Citation Nr: 21065824 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-48 302 DATE: October 27, 2021 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for the Veteran's cervical spine disability. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for the Veteran's headache disability. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for the Veteran's lumbar spine disability. A total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for the Veteran's cervical spine disability is remanded. Entitlement to service connection for the Veteran's headache disability is remanded. Entitlement to service connection for the Veteran's lumbar spine disability is remanded. FINDINGS OF FACT 1. In a January 1992 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) initially denied a claim of entitlement to service connection for a cervical spine disability. The issue was most recently denied once again in a May 2015 rating decision. No new and material evidence was received within a year of the issuance of the May 2015 decision, and it became final. Evidence received since the May 2015 rating decision relates to prior unestablished facts. 2. In an October 1995 rating decision, the RO initially denied a claim of entitlement to service connection for a headache disability. However, the Veteran filed additional evidence, so the RO issued a July 1997 rating decision denied service connection for this disability again. The issue was most recently denied once again in a May 2015 rating decision. No new and material evidence was received within a year of the issuance of the May 2015 decision, and it became final. Evidence received since the May 2015 rating decision relates to prior unestablished facts. 3. A May 2015 rating decision denied service connection for the Veteran's lumbar spine disability. The Veteran did not perfect an appeal of that decision and it accordingly became final. Evidence received since the May 2015 RO decision relates to prior unestablished facts. 4. The Veteran's service-connected disabilities prevent him from securing and maintaining a substantially-gainful occupation. CONCLUSIONS OF LAW 1. The May 2015 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a cervical spine disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The May 2015 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 3. The May 2015 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a headache disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 4. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to September 1991. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a January 2017 rating decision and a March 2017 rating decision of the RO. The Veteran selected a hearing with a Veterans Law Judge on his September 2017 VA Form 9. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. New and Material Evidence As indicated above in the Conclusions of Law section, the Board finds that new and material evidence has been received to reopen the previously denied claims of entitlement to service connection for the Veteran's cervical spine, lumbar spine, and headache disabilities. Accordingly, to this extent, the Board grants the Veteran's appeal. In support of this determination, the Board first notes that these issues were initially denied in rating decisions issued in January 1992, July 1997, and May 2015. Regarding the cervical spine disability, in its January 1992 rating decision, the RO found that there were no residuals from the Veteran's in-service injury found on examination because there was normal range of motion and the examination of the back revealed that it was normal. Additionally, in the July 1997 rating decision, the RO found that the Veteran's service treatment records (STRs) were negative for complaints for a chronic headache disability and there was no evidence of continuity of treatment for a chronic headache disability. Lastly, in the May 2015 rating decision, the RO found that the Veteran's lumbar spine disability did not occur during service and was not caused by service. The Veteran was notified of these decisions via letters issued in February 1992, August 1997, and June 2015. The Veteran neither appealed nor submitted any evidence within one year of notification of these rating decisions. Accordingly, the January 1992, July 1997, and May 2015 rating decisions became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 19.52, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The issues of service connection for the Veteran's cervical spine, lumbar spine, and headache disabilities were addressed by the RO in the May 2015 rating decision. In this decision, the RO declined to reopen the issues of service connection for the Veteran's cervical spine and headache disabilities as it concluded that no new and material evidence had been received. In this decision, the RO also initially denied service connection for the Veteran's lumbar spine disability. The Veteran was notified of this decision in June 2015 and, as he neither appealed nor submitted any evidence within one year of notification, the May 2015 rating decision became final. See Id. Generally, to reopen a previously denied, final claim, a claimant must present new and material evidence. See 38 U.S.C. § 5108. Evidence is "new" if it was not previously submitted to agency decision makers. Evidence is "material" if, when viewed by itself or with other evidence previously of record, it relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the May 2015 rating decision, the VA has received buddy statements, a VA medical opinion, private treatment records, and lay testimony. This evidence is "new" i.e., materials not previously submitted to agency decision makers and is also material i.e., addresses the reasons for the prior denial. Specifically, the Veteran was afforded a VA examination for his cervical spine disability. Also, regarding his lumbar spine and headache disabilities, the Veteran testified that he began experiencing back pain and headaches in service following an in-service neck injury. See July 2021 Board Hearing Trans. pp. 9-12. Further, the buddy statements submitted by the Veteran's family, friends, and co-workers affirm the Veteran's testimony that he has shown signs of cervical and lumbar spine pain since service. See October 2016 Statements in Support of Claim. As such, the Board finds that the application to reopen the previously denied claims must be granted. A total disability rating based on individual unemployability (TDIU) is granted. