percent for service-connected tinnitus Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, in part to clarify existing VA practice that only a single 10 percent evaluation may be assigned for recurrent tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. The Veteran is currently in receipt of the maximum 10 percent initial evaluation of his tinnitus. His claim for a schedular rating in excess of 10 percent must therefore be denied as a matter of law. 2. Entitlement to a TDIU A TDIU may be assigned where the combined schedular evaluation for service-connected disabilities is less than total and the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16 (a). The central inquiry is whether service-connected disabilities alone are severe enough to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. § 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration shall be given to the Veteran’s level of education, special training, and previous work experience. Therefore, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. To show he is unable to maintain a substantially gainful occupation, a veteran is not required to submit proof that he is 100 percent unemployable. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). Instead, the regulations contemplate more flexibility in the employability determination. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, compensable disability ratings are in effect for adjustment disorder with depressed mood (rated 70 percent disabling from October 21, 2013); bilateral pes cavus (50 percent disabling from October 15, 2010); left upper extremity radiculopathy (30 percent disabling from October 15, 2010); degenerative joint disease of the cervical spine (10 percent disabling from October 15, 2010 and 30 percent disabling from September 29, 2017); and tinnitus (10 percent disabling from October 15, 2010). The Veteran’s combined schedular rating was 70 percent from October 15, 2010 and 90 percent from October 21, 2013. Therefore, the Veteran meets the schedular criteria for the entire period on appeal. Turning to the evidence of record, the Board notes that the Veteran wrote in his formal application for TDIU that he last worked in April 2009, and that he worked various construction jobs during the last five years he worked. He wrote that his bilateral pes cavus, left upper extremity radiculopathy, and degenerative joint disease prevented him from securing or following any substantially gainful occupation. In August 2011, an Administrative Law Judge (ALJ) with the Social Security Administration (SSA) found that the Veteran had been disabled since April 2009. The ALJ characterized the Veteran’s clubbed feet, degenerative disc disease and depression as “severe” and found that the Veteran would be restricted to “light unskilled work with limited walking,” but that he ultimately did not have the residual functional capacity for the full range of light work. VA examination reports throughout the period on appeal show the Veteran’s service-connected disabilities have negatively impacted his ability to work. A February 2012 VA Foot Disability Benefits Questionnaire (DBQ) indicated the Veteran’s bilateral foot disability impacted his ability to work by limiting his ability to stand and walk. A February 2012 VA Neck DBQ indicated the Veteran’s cervical spine disability limited his ability to walk and led to poor concentration, poor communication, and poor balance. An October 2017 VA Peripheral Nerves DBQ indicated the Veteran’s left upper extremity neuropathy limited his ability to lift objects repeatedly. An October 2017 VA Foot DBQ indicated the Veteran’s pes cavus impacted his ability to work due to foot tenderness and pain with prolonged walking. An October 2017 VA Neck DBQ indicated the Veteran’s cervical spine disability impacted his ability to work because it caused neck pain, stiffness, and difficulty with prolonged bending or heavy lifting. In February 2019 VA Mental Disorders DBQ, a VA psychologist wrote that the Veteran’s psychiatric symptoms of depression and anxiety rendered him unable to perform even simple, cognitively easy work. The examiner also cited the Veteran’s symptoms of low energy and demoralization associated with depression, as well as anger and poor judgment as factors that would hinder his ability to work. VA treatment records show the Veteran’s bilateral foot disability has caused significant functional limitation. The Veteran was consistently noted to be at risk of falling due to his disability. An October 2018 treatment note indicated the Veteran was “not safe to ambulate without shoes and foot braces.” He was found to need retraining and equipment to assist with his activities of daily living. In an May 2019 letter, private doctor H.S. wrote that he interviewed the Veteran, who reported longstanding, constant pain from his disabilities that made it difficult to complete simple tasks like household chores and personal hygiene maintenance. The Veteran reported that his house had recently been made handicap accessible so he could use a wheelchair when necessary, and that he used a golf cart to get around his yard. He further reported that he was unable to remain in the same position