Citation Nr: 21076487 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 20-13 679 DATE: December 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to August 31, 2021 is granted. REMANDED Entitlement to an increased evaluation in excess of 10 percent prior to August 31, 2021 for degenerative arthritis lumbar spine is remanded. Entitlement to an increased evaluation in excess of 40 percent since August 31, 2021 for degenerative arthritis lumbar spine is remanded. Entitlement to an increased evaluation in excess of 20 percent prior to August 31, 2021 for radiculopathy of the right lower extremity is remanded. Entitlement to an increased evaluation in excess of 40 percent since August 31, 2021 for radiculopathy of the right lower extremity is remanded. Entitlement to an increased evaluation in excess of 40 percent for radiculopathy of the left lower extremity is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence of the record reasonably demonstrates that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation from October 21, 2013. CONCLUSION OF LAW The criteria for entitlement to TDIU from October 21, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active-duty service with the Army from April 1979 to August 1979. This matter is on appeal from an April 2017 rating decision. The Veteran was afforded a July 2021 hearing with the undersigned Judge; a transcript of the hearing has been associated with the claims record. During the pendency of the appeal, a December 2021 rating decision increased the evaluation of the Veteran's back disability to 40 percent; radiculopathy of the right lower extremity to 40 percent; and granted entitlement to TDIU effective August 31, 2021. As the Veteran has not indicated satisfaction with the increased evaluation, the Board finds the issue of entitlement to an increased rating for the Veteran's appealed disabilities remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). A claim for a TDIU is part and parcel of an increased rating claim where the Veteran asserts, or the record reasonably raises that his service-connected disabilities prevent him from working or maintaining substantially gainful employment. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Although the Board notes that the Veteran was granted TDIU effective August 31, 2021, the Veteran has testified at the July 2021 hearing that he has been unemployed since 2006 or 2009 due to his service-connected disabilities. As such, the Board takes jurisdiction of this claim as part and parcel of the present appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Total Disability Rating Based on Individual Unemployability (TDIU) VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, 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 that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). 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). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). For purposes of 38 C.F.R. § 4.16, 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 as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts 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. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib, 733 F.3d at 1354 (citing 38 C.F.R. § 4.16 (a)). The Veteran contends that his service-connected disabilities render him unemployable. As noted above, the Veteran is currently entitled to TDIU from August 31, 2020; therefore, the Board is to consider whether the Veteran is entitled to TDIU prior to this date. Prior to August 31, 2020, the Veteran was service connected for a back disability evaluated at 10 percent; radiculopathy of the lower right extremity evaluated at 20 percent; and radiculopathy of the lower left extremity evaluated at 40 percent effective from October 21, 2013. The Veteran's combined rating was at 60 percent from October 21, 2013. As the Veteran's back disability and radiculopathy of the lower extremities have a single etiology, they are considered one disability for TDIU purposes; therefore, the Veteran meets the threshold schedular requirement for TDIU from October 21, 2013. 38 C.F.R. § 4.16(a). The Board notes that the Veteran was not service connected for any disabilities prior to October 21, 2013. In a March 2006 psychiatric evaluation for nervous and anxiety attacks, the Veteran reported that his anxiety attacks interfered with his work and was afraid that his boss would not give him work because he was acting nervous. The Veteran reported that he was currently employed through temporary services performing house chores. In May 2006 the Veteran reported that he was terminated a few weeks ago; the Veteran stated that he has submitted several job applications but has not heard back. In September 2006 the Veteran reported he was an employee for a hospital but was recently hospitalized for dizziness and back pain. In May 2007 the Veteran reported current employment but was noted to be "evasive about it" and stated having difficulty holding a job as well as applying for Social Security benefits. In August 2008 the Veteran reported receiving Social Security disability and that he worked part-time for a hospital. At an August 2016 Decision Review Officer (DRO) hearing, the Veteran testified that he was only able to walk at most a block before he began to hurt really bad; the Veteran described his disabilities affected his gait and was advised not to lift any weight. When asked if he was able to work, the Veteran stated that he was not able to. The Veteran noted that previously when working, "I started developing...other types of ailments, so I had to stop working..." The Veteran indicated he was currently receiving Social Security disability benefits since 2006. In a March 2017 VA examination for his back, the