Citation Nr: 20043543 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 10-13 858 DATE: June 29, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from August 9, 2019 is granted. REMANDED Entitlement to a rating in excess of 40 percent for a lumbar spine strain with mild osteoarthritis and mild stenosis is remanded. Entitlement to an initial compensable rating prior to October 2, 2015, to a rating in excess of 10 percent from October 2, 2015 to August 8, 2019, and to a rating in excess of 20 percent thereafter, for radiculopathy of the right lower extremity is remanded. Entitlement to an initial compensable rating prior to October 2, 2015, to a rating in excess of 10 percent from October 2, 2015 to August 8, 2019, and to a rating in excess of 20 percent thereafter, for radiculopathy of the left lower extremity is remanded. Entitlement to special monthly compensation based on the loss of use of the lower extremities or the need for regular aid and attendance is remanded. Entitlement to a TDIU prior to August 9, 2019 is remanded. FINDING OF FACT Resolving doubt in favor of the Veteran, from August 9, 2019, his service-connected disabilities meet the percentage requirements for a schedular TDIU and preclude him from securing and following substantially gainful employment consistent with his work and education background. CONCLUSION OF LAW Effective August 9, 2019, the criteria for a grant of a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1971 to October 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In a June 2016 Board decision, the Veteran was denied an increased rating for his service-connected lumbar spine strain with mild osteoarthritis and mild stenosis and entitlement to TDIU. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 order, the Court granted a Joint Motion for Remand (JMR) vacating that decision and remanding it to the Board. In June 2018, the Board remanded the matter for additional development. During the course of the appeal, the Veteran was granted separate ratings for bilateral lower extremity radiculopathy. Because the radiculopathy is part and parcel of the service-connected lumbar spine disorder, the Board has added these issues to the appeal, to include whether compensable ratings are warranted earlier in the appeal period. Also addressed below will be the issue of entitlement to special monthly compensation based on the loss of use of the lower extremities, or the need for regular aid and attendance, as this issue has been asserted by the Veteran and is part of his increased rating claims. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). 1. Entitlement to a TDIU is granted as of August 9, 2019. The Veteran seeks a TDIU, asserting that his service-connected disabilities are of such severity as to prohibit all forms of gainful employment. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities arising from a common etiology or a single accident are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). In the present case, as of August 9, 2019, the Veteran is service-connected for a lumbosacral strain, with a 40 percent rating, and radiculopathy of the lower extremities, with separate disability ratings of 20 percent for each lower extremity. His combined rating is 60 percent, effective August 9, 2019. As the Veteran’s bilateral radiculopathy arises from his lumbosacral strain, these disabilities may be considered a single disability for the purposes of 38 C.F.R. § 4.16(a). Regarding the Veteran’s education, training, and work experience, he is a high school graduate with approximately two years of college education. He last worked in 2002 as a food service director, and reports working in food service for most of his post-service career. He has described such work as physically rigorous, requiring him to spend most of his workday standing and/or walking around. He also has experience working as a transport driver, also requiring extensive use of his lower extremities. The Veteran has been granted Social Security disability benefits due to a determination of unemployability by the Social Security Administration, although the Board notes this determination was based, in part, on nonservice-connected disabilities. Nevertheless, after review of the entirety of the record, and affording the Veteran the benefit of the doubt, the Board finds a TDIU is warranted. Viewing the evidence as a whole, and resolving doubt in favor of the Veteran, the Veteran’s lumbosacral strain and radiculopathy of the lower extremities result in limited mobility, such that his prior area of employment, food preparation, became essentially impossible. A VA examiner opined in August 2019 that the Veteran’s service-connected disabilities prevented lifting and squatting, as well as walking and standing for prolonged periods. This same examiner opined that sedentary employment was not restricted. Also of record, a private physician, Dr. V.F., submitted a February 2018 opinion statement in which he asserted the Veteran’s pain of the spine and lower extremities was such that any sort of employment requiring extensive use of the lower extremities was prohibited. Furthermore, the Veteran’s low back pain and medication use impaired his concentration and focus. Given the Veteran’s functional impairment due to his combined limitations, and his educational and occupational history, the Board finds the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities prevent him from securing and maintaining gainful employment. Reviewing the evidence as a whole, and resolving reasonable doubt in favor of the Veteran, entitlement to a TDIU is granted as of August 9, 2019. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for a lumbar spine strain with mild osteoarthritis and mild stenosis is remanded. 2. Entitlement to an initial compensable rating prior to October 2, 2015, to a rating in excess of 10 percent from October 2, 2015 to August 8, 2019, and to a rating in excess of 20 percent thereafter, for radiculopathy of the right lower extremity is remanded. 3. Entitlement to an initial compensable rating prior to October 2, 2015, to a rating in excess of 10 percent from October 2, 2015 to August 8, 2019, and to a rating in excess of 20 percent thereafter, for radiculopathy of the left lower extremity is remanded. 4. Entitlement to special monthly compensation based on the loss of use of the lower extremities or the need for regular aid and attendance is remanded. In the June 2018 remand, the Board instructed the agency of original jurisdiction (AOJ) to obtain medical opinion, including opinion as to whether the Veteran’s subjective complaints of functional impairment from lumbar spine pain and bilateral radiculopathy are so severe that he requires a wheelchair. An August 2019 VA examiner noted the Veteran had difficulty getting out of the wheelchair and that he showed weakness of examination but did not opine as to whether the Veteran’s functional impairment from his service-connected disabilities were so severe that he requires a wheelchair. Accordingly, remand is warranted to obtain such an opinion. See Stegall v. West, 11 Vet. App. 268 (1998). In order to determine whether the Veteran is entitled to SMC based on loss of use or the need for regular aid and attendance, the Veteran must be provided the proper notice. Any further appropriate action to develop the Veteran’s claim must be conducted, to include a VA aid and attendance examination if warranted. The Board notes that the development for the SMC claim may impact the Veteran’s claims for higher ratings for his lumbar spine and radiculopathy disabilities. While this matter is on remand, outstanding VA treatment records should be obtained, including any VA treatment records from April 2020 to the present. Entitlement to a TDIU prior to August 9, 2019 is remanded. The issue of entitlement to a TDIU prior to August 9, 2019 is inextricably intertwined with the Veteran’s claims for higher ratings for his lumbar spine and radiculopathy disabilities. Accordingly, the claim for a TDIU prior to August 9, 2019 will be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: 1. Send the Veteran and his attorney appropriate notice of the evidence needed to substantiate a claim for SMC based on loss of use or the need for regular aid and attendance. 2. Obtain VA treatment records from April 2020 to the present. 3. Take any additional appropriate actions to develop the Veteran’s claim for SMC based on loss of use or the need for regular aid and attendance, to include any VA examinations that are deemed warranted. 4. After obtaining any outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should opine as to whether the Veteran’s subjective complaints of functional impairment from lumbar spine pain and bilateral radiculopathy are so severe that he requires a wheelchair. The examiner is asked to explain the reasons behind any opinions expressed. A. Purcell Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.