for prolonged periods due to his neck and foot pain, and that he was unable to use his left upper extremity for any lifting or repetitive motion of any kind because his arm and hand were too weak and painful to use. Dr. H.S. concluded that the Veteran’s service-connected foot, neck, and left upper extremity disabilities precluded the Veteran from obtaining and maintaining gainful employment. Also in a May 2019 letter, private vocational consultant S.B. concluded that the Veteran was incapable of performing his past work in sales, marketing, construction, or carpentry. She explained that the Veteran’s physical disabilities including bilateral pes cavus, cervical spine disability, and left upper extremity radiculopathy rendered him incapable of physically demanding work, and that he was limited to sedentary or less exertion with use of a hand-held assistive device to ambulate. Further, she described how his psychiatric disabilities rendered him unable to tolerate even simple work stress, interact with others appropriately, control emotional outbursts, or concentrate. Overall, the Board finds that the weight of the evidence establishes that the Veteran’s service-connected disabilities have been severe enough to produce unemployability for the entire period on appeal. The Board finds it probative that multiple VA examiners found that each of the Veteran’s service-connected disabilities negatively impacted his ability to work. Further, VA treatment records confirm the significant impediments caused by the Veteran’s physical disabilities, particularly his service-connected bilateral pes cavus. The letters from private Dr. H.S. and vocational consultant S.B. are also probative, as each included lengthy discussion of the combined impact of the Veteran’s service-connected disabilities in concluding that the Veteran is unemployable. Finally, the Board finds the ALJ’s August 2011 determination and findings to be probative. While SSA uses significantly different criteria in determining disability eligibility, the Board finds that the ALJ’s findings contained relevant conclusions concerning the severity and combined effect of the Veteran’s disabilities on his ability to work. Therefore, resolving all doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU is warranted. REASONS FOR REMAND Although the Board regrets the delay, the remaining issues on appeal must be remanded for further development. At the outset, the Board finds that potentially relevant VA and private medical treatment records are missing from the claims file. The Board notes that VA treatment records are available only through March 2019. Available VA treatment records show the Veteran was referred for a Home Improvements and Structural Alterations (HISA) grant due to the physical limitations caused by his service-connected disabilities. A May 2019 letter from private doctor H.S. indicates the Veteran’s home was made handicap accessible and suggests that the Veteran was told he needed to have surgery on his feet. Unfortunately, records associated with a HISA grant are unavailable. VA treatment records also show the Veteran was referred to an outside provider for physical therapy to treat his cervical spine disability, radiculopathy, and bilateral foot disability. Unfortunately, records of this treatment have not been associated with the claims file. Therefore, remand is warranted to attempt to obtain any outstanding VA and/or private treatment records, including records of physical therapy provided by private practitioners, as well as records associated with any adaptations made to the Veteran’s home. Even further development is warranted for the following disabilities: 1. Entitlement to service connection for sleep apnea VA treatment records indicate the Veteran has a history of sleep apnea, and that he uses a CPAP machine. Additionally, private medical treatment records suggest the Veteran has sleep impairment related to his service-connected disabilities. However, to date, he has not been afforded a VA examination in connection with his claim. Accordingly, remand is warranted to afford the Veteran a VA examination to determine the nature and etiology of any diagnosed sleep apnea. 2. Entitlement to a disability rating in excess of 50 percent on an extraschedular basis for bilateral pes cavus The Board notes that the 50 percent evaluation assigned for the Veteran’s bilateral pes cavus is already the highest possible rating identified in the rating schedule for this disability. 