Citation Nr: 21072412 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-45 653 DATE: December 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a herniated disc, neck disability is remanded. Entitlement to service connection for a heart condition (claimed as right bundle blockage) is remanded. Evaluation in excess of 20 percent for right shoulder strain is remanded. Evaluation in excess of 20 percent for left shoulder strain is remanded. FINDING OF FACT The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 1998 to November 1996 and in the U.S. Army from November 2006 to November 2010. This matter comes before the Board of Veterans Appeals (Board) on appeal from June 2014 and June 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to TDIU The Veteran contends he is entitled to a TDIU from when he first became schedularly eligible. The Veteran's claim for a TDIU was denied in a June 2017 rating decision where the RO denied the Veteran's claim on the basis that he did not submit a VA Form 21-8940. However, a TDIU rating is part and parcel of any claim for an increased rating, and has been expressly raised by the Veteran's representative in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and 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 disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. The Veteran is in receipt of a schedular rating of 50 percent for his sleep apnea effective November 16, 2010, with a combined rating of 70 percent. Accordingly, he meets the schedular criteria of 38 C.F.R. § 4.16(a). Thus, the issue is whether his service-connected disabilities have precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). Evidence of record reflects that the Veteran last engaged in substantially gainful employment prior to April 2011. See VA Examination received April 2011. In an April 2011 VA examination the Veteran reported being unemployed due to his bad ankle. A May 2014 examiner determined the Veteran's left shoulder condition hinders and prevents functionality of employment by not being able to lift, carry, or drive home, and that that he is unable to lift heavy objects due to his right shoulder impairment. In an August 2016 peripheral nerve examination, the examiner determined that due to pain, numbness, and weakness, the Veteran is unable to lift, stand, or walk for prolonged period of time and that his instability presents a safety risk. A May 2017 back examination showed the functional impact of each condition is difficulty walking, running, and standing for long periods of time, and difficulty bending. Additionally, an April 2018 examination showed the Veteran was unemployed, mostly secondary to his back issues. In his July 2021 Board hearing, the Veteran attested to being unable to work since at least 2012, where he was let go once he required prescription pain medications for his service-connected conditions. In light of the Veteran's occupational background and functional limitations, and giving him the benefit of the doubt, the Board finds that his service-connected disabilities are sufficient to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background and education level throughout the period on appeal. Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a herniated disc, neck disability is remanded. 2. Entitlement to service connection for a heart condition (claimed as right bundle blockage) is remanded. The Board finds that additional development is needed prior to adjudication to the issues on appeal. The record shows the Veteran has been diagnosed with a herniated disc and spinal stenosis of the cervical spine, as well as right bundle branch blockage. The Veteran asserts that his claimed disabilities were caused by his active-duty service. He states the constant lifting motion and hand loading as a bomb builder in the Navy caused neck pain. He reports his shoulder pain was referred neck pain. Additionally, he reports being electrocuted in service, which resulted in the Veteran being thrown 15 feet and losing consciousness. The Veteran contends his neck disability and heart condition are due to his electrocution in service. The Veteran reports seeking treatment in-service and afterwards. His service treatment records show he was electrocuted and reflect an incomplete right bundle branch block. There is insufficient evidence, however, for the Board to render a determination on his claims, as the Veteran has not been afforded a VA examination. VA has a duty to provide an examination or obtain a medical opinion on an issue of service connection when the record 1) contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, 2) indicates that the disability or signs and symptoms of a disability may be associated with active service, and 3) the record does not contain sufficient information to make a decision on the issue. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event is a low one. McLendon, 20 Vet. App. at 83. As such, based on the record before the Board, a remand for VA examination is necessary to determine the nature and etiology of the Veteran's neck and heart conditions. 3. Evaluation in excess of 20 percent for right shoulder strain is remanded. 4. Evaluation in excess of 20 percent for left shoulder strain is remanded. The Veteran contends he is entitled to a higher rating for his bilateral shoulder strain. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). The Board notes that the Veteran was last afforded a VA examination to assess the severity of his service-connected bilateral shoulder strain in November 2016, five years ago. In his Notice of Disagreement, the Veteran asserted that he was entitled to higher disability ratings for his bilateral shoulder condition. Medical records reflect ongoing symptoms and treatment for his shoulders, suggesting that his symptoms may have increased in severity since the November 2016 VA examination. In light of the foregoing, a more contemporaneous examination is warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected bilateral shoulder condition. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103(A); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all outstanding private treatment records, with all necessary assistance from the Veteran. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Obtain a VA examination to determine the nature and etiology of the Veteran's neck and heart conditions. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or greater) that his neck condition was incurred in, aggravated by, or etiologically related to his military service, to include his repetitive motion while loading bombs and electrocution in service. Whether it is at least as likely as not (a 50 percent probability or greater) that his heart condition was incurred in, aggravated by, or etiologically related to his military service, to include his documented electrocution in service. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected right and left shoulder strain. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.