Citation Nr: 20032017 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 17-32 698 DATE: May 6, 2020 REMANDED Entitlement to an increased evaluation for an acquired psychiatric disorder, to include a mood disorder, currently rated as 30 percent disabling, is REMANDED. Entitlement to service connection for a left hand disability, secondary to a service-connected left wrist disability, is REMANDED. Entitlement to service connection for a back disability is REMANDED. Entitlement to a total disability rating due to individual unemployability (TDIU) is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Army from February to August 1966, and from July 1971 to November 1972. In February 2020, the Board addressed the three issues on the title page. At that time, the Board concluded that new and material evidence had been received sufficient to reopen a final denial of entitlement to service connection for a back disorder. The Board determined that a remand to the agency of original jurisdiction (AOJ) was necessary for initial review of additional medical treatment notations that were associated with the claims file. The Board now finds that the AOJ complied with the Board’s remand directives. Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claims prior to final adjudication. 1. Entitlement to an increased evaluation for an acquired psychiatric disorder, to include a mood disorder, currently rated as 30 percent disabling, is remanded. In August 2015, the Veteran underwent a VA examination that considered the severity of the service-connected acquired psychiatric disorder. The VA examiner noted diagnoses for a mood disorder due to general medical condition, depressive and an unspecified anxiety disorder. The VA examiner noted that, “(s)ymptoms of Anxiety/Depression overlap in areas of sleep disruption, irritability, isolation / withdrawal, avoidance, poor concentration & memory and cannot be further separated without speculation.” The VA examiner identified the following level of occupational and social impairment: “(o)ccupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.” At that time, the Veteran relayed that, “current family relationship as ‘doing good.’ . . . I have some friends at church and talk to them there, we go on Wednesday nights and Sunday mornings and evenings, but I don't go out to see anyone.” The Veteran also relayed that, “frequent episodes of anxiety, with excessive worrying, trouble relaxing, feels tense most of the time, and frequent irritability, limited frustration tolerance, that he noted does not result in arguing with family, ‘I just keep it in and go off by myself. I go to my building outside and work or go for a walk. I don’t argue with them. It took a toll on my wife, and now it still bothers her when I won’t talk but that way I don’t have any issues with anger to her.” (emphasis added). In December 2019, the Veteran and his wife supplied sworn testimony to the undersigned Veterans’ Law Judge (VLJ). The Veteran testified that, since the August 2015 VA examination, he struggles with anger issues on a daily basis. The Veteran’s wife testified that, “I’d say about eight days and -- that I can remember that he wouldn’t talk. He wouldn’t eat. He was like a caged animal, you know, just -- I’m sorry to say that like that, but I mean, it was -- I couldn’t deal with him. I couldn’t talk to him. I could, but there was no response than him just like that. It would be over, and then he would, you know, apologize and everything, and I knew that he didn’t know. And then bad dreams at night. I woke up one night, and he had me in a chokehold. And it’s not funny, but you know, I was kind of out there. You know, like, it’s me. It’s me. You know. And I brought him out of it, and he’s always afraid that he’ll hurt me, but he has kicked and elbowed, you know, where he’s fighting. I mean, he’s in ‘Nam, and he’s fighting for his life, and I just keep hollering, you know . . . it’s me. It’s me. Wake up. Wake up. It’s a dream. And (inaudible), because I mean, when he wakes up, he’s just like shaking, and he’s just limp, you know.” The Veteran’s December 2019 hearing testimony suggests an increase in the severity of his service-connected acquired psychiatric disability after the August 2015 VA examination. When available evidence is too old for an adequate evaluation of the Veteran’s current disability, VA’s duty to assist includes providing a more current examination. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board, therefore, concludes that the Veteran must be scheduled for a new examination for his service-connected acquired psychiatric disability. 