Citation Nr: 21007924 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-36 262 DATE: February 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from February 6, 2018 is granted, subject to regulations governing payment of monetary benefits. REMANDED Entitlement to a rating in excess of 20 percent for a back disability prior to March 8, 2019 and from May 1, 2019 is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity prior to September 4, 2019, and in excess of 20 percent from that date is remanded. Entitlement to TDIU prior to February 6, 2018, to include on an extraschedular basis, is remanded. FINDING OF FACT From February 6, 2018, the Veteran meets the schedular criteria for TDIU and his service-connected disabilities prevent him from engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU have been met from February 6, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.40, 3.41, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to August 1967. The appeal was most recently before the Board in June 2018 when it was remanded for further development. 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).     In an interim December 2019 rating decision, the rating of the Veteran’s right lower extremity radiculopathy was increased from 10 to 20 percent, effective September 4, 2019, and a 20 percent rating for radiculopathy of left lower extremity was continued. While the Veteran did not disagree with the denial of higher ratings in the initial November 2013 rating decision on appeal, as the radiculopathies are separate neurological manifestations of the Veteran’s service-connected back disability and the increased rating was granted based on an examination obtained in conjunction with the appeal of the rating of the Veteran’s back disability, the Board has jurisdiction over the claims for higher ratings for his bilateral radiculopathy as part of his claim for an increased rating for a back disability. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine, Note (1) (2017). In the June 2018 decision, the Board specifically found that TDIU was not on appeal; however, a claim for TDIU was re-raised in September 2019, in connection with the claims on appeal. The Veteran submitted a VA Form 21-8940, Application for TDIU, and specified his back disability prevented him from working. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU The Board finds that entitlement to TDIU is warranted from February 6, 2018. 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 (a). 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. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran’s service-connected disabilities are unspecified depressive disorder, rated as 30 percent from February 6, 2018; degenerative joint disease of the lumbar spine, rated as 20 percent from November 1, 2007, 100 percent from March, 8, 2019, and 20 percent from May 1, 2019; radiculopathy of the left lower extremity rated as 20 percent from July 17, 2007; radiculopathy of the right lower extremity rated as 10 percent from July 17, 2007, and 20 percent from September 4, 2019; tinnitus rated as 10 percent from June 21, 2005; bilateral hearing loss rated as noncompensable (0 percent) from June 21, 2005; and surgical scar of the back, rated as noncompensable (0 percent) from March 8, 2019. The Veteran’s combined disability rating is 70 percent, effective February 6, 2018; the schedular criteria for TDIU are met from that date. 38 C.F.R. § 4.16 (a)(2). Accordingly, the Veteran meets The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 4.16 (b), 4.19. In his September 2019 Application for TDIU, the Veteran asserted his lower back condition prevented him from securing or following any substantially gainful occupation. He reported he last worked fulltime in January 2014, performing maintenance, when he became too disabled to work. He also reported he was a high school graduate. On September 2019 VA back examination, the examiner opined that the Veteran’s back condition impacted his ability to work. The examiner noted that due to his back and lower extremity radiculopathy, the Veteran described difficulty walking one block, sitting for over 20 minutes, and standing for over 5 to 10 minutes. The examiner noted he was unable to do any heavy lifting, carrying, repetitive bending, repetitive lifting, or repetitive carrying. Stairs were very difficult and slow for him, and even walking short distances appeared slow and difficult due to pain. 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). The Board finds that the Veteran’s service-connected disabilities precluded him from being able to maintain substantially gainful employment from February 6, 2018. His work history performing maintenance involved physical activities, and the September 2019 VA examiner found that his service-connected back disability resulted in an inability to lift or carry heavy objects or perform repetitive activities needed to perform manual labor. Accordingly, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has been precluded from securing and following gainful employment due to his service-connected disabilities, and TDIU is warranted from February 6, 2018. Entitlement to TDIU for the period prior to February 6, 2018 will be addressed in the remand section below. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for a back disability is remanded. While the record contains a contemporaneous September 2019 VA examination regarding the Veteran’s back disability, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner noted that the Veteran had pain on all range of motion that caused functional loss, but did not indicate where pain begins and ends. That examination is inadequate and the claim is remanded for a new examination. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity prior to September 4, 2019, and in excess of 20 percent from that date is remanded. The claims for higher ratings for the Veteran’s radiculopathy of the left and right lower extremities must be remanded as intertwined with the back claim. Entitlement to TDIU prior to February 6, 2018, to include on an extraschedular basis, is remanded. The Veteran reportedly last worked full time in January 2014, when he became too disabled to work due to his back disability. However, the Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16 (a) prior to February 6, 2018. In granting TDIU for the period from that date, the Board has concluded that he is unemployable due to symptomatology associated with service-connected back disability. Accordingly, as the remanded issues of entitlement to higher ratings for the Veteran’s back disability and associated radiculopathy include consideration of the ratings for the period prior to February 6, 2018, the issues are inextricably intertwined. A remand of the claim of entitlement to TDIU prior to February 6, 2018 is required. If as a result of the development ordered on remand, increased ratings are granted, the Veteran may meet the criteria for 38 C.F.R. § 4.16 (a) earlier. If the development of the claims do not result in an increased rating for the period prior to February 6, 2018, the TDIU claim should be referred for extraschedular consideration. On remand, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any back or neurological complaints since December 2012 not already associated with the record.  After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment since November 2019. 2. After the completion of the above, schedule the Veteran for an examination of the current severity of his service-connected back disability and radiculopathy of the bilateral lower extremities. Copies of all pertinent records must be made available to the examiner for review. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups throughout the entire period on appeal. To the extent possible, the examiner should identify any symptoms and functional impairments due to his back disability alone and discuss the effect of the Veteran’s back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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. The severity of all neurological manifestations must be identified. 3. After completion of the above, adjudicate the TDIU claim for period prior to February 6, 2018. If the Veteran does not meet the schedular criteria for any time prior to February 6, 2018, refer the TDIU claim to VA’s Director of Compensation Service for extraschedular consideration. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.