38 C.F.R. § 4.71a. As such, the Board has construed the Veteran’s appeal to represent a claim for an increased rating for this disability on an extraschedular basis. Such an evaluation is warranted pursuant to 38 C.F.R. § 3.321 in the “exceptional case where the schedular evaluation is inadequate.” As previously noted, the evidence of record, including VA treatment records and letters from private practitioners, shows that the Veteran’s bilateral foot disability has caused significant functional limitation. There is some indication that the currently assigned disability evaluation does not adequately contemplate the Veteran’s disability picture, however further information is needed to determine whether referral to the Director, Compensation Service for consideration of an extraschedular rating is warranted. The Veteran was most recently afforded a VA examination in connection with his claim in September 2018. The evidence associated with the claims file since then indicates his bilateral foot disability has worsened in severity. In particular, an October 2018 treatment note indicated the Veteran was “not safe to ambulate without shoes and foot braces,” and he was referred for a possible HISA grant. The May 2019 letter from Dr. H.S. indicates the Veteran required the use of a wheelchair to get around his home and a golf cart to get around his yard. Use of a wheelchair is not noted in the September 2018 VA examination report. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Given the evidence suggesting the Veteran’s pes cavus has worsened in severity, the Board finds that a new examination is warranted. 3. Entitlement to earlier effective dates for bilateral pes cavus, left upper extremity radiculopathy, degenerative joint disease of the cervical spine, and tinnitus In the August 2013 rating decision on appeal, the agency of original jurisdiction (AOJ) continued the initial ratings assigned for bilateral pes cavus, left upper extremity radiculopathy, degenerative joint disease and IVDS of the cervical spine, and tinnitus. In his June 2014 notice of disagreement (NOD), the Veteran specifically indicated disagreement with both the disability evaluation assigned and effective date of award for each disability, though the exact nature of his effective date disagreement is unclear, given that the August 2013 rating decision did not award any benefits. Unfortunately, while the October 2018 statement of the case (SOC) and March 2019 supplemental statement of the case (SSOC) addressed the increased rating claims, they did not address the earlier effective date claims. An April 2019 SOC addressed the effective date of the 30 percent rating assigned for the Veteran’s cervical spine disability—an issue which the Board finds to be subsumed by his increased rating claim for that disability—but did not address any other effective date claim related to the cervical spine disability. To date, the AOJ has not issued an SOC addressing the claims for earlier effective dates for these disabilities. When an NOD has been filed, but an SOC has not been issued, the appropriate Board action is to remand the issue to the AOJ for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Therefore, the claims are remanded for issuance of an SOC. Accordingly, the matters are REMANDED for the following actions: 1. Issue an SOC for the issues of earlier effective dates for the grant of service connection for bilateral pes cavus, left upper extremity radiculopathy, degenerative joint disease of the cervical spine, and tinnitus. 2. Obtain and associate with the claims file any outstanding VA treatment records, to include records associated with a possible HISA grant. All efforts to obtain these records should be documented in the claims file. 3. With any necessary assistance from the Veteran, obtain and associate with the claims file any outstanding private medical treatment records relevant to the Veteran’s claim, including records of private physical therapy for the Veteran’s left upper extremity, cervical spine, and bilateral foot disabilities. All efforts to obtain these records should be documented in the claims file. 4. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed sleep apnea. The entire claims file must be provided to the examiner for review, and the examination report should reflect that such a review was accomplished. Any clinically indicated testing and/or consultations must be performed. Following a review of the claims file and examination of the Veteran, the examiner is to address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s disability was incurred during active service? (b.) If the disability is not found to be directly related to service, is it at least as likely as not (50 percent probability or more) that the Veteran’s disability was caused or aggravated (increased beyond the natural progression of the disability) by a service-connected disability? The examiner should note that in answering this question, two opinions are required: one for proximate causation and a second for aggravation. The term “aggravation” means a permanent worsening of a disability beyond its natural progression. In providing the above opinions, the examiner should consider the Veteran’s complete medical history. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. (Continued on the next page)   4. Schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral pes cavus using the most recent DBQ form. The examiner is asked to comment on the nature and severity of any functional impairment caused by the Veteran’s disability. 5. Then, readjudicate the claims and provide the Veteran and his representative a supplemental statement of the case (SSOC) addressing the additional evidence. After allowing an opportunity to respond, return the case to the Board for further review. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, 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.