Citation Nr: 21005804 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-45 317 DATE: February 2, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) throughout the appeal period is granted. Special monthly compensation (SMC) under 38 C.F.R. § 1114(s) throughout the appeal period prior to September 7, 2018 is granted. REMANDED Higher ratings for service-connected right arm gunshot wound residuals (currently assigned “staged” ratings of 0 percent prior to October 17, 2019 and 10 percent from that date) are remanded. FINDINGS OF FACT 1. VA received the Veteran’s TDIU claim in July 2012, during the pendency of the gunshot wound residuals increased rating claim concurrently on appeal and, therefore, it must be considered part and parcel of that increased rating claim, which VA received earlier that year on June 19, 2012. Therefore, by law, the Board will consider that date as the date of claim for a TDIU rating purposes as well. 2. Throughout the period on appeal, the Veteran has met the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). He reported only ever working as a chemical operator and denies any other relevant training, education, or expertise. The Department of Labor’s Occupational Information Network database notes that chemical plant and system operators are responsible for tasks such as monitoring various instruments, operating chemical processes and machines “using panelboards, control boards, or semi-automatic equipment,” inspecting and maintaining operating units, patrolling work areas, and repairing or replacing damaged equipment. These tasks also appear consistent with the Dictionary of Occupational Titles’ description of the job as a “medium” strength occupation, particularly as the Social Security Administration (SSA) defines “medium work” as requiring lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds and “standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday” with sitting intermittently during the remaining time. 3. Treatment records as early as April 2012 (during the year preceding VA’s receipt of the June 19, 2012 claim underlying this appeal) document chronic axial back pain with right-sided leg pain and weakness, rated 10 out of 10 in severity, that extended down the right leg and worsened with lifting, sitting, standing, and walking. He did not identify any alleviating factors at the time. On formal VA examination that month, he again reported difficulty with prolonged standing or sitting and said he has to change positions while sitting. He also reported flare-ups with increased pain in both positions. A private evaluation that month show limitation to 25 percent of normal lumbar extension with extreme right leg pain on right lateral bending. In July 2012 (just three months later and one month after the Veteran filed the underlying claim), private treatment records show low back pain was aggravated with all activity, including sitting, standing, lifting, bending, and twisting, again without any alleviating factors. On examination that month, he reported flare-ups of back disability that still interfered with sitting, standing, and walking with weakness and burning in the right foot. That examiner found “moderate to severe L4-5 central stenosis” on April 2012 imaging and felt back pain limited sitting, standing, and walking. A year later, a March 2013 VA cardiological examiner confirmed that the Veteran’s lumbar disc disease limited his ability to work. 4. Evidence since then shows the Veteran’s back disability has not improved since—he eventually required surgery for his low back disability in March 2014 and a post-operative examination report showed he could not twist or turn his upper and lower torso, bend, or squat, and had an unsteady gait with lower extremity weakness. In October 2015, private records show continued aggravation of back pain by standing, sitting, walking, climbing stairs, and changing positions, particularly with weight-bearing. A more recent November 2019 VA examination report notes flare-ups causing increased pain, weakness, and fatigue with prolonged standing, walking, bending, and sitting. The examiner at the time indicated that all those activities would be required for his normal work. 5. Moreover, in addition to his significantly disabling back disability, other service-connected disabilities have also caused further occupational impairment during the period on appeal. March 2013 VA examination reports show the Veteran’s psychiatric disability caused cognitive difficulties (memory, attention, and concentration deficits, disturbances of motivation and mood, difficulty adapting to stressful circumstances) and social dysfunction (difficulty establishing and maintaining effective work and social relationships) that would further impair his occupational functioning, and that cardiological problems associated with his service-connected hypertension and hypertensive heart disease was a cause of major debility. An October 2015 private opinion indicates that “unpredictable manifestations of PTSD and service-connected heart disease,” among other service-connected conditions, “are permanent and progressive in nature without reasonable expectation of clinical and/or symptomatic improvement” and that clinical evidence showed the same conditions “do not allow him to follow any form of gainful occupation.” The opinion is supported by a detailed account of the impairments associated with his disabilities (e.g., psychiatric impairment causing increased insomnia, anxiety, depression, nightmares, and memory loss, cardiological disability causing angina, near-syncope, vertigo, dyspnea, and fatigue that “significantly intensifies with even minor exertion” that required maintaining life activity of less than 5 metabolic equivalents (METs). 6. Considering the above and the fact that pertinent negative medical opinions of record do not consider his disabilities in the aggregate and consistently lack explanations actually discussing the functional effects of his service-connected conditions, the Board finds the evidence is at least in relative equipoise as to whether impairment from the Veteran’s service-connected disabilities preclude him from doing his normal work (i.e., standing and walking for roughly six hours out of an eight hour work day or performing the numerous physically demanding tasks typically involved) or otherwise obtaining or maintaining unsheltered, gainful employment, given his lack of any other pertinent education, training, or expertise, throughout the period on appeal. 