2. Entitlement to service connection for a left hand disability is remanded. In September 1975, the Veteran’s service treatment records (STRs) were associated with the claims file. In April 1972, it was reported that the Veteran was hit on the left hand by a helicopter tail rotor, which resulted in pain and swelling. The military medical provider supplied the following impression: “cannot rule out navicular fracture.” After review of the claims file, the Board observes that the Veteran has been service connected for the residuals of a left wrist fracture since July 1975. In October 2011, correspondence from the Veteran was associated with the claims file. Therein, the Veteran posited that, “I was working on the main rotor. I started to climb down the ladder and lost my balance, landing on my back on a concrete floor in the hanger. I was taken to the hospital with a broken left wrist . . . I still have a lot of problems with my left wrist. My hand and fingers stay numb & I still have a lot of pain in it.” In November 2016, the Veteran underwent a VA examination that considered the nature and etiology of peripheral nerve conditions. The VA examiner noted a diagnosis for left ulnar neuropathy. The VA examiner reported an August 2016 orthopedic note that assessed, “left wrist tendinitis, left thumb dequervain’s tenosynovitis.” The VA examiner also reported the following June 2016 impression: “(t)here is tendinopathy of the extensor carpi ulnaris shown by thickening of the tendon. The increased signal seen here may be artifact due to the magic angle phenomenon.” The VA examiner opined that, “(t)he condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.” The VA examiner supplied the following rationale: “(u)lnar nerve is medially located & far away from radial head. Radial head has healed without sequelae. Current x-rays do not reflect any residuals of injury. Current diagnosis is ‘Left wrist tendinitis, left thumb dequervain’s tenosynovitis’.” In December 2019, the Veteran and his wife supplied sworn testimony to the undersigned VLJ. At that time, the Veteran confirmed that he has been service connected for a left wrist condition for “40-odd years.” When questioned by the undersigned, the Veteran testified that he initially sought VA treatment for his hand in Huntington, WV in 1976 or 1977. When the undersigned asked for the name of a doctor who had linked the Veteran’s hand condition to service, the Veteran replied that, “(w)ell, if they -- the only way I would know how they would know it is if they got my records from overseas and what I could tell them.” When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). The Board observes that the November 2016 VA examiner did not consider or opine regarding secondary service connection. Consequently, the AOJ should obtain a VA examination report that addresses whether the competently claimed left hand numbness and pain and/or diagnosed left thumb dequervain’s tenosynovitis are secondary to the Veteran’s service-connected residuals of a left wrist fracture. 3. Entitlement to service connection for a back disability is remanded. In September 1975, the Veteran’s service treatment records (STRs) were associated with the claims file. Therein, in August 1972, it was reported that the Veteran was hit by a 2x4 in the right lower back, resulting in a large contusion and marked tenderness. In October 2011, correspondence from the Veteran was associated with the claims file. Therein, the Veteran posited that, “I was working on the main rotor. I started to climb down the ladder and lost my balance, landing on my back on a concrete floor in the hanger. I was taken to the hospital with a broken left wrist and told the doctor that I had injured my back when I fell. They failed to take x-rays of my back. Since the fall, I have had back pain.” Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). The Board observes that the Veteran is competent to report a fall onto a concrete hanger floor while working on a helicopter. In October 2011, correspondence from the Veteran’s brother-in-law was associated with the claims file. Therein, the brother-in-law posited that, “after returning from Germany and his accident there he complained about back . . ..” In June 2013, a report from the Defense Personnel Records Information Retrieval System (DPRIS) was associated with the claims file. The report was generated for the Veteran’s claimed in-service stressor for a posttraumatic stress disorder disability claim. The DPRIS report revealed that, “(t)hey were unable to locate copies of unit records submitted by the 2nd Brigade, 3rd Armor Division for the January – December 1972 time period.” In November 2014, the Veteran’s military personnel records (MPRs) were associated with the claims file. After review, the Board observes that the Veteran was stationed in Germany from November 1971 through November 1972. In November 2016, the Veteran underwent a VA examination that considered the nature of any current thoracolumbar spine conditions. The VA examiner noted diagnoses for degenerative joint disease, spinal stenosis, and degenerative disc disease. For medical history, the VA examiner reported, “(a)t present C/O LBP - worse on walking and standing. . . . Pain is localised without radiation. He has generalized DJD (spine, knees, shoulders). Needs cane to