Citation Nr: 21008605 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-66 969 DATE: February 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 9, 2017 is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to March 31, 2017, and in excess of 20 percent thereafter, for thoracolumbar spine degenerative joint disease with strain (previously rated as thoracolumbar strain with degenerative disc disease, hereinafter back disability) is remanded. Entitlement to a rating in excess of 10 percent for cervical spine degenerative arthritis with sprain (previously rated as cervical back strain, hereinafter neck disability) is remanded. Entitlement to a rating in excess of 10 percent for chronic right ankle tendonitis (hereinafter right ankle disability) is remanded. FINDING OF FACT Prior to February 9, 2017, the Veteran was employed full-time as a corrections officer. CONCLUSION OF LAW The criteria for TDIU prior to February 9, 2017, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1985 to December 1985, and February 1996 to March 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a hearing before the undersigned. Entitlement to TDIU prior to February 9, 2017, is denied. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case to the Director for consideration of an extraschedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). Section 4.16 of VA’s regulations does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, as above, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. The Court has held that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Therefore, as the record reflects some evidence of unemployability, the issue of whether the Veteran is entitled to a TDIU has been raised as part of his claim for an increased evaluation for his back, neck and right ankle disabilities, which was filed in June 2015. The Veteran has been granted TDIU as of February 9, 2017. Thus, the issue remaining is entitlement to TDIU prior to February 9, 2017. Prior to February 9, 2017, the Veteran’s combined evaluation was 70 percent, effective November 21, 2012, with the Veteran’s service-connected posttraumatic stress disorder being rated at 50%. Thus, the Veteran meets the schedular requirements for TDIU during the time period on appeal. However, the record reflects that the Veteran was employed full-time as a corrections officer from September 2008 until February 8, 2017, at which point he was transferred to long term disability. The Board finds that the Veteran’s full-time employment prior to February 9, 2017, indicates the Veteran was not unemployable prior to that date. The Board has also considered whether the Veteran’s employment constituted marginal employment, however, there is no indication that the Veteran’s income fell below the poverty limit or that he was employed in a protected environment such as a family business or sheltered workshop. Accordingly, the requirements for a TDIU have not been met prior to February 9, 2017, because the preponderance of evidence establishes the Veteran maintained substantially gainful employment during this time period on appeal. Thus, entitlement to a TDIU prior to February 9, 2017, is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to March 31, 2017, and in excess of 20 percent thereafter, for a back disability is remanded. 2. Entitlement to a rating in excess of 10 percent for a neck disability is remanded. 3. Entitlement to a rating in excess of 10 percent for a right ankle disability is remanded. The Veteran was afforded VA examinations in August 2015 regarding his back, neck, and right ankle disabilities. The Board finds the August 2015 VA examinations to be inadequate because, for each disability, the examiner stated that they were unable to say, without resort to speculation, whether pain, weakness, fatiguability or incoordination significantly limits the Veteran’s functional ability after repeated use over time and during flare-ups. Because the examiner did not indicate whether they had considered all procurable data (i.e., the Veteran’s statements regarding any functional loss during flare-ups), and whether any member of the medical community at large could not provide such an opinion without resorting to speculation, the August 2015 VA examinations are deemed inadequate. See Sharp v. Shulkin, 29 Vet. App. 26, 34-37 (2017). The Veteran was again afforded VA examinations in March 2017 regarding his back and neck disabilities. The Board finds the March 2017 VA examinations to be inadequate for the same reason stated above. In addition, the March 2017 VA examinations are inadequate because the VA examiner did not review any of the Veteran’s records. Finally, the March 2017 VA examination regarding the Veteran’s neck disability is inadequate because the VA examiner did not address the conflicting medical evidence of record that establishes that the Veteran suffers from right upper extremity radiculopathy. For these reasons, remand for new VA examinations is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination (or telehealth interview, if an in-person examination is not feasible), preferably with a clinician who has not previously examined the Veteran, to determine the current nature and severity of his service-connected back disability, neck disability, and right ankle disability.  After reviewing the entire claims file, the selected examiner should conduct all indicated tests and studies, to include range of motion testing. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.  The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present.   The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including:  frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examiner may not dismiss the Veteran’s report of symptoms capable of lay observation solely on the basis that they are not documented in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, Associate 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.