7. Given the Veteran’s rather considerable service-connected disabilities and ratings during the period on appeal (e.g., sleep apnea, posttraumatic stress disorder (PTSD), and hypertensive heart disease alone are rated 50 percent, 30 percent, and 50 percent, respectively, since well before VA received the claim underlying this appeal), the Board has also considered whether a single disability might support a TDIU rating such that it might constitute a “total” disability rating for purposes of determining entitlement to special monthly compensation (SMC) under 38 C.F.R. § 1114(s). While that question is moot from September 7, 2018 because the Veteran is being awarded SMC based on the need for aid and attendance (a greater benefit) from that date, the evidence reasonably shows that his physical impairment from low back disability (e.g., difficulty with prolonged standing and sitting throughout the appeal period, with additional difficulty bending, twisting, and walking), the requirements of the Veteran’s prior work, and his lack of any additional education, training, or expertise (described in further detail above) prior to September 7, 2018 was already sufficiently disabling that such disability alone could substantively support a finding of unemployability. In light of that finding and the fact that he has other service-connected disabilities that have been separately rated at least 60 percent during the period on appeal, SMC under 38 C.F.R. § 1114(s) is also warranted prior to September 7, 2018. CONCLUSIONS OF LAW 1. The criteria for TDIU are met throughout the appeal period. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2019). 2. The criteria for SMC under 38 C.F.R. § 1114(s) are met prior to September 7, 2018. 38 U.S.C. §§ 1114, 1155, 5107 (West 2014); 38 C.F.R. §§ 3.350 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 1962 to January 1964, March 1964 to February 1967, and March 1967 to February 1988. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision appealed in a timely January 2014 notice of disagreement (NOD) and perfected by a timely December 2015 substantive appeal in response to a November 2015 statement of the case (SOC). The Board previously remanded the TDIU and rating claims in September 2020 and September 2018. The Veteran was previously represented in these claims by an attorney who requested to withdraw from the case by August 2020 correspondence; the Veteran has not appointed a new representative and, therefore, proceeds with this appeal pro se. For the reasons outlined above, the Board grants TDIU throughout the appeal period and SMC under 38 C.F.R. § 1114(s) prior to September 7, 2018 (after which, this entitlement moot because the Veteran is receiving a greater benefit based on the need for aid and attendance). Given that both are full awards under the circumstances, the Board will not belabor those matters further with a detailed discussion beyond the detailed findings laid out above. [CONTINUED ON NEXT PAGE] REASONS FOR REMAND The appeal for an increased rating for service-connected right arm gunshot wound residuals is remanded. The Board’s prior remand order sought clarification of whether the Veteran’s reported right-hand neurological symptoms were, as he alleged, also residuals of or otherwise associated with his gunshot wound in service subject to rating as part of this appeal. A series of November 2020 VA examination reports and medical opinions found that this pathology is related to his gunshot wound residuals. However, a November 2020 Hand and Finger examination report shows the Veteran reported flare-ups of neurological impairment described as “episodes of numbness and tingling with loss of use” with a frequency of “2-3 months [sic]” and said he has impaired gripping and lifting. However, despite finding the examination results were consistent with the Veteran’s statements regarding limitations during flare-ups, the examiner indicated there was no functional impairment or loss under such conditions, leaving it unclear whether they considered the Veteran’s reports in making that determination. Consequently, further clarification is needed before the Board can accurately rate the entire disability on appeal. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Schedule the Veteran for an in-person or telehealth examination (whichever is more appropriate) by a neurologist, orthopedist, or other appropriate physician to clarify the severity of the neurological component of his right-hand gunshot wound residuals. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF SYMPTOMS AND HOW FUNCTIONING VARIES WITH FLARE-UPS OR REPEATED USE OVER A PERIOD OF TIME), review of the record, and any tests deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment in enough detail to allow for application of the pertinent rating criteria. The examiner should SPECIFICALLY clarify whether the Veteran’s right-hand neuropathy gunshot wound residuals noted at the November 2020 VA examination cause any functional impairment during flare-ups or with repeated use over time, with full consideration of both pertinent examination findings AND subjective reports of observable symptoms. The examiner should also ask for further detail regarding the alleged “loss of use” reported on November 2020 examination for purposes of determining whether the Veteran’s neurological gunshot wound residuals cause loss of all effective function other than that which would be equally well served by an amputation stump at the site below the elbow with use of a suitable prosthetic appliance. That inquiry should include (but is not limited to) considering whether acts such as grasping or manipulation of the hand could be accomplished equally well by an amputation stump with prosthesis. (CONTINUED ON NEXT PAGE)   All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.