ambulate due to DJD.” In January 2017, a VA disability benefits questionnaire (DBQ) was associated with the claims file. After review of the electronic claims file, the VA physician opined that, “(t)he condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.” The VA physician supplied the following rationale: “STRS reveals that the veteran on 8/20 (NO MENTION OF THE YEAR) was hit by 2X4 in lower back and developed contusion of Right LB. Separation Exam dated 10/3/1972 reveals: in MED Hx - checked –‘NO’ to lower back pain; Med Exam was all normal including # 38 (spine).” In December 2019, the Veteran and his wife supplied sworn testimony to the undersigned VLJ. The Veteran testified that, after 10- or 12-foot fall off a “catwalk,” he had to wear a back brace for four weeks. The Veteran testified that he was supplied a back brace and assigned light duty for eight weeks. The Veteran testified that, “I thought maybe down through the years it would get better, but it never - -” The Veteran testified that, after separation from active duty, he was he was denied factory employment because of his back. When questioned by the undersigned, the Veteran testified that he initially sought VA treatment for his back in Huntington, WV in 1976 or 1977. The Veteran testified that, “I went through a lot of physical therapy at the VA in Huntington, and then I went to -- they would send me to Lexington VA Hospital down there for -- they did -- they put -- they decided the therapy part, they would put the -- I had -- they did a lot of injections in my spine, and they put a -- one time, they put a box on my back on my hip, and they put leads in my back.” The Veteran testified that he received VA back treatment at the Huntington, Lexington, and St. Mary’s (pain) facilities. When the undersigned asked for the name of a doctor who had linked the Veteran’s back condition to service, the Veteran replied that, “(w)ell, if they -- the only way I would know how they would know it is if they got my records from overseas and what I could tell them.” During the hearing, the Veteran’s representative relayed that a competent medical statement on the etiology of the Veteran’s current back condition had not been received. The Board observes that the June 2013 DPRIS report did not address the Veteran’s entire service period in Germany. The Board also observes that the Veteran’s STRs do not contain a notation that reflects the competently identified issuance of a back brace and/or eight weeks of assigned light duty. Consequently, the Board finds that the MPRS and STRs appear to be incomplete for the Veteran’s one-year period of duty in Germany. Therefore, on remand, the AOJ should make another attempt to obtain any outstanding MPRs and STRs for the relevant period, November 1971 to November 1972. After obtaining any outstanding MPRs and STRs, the AOJ should also obtain an addendum VA examination report that addresses the nature and etiology the Veteran’s diagnosed degenerative joint disease, spinal stenosis, and degenerative disc disease.   4. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. In October 2011, the Veteran submitted a VA Form 21-4138. Therein, the Veteran posited that, “due the fall of the pain, it has cost me my job. Has destroyed my mental health.” Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (West 2014). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The ultimate question, however, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, supra. In February 2013, the Veteran’s attorney requested a status check on the TDIU claim. In May 2013, the Veteran’s attorney submitted a Medical Assessment of Ability to do Work-Related Activities (physical). Therein, it was reported that lifting/carrying, standing/walking, sitting, and postural activities were affected by impairments. However, the Board observes that the Rehabilitation Service Commission did not identify the impairments that limited the Veteran’s work-related abilities. Moreover, the reporting examiner/provider did not identify the medical findings that supported the multiple assessment(s) provided. In December 2019, the Veteran and his wife supplied sworn testimony to the undersigned VLJ. The Veteran testified that, “(t)e job I was doing, that when I had to quit again, they had to carry me out of a field. I was just pulling grass and stuff like this, and my back went completely out. That was in ’96, I think it was, and that was the last day I worked.” The Board concludes that the issue of TDIU has been raised by the record through the Veteran’s October 2011 written statement and December 2019 Board testimony. To date, the AOJ has not considered the issue of the Veteran’s possible entitlement to TDIU. To date, no opinion has adequately discussed the Veteran's functional limitations, as a result of his service-connected disabilities, on his ability to secure and follow substantially gainful employment. The Board notes that he ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one. Rather, that determination is for the adjudicator. That said, the Board finds that the Veteran should be afforded an examination or examinations that provide a full description of the effects of his service-connected disabilities on his ordinary activities, to include his employability. See 38 C.F.R. § 4.10; see also Floore v. Shinseki, 26 Vet. App. 376, 381 (2013); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). If the Board determines that further action by the AOJ is necessary with respect to TDIU, the Board should remand, rather than refer, the TDIU issue for further development. See VAOPGCPREC 6-96 at para. 12, 13 (August 16, 1996); Cf. