Citation Nr: 21065934 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-38 344 DATE: October 28, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 24, 2018 is denied. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) from January 24, 2018 is denied. REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine prior to December 22, 2020 is remanded. Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine from December 22, 2020 is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy associated with lumbar spine disorder, prior to October 16, 2017, is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy associated with lumbar spine disorder from October 16, 2017 is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy associated with lumbar spine disorder, prior to October 16, 2017, is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy associated with lumbar spine disorder from October 16, 2017 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's service-connected disabilities do not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU prior to January 24, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16, 4.19. 2. The criteria for entitlement to a TDIU from January 24, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1997 to July 2014. The Veteran and his spouse presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2016. The Board previously remanded this case in May 2017 and November 2020 decisions for additional development. The Board held in May 2017 that the increased rating claims for associated radiculopathy of the lower extremities and the issue of entitlement to a TDIU were found to be part of the appeal for the service-connected lumbar spine disorder. In a May 2018 rating decision, the Veteran's radiculopathy of the lower extremities was increased to 20 percent disabling, effective October 16, 2017. Additionally, in a January 2021 rating decision, the Veteran's lumbar spine disability was increased to 40 percent disabling, effective December 22, 2020. In September 2020, the Board sent Veteran a letter requesting clarification whether a hearing was still desired on this case. No response was received from the Veteran. At the time that the Veteran's appeal was certified to the Board, the Veteran was represented by the Military Order of the Purple Heart. As of July 2021, Military Order of the Purple Heart is no longer recognized an accredited Veteran Service Organization. As the Veteran has not appointed a new power of attorney, the Veteran shall proceed unrepresented at this time. 1. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 24, 2018 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) from January 24, 2018 It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A 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. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). At the November 2016 Board hearing, the Veteran reported he was no longer working due to his service-connected disabilities, including his back disability. In the May 2017 Board remand, the Board noted that a request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits and thus was before the Board pursuant to the holding of Rice v. Shinseki, 22 Vet. App. 447 (2009). Rather it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once the issue of entitlement to a TDIU is raised, it is "part of the claim for benefits for the underlying disability." Id. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. In the November 2020 Board remand, the Board held that the Veteran's employment status was unclear and to date he had not submitted a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). Veteran has been rated as 100 percent disabling since January 2018 and has been awarded special monthly compensation (SMC) on the account of loss of use of a creative organ, effective August 1, 2014. The Board remanded the Veteran's claim for TDIU prior to January 24, 2018 and since January 24, 2018 as it is inextricably intertwined with the increased rating claims on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018); Payne v. Wilkie, 31 Vet. App. 373 (2019). Pursuant to the November 2020 Board remand, the RO sent a development letter in November 2020 with requests for submission of VA Form 21-4142s and to submit a complete Form 21-8940. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him from securing or following a substantially gainful occupation, and the treatment he has received for the disability(ies). The veteran is further asked to supply information about his employment, including dates when his disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. VA Form 21-8940 also requests information regarding the veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether the veteran has attempted to obtain employment since he became too disabled to work. In a March 2021 VA 21-0820, Report of General Information, the RO reported communicating with the Veteran via telephone and the Veteran reported receiving the letter for Individual Unemployability but stated he did not wish to claim entitlement to a TDIU at this time and would not submit a completed VA Form 21-8940. Subsequently, the RO sent a Subsequent Development Letter to the Veteran in March 2021 requesting a written statement withdrawing the claim for TDIU. The claim was denied in an April 2021 rating decision. Although the Board acknowledges that the Veteran reports that he has not worked within the last five years, this alone is insufficient to allow the Board to determine if based on the Veteran's specific occupational history, his service-connected disabilities would result in his inability to maintain and obtain employment. At his November 2016 Board hearing, the Veteran also indicated that he was currently completing a bachelor's degree in business administration and would consider enrolling in a vocational rehabilitation program. Information regarding his educational history, namely what kind of degrees the Veteran obtained is also necessary for the Board to make the specific findings regarding entitlement to a TDIU. After review of the entire record, the evidence is deemed insufficient to determine the specific details necessary to make a TDIU finding. There is still no submission of a VA Form 21-8940 of record. In confirming and continuing the denial of this benefit in the April 2021 Supplemental Statement of the Case (SSOC), the RO cited its November 2020, February 2021 and March 2021 letters and explained that Veteran was sent letters with notice of the information required to support his claim and asked to provide the RO with a completed VA Form 21-8940 and VA Form 21-4192 from his last employer. The RO added that no response has been received with the needed information. In light of the foregoing, the Board must rely on evidence already in the record. The critical facts at this stage are clear. The Veteran has not provided the information or VA forms necessary for VA to adjudicate his claim of entitlement to a TDIU rating. Although the record contains some information regarding his employment history, the Veteran has not provided sufficient information necessary to adjudicate his claim for a TDIU rating. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. Thus, the appeal must be denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine prior to December 22, 2020 is remanded. 2. Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine from December 22, 2020 is remanded. 3. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy associated with lumbar spine disorder, prior to October 16, 2017, is remanded. 4. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy associated with lumbar spine disorder from October 16, 2017 is remanded. 5. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy associated with lumbar spine disorder, prior to October 16, 2017, is remanded. 6. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy associated with lumbar spine disorder from October 16, 2017 is remanded. Regrettably, a remand is necessary for further evidentiary development of the Veteran's increased rating claims on appeal. The December 2020 VA examination did not comply with the remand directives; therefore, the claims must be remanded again to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In the November 2020 Board decision, the Board noted that the Veteran's last VA examination for his service-connected lumbar spine disorder and associated radiculopathy of the lower extremities was in October 2017. This examination was not adequate in light of the Court's determination in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressing the adequacy of the VA examiner's opinion concerning additional functional loss during flare-ups of musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Sharp outlines a VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups. The Board found these matters must be remanded for a new VA examination and opinion addressing the issue of limitation of motion during flare-ups of the back. Post-remand, the Veteran was afforded a VA examination in December 2020 for his back and lower extremity radiculopathy disabilities. However, in the examination the Veteran reported flare-ups, and the exam was not conducted during flare-ups. The VA examiner held that the exam was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups and had no basis to offer additional losses of function or motion. The Board finds that the December 2020 VA examiner did not substantially comply with the remand directives of the November 2020 Board decision. Thus, a remand is necessary to obtain a new VA examination for the Veteran's back disability that complies with Sharp and Correia. Stegall, 11 Vet. App. at 268. The Veteran's increased rating claims for right lower extremity and left lower extremity radiculopathy are also remanded, as they are inextricably intertwined with the above-discussed lumbar spine disorder increased rating claims. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first- hand knowledge, and/or were contemporaneously informed of his back disability, the nature, extent and severity of his back symptoms and the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Then, arrange for the Veteran to undergo a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to evaluate the current nature and severity of his service-connected lumbar spine disability with associated bilateral lower extremity radiculopathy. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. (a.) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved must be tested for pain on both active and passive motion and in weight-bearing and non-weight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (c) The examiner should describe all functional limitations present (i) after repetition over time and, separately, (ii) during flare-ups. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state 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 the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.