Citation Nr: A21017182 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 200228-71496 DATE: October 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 20 percent for lumbar spine degenerative changes (low back disability) is remanded. Entitlement to service connection for anxiety disorder is remanded. FINDING OF FACT The evidence of record establishes that it is at least as likely as not that the Veteran's service-connected disabilities rendered him unable to secure or follow gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1968 to May 1999. In August 2019, the Veteran submitted VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a July 2019 rating decision that denied the claims for service connection for anxiety and increased rating for low back disability, to include a TDIU; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In October 2019, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the initial rating decision. In the Veteran's February 2020 VA Form 10182, Decision Review Request: Board Appeal, he elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal in July 2019, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed. The Board further notes that the Veteran perfected separate AMA appeals for service connection for sleep apnea, prostate cancer, post-traumatic stress disorder (PTSD) and tinnitus, which are all currently certified to the Board and awaiting adjudication. As such, these claims will be addressed in a separate decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b)(1). Entitlement to a TDIU The Veteran filed VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability in April 2019. Under the applicable criteria, all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate 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. See 38 C.F.R. §§ 3.340(a)(1), 4.15. In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experiences, but not to her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation purposes may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). The Board notes that the Veteran is service-connected for residuals of fracture of right ulna with an evaluation of 10 percent; for hypertension with an evaluation of 20 percent; for chronic low back strain (including degenerative disc disease) with an evaluation of 20 percent; and for primary open-angle glaucoma of both eyes with an evaluation of 50 percent. Additionally, the Veteran is service connected for valvular heart disease with an evaluation of 60 percent effective June 26, 2020. Given that the Veteran has a combined rating of at least 70 percent for the entire period on appeal (i.e., since November 15, 2004), and at least one disability rated at or above 40 percent, prior to June 26, 2020, as well as one disability rated at or above 60 percent thereafter, he is therefore eligible for TDIU on a schedular basis. Accordingly, at issue is whether the Veteran is unable to secure and follow a substantially gainful occupation as due to service-connected disabilities. The Court has held that the phrase "unable to secure and follow a substantially gainful occupation" has an economic component and a noneconomic component. Ray v. Wilkie, 31 Vet. App. 58, 67-76 (2019). The economic component considers the Veteran's ability to secure and follow an occupation earning more than marginal income. See 38 C.F.R. § 4.16a (marginal employment shall not be considered substantially gainful employment). The noneconomic component considers such factors as the Veteran's employment history, education, skill, training, physical ability, and mental ability. The Court has also held that the Veteran's ability or inability to engage in substantial gainful activity has to be looked at in a practical manner, and the test is whether a particular job is realistically within the physical and mental capabilities of the Veteran. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one, but a factual determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Regarding the economic component, the Board notes that the AMA rating decision found that the Veteran has not worked since retiring from active service in June 1999 and the Board is bound by this finding. 38 C.F.R. § 3.104(c). Therefore, the Veteran meets the economic component for consideration of entitlement to a TDIU. Regarding the noneconomic component, the Board has considered the evidence of record pertaining to the Veteran's employment history, education, skill, training, physical ability, and mental ability. As discussed during the Veteran's May 2021 Board hearing, the Veteran offered testimony regarding his difficulties with reading and writing due to a glaucoma disability, lifting, sitting or standing for long periods of time due to his low back disability, performing labor intensive activities due to his heart disability, as well as other symptoms related to the medication he is prescribed for his service-connected disabilities to include hypertension. In consideration of the medical and lay evidence of record, the Board will resolve all doubt in the Veteran's favor and awards a TDIU, effective April 24, 2019, the date of the claim, and based on the combined effects of his service-connected disabilities. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative changes (low back disability) The Veteran filed the present claim in April 2019. He was scheduled to undergo a spine examination in May 2019 but was unable to attend this examination because he went to the emergency room for elevated blood pressure, as indicated by report on his hypertension examination, scheduled the same day. In the HLR rating decision on appeal, the AOJ denied the Veteran's claim for increased rating for his low back disability on the basis that he failed to report to his spine examination in May 2019 without showing good cause. When entitlement to an increase in benefits cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, such a claim shall be denied. 38 C.F.R. § § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Id. Here the evidence of record prior to the decision on appeal demonstrated that the Veteran failed to report for his spine examination due to illness. Indeed, within the hypertension examination report, the examiner specifically stated: Upon exam for Hypertension the veteran's blood pressure was extremely high and the veteran was sent to the nearest ER with his wife. Due to the critical finding, the veteran's claim for increase for his service connected Chronic Low Back Strain was not completed. The veteran did not attend the follow up exam on 5/28/19 in order to evaluate for an increase for his service connected back condition therefore the Back DBQ is not being sent with the report. The Board finds that good cause for failing to report is shown by the record, and the AOJ should have scheduled the Veteran for another examination before denying his claim. As such, remand is required for appropriate corrective action. The Board notes that in August 2021, the Veteran underwent an updated spine examination, and the corresponding report was uploaded to the Veteran's file by VA during the 90-day time period following the Veteran's Board hearing. Because this evidence was not actually submitted by the Veteran or his representative, it may not be considered by the Board at this time in relation to this appeal per the provisions of 38 C.F.R. § 20.302. As the Board is remanding this claim for further AOJ action, this additional evidence will be considered by the AOJ in the adjudication of the claim. 2. Entitlement to service connection for an anxiety disorder This matter is remanded to correct a pre-decisional duty to assist error. 38 C.F.R. § 20.802(a). Favorable findings identified from the July 2019 AMA rating decision include a current diagnosis of adjustment disorder with anxiety and the Board is bound by this finding. 38 C.F.R. § 3.104(c). In this case, the Veteran asserts possible events in service that may have resulted in a diagnosis of chronic anxiety. In his statements of support, the Veteran identified the dates he reportedly served in Southwest Asia, which is supported by the record associated with the claims file. In the pre-decisional period, the Veteran was afforded a VA examination regarding his claim seeking entitlement to service connection for anxiety in May 2019. In this regard, the May 2019 VA examiner did not provide an opinion as to whether the Veteran's current diagnosis of anxiety is related to service. Importantly, whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the AOJ erred in failing to obtain a medical opinion to determine the etiology of the Veteran's current diagnosed anxiety condition. As such, the claim must be remanded to correct this pre-decisional duty to assist error. The matters are REMANDED for the following action: 1. Review the entire evidentiary record, which on remand includes an August 2021 spine examination report, and determine whether the evidence as a whole is sufficient to adjudicate the Veteran's claim for an increased rating greater than 20 percent for his lumbar spine degenerative changes. If not, schedule the Veteran for an updated spine assessment to assess the severity of his disability. 2. Schedule the Veteran for a psychiatric examination to assess the nature and etiology of any acquired psychiatric disability. The examiner must review the claims file, and take a history from the Veteran as to the progression of his disability. After review of the record, interview, and examination of the Veteran, the examiner should respond to the following: a) Please clarify all current psychiatric disabilities. b) For any psychiatric disorder identified, is it at least as likely as not that such had onset in, or is otherwise related to the Veteran's period of active duty service? The examiner should consider the Veteran's lay statements regarding the claimed acquired psychiatric disability and its onset, as well as his in-service stressors. A clearly stated rationale for each opinion offered must be provided and cannot be based exclusively on the lack of an in-service record documenting the presence of the claimed disability. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.