Citation Nr: 21004918 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 12-20 999 DATE: January 28, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to higher ratings for a back disability rated as 20 percent disabling from April 4, 2011, and 40 percent disabling from November 19, 2019, is remanded. Entitlement to a rating in excess of 10 percent for the fracture of both bones, left forearm, status post-surgery residuals with arthritis (left forearm disability) for lost wrist motion rated under Diagnostic Code 5215 is remanded. Entitlement to a compensable rating for the left forearm disability for lost flexion of the forearm rated under Diagnostic Code 5206 is remanded. Entitlement to treatment for a psychiatric disorder under 38 U.S.C. § 1702 is remanded. FINDING OF FACT The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 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 with the United States Army from February 1980 to August 1990. In a November 2018 decision issued by a different Veterans’ Law Judge the Board of Veterans’ Appeal (Board) denied service connection for an acquired psychiatric disorder and eligibility for treatment of a psychiatric disorder under 38 U.S.C. § 1702 as well as remanded the claims for increased ratings for the back disability and the left forearm disability as well as the claim for a TDIU. The Veteran appealed the November 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 order, that incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board’s November 2018 decision to the extent that they denied service connection for an acquired psychiatric disorder and eligibility for treatment of a psychiatric disorder under 38 U.S.C. § 1702. Initially, given the JMPR, the Board has recharacterized the claim for treatment under 38 U.S.C. § 1702 to include treatment for any psychiatric disorder. Similarly, the Board has recharacterized the claims for higher ratings for the back disability and the left forearm disability as they appear above because the July 2020 rating decision granted the back disability a 40 percent rating effective from November 19, 2019, as well as granted the left forearm disability a separate, but noncompensable, rating under Diagnostic Code 5206 for lost flexion of the forearm is remanded. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation). The TDIU Claim The Veteran claims that his service-connected disabilities prevent him from working. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The record shows that the Veteran is service-connected for the following disabilities: • A back disability rated as 20 percent disabling from April 4, 2011, and 40 percent disabling from November 19, 2019; • Sciatic nerve radiculopathy of the right lower extremity rated as 10 percent disabling; • Sciatic nerve radiculopathy of the left lower extremity rated as 10 percent disabling; • Femoral nerve radiculopathy of the right lower extremity rated as 10 percent disabling; • Femoral nerve radiculopathy of the left lower extremity rated as 10 percent disabling; • A left forearm disability rated under Diagnostic Code 5215 for lost wrist motion rated as 10 percent disabling; • A left forearm disability rated under Diagnostic Code 5206 for lost flexion of the forearm rated as noncompensable; and • An ear disorder rated as noncompensable. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher when his back disability and radiculopathies are treated as one disability and he has a combined rating of 70 percent. Thus, the question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, while the Board in November 2018 Remanded this issue to obtain a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), neither the Veteran nor his representative provided it while this issue was in Remand status. This impeded the Board’s ability to address this case. Nonetheless, from the existing record, the Board is able to piece together the following vocational history, work experience, and education as well as the impact his service-connected disabilities have on employment. Specifically, a May 2012 letter from the Social Security Administration (SSA) shows that the Veteran has been in receipt of disability benefits since March 2012. Moreover, the June 2011 VA examinations reported that as of the date of these examinations the Veteran had been employed from 10 to 20 years as a mail carrier with the United States Post Office. As to his education, the Board finds that this information is not found in the current record. Significantly, as to the Veteran’s being able to work performing jobs that require for the first time sedentary employment and non-sedentary employment, including his past employment as a mail carrier with the United States Post Office, the Board finds that the medical records show that the problems caused by his service-connected back disability, right and left lower extremity sciatic and femoral nerve radiculopathies, left forearm disabilities rated as lost wrist motion and lost flexion of the forearm, and ear disorder adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, sit or stand for any significant period of time, and carryout jobs that require find hand motor skills like typing/keyboarding and filing documents. