Citation Nr: 21009894 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-28 787 DATE: February 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period beginning on May 24, 2006 is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected lumbar spine degenerative disc disease is remanded. FINDING OF FACT Effective May 24, 2006, the evidence reasonably shows that the Veteran’s service-connected back and PTSD disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU, effective May 24, 2006, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§  3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1977 to July 1981, and from September 1981 to March 1982. In an April 2018 decision, the Board denied the issue of entitlement to a disability rating in excess of 10 percent for lumbar spine degenerative disc disease and denied entitlement to an effective date prior to March 22, 2013 for TDIU. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order of the Court granting a September 2020 Joint Motion for Remand (JMR), the parties agreed to vacate the April 2018 Board decision and remand the matter for further development. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period beginning on May 24, 2006 is granted. In the September 2020 JMR, the parties agreed to vacate the April 2018 Board decision, which denied the Veteran’s claim for an effective date earlier than March 22, 2013 for TDIU. It was noted that the Board failed to offer adequate reasons or bases for its determination that the Veteran was not entitled to an earlier effective date for TDIU. It was noted that in its April 2018 Board decision, the Board found that the Veteran’s TDIU could not be awarded an effective date earlier than March 22, 2013. However, the Veteran raised the issue of TDIU during the pendency of his appeal of the initial rating assigned for his lumbar spine degenerative disc disease. It was noted that “[A] request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities.” Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). “When entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability.” Id .at 454. Accordingly, an effective date for TDIU can potentially, based on the facts found, extend back to the date of claim of the underlying disability when raised during the pendency of an original claim. See id.at 453-54. Thus, it was noted that a remand was warranted for the Board to explain why the Veteran could not be granted an earlier effective date, since the issue of entitlement to TDIU was raised during the appeal of the back claim. See Tucker v. West, 11 Vet. App. 369, 374 (1998); see also Rice, 22 Vet. App. at 453-54. Here, the Veteran and his representative assert that an effective date of May 24, 2006 is warranted for his award of TDIU. The Board notes that the Veteran was granted service connection for his back condition, effective May 24, 2006, in an April 2011 rating decision. In February 2012, the Veteran filed a notice of disagreement (NOD) with his initial noncompensable rating for his back disability. In August 2013, while the Veteran’s increased rating for his back claim was still on appeal, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in which he stated that his back problems, hearing, and PTSD prevented him from securing or following substantially gainful employment. In a July 2014 rating decision, the Veteran’s back disability was increased to 10 percent effective May 24, 2006. In a March 2015 rating decision, the Veteran was granted TDIU effective August 2, 2013, the date of his formal claim of entitlement to a TDIU. In its April 2018 Board decision, the Board granted an earlier effective date of March 22, 2013, the date the Veteran’s attorney’s correspondence was received by VA. As the claim for an increased rating for the Veteran’s back disability was on appeal at the time VA received the Veteran’s VA Form 21-8940, including the back disability as a reason for his unemployability, the claim for entitlement to TDIU is considered part of the claim for a higher initial rating claim for the Veteran’s back disability. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009) (when entitlement to TDIU is raised during the administrative appeal of the initial rating assigned for the underlying disability or disabilities, it is a part of the claim for benefits for that disability or disabilities). Therefore, the earliest possible effective date available for the award of a TDIU is May 24, 2006, the effective date for the award of service connection for the Veteran’s back disability (which the initial rating is on appeal). See 38 C.F.R. § 3.400. 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 or as a result of two or more disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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). From May 24, 2006, the Veteran is service connected for posttraumatic stress disorder (PTSD), rated at 70 percent, and degenerative disc disease of the lumbar spine, rated at 10 percent. His combined disability rating from that date is 70 percent. Thus, from May 24, 2006, his disability ratings meet the minimum requirements in 38 C.F.R. § 4.16 (a) for consideration of a TDIU on a schedular basis. Having established that the Veteran’s disabilities met the schedular criteria for a TDIU from May 24, 2006, the remaining question is when the entitlement to TDIU arose. After review of the evidence of record, the Board finds that the record reflects that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service connected back disability and PTSD from May 24, 2006. The Veteran’s SSA records from 2005 indicate that the Veteran was having trouble with lifting, squatting, and bending. The Veteran also indicated that his back pain is one of the conditions that limit his ability to work. The June 2014 VA examination indicates that the Veteran’s back condition impacts his ability to