Citation Nr: 21003245 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 11-19 362 DATE: January 21, 2021 ORDER Entitlement to service connection for right lower extremity radiculopathy is granted. Entitlement to an earlier effective date for a total disability rating due to individual unemployability (TDIU), from June 30, 2012, is granted. REMANDED Entitlement to a rating in excess of 10 percent for recurring abscesses with lichen simplex chronicus and residual scarring is remanded. Entitlement to a rating in excess of 10 percent for tension headaches is remanded. FINDINGS OF FACT 1. The Veteran’s right lower extremity radiculopathy was caused by service-connected lumbar strain. 2. The Veteran’s service-connected disabilities precluded the Veteran from securing and following gainful employment, beginning June 30, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for entitlement to an earlier effective date for TDIU, beginning June 30, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 to November 1985 and from May 1990 to August 1994. The Veteran provided testimony before the undersigned Veterans Law Judge in March 2013. The Board remanded the matters for further development in November 2014. In a rating decision dated April 2014, the Regional Office (RO) granted TDIU with an effective date of January 14, 2014. In a rating decision dated May 2016, the RO granted an earlier effective date of March 18, 2013 for TDIU. However, pursuant to Harper, the issue of TDIU prior to March 18, 2013 is still pending in conjunction with the claims for increased rating. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 1. Entitlement to service connection for right lower extremity radiculopathy Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran was provided with a VA peripheral nerve condition examination in July 2016. The examiner diagnosed the Veteran with sciatica to bilateral lower extremities. The examiner found the right lower extremity radiculopathy was more than likely caused by the Veteran’s service-connected lumbago. Lumbago is a “pain in the lumbar region”. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1092, 1687 (31st ed. 2007). An addendum VA opinion was provided by a different medical professional in July 2016. The examiner found the Veteran’s right leg sciatica was less likely than not proximately due to or a result of the veteran’s service-connected lumbar strain. 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, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). The July 2016 VA examiner provided a positive nexus opinion, and the July 2016 VA addendum examiner provided a negative nexus opinion. The examiners reviewed the Veteran’s claims file and provided rationales for the conclusions reached; therefore, the Board finds that they are entitled to equal weight of probative value. As such, the Board concludes the evidence regarding a nexus between right lower extremity radiculopathy and service-connected lumbar strain is in relative equipoise; therefore, a nexus has been established. The benefit of the doubt is afforded to the Veteran, and, accordingly, the Board finds that service connection for right lower extremity radiculopathy is established; accordingly, the Veteran’s claim is granted. 2. Entitlement to an earlier effective date for TDIU Total disability is considered to exist when there is any impairment that 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 ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In his March 2013 TDIU application, the Veteran reported that he last worked full- time in June 2012 and became too disabled to work in March 2012. He noted that he worked without monetary compensation but was provided with living quarters between 2009 and 2019. The Veteran has met the schedular criteria for consideration for TDIU under 38 C.F.R. § 4.16(a) since he reports he became too disabled to work in March 2012. Specifically, the Veteran was entitled to a 90 percent combined disability rating. The evidence shows the Veteran last worked full-time in June 2012. See March 2013 VA Form 21-8940; March 2013 VA Form 21-4192; March 2013 VA Form 21-4192; April 2013 Buddy Statement; May 2013 Buddy Statement. Since June 2012, the Veteran’s employment has been part-time and marginal. Although the Veteran is currently entitled to TDIU based upon the date of claim, the Veteran’s claim for TDIU was raised during the increased rating claims remanded in the decision herein. Accordingly, the increased rating claims encompass the claim for TDIU, and the appellate period dates back to March 2009. While the Veteran indicated an unemployability date of March 2012, the Board finds the evidence shows that he has been unable to secure or follow a substantially gainful occupation since he last worked full-time in June 2012. Due to the evidence showing the Veteran has not been gainfully employed since June 2012, the Veteran is granted TDIU, beginning June 30, 2012. REASONS FOR REMAND 1. Recurring abscesses The Veteran was last afforded VA scar and skin examinations in June 2018. The Veteran provided VA treatment records of an emergency visit for eczema in October 2019. The Veteran also submitted photographs in March 2019 which show the scars on the buttocks and behind the knee have grown; and reported pain behind his knee leg and his buttocks in March. There is evidence the Veteran’s disability may have worsened; accordingly, upon remand, the Veteran should be afforded a new VA examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Tension headaches The Veteran was last afforded a VA headache examination in January 2014. In August 2016 VA Form 9, the Veteran reported new symptoms such as changes in vision and nausea due to his headaches. He would also have to sit or lie down in a dark and quiet room during the headaches. The Veteran’s VA examination is approximately 7 years old, and there is evidence the Veteran’s disability may have worsened; accordingly, upon remand, the Veteran should be afforded a new VA examination. Snuffer, supra. The matters are REMANDED for the following action: 1. Afford the Veteran a VA skin examination, with a qualified medical professional, to ascertain the current severity and manifestations of the recurring abscesses with lichen simplex chronicus and residual scarring. The claims file must be reviewed by the examiner. The most up-to-date Disability Benefits Questionnaire must be employed, and all opinions and conclusions must be supported by a rationale. 2. Afford the Veteran a VA headache examination, with a qualified medical professional to ascertain the current severity and manifestations of the tension headaches. The claims file must be reviewed by the examiner. The most up-to-date Disability Benefits Questionnaire must be employed, and all opinions and conclusions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. N. Quarles, 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.