Citation Nr: 21065565 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 14-24 491A DATE: October 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 1, 2010 is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 40 percent for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the thoracic spine is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity prior to April 27, 2016 and to a compensable rating thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity prior to April 11, 2014 and to a compensable rating thereafter is remanded. FINDING OF FACT The Veteran's service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment prior to June 1, 2010. CONCLUSION OF LAW The criteria for a TDIU prior to June 1, 2010 are met. 38 U.S.C. § 1155; 5107(b); 38C.F.R. §§3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 38C.F.R. §§3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1953 to January 1955. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) dated in February 2010. The Veteran testified at a Board hearing in February 2017. A copy of the transcript has been associated with the record. In July 2021, the Veteran was notified that the Veterans Law Judge who conducted the February 2017 hearing was no longer employed by the Board, and he was offered another hearing. However, the Veteran did not reply or elect another hearing. Therefore, a decision will be made considering the transcript of record. A January 2020 Board decision denying the claims was vacated by the United States Court of Appeals for Veterans Claims (CAVC) in April 2021. The case has been remanded to the Board. The Board finds that the record contains sufficient evidence to adjudicate the TDIU claim, but as explained below, the remaining issues must be remanded to the AOJ for additional development. 1. Entitlement to a TDIU prior to June 1, 2010 The Veteran filed a claim for a TDIU on June 1, 2010, and is in receipt of a total disability rating from that date. However, a TDIU claim was inferred by the January 2020 Board decision. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). Therefore, the TDIU claim is part and parcel of the Veteran's claim for an increased evaluation for his back disability dated August 12, 2009. Thus, the relevant appeal period for consideration includes the one-year period prior to August 12, 2009. See 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2). Total disability is considered to exist when there is any impairment in 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 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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. 38C.F.R. §4.16 (a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Substantially gainful employment contains economic and noneconomic components. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id. The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). A veteran's disabilities must meet certain rating requirements in order to be eligible for a TDIU. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service connected disabilities or the Veteran's advancing age. 38C.F.R. §§3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Beaty v. Brown, 6 Vet. App. 532, 538 (1994). A rating decision code sheet shows that, from August 2008 to June 2010, the Veteran was service-connected for: major depression associated with thoracic spine degeneration, rated at 50 percent; thoracic spine DDD and DJD, rated at 40 percent; and radiculopathy of the bilateral lower extremities, each rated as 10 percent disabling. His combined rating was 80 percent. As the Veteran had a combined rating of at least 70 percent, and at least one disability rated at 40 percent or more, he met the threshold schedular eligibility requirements for TDIU prior to June 2010. The question, then, is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. As explained in greater detail below, the Board concludes that the Veteran's service-connected physical and mental disabilities rendered him unable to secure or follow a substantially gainful occupation prior to June 1, 2010. The Veteran's records show that he has work history and experience as a farmer, grocery store employee, factory worker, as a carpenter, agricultural broker and broker for exports, and greenhouse volunteer. The Veteran reported that he retired in 1997 from brokerage due to his back problems. He also reported in his TDIU application that his depression prevented him from working, and he had not tried to work since he became too disabled to do so. The Veteran completed four years of high school, but no college, and does not have any other specialized training or education. The Veteran stopped volunteering in the greenhouse prior to August 2008. However, he was noted to have worked with other volunteers, got along well with others, and was a team leader. An outpatient record dated in November 2008 indicates that the Veteran stopped volunteering in the greenhouse due to low back pain; however, records from May 2008 indicate that the Veteran had a relapse and was depressed. The Veteran underwent a VA examination for his spine in December 2008. The Veteran was noted to have had difficulty raising from seated to standing, and ambulated slowly. The examiner observed the Veteran have difficulty removing his shoes and socks for the examination. The Veteran reported that he had pain in his entire spine and bed rest helped alleviate his pain, and that he was "pretty much homebound." He was unable to walk more than a block without taking a break. The Veteran also reported that numbness in his legs caused him to stumble occasionally. The examiner noted that the Veteran was almost completely inactive, given that he spent most of his time sitting or lying down and having to take strong medication. The Veteran was afforded a VA examination for his depression in April 2009. He reported that he had not felt hopeful for many years. The examiner noted that the Veteran enjoyed few activities, experienced sadness and anhedonia, disturbed sleep, and fatigue. The Veteran presented with depressed mood and flat affect, and he had mild memory impairment. Because of his pain, the Veteran preferred to be alone. However, the Veteran reported that he was close to his daughter, brother, and extended family. He had friends and went to church. The Veteran reported that his doctor told him to rest his back periodically throughout the day, and for those reasons he could not work or volunteer. The examiner explained that the Veteran's activities of daily living were impacted by his back, but not his depression. However, the Veteran's mental symptoms, such as poor concentration, fatigue, poor problem solving and decision making, would impair his reliability and productivity and result in absenteeism in any type of employment under any type of supervision. The Veteran had another VA examination of the spine in October 2009. The Veteran provided the examiner with private records dated in 2007 and 2008 indicating he had permanent lifting and carrying restrictions of 20 pounds, and that the Veteran needed short periods of bed rest and analgesics to alleviate pain, which should be given consideration to his duties as a volunteer in the greenhouse. The Veteran reported that his pain was constant and severe, and that his legs occasionally went numb, which had caused him to fall. The Veteran reported he was unable to stand, sit, or sleep without pain, which affected his concentration. An outpatient record in November 2009 reflects that the Veteran