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995). Therefore, the Veteran’s claim must be remanded so that the AOJ can develop and consider whether a TDIU is warranted. Consequently, the matters are REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA, Federal, or private health care providers. With the Veteran’s assistance obtain copies of any pertinent records and add them to the claims file. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c) (2017). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. The AOJ should contact the appropriate agency or agencies and request any outstanding MPRs and STRs for the Veteran’s one-year period of service in Germany, November 1971 to November 1972 3. The AOJ should secure the appropriate VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected acquired psychiatric disability. Access to the VBMS and Legacy Content Manager electronic claims files must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement about the effect(s) of the Veteran’s service-connected acquired psychiatric disability on the Veteran’s occupational functioning and daily activities. The VA examiner should provide a complete rationale for any opinions provided. 4. The AOJ should obtain a VA examination report that addresses the nature and etiology of the competently claimed left hand numbness and pain and/or diagnosed left thumb dequervain’s tenosynovitis . Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following question: Is it at least as likely as not (i.e. a 50 percent probability or greater) that the competently claimed left hand numbness and pain and/or diagnosed left thumb dequervain’s tenosynovitis currently endured by the Veteran was either (i) caused by or (ii) aggravated by the Veteran’s service-connected residuals of a left wrist fracture? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, No. 16-2157, 2019 U.S. App. Vet. Claims LEXIS 994 (June 14, 2019). If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. It should be noted that the Veteran, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. Explanations for all opinions must be provided. While providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran’s statements regarding the onset of his left hand numbness and pain. 5. The AOJ should secure an examination report that addresses the nature and etiology of the Veteran’s diagnosed degenerative joint disease, spinal stenosis, and degenerative disc disease. The claims file should be made available to, and be reviewed by, the examiner, and it should be confirmed that such records were reviewed. The examiner should: For the diagnosed degenerative joint disease, spinal stenosis, and degenerative disc disease, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to the Veteran’s one-year period of service in Germany, November 1971 to November 1972. In addressing this inquiry, the examiner should indicate whether the Veteran’s current back disability is consistent with and related to his reported all while performing maintenance on a helicopter. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran’s own history and contentions. 6. The AOJ should develop the TDIU claim as necessary, i.e., VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information). 7. Thereafter, the AOJ should refer the Veteran’s claims folder to an appropriate examiner to conduct a complete review of the medical evidence that takes into consideration all of the Veteran’s service-connected disabilities (Mood Disorder Due to Medical Condition, Depressive Type with Anxiety Disorder, Essential Hypertension, Left Wrist Fracture Residuals, Tinnitus, and Bilateral Hearing Loss). The examiner(s) should describe any occupational impairment resulting from the Veteran’s service connection disabilities either singly or when considered in combination. The examiner must review the entire claims folder and such review must be noted in the examination report. The examiner must provide a complete rationale for any opinions expressed. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. 8. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the remaining issues on appeal. If the benefit(s) sought are not granted, the AOJ must issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his attorney an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.