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 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 (1991); see Friscia v. Brown, 7 Vet. App. 294 (1994); Beaty v. Brown, 6 Vet. App. 532 (1994); Moore v. Derwinski, 1 Vet. App. 356 (1991). However, VA may not take into account the individual veteran's age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employmentdefined as when a veteran's earned annual income does not exceed the poverty threshold for one person, or on a facts-found basis (e.g., when employment is in a protected environment such as a family business or sheltered workshop)shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). At the outset, the Board finds that the Veteran first met the schedular requirement for a TDIU on May 13, 2014. Specifically, on that date he had one disability rated at 70 percent (posttraumatic stress disorder) with sufficient additional disabilities (bilateral knee, tinnitus, and hearing loss disabilities) bringing his combined disability rating to 80 percent. Regarding the Veteran's education, training, and occupational history, the record reflects that: (1) the Veteran obtained his high school diploma; (2) he worked in industrial refrigeration, boiler, and water maintenance; (3) he worked as a quality control inspector, and (4) he worked in customer service at a pizza parlor. See April 2000 VR&E Correspondence and July 2016 VA 21-8940. Moving beyond the Veteran's education, training, and occupational history, the record contains evidence indicative of the impact of the Veteran's service-connected disabilities on his ability to obtain and maintain substantially-gainful employment. Specifically, the Veteran's employer stated that he or she conceded on allowing the Veteran to work shorter hours due to time on his feet, which the Board assumes is due to the Veteran's service-connected knee disabilities. See July 2016 VA 21-4192. Further, the Veteran reported that at his previous job that he experienced difficulties interacting with customers and his supervisor due to his PTSD symptoms such as irritation. See October 2016 VA Medical Opinion. The above evidence demonstrates that the Veteran's occupational history consisted of primarily physical labor and that his orthopedic disabilities and PTSD caused him severe limitations in standing and interfacing with customers and coworkers. See July 2016 VA 21-4192 and October 2016 VA Medical Opinion. The Board finds that the limitations in this case are sufficient to preclude him from obtaining or maintaining substantially gainful employment. In light of the occupational effects of the Veteran's service-connected disabilitiesand resolving all reasonable doubt in the Veteran's favorthe Board finds that the Veteran is precluded from obtaining and maintaining substantially gainful employment. As such, entitlement to a TDIU is warranted. See 38 C.F.R. § 4.16(a). REASONS FOR REMAND Cervical Spine, Lumbar Spine, and Headache Disabilities Although the Board regrets further delay in adjudicating the Veteran's claims for service connection for his cervical and lumbar spine disabilities, the Board finds that remand is necessary for a new VA examination and medical opinion. Regarding the Veteran's cervical spine disability, the Veteran was afforded two VA examinations in November 1991 and August 2017. At the November 1991 examination, the VA examiner noted that there was tenderness over the cervical muscle but did not provide an etiology for this tenderness. See November 1991 VA Medical Opinion. Additionally, the August 2017 examiner acknowledged the Veteran's diagnosis of a herniated disc but found that there was no objective evidence that the herniated disc was present and persisted since 1991. See August 2017 VA Medical Opinion. However, the August 2017 VA examiner failed to provide any supporting rationale. Moreover, the examiner failed to adequately address the Veteran's STRs, post-service treatment records, and lay statements. Specifically, the Veteran has continuously contended that he injured his neck when 50-pound main round from a tank was dropped on his head, which neither examiner addressed. See August 1995 VA Examination and July 2021 Board Hear. Trans. p. 3. Additionally, the Veteran's STRs show that the Veteran sought treatment for neck pain in November 1985, April 1987, March 1989, and June 1989, which neither examiner seemed to acknowledge. Further, although the March 1989 examiner diagnosed the Veteran with an acute muscle strain, it unclear whether this diagnosis may have been a herniated disc that was later found. The Board acknowledges that the August 2017 examiner found that it was unlikely that a herniated disc persisted since 1991; however, this examiner failed to provide any supporting rationale. The Board also finds that it is unclear whether the testing and imaging completed in-service and immediately following service would have found the Veteran's herniated disc. Based on the foregoing, the Board finds that these examinations are inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moving on to the Veteran's headaches disability, the Board finds it must be remanded for a new VA examination. The Board notes that the Veteran received a VA examination in August 1995, where the examiner diagnosed him with musculoskeletal tension headaches, status post cervical strain. See August 1995 VA Medical Opinion. However, the Board finds that a new VA examination and medical opinion is necessary to determine whether the Veteran's headaches are related to his cervical spine disability because the August 1995 examination did not consider all raised theories of entitlement. