Citation Nr: 21003119 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 13-08 687 DATE: January 19, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for lumbar spine disc disease status post laminectomy is remanded. Entitlement to a total disability based on individual unemployability (TDIU) prior to May 28, 2013, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1981 to September 1985. This matter comes before the Board of Veterans’ Appeals (Board) from August 2011, September 2013, and December 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In February 2018, a video hearing was held before the undersigned. A transcript of that hearing is of record. This claim was previously before the Board in April 2020, at which time it was remanded for additional development. The RO granted entitlement to TDIU in a September 2020 rating decision and assigned a May 28, 2013 effective date. The Board has recharacterized the Veteran’s TDIU claim in light of this development. 1. Entitlement to an initial rating in excess of 20 percent for lumbar spine disc disease status post laminectomy Pursuant to the April 2020 Board remand, the Veteran received a VA examination in September 2020. When asked to opine whether the results from the July 2011 VA examination would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing, she concluded that it was not possible to verify the range of motion in 2011 without resorting to speculation. She also found that she was unable to describe the functional loss described in the July 2011 examination in degrees based on the that information without resorting to speculation. The Board finds the examiner’s conclusions inadequate, as she did not provide a clear explanation for her inability to provide the requested opinions. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, this claim must be remanded for a new retroactive opinion. 2. Entitlement to a TDIU prior to May 28, 2013 The Veteran has essentially contended that his service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment prior to May 28, 2013. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is considered to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In the process of determining whether unemployability exists for TDIU, 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 any non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes her case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran’s service-connected disabilities prior to May 28, 2013, included: (i) posttraumatic stress disorder (PTSD) (50 percent); (ii) lumbar spine status post laminectomy (20 percent); (iii) left lower extremity radiculopathy (20 percent); (iv) right lower extremity radiculopathy (10 percent); and (v) scarring secondary to lumbar spine disc disease (0 percent). Based upon the above, the Veteran’s combined disability rating does not meet the schedular criteria for a TDIU rating for the period prior to May 28, 2013. See 38 C.F.R. § 4.16(a). There is, however, plausible evidence of record that suggests the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, such that referral to the Director of Compensation Service for a possible extraschedular evaluation for TDIU under 38 C.F.R. § 4.16(b) is warranted. The evidence indicates that the Veteran worked in an office environment but stopped working full time in 2003 due to his low back condition. His mental condition also began affecting his employability, as the Veteran testified in February 2018 that he lost his job because “it just came to a point where I could no longer do it.” While these findings do not preclude the possibility of any employment, they do show that the Veteran’s service-connected disabilities significantly impaired his employability. Since there is probative evidence of record that the Veteran may have been unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, the Board therefore finds that consideration of this TDIU claim for extra-schedular consideration is appropriate under 38 C.F.R. § 4.16(b) for the period on appeal prior to May 28, 2013. In light of this evidence, the Board finds the issue of entitlement to TDIU benefits under 38 C.F.R. § 4.16(b) for the period prior to May 28, 2013, should be referred to the Director of Compensation and Pension Service for adjudication. For these reasons, the Board finds that a remand for this referral is also warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an examiner other than the September 2020 examiner regarding whether the Veteran’s range of motion results from the July 2011 VA examination would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner’s best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. The examiner should also provide an opinion regarding the extent of the Veteran’s functional loss as described in his July 2011 VA examination. To the examiner’s best ability, the additional range of motion loss should be described in degrees based on that information. If the examiner is unable to provide an opinion on the subject, he or she should clearly explain the basis for this decision. If it is not possible to provide a specific measurement 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 examiner (does not have the knowledge or training). 2. Refer the case to the Director of Compensation for an opinion with respect to whether the Veteran is unemployable due to his service-connected disabilities for the period prior to May 28, 2013, under 38 C.F.R. § 4.16(b). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.