Citation Nr: 21067405 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-37 968 DATE: November 4, 2021 ORDER Effective January 18, 2013, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) due to service-connected disabilities is granted. Service connection for left upper extremity, diagnosed as radiculopathy, is denied. Service connection for right upper extremity, diagnosed as radiculopathy, is denied. FINDINGS OF FACT 1. Throughout the appeal, the record reasonably shows that the combination of the Veteran's service-connected back and feet disabilities precludes her from securing or following a substantially gainful occupation. 2. The preponderance of the evidence shows that the Veteran's left upper extremity radiculopathy is due to her non-service-connected cervical condition and did not had its onset in service or is related to service or her service-connected disabilities. 3. The preponderance of the evidence shows that the Veteran's right upper extremity radiculopathy is due to her non-service-connected cervical condition and did not had its onset in service or is related to service or her service-connected disabilities. CONCLUSIONS OF LAW 1. Effective January 18, 2013, the criteria for TDIU have been met. 38 U.S.C. §§ 1154, 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. 2. The criteria for service connection for left upper extremity condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for right upper extremity condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1981 to September 1991, including service in the Persian Gulf. In February 2018 the Veteran and in December 2020 hearings were held before the undersigned Veterans Law Judge. This case was previously before the Board in September 2018 and February 2021 and remanded for additional development. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. TDIU The Veteran filed her claim on January 18, 2013. Further, per her July 2015 VA Form 21-8940, she last worked on a full-time basis in May 2010 and has not worked since then. See Veteran's VA 21-8940 (July 2015). Additionally, on September 2021, the Veteran submitted an updated VA Form 21-8940. In support, she reported that she is entitled to TDIU benefits due to not being able to secure or follow any substantial gainful occupation since May 2010 due to her service-connected disabilities. See Veteran's VA 21-8940 (September 2021). Further, the Board finds that the January 2020 and June 2021 VA examinations show that the Veteran service-connected conditions impact her ability to secure or follow gainful occupation. See VA medical examinations (January 2020 and June 2021). Indeed, the record shows the great limitations and modifications required for the Veteran to have the opportunity to have a possible job. The Veteran completed an associate degree and legal secretary certification in 1979. She worked as a parts technician. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. See 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system e.g. orthopedic are considered as one disability. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The Veteran's service-connected disabilities satisfy the TDIU schedular criteria. Here, the Veteran has a 50 percent rating for bilateral plantar fasciitis, 10 percent rating for degenerative lumbar spine, 10 percent individually for left and right knee osteoarthritis and 10 percent for sciatica in left lower extremity. Moreover, her service-connected disabilities, which includes her feet and lumbosacral strain, are considered one disability with a combined rating of 60 percent. Thus, the Veteran's service-connected disabilities satisfy the schedular criteria, since January 18, 2013, set forth in 38 C.F.R. § 4.16(a)(3). After a thorough review of the record, the Board finds that, with resolution of all reasonable doubt in the Veteran's favor, the functional limitations imposed by the Veteran's service-connected conditions precludes her performance of substantially gainful employment. Her record clearly indicates the severity of her service-connected back and feet disabilities, including medical treatments, non-surgical procedures, medications, and physical limitations. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held 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 RO. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As the Federal Circuit made clear in Geib, "VA [is] not required to obtain a single medical opinion that address[es] the impact of all service-connected disabilities on [the veteran's] ability to engage in substantially gainful employment." Id. After resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the evidence supports the conclusion that the Veteran's service-connected disabilities prevent her from securing and following substantially gainful employment. The lay and medical evidence of record makes it at least as likely as not that the Veteran's service-connected conditions have precluded substantial gainful employment consistent with her general education and labor-intensive occupational experience. Based on the evidence, the Board, as a finder of fact, concludes that the evidence supports a finding that the functional impairment associated with the Veteran's service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. Thus, the Board finds that the disabilities does render the Veteran unable to secure substantially gainful employment in this particular case. In light of the foregoing, the Board concludes that entitlement to TDIU is warranted effective January 18, 2013. Additionally, the Board acknowledges that the Veteran reported not been able to work since May 2010. However, TDIU is not warranted before January 18, 2013, the date of the claim. The Veteran has disabilities affecting a single body system, e.g. orthopedic, that combine to a 60 percent rating effective January 18, 2013, the date the Veteran submitted his claim. The United States Court of Appeal for the Federal Circuit has explained that the provisions of 38 U.S.C. § 5110 governing the effective date to be assigned for an increased rating require "that a veteran's claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim." Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining the legislative intent to provide veterans with a one-year grace period for filing their claims). Thus, when it is established that the increase occurred more than one year prior to the date an increased rating claim is received by VA, the effective date shall be the date that the claim was received, and no earlier. See 38 U.S.C. § 5110(b)(2); Gaston v. Shinseki, 605 F.3d at 984. As such, the Board finds that a higher rating did not become factually ascertainable during the applicable time period so as to warrant an effective date earlier than the date of her claim, January 18, 2013. Thus, the Board concludes that entitlement to TDIU is not warranted prior to January 18, 2013. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). 2. Bilateral upper extremities The Veteran seeks service connection for her bilateral upper extremities condition. In support, the Veteran and her representative provided credible testimony that she started having bilateral upper extremities problems in service and thereafter. See BVA hearing transcript (February 2018 and December 2020). In September 2018 and February 2021, the Board remanded this issue with instructions for the examiner to consider the medical and lay evidence on record and determine the onset, etiology and nature of her upper extremities condition, as well, to indicate if the condition is related to service or her service-connected conditions. In June 2021, the Veteran was provided a VA examination and the examiner noted that the Veteran has a diagnosis of bilateral cervical radicular syndrome of the upper extremities. Additionally, on an August 2021 addendum, the examiner opined that her cervical radiculopathy was due to her non-service-connected cervical degenerative disease and not her service-connected lumbar condition. See VA medical examination and addendum (June and August 2021). The Board finds that the evidence on record does not show treatment or a diagnosis for a bilateral upper extremity condition or functional impairment in service or that such condition is related to service or occurred within one year after service. As such, service connection is not warranted. The Board acknowledges the Veteran's credible testimony at her BVA hearing and the in-service evidence of left arm muscle strain in service. See BVA hearing transcript (February 2018 and December 2020); see also STR (October 1987). However, the evidence does not show that the Veteran suffered from any symptom or functional impairment in service or within one year after service that could cause, aggravate, is proximately due or relate to her left arm muscle strain or service. In fact, the evidence shows a that her current cervical radiculopathy to the upper extremities is caused by her non-service-connected degenerative cervical condition. Therefore, service connection is not warranted since the record does not show that the Veteran's cervical radiculopathy to the upper extremities started in service, or within one year after service, or was aggravated by service or her service-connected conditions. In light of the forgoing, the Board finds that the June and August 2021 VA examinations and the absence of medical evidence reflecting that her cervical radiculopathy to the upper extremities is related to service to be persuasive and of the greatest probative value. The Veteran's cervical radiculopathy is not related to service; thus, service connection is not warranted. As such, the preponderance of the evidence is against the claim of service connection. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.