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected back disability, right and left lower extremity sciatic and femoral nerve radiculopathies, as well as his left forearm disabilities rated as lost wrist motion and lost flexion of the forearm make it dangerous for the Veteran to work in most non-sedentary employments including his past occupation as a mail carrier. Id. Similarly, the Board finds that that his service-connected disabilities would also make it very difficult to work in most sedentary employments for the first time. Id. Given the above, the Board finds that the Veteran’s service-connected disabilities prevent him from securing or following a “substantially gainful” occupation given his prior vocational history as well as his work experience and the impact his service-connected back disability, right and left lower extremity sciatic and femoral nerve radiculopathies, left forearm disabilities rated as lost wrist motion and lost flexion of the forearm, and ear disorder have on obtaining and maintaining substantially gainful non-sedentary employment for the first time and sedentary employment, including in his past employment as a mail carrier, because of the problems they would cause in any work environment. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history as well as work experience and the impact his service-connected disabilities and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. REASONS FOR REMAND Initially, as to all the remanded issues, the Board notes that as discussed above the Veteran meets the criteria for a TDIU. Therefore, while the remaining issues on appeal are in Remand status, the Veteran, after consultation with his representative, may wish to withdraw these claims (in writing). Entitlement to service connection for an acquired psychiatric disorder is remanded. As to the claim for service connection for an acquired psychiatric, the JMPR vacated and remanded the Board’s November 2018 decision because the June 2011 VA examination it relied upon when adjudicating the claim was not adequate. Specifically, the JMPR found the June 2011 VA examiner’s opinion inadequate because, while the examiner opined that there was no evidence of psychiatric complaints or findings during service or until 2010, service treatment records included a June 1990 Report of Medical History in which the appellant reported having depression or excessive worry and frequent trouble sleeping and the appellant claimed that he was treated for a mental condition in February 1989 while at the Gorgas Army Hospital in Panama for a broken wrist. Therefore, the Board finds that a Remand is required to obtain a new and adequate VA opinion as to the origins of the Veteran’s acquired psychiatric disorder. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). Entitlement to higher ratings for a back disability and higher ratings for left forearm disabilities rated under Diagnostic Code 5215 and Diagnostic Code 5206 are remanded As to the claims for higher ratings for back and left forearm disabilities as well as the claim of service connection for an acquired psychiatric disorder, as noted above, a May 2012 letter from the SSA shows that the Veteran has been in receipt of disability benefits since March 2012. However, neither a request for the supporting medical records nor the records themselves appeal in the claims file. Therefore, the Board finds that a Remand is required to obtain and associate with the record the Veteran’s outstanding SSA records as well as any other outstanding private and VA treatment records. See 38 U.S.C. § 5103A(b); Martin v. Brown, 4 Vet. App. 136, 140 (1993) (in deciding a claim for an increased rating, the SSA’s decision is ‘pertinent’ to a determination of a veteran’s ability to engage in substantially gainful employment, quoting Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992)). Entitlement to treatment for a psychiatric disorder under 38 U.S.C. § 1702 is remanded As to the claim for treatment of a psychiatric disorder under 38 U.S.C. § 1702, as noted in the JMPR, this claim is inextricably intertwined with the above claim of service connection for an acquired psychiatric disorder. Therefore, the Board finds that this claim mist also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). These issues are REMANDED for the following actions: 1. Associate with the record any all medical records and decisions on file with the SSA related to the Veteran’s award of disability benefits. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA’s actions to obtain the records should be prepared and associated with the claims file and the Veteran and his representative should be notified in writing that the records cannot be found. 2. Associate with the record any outstanding VA treatment records. 3. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board and help expedite the case. 4. In order to comply with the JMPR, provide the Veteran with a VA examination to obtain a medical opinion as to the origins of his acquired psychiatric disorders. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a) Provide a diagnosis for all acquired psychiatric disorder. (b) For each diagnosed acquired psychiatric disorder provide an opinion as to whether it is at least as likely as not that it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service. (c) If psychosis is diagnosed, provide an opinion as to whether it manifested in the first post-service year. In order to comply with the JMPR, in providing answers to the above questions the examiner should consider and discuss the service treatment records including the June 1990 Report of Medical History in which the appellant reported having depression or excessive worry and frequent trouble sleeping. In order to comply with the JMPR, the examiner in providing the above opinions must consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology in and/or since service to include the claim that he was treated for a mental condition in February 1989 while at the Gorgas Army Hospital in Panama for a broken wrist. In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.