Veteran reported that he was unable to stand or walk for a long time, run, bend, or use the stairs without hurting. The VA examiner stated that the Veteran's back disability prevented him from running and prolonged standing, walking, or sitting. The examiner indicated the Veteran should limit the use of stairs and avoid ladders. In a February 2019 DRO hearing, the Veteran reported that his disabilities had worsened where he was unable to "bend too good" due to pain along with symptoms of numbness, trouble sleep, and inability to use stairs. The Veteran reported using a cane and walker but was unable to walk far before needing to sit after a short distance. At the July 2021 hearing, the Veteran testified that he was unable to walk far without hurting or use the stairs and has fallen a few times due to his disabilities. The Veteran reported that he was last employed in 2006 or 2009 working at a hospital in their garage. The Veteran stated that he stopped working because "it had something to do with me being disabled...my back was hurting real bad...was in the hospital a couple times, and I just decided to retire because I couldn't really work no more." In a submitted August 2021 application for TDIU, the Veteran indicated his back and legs prevented him from securing or following any substantially gainful occupation. The Veteran stated that he became too disabled to work in June 2009 and listed his occupation work experience as a "manager for adults with mental conditions" and as a hospital janitor and garage worker. A September 2021 Social Security Administration (SSA) inquiry shows the Veteran receiving benefits since September 2006. In an October 2021 report of general information, the Veteran reported that he had not been employed for the past 20 years. In an October 2021 VA examination for a back disability, the Veteran reported flareups twice a week lasting 3 to 4 hours requiring rest. The Veteran stated that he was unable to walk for long hours and unable to lift any heavy weights. The examiner found the Veteran unable to stand or walk for short or long distance as well as noting the Veteran's symptoms resulted in gait imbalance. The Veteran further indicated that he required help with laundry, driving, household chores, and shopping due to the limitations from his back conditions. In an October 2021 VA examination for the Veteran's radiculopathy of the lower extremities, the Veteran reported symptoms of shotting pain, numbness and tingling in both legs. The Veteran indicated suffering from imbalance while walking and unable to walk short distances without cane or walker assistance. In a November 2021 VA opinion, the examiner opined that it was at least as likely as not that the Veteran's service-connected disabilities would impact the Veteran's ability to obtain and maintain substantially gainful physical or sedentary employment at this time. The Board finds that resolving all reasonable doubt in favor of the Veteran, that TDIU is warranted for the Veteran's service-connected disabilities from October 21, 2013. In addition to meeting the schedular criteria for TDIU, the record shows evidence that the Veteran's symptoms of his service-connected disability interfered with his ability to obtain and maintain gainful employment. The Veteran has not worked for many years since 2009. The evidence of record shows the Veteran's symptoms of his service-connected disability include pain, weakness, gait imbalance and falls, and decreased flexibility. A November 2021 VA examiner found the Veteran's service-connected disabilities would impact his ability to obtain and maintain physical or sedentary work. The Board notes that the Veteran's previous work history to include primarily physical work were positions that would involve activities that evidence currently shows the Veteran is either unable to or will have difficulty performing these duties. Although the VA examiner opinions did not specifically state the Veteran was unemployable, they did note that the symptoms of his disabilities would impact any occupational work involving such activities, either limiting or opining the Veteran would be unable to work that required these motions. Moreover, the "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Considering the record of the Veteran's symptoms and impairments from his service-connected disabilities to include findings from VA examinations and testimony, the Board finds that that entitlement to TDIU from October 21, 2013 is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND The Board unfortunately finds that remand is warranted for additional development. The Board notes that in a February 2019 VA medical center (VAMC) record, the Veteran was seen for transferring all care to VA. The Veteran reported seeing non-VA providers and requested that VA obtain their medical records. However, it is unclear from review of the record whether the Regional Office (RO) undertook development to attempt obtaining the records. As such, the Board finds that there are outstanding records warranted remand to obtain and associate with the claims record. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Request that the Veteran complete a VA Form 21-4142 and provide the names and addresses of any and all healthcare providers who provided treatment for the Veteran's claimed back disability and radiculopathy of the right and left lower extremities. (a.) After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims folder. Make two requests for the authorized records from any identified provider, unless it is clear after the first request that a second request would be futile. All attempts to procure such records must be documented within the claims file. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.