Citation Nr: 21005548 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 13-22 245A DATE: February 1, 2021 ORDER Entitlement to total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED 1. Entitlement to an initial disability rating in excess of 10 percent prior to October 12, 2020, and in excess of 20 percent thereafter, for degenerative arthritis of the lumbar spine is remanded. 2. Entitlement to a compensable disability rating prior to January 2, 2015, and in excess of 10 percent thereafter, for service-connected left lower extremity radiculopathy is remanded. 3. Entitlement to a compensable disability rating prior to January 2, 2015, and in excess of 10 percent thereafter, for service-connected right lower extremity radiculopathy is remanded. FINDING OF FACT The Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. CONCLUSIONS OF LAW The criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(b), 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1987 to June 1991. The claims were most recently before the Board in September 2020. There has been substantial compliance with the remand in connection with claim decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU is granted. The Veteran contends that his service-connected disabilities render him unemployable. 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. The Veteran meets the criteria for TDIU consideration as of May 22, 2013 due to the following service-connected disabilities: unspecified depressive disorder rated 70 percent, bilateral hearing loss rated 30 percent, tinnitus rated 10 percent, degenerative arthritis of the lumbar spine rated 10 percent, and a leg length discrepancy rated 10 percent. During the period following May 22, 2013 the Veteran is in receipt of the following service-connected disabilities: left thigh scar, right and left lower extremity radiculopathy, left leg flexion limitation due to femur fracture residuals, vasovagal syncope, scar associated with left femur fracture, tinea corpus, left leg extension limitation due to femur fracture residuals, and left leg impairment to thigh due to femur fracture residuals. Based on a thorough review of the evidence, the Board finds that the evidence supports entitlement to a TDIU. The Veteran’s TDIU application indicates that he has an occupational history of physical labor and one year of college education with no degree. The medical evidence of record indicates physical limitations associated with his service-connected musculoskeletal and neurological disabilities that would preclude returning to any type of physical employment. This includes assessments as recent as the October 2020 VA back examination, where the examiner stated that sedentary employment is the Veteran’s “only option.” The Board notes that the Veteran’s education and work history does not provide a substantial foundation for gainful sedentary employment options. Furthermore, the significant impact of the Veteran’s service-connected depressive disorder is an impediment to any employment, including sedentary. The Veteran’s VA mental health examinations indicate the Veteran left jobs due to stress, anxiety, and panic attacks and demonstrate an overall disability severity that would result in difficulty adapting to work or a work like setting and an inability to establish and maintain effective relationships, both of which would more likely than not preclude obtaining or sustaining gainful sedentary employment. Finally, the Board notes that a disability determination by the Social Security Administration found that the Veteran was disabled solely due to his mental health and back disabilities. While the Board is not bound by this decision, in this case the Board finds that it provides strong supporting evidence. Therefore, the evidence supports a finding that the Veteran’s service-connected disabilities, especially in combination, are of a nature and severity as to preclude him from engaging in the type of work for which he is qualified by reason of past education, work experience and training. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent prior to October 12, 2020, and in excess of 20 percent thereafter, for degenerative arthritis of the lumbar spine is remanded. 2. Entitlement to a compensable disability rating prior to January 2, 2015, and in excess of 10 percent thereafter, for service-connected left lower extremity radiculopathy is remanded. 3. Entitlement to a compensable disability rating prior to January 2, 2015, and in excess of 10 percent thereafter, for service-connected right lower extremity radiculopathy is remanded. While the record contains a contemporaneous VA examination regarding the Veteran’s lumbar spine degenerative arthritis, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner appears to have elicited relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups, the examiner did not adequately consider or address this information. Specifically, the estimated range of motion when considering the impact of flare-ups was identical to the objective range of motion testing during the examination. The Board finds this to be internally inconsistent as the Veteran reported no flare-ups during the examination and the VA examiner noted that flare-ups are severe and that they cause functional loss. Finally, because a decision on the remanded issue of entitlement to an increased rating for service-connected lumbar spine degenerative arthritis could significantly impact a decision on the issues of increased ratings for bilateral lower extremity radiculopathy the issues are inextricably intertwined. A remand of these claims is required. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine degenerative arthritis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must complete the corresponding VA disability benefits questionnaire (DBQ). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.