tried to stay active, but he found it difficult due to his prescriptions for his back. He was able to visit with friends and stay in contact with his extended family. The Veteran's memory loss was exacerbated by his depression, and he found it hard to focus with his back pain. The Veteran submitted a written statement in February 2010. He reported that he used a cane and a back brace for over a year, and that he stopped volunteering at the greenhouse because of his back. The Veteran reported taking bed rest to alleviate pain every day from around 15 minutes to an hour, several times a day. After reviewing the evidence, the Board concludes that a TDIU is warranted prior to June 1, 2010. The evidence shows that the Veteran has not been substantially gainfully employed during this time frame, given that he reported his last employment was in 1997. Additionally, the Board notes that the Veteran's work at the greenhouse was volunteer work and was not substantially gainful. Furthermore, the Veteran's back disability, radiculopathy, and depression impacted his ability to work before June 2010. The Veteran's psychiatric disability causes social isolation, depressed mood, chronic sleep impairment, and memory loss. The April 2009 VA examiner concluded that the Veteran's psychiatric symptoms would impair the Veteran's reliability and productivity and result in absenteeism in any type of employment. Moreover, the Veteran's back and radiculopathy limit his ability to do physically demanding jobs because of fatigue, pain, and numbness. As noted in the December 2008 and October 2009 VA examinations, the Veteran is limited in his ability to stand, walk, or sit for prolonged periods and requires frequent rest. His pain also impacts his concentration. There is no evidence in the claims file that the Veteran has qualifications or experience that would allow him to work in a job that does not require prolonged standing or sitting. In sum, the preponderance of the evidence shows that the Veteran is limited in his abilities to perform the mental and physical acts required for gainful employment. In conclusion, the Board finds that entitlement to a TDIU is warranted prior to June 1, 2010. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for degenerative disc disease and degenerative joint disease of the thoracic spine is remanded. 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity prior to April 27, 2016 and to a compensable rating thereafter is remanded. 3. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity prior to April 11, 2014 and to a compensable rating thereafter is remanded. The Veteran's is service-connected for a back disability, and radiculopathy of the bilateral lower extremities that is associated with the back disability. Note (1) accompanying the General Rating Formula for Diseases and Injuries of the Spine indicates that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately. The Veteran was afforded a VA examination of the spine in April 2014, in which the examiner noted that the Veteran's urinary incontinence was indicative of "possible prostate problems or urinary retention secondary to narcotic medication unrelated to his back." However, the October 2009 VA examiner indicated that the Veteran used analgesics for his back, and the Veteran has so reported. The April 2014 VA examiner did not provide a rationale for the opinion and did not address the other evidence of record, making it unclear how a distinction could be made between medication for the Veteran's back and any other medication he is taking. Therefore, a remand is required for clarification. Additionally, the October 2009 VA examiner indicated that the Veteran experienced constipation as a side-effect of his medication, and that he also experienced fecal incontinence. Remand is required in order to determine the nature and severity of any bowel disability secondary to the treatment for Veteran's back disability. Regarding the Veteran's claim for increased ratings for radiculopathy, the Board finds that a remand is needed for clarification of findings in the VA examinations and in the outpatient records. The Veteran was afforded VA examinations in April 2014, August 2017, and April 2019, and on all three occasions, the examiners indicated that the Veteran had no signs or symptoms attributable to radiculopathy of the bilateral lower extremities. However, in April 2014, the Veteran had no ankle reflexes. In August 2017, the Veteran had decreased muscle strength and ankle reflexes. In April 2019, the Veteran had decreased muscle strength. The examiners did not indicate what, if not radiculopathy, the symptoms were attributable to. The Board notes that the Veteran has type II diabetes mellitus, and he has had diabetic foot examinations that similarly noted decreased reflexes and pulses, such as in June 2018 and September 2018. The Veteran is not service-connected for diabetes or any complications. The Board is precluded from differentiating between symptoms attributed to a nonservice-connected disability and a service-connected disability in absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, a remand is necessary to determine whether the symptoms of the Veteran's service-connected disability can be distinguished from any nonservice lower extremity symptoms and diagnoses. The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA medical treatment records. 2. Schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected radiculopathy, or by other means if an in-person examination is not feasible. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairment due to the service-connected radiculopathy of the bilateral lower extremities and discuss the effect of the Veteran's service-connected disability on any occupational functioning and activities of daily living. (a.) The examiner should also review the following records: a June 2018 VA outpatient diabetic foot examination; a September 2018 VA outpatient diabetic foot examination; an April 2018 VA outpatient examination indicating edema in the bilateral lower extremities; the October 2009 VA examination; the November 2011 VA examination; the April 2014 VA examination; the August 2017 VA examination; and the April 2019 VA examination. The examiner is asked to address the following: (b.) The examiner should address and discuss whether it is possible to distinguish the symptoms attributable to the Veteran's service-connected radiculopathy of the bilateral lower extremities from the symptoms caused by the nonservice-connected diabetes. The examiner should also address whether the reported symptoms, including numbness, falling, decreased reflexes, absent ankle pulses, and edema, are attributable to the Veteran's radiculopathy of the bilateral lower extremities, or to a nonservice-connected disability. (c.) The examiner should address whether the Veteran experiences any other neurological abnormality associated with his service-connected back disability or treatment therefor, including bladder or bowel impairment. In addressing this query, the examiner should address the October 2009 VA examiner's observations and the April 2014 VA examiner's conclusion. If the examiner concludes that the Veteran has a separate bowel and/or urinary disability associated with his back disability, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the appropriate rating criteria. (Continued on the next page) A fully reasoned explanation for all opinions expressed must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.