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Lastly, regarding the Veteran's lumbar spine disability, the Board finds that a remand is necessary because the Veteran has not been afforded a VA examination. The VA must provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for finding that the disability may be associated with service is low. Id. A Veteran is competent to report his observable symptoms and history, including the onset and timing of symptoms, and such reports must be considered. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran contends that his lower back pain began in service and has persisted, following the in-service injury. See April 2000 VA Treatment Record. The Veteran also asserted that he believed that his lumbar spine disability began when he fell on his head during service. See July 2021 Board Hear. Trans. p. 9. The Veteran also testified that he has experienced back pain since service and self-treated it during and after service. Id. at 9-10. Based on the foregoing statements, the Board finds that the Veteran's lay statements demonstrate that the Veteran's disability may be associated with service. Therefore, the Board finds that a VA medical opinion is necessary to adjudicate whether the Veteran's lumbar spine disability is related to service. In sum, the Board finds that the VA examinations of record are inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board finds that the new VA examinations are needed for the issues of service connection for the Veteran's cervical spine, headache, and lumbar spine disabilities. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his cervical spine, lumbar spine, and headache conditions. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the current nature and etiology of the Veteran's cervical spine, lumbar spine, and headache disabilities. The claims file must be reviewed by the examiner in conjunction with the examination. All appropriate tests and studies should be conducted, and the results reported in detail. (a.) For each diagnosed cervical spine disability, please state whether it is at least as likely as not (50 percent probability or greater) that it (1) began during any period of active service, (2) manifested within a year after discharge from active service, (3) was noted during service with continuity of the same symptomatology since service, or (4) was related to any other aspect of the Veteran's service. 1. In providing the requested opinion in Part (a.), please review the Veteran's November 1985, April 1987, March 1989, and June 1989 STRs. 2. In providing a response to Part (a.), please directly address whether the cervical spine strain diagnosed in the March 1989 STR persisted throughout the Veteran's service, as he has asserted. In providing the foregoing opinions, please review the Veteran's November 1985, April 1987, March 1989, and June 1989 STRs in providing the foregoing opinion. 3. If you find that the cervical spine strain did not persist throughout service, please directly address whether it is at least as likely as not that the in-service diagnosis of the cervical strain that the Veteran's herniated disc occurred in-service. Please address whether the type of testing needed to diagnose a herniated disc was performed in service. 4. Please specifically consider and address the Veteran's contentions that he has self-treated his cervical spine disability with pain medications since service in providing the opinions requested above. (b.) For each diagnosed lumbar spine disability, please state whether it is at least as likely as not (50 percent probability or greater) that it (1) began during any period of active service, (2) manifested within a year after discharge from active service, (3) was noted during service with continuity of the same symptomatology since service, or (4) was related to any other aspect of the Veteran's service. 1. Please address the Veteran's contention that he believes that his lumbar spine disability is related to his in-service fall. (c.) For each diagnosed headache disability, please state whether it is at least as likely as not (50 percent probability or greater) that it (1) began during any period of active service, (2) manifested within a year after discharge from active service, (3) was noted during service with continuity of the same symptomatology since service, or (4) was related to any other aspect of the Veteran's service. 1. Please address the Veteran's contention that he believes that his headache disability is related to his in-service fall and cervical spine disability. See July 2021 Board Hear. Trans. p. 12. A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the RO should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. All findings and conclusions should be supported with a complete rationale which reflects the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.