work due to pain with bending, prolonged walking, and standing. The examiner noted that the Veteran can do sedentary work and light physical labor with his low back condition. In that regard, there is evidence that the Veteran’s PTSD impacted his ability to work during this time period. A review of the Veteran’s Social Security Administration (SSA) records reflect that the Veteran primarily worked as a custodian. While its decision is not binding on VA, the SSA has determined that the Veteran became occupationally disabled in May 2005 based on his organic mental disorder and affective mood disorder. In a May 2005 VA mental health treatment record, it was noted that the Veteran was fired from his job of 7 years as a night janitor after coming to work with a knife on his belt. He was noted to be a difficulty historian with significant circumstantiality and disorganization. He had not been sleeping more than one hour during any twenty four hour period. The Veteran had thoughts about hurting certain people where he worked until his termination five days earlier. He had months of low mood, poor self confidence and low energy. In an August 2011 PTSD VA examination, the Veteran was noted to have occupational and social impairment with deficiencies in most areas. The examiner stated that the Veteran’s ability to obtain and sustain effective and meaningful interpersonal relationships is impaired by his PTSD symptoms. His highest level of education is a high school diploma. After service, he worked as a dishwasher, and a custodian in two different school districts. He had multiple-work related reprimands. In a March 2013 private vocational opinion, the Veteran was noted to have not worked since 2005. The vocational expert stated that the Veteran’s emotional symptoms do appear to be significant enough to render him totally unable to work. In a July 2017 private vocational opinion, the Veteran was noted to be totally and permanently precluded from perfuming work at a substantial gainful level due to the severity of his service-connected PTSD, lumbar spine degenerative disc disease, tinnitus and hearing loss. It was noted that the record supports this find as of May 24, 2006. Based on the foregoing, the Board finds that an effective date of May 24, 2006 for TDIU, is warranted. The evidence, as summarized above, indicates that, throughout the appeal period, the Veteran’s service-connected back and PTSD disabilities negatively impacted the Veteran’s ability to obtain or maintain substantially gainful employment. Therefore, a TDIU from May 24, 2006 is warranted, and the claim is granted. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 10 percent for service-connected lumbar spine degenerative disc disease is remanded. As noted above, in a September 2020 JMR, the parties agreed to vacate the April 2018 Board decision, which denied the Veteran’s claim for a higher initial evaluation for his service-connected lumbar spine degenerative disc disease. In that regard, the JMR found that the Board erred when it relied upon the inadequate March 2017 VA examination. It was noted that the March 2017 VA examiner failed to adequately explain why he could not quantify the additional range of motion lost, if any, by the Veteran on repeated use. For an examination to comply with 38 C.F.R. § 4.40, the examiner must “express an opinion on whether pain could significantly limit functional ability during flare-ups or when [the joint] is used repeatedly over a period of time,” and the examiner’s determination in that regard “should, if feasible, be portrayed in terms of the degree of additional range-of motion loss due to pain or use ir during flare-ups.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). When an examiner is unable to offer an opinion on the degree of additional range of motion loss, “the Board [is permitted] to accept a VA examiner’s statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed.” Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (citing Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). It was noted that the March 2017 VA examiner found that the Veteran’s back condition impacted his ability work and that he would “most likely not function in physical roles”. However, the examiner stated that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repeated use over time because the Veteran could not be measured with a goniometer. It was noted that such explanation does not make clear that the examiner’s inability to speculate “is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.” Sharp, 29 Vet. App. at 36. Therefore, remand is warranted for an examination that portrays the Veteran’s functional loss, if any, after repeated use over time in terms of the degree of additional range-of-motion lost or adequately explains why the examiner is unable to speculate on the additional degree of range of motion lost in compliance with Sharp. See Sharp, 29 Vet. App. at 36; see also Tucker v. West, 11 Vet. App. 369, 374 (1998) (explaining that remand is appropriate “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of his lumbar spine degenerative disc disease. The electronic claims file, including a copy of this REMAND, must be made accessible to the examiner for review. In the report, in addition to setting forth all other pertinent findings, the examiner must address the following: If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. 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 so in the report. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran’s disability. The examiner should 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, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his lumbar spine degenerative disc disease and/or after repeated use over time. (Continued on the next page)   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. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.