Citation Nr: 21073056 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 20-06 744 DATE: December 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from January 31, 2018 is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for left upper extremity carpal tunnel syndrome is remanded. Entitlement to service connection for right upper extremity carpal tunnel syndrome is remanded. Entitlement to an initial rating in excess of 30 percent prior to January 31, 2018 and in excess of 50 percent thereafter for persistent depressive disorder is remanded. Entitlement to an initial rating in excess of 10 percent for minimal retrolisthesis of L5 on S1 with lumbosacral strain (lumbar spine condition) is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for dysfunctional bleeding with LGSIL/HGSIL status post LEEP (dysfunctional bleeding) is remanded. Entitlement to TDIU prior to January 31, 2018 is remanded. FINDING OF FACT From January 31, 2018, the Veteran's service-connected disabilities preclude her from securing or following substantially gainful employment consistent with her education and industrial background. CONCLUSION OF LAW From January 31, 2018, the criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 4.18, 4.19 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1997 to June 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2017, August 2018, and January 2019 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran's rating for her persistent depressive disorder to 50 percent, effective January 31, 2018, and increased her rating for her lumbar spine condition to 10 percent, effective November 14, 2016. In addition, in the January 2020 rating decision, the AOJ awarded service connection for bilateral lower extremity radiculopathy and assigned 10 percent ratings, effective December 28, 2017. The Veteran testified before the Board at a hearing held by the undersigned in February 2021. A transcript of the hearing is of record. At the hearing, the Veteran was granted a 60-day abeyance period for the submission of additional evidence to support her claims. The Veteran submitted additional evidence in June 2021 with a waiver of AOJ review of the evidence. The issues of increased ratings for bilateral lower extremity radiculopathy arose while the claim for an increased rating for lumbar spine condition has been on appeal. The Veteran was afforded the opportunity to provide testimony at the February 2021 Board hearing as to her service-connected bilateral lower extremity radiculopathy. The Veteran's bilateral lower extremity radiculopathy ratings are part and parcel of the appeal seeking an increased rating for her lumbar spine condition. See, e.g., Chavis v. McDonough, 34 Vet. App. 1, 15 (2021); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). As such, the Board has included the bilateral lower extremity radiculopathy issues in the appeal. TDIU The Veteran and her attorney contend that the Veteran's service-connected disabilities interfere with her ability to maintain work. See Board Hearing Transcript, dated February 2021. Total disability ratings for compensation 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The established policy of VA reflects 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. 38 C.F.R. § 4.16. Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The United States Court of Appeals for Veterans Claims (Court) recently held that "substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The non-economic component requires consideration of the Veteran's history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Further, the word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As of January 31, 2018, the Veteran has been service-connected for persistent depressive disorder, rated as 50 percent disabling; migraines, rated as 30 percent disabling; lumbar spine condition, rated as 10 percent disabling; dysfunctional bleeding, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; left and right lower extremity radiculopathy, each rated as 10 percent disabling; and linear pelvis scar associated with dysfunctional bleeding, rated as noncompensable. The combined rating for the Veteran's service-connected disabilities has been 80 percent since January 31, 2018. In addition, the Veteran's persistent depressive disorder has been rated at 50 percent since January 31, 2018. Thus, the schedular requirements for a TDIU rating are met as of January 31, 2018. The question remaining is whether the Veteran's service-connected disabilities (alone) render her incapable of participating in a substantially gainful occupation. Here, a balance of the evidence supports that the Veteran's service-connected disabilities substantially impact her ability to secure and engage in types of employment at any exertional level. The Veteran reported in her February 2018 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, that she is too disabled to work due to her service-connected persistent depressive disorder, lumbar spine, and dysfunctional bleeding disabilities. She indicated she last worked full-time in November 2017, and that November 2017 was when she became too disabled to work. Furthermore, the Veteran reported at her February 2021 Board hearing that her migraines impact her ability to work given that she needs to lie down when she has them. She