Citation Nr: 21074567 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-12 029 DATE: December 15, 2021 ORDER A total rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. REMANDED The issue of an increased rating for multi-level spondylosis with anterolisthesis is remanded. The issue of an increased rating for left lower extremity radiculopathy is remanded. The issue of an increased rating for right lower extremity radiculopathy is remanded. FINDING OF FACT The Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1973 to October 1977. A TDIU will be granted because the evidence shows that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. The issues of increased ratings for service-connected multi-level spondylosis with anterolisthesis, and right and left lower extremity radiculopathy will be remanded for new VA examinations to determine the current severity of the conditions. A TDIU is granted. The Veteran contends that a TDIU is warranted due to his service-connected disabilities. For the following reasons, a TDIU is warranted, and the claim is granted. 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. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). It is provided further that 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 such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a fact found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Assignment of a TDUI evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Id. The Veteran's service-connected disorders are major depressive disorder, rated as 70 percent disabling; multi-level spondylosis with anterolisthesis, rated as 20 percent disabling; left and right lower extremity radiculopathy, each rated as 10 percent disabling; scar, residuals internal spermatic vein ligation, rated as noncompensable; and appendectomy scar, rated as noncompensable. Therefore, the Veteran meets the minimum schedular rating necessary for a TDIU. 38 C.F.R. § 4.16(a). The record indicates that the Veteran last worked full-time in 2012 when he had his first back surgery. The record indicates that the Veteran has had multiple back surgeries. In the May 2021 letter, Dr. B.S., stated that the Veteran's back and lower extremity radicular conditions cause the Veteran to be 100 percent disabled and he would not anticipate any return to work in the future. Dr. B.S. stated that the Veteran is completely unemployable at this time. Dr. B.S. also noted that the Veteran treats his conditions with the use of significant narcotics, which contribute to his unemployability. During the August 2021 Board hearing, the Veteran testified that his back disorder has prevented him from working since 2012 when he was last employed. He testified that his back and bilateral lower extremity conditions prevent him from being on his feet longer than five minutes at a time. Regarding how much weight he can lift and carry, the Veteran testified "[z]ero, because I can't pick it up, and if I was to try to walk with it without my cane, I'm going down." However, he testified that he has managed to lift and carry a half gallon of milk and he is able to manage anything smaller than that. He also testified that his mobility is very restricted, and his depression comes in waves, sometimes high and sometimes low. He also testified that nightmares impact his sleep and that sometimes he does not sleep at all. The Veteran testified to the use of several medications to treat his mental health condition. In December 2014, the Social Security Administration (SSA) found that the Veteran had severe impairments, including degenerative disc disease, lumbosacral spondylosis, status post lumbar laminectomy, lumbago, degenerative joint disease, bilateral hip strain, obesity, opiod dependence, and hypertension. The Veteran was found not to have engaged in substantial gainful activity since August 2012. SSA noted the Veteran had the residual functional capacity to perform sedentary work for a maximum of five hours in an eight-hour day. However, given the Veteran's age, education, work experience, and residual functional capacity, SSA found that there are no jobs that exist in significant numbers in the national economy that he can perform. In a September 2018 Initial Post-Traumatic Stress Disorder Disability Benefits Questionnaire (DBQ), the Veteran reported that he does not leave his house unless he must. The record indicates that the Veteran was last employed on a full-time basis in 2012. Since then, he has had multiple back surgeries. His service-connected major depressive disorder, back disability, and bilateral lower extremity neurological disorder all cause him unable to secure or follow a substantially gainful occupation. A TDIU is warranted, and the claim is granted. REASONS FOR REMAND 1. The issue of an increased rating for multi-level spondylosis with anterolisthesis is remanded. 2. The issue of an increased rating for left lower extremity radiculopathy is remanded. 3. The issue of an increased rating for right lower extremity radiculopathy is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The evidence shows that the Veteran's service-connected multi-level spondylosis with anterolisthesis and left and right lower extremity radicular disabilities have worsened since his last VA examination in September 2015. Therefore, remand is necessary for new VA examinations to determine the current severity of the disabilities. See 38 C.F.R. § 3.327; McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). THE REMAND DIRECTIVES FOLLOW. 2. Ensure that all outstanding VA and private treatment records are associated with the claims file. 3. Schedule the Veteran for a VA examination with an appropriate VA examiner regarding the current severity of his service-connected back disorder, to include multi-level spondylosis with anterolisthesis. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner MUST address the following: (a.) Assess the current severity of the Veteran's back disability. (b.) The examiner MUST specifically discuss: 1) the May 2021 private letter from Dr. B.S. stating that the Veteran's back condition results in daily incapacitating episodes, and 2) the August 2021 Board hearing, in which the Veteran testified to his inability to lift and carry anything heavier than a half-gallon of milk, to his bladder and bowel accidents, to include his constant use of Depends undergarments, to his difficulty chewing and swallowing food, and to being told, by his psychiatrist, to get in bed and lay down during flare-ups. (c.) The examiner MUST provide a complete and full explanation for the opinions provided. (d.) The examiner is ADVISED that an opinion without a complete and full explanation is not adequate. The examiner's attention is drawn to the following: * The September 2015 VA examination. * The May 2021 letter from Dr. B.S., an orthopedic surgeon, stating that the Veteran's multi-level spondylosis limits his forward flexion, and results in daily incapacitating episodes. * During the August 2021 Board hearing, the Veteran testified that he had four back surgeries in 2019, and that his back condition has worsened due to his recent surgeries. He reported constant lower back pain, and that he is unable to bend past his knees. He also reported chronic stabbing pain. Regarding how much weight he can lift and carry, the Veteran testified "[z]ero, because I can't pick it up, and if I was to try to walk with it without my cane, I'm going down." He testified to the use of a back brace and a cane, with the occasional use of a walker. The Veteran testified to having bladder and bowel accidents when he was unable to make it to the toilet; he testified to his constant use of Depends undergarments. He also testified to difficulty chewing and swallowing food. The Veteran testified that his psychiatrist has told him to get in bed any lay down when his back condition flares-up. 4. Schedule the Veteran for a VA examination with an appropriate VA examiner regarding the current severity of his service-connected left and right lower extremity radiculopathy. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner MUST address the following: (a). Assess the current severity of the Veteran's left and right lower extremity radicular disabilities. (b). The examiner MUST specifically discuss: 1) the May 2021 private letter from Dr. B.S., stating that the Veteran's legs will give out occasionally causing him to fall, and his condition results numbness and tingling in his legs, and 2) the August 2021 Board hearing, in which the Veteran testified that he had severe pain in his lower back and his legs were very weak, which caused him to fall in January 2021 when he fractured his left hip. (c). The examiner MUST provide a complete and full explanation for the opinions provided. (d). The examiner is ADVISED that an opinion without a complete and full explanation is not adequate. The examiner's attention is drawn to the following: * The September 2015 VA examination. * The May 2021 letter from Dr. B.S., stating that the Veteran's legs will give out occasionally causing him to fall, and his condition results numbness and tingling in his legs. * During the August 2021 Board hearing, the Veteran testified that he had severe pain in his lower back and his legs were very weak, which caused him to fall in January 2021 when he fractured his left hip. The examiner must provide a thorough explanation for the requested opinions. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 5. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in their entirety, issue an appropriate supplemental statement of the case (SSOC), and forward the claims to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.