reported she needs to rotate positions due to her lumbar spine condition every 15 to 20 minutes. In addition, she reported that her lumbar spine condition prohibits her from lifting much of anything, and her acquired psychiatric disorder affects her ability to work with people. In April 2021, S.H., a vocational consultant opined the Veteran's service-connected disabilities "are likely to have resulted in her inability to secure or maintain substantially gainful employment at any exertional level as of [January 31, 2018]." The consultant noted that after service, the Veteran worked as a postal clerk, insurance agent, billing representative, sales, warehouse laborer, front desk clerk, and Uber driver. In support of the opinion, the vocational consultant cited to functional limitations assessed by VA examiners. In addition, the vocational consultant provided a detailed discussion of the medical evidence of record and regarding the impact of the Veteran's limitations on employment. The Board affords great probative weight to the April 2021 opinion of the vocational consultant as the opinion is consistent with limitations assessed in the December 2017 lumbar spine and January 2018 acquired psychiatric disorder VA examinations. Furthermore, the April 2021 opinion is consistent with the Veteran's statements, including her February 20201 Board hearing testimony in which she reported multiple ways that her service-connected disabilities affect her ability to maintain employment. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). Based on the foregoing, the Board finds that the overall evidence of record is at least in equipoise as to a finding that the Veteran would have difficulty with most occupations due to her service-connected disabilities. Therefore, the Board concludes the Veteran is unable to secure or follow a substantially gainful occupation due to her service-connected disabilities and that entitlement to a TDIU is warranted, effective January 31, 2018. REASONS FOR REMAND 1. Obstructive Sleep Apnea The Board cannot make a fully-informed decision on the issue of entitlement to service connection for obstructive sleep apnea because no VA examiner has opined whether the Veteran's diagnosed obstructive sleep apnea is directly related to her service or caused or aggravated by her service-connected acquired psychiatric disorder. Thus, a remand is required to obtain a VA opinion as to the etiology of the Veteran's obstructive sleep apnea. 2. Left Upper Extremity Carpal Tunnel Syndrome 3. Right Upper Extremity Carpal Tunnel Syndrome The Veteran attended a VA examination in January 2019 for an evaluation of her bilateral carpal tunnel syndrome. Following the examination, the examiner opined that it is less likely than not that the Veteran has bilateral carpal tunnel syndrome that is related to her service because the Veteran does not have a diagnosis of left or right carpal tunnel syndrome. However, VA treatment records following the January 2019 VA examination contain diagnoses of left and right carpal tunnel syndrome. As such, a remand is required to obtain an additional VA opinion as to the etiology of the Veteran's bilateral carpal tunnel syndrome, to include whether it is related to her military occupational specialty as an electrician. 4. Persistent Depressive Disorder 5. Lumbar Spine Condition 6. Left Lower Extremity Radiculopathy 7. Right Lower Extremity Radiculopathy The Veteran most recently underwent VA examinations for her lumbar spine condition and bilateral lower extremity radiculopathy in December 2017 and her persistent depressive disorder in January 2018. The record reflects that the symptoms of these service-connected disabilities have worsened since the December 2017 and January 2018 examinations. For example, at her February 2021 Board hearing, the Veteran stated that her lumbar spine symptoms are more severe since the 2017 examination. Notably, she stated her range of motion has decreased and her pain has increased since the December 2017 examination. Furthermore, she stated at the February 2021 Board hearing that the tingling in her legs has increased since the 2017 examination. In addition, the Veteran stated at the Board hearing that her persistent depressive disorder symptoms have worsened since the last VA examination. Notably, she stated her anxiety attacks last longer. Given the evidence of worsening of the Veteran's lumbar spine condition, bilateral lower extremity radiculopathy, and persistent depressive disorder since the December 2017 and January 2018 VA examinations and the need for more current findings necessary to rate these service-connected conditions, new examinations are needed. 38 C.F.R. § 3.327(a) (2020); Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). 8. Dysfunctional Bleeding During the February 2021 Board hearing the Veteran identified relevant outstanding private treatment records regarding her service-connected dysfunctional bleeding. At the Board hearing, the Veteran stated that she received treatment for this condition from Dr. G. at Atrium Health. Furthermore, the Veteran's attorney stated at the hearing that the records from Atrium Health are in the file. See February 2021 Board Hearing Transcript, page 12. A review of the record illustrates treatment records from Atrium Health were added to the claims file on February 16, 2020. However, a review of the records added February 16, 2020 illustrates that there is no treatment from Dr. G. in the records. In addition, the records from Atrium Health in the claims file do not contain treatment for dysfunctional bleeding. As such, a remand is required to allow VA to obtain authorization and request these records. In addition to a remand being required to obtain the outstanding relevant private treatment records, the Veteran's testimony at the February 2021 Board hearing indicates that her condition may have worsened since the April 2018 VA examination. Therefore, upon remand, the Veteran should be afforded an additional VA examination to determine the curren nature and severity of the Veteran's dysfunctional bleeding. 9. TDIU prior to January 31, 2018 Because a decision on the remanded claims could significantly impact a decision on the issue of entitlement to TDIU prior to January 31, 2018, the issues are inextricably intertwined. Thus, a remand of the claim of entitlement to TDIU prior to January 31, 2018 is required. The matters are REMANDED for the following actions: 1. Request that the Veteran submit a fully completed and signed VA Form 21-4142, Authorization and Consent to Release Information to VA, for each health care provider from whom she would like VA to obtain records, to include from Dr. G. at Atrium Health for her dysfunctional bleeding claim. Based on the Veteran's response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Obtain any updated VA treatment records from October 2020 to the present. 3. After completing the development requested in items 1 and 2, obtain a medical opinion from a qualified clinician for the Veteran's obstructive sleep apnea claim. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea is related or attributable to her military service? In addressing this question, the reviewing clinician is requested to consider the Veteran's former spouse's written statement received in April 2018 in which he stated that he observed that during her service the Veteran would often make sounds like she was gasping for air while sleeping. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea is caused by her service-connected acquired psychiatric disorder, including any medications taken for her acquired psychiatric disorder? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea is aggravated (i.e., any increase in the severity beyond its natural progression) by her service-connected acquired psychiatric disorder, including any medications taken for her acquired psychiatric disorder? If the Veteran's sleep apnea has been aggravated by her service-connected acquired psychiatric disorder, the VA examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the development requested in items 1 and 2, obtain a medical opinion from a qualified clinician for the Veteran's left and right carpal tunnel syndrome claims. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's left and/or right carpal tunnel syndrome is related or attributable to her military service, to include her military occupational specialty as an electrician? In answering this question, the reviewing clinician is requested to consider the Veteran's testimony at the February 2021 Board hearing that she began experiencing carpal tunnel syndrome in 1998 while working as an electrician in service. Furthermore, the reviewing clinician is requested to consider the Veteran's former spouse's written statement received in April 2020 in which he stated that the Veteran reported following her deployment in 1998 that her hands would swell, tingle, and cause constant pain. In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After completing the development requested in items 1 and 2, schedule the Veteran for an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to evaluate the severity of the Veteran's persistent depressive disorder. The entire claims file should be made available to the examiner in conjunction with this request. All testing deemed necessary to rate acquired psychiatric disorders under the criteria of the rating schedule must be conducted and the results reported in detail. 6. After completing the development requested in items 1 and 2, schedule the Veteran for an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to evaluate the severity of the Veteran's lumbar spine condition and bilateral lower extremity radiculopathy. The entire claims file should be made available to the examiner in conjunction with this request. All testing deemed necessary to evaluate lumbar spine and peripheral nerve disabilities under the criteria of the rating schedule must be conducted and the results reported in detail. 7. After completing the development requested in items 1 and 2, schedule the Veteran for an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to evaluate the severity of the Veteran's dysfunctional bleeding. The entire claims file should be made available to the examiner in conjunction with this request. All testing deemed necessary to rate gynecological conditions under the criteria of the rating schedule must be conducted and the results reported in detail. 8. After completing the development above, undertake any development necessary to adjudicate the claim for TDIU prior to January 31, 2018. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.