Citation Nr: 21011114 Decision Date: 02/27/21 Archive Date: 02/27/21 DOCKET NO. 18-18 888 DATE: February 27, 2021 ORDER A total disability rating based on individual unemployability (TDIU) from April 25, 2008 until May 28, 2014 is granted. REMANDED An extraschedular TDIU from May 15, 2007 until April 25, 2008 is remanded. Entitlement to aid and attendance and/or other special monthly compensation is remanded. FINDING OF FACT Giving the Veteran the benefit of the doubt, from April 25, 2008 until May 28, 2014, the Veteran’s service-connected disabilities precluded him from being able to secure and follow substantially gainful employment. CONCLUSION OF LAW From April 25, 2008 until May 28, 2014, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1952 to January 1955. This matter originally came before the Board of Veterans’ Appeals (Board) from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. This matter was previously remanded by the Board for further development, most recently in February 2020. This matter is again before the Board and has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). A TDIU from April 25, 2008 until May 28, 2014 is granted. The Veteran believes that a TDIU is warranted. See September 2018 BVA-General. A schedular total disability evaluation for compensation purposes may be assigned when the schedular rating is less than 100 percent, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities resulting from a common etiology or from a single accident are considered one disability for TDIU purposes. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a TDIU claim, the issue is whether a veteran’s service-connected disability or disabilities preclude the veteran from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As of April 25, 2008, the Veteran had a 30 percent disability rating for cervical spine degenerative disc disease, a 20 percent disability rating for right ankle posttraumatic degenerative joint disease, a 20 percent disability rating for left shoulder degenerative joint disease with rotator cuff tendonitis, a 10 percent disability rating for advanced left wrist posttraumatic degenerative joint disease, a 10 percent disability rating for left elbow degenerative joint disease, a 10 percent disability rating for tonsillectomy residuals, and noncompensable ratings for dermatitis versicolor, left varicocele, and left inguinal hernia repair scar disabilities. As of that date, the Veteran had a combined disability rating of 70 percent. See February 2020 Rating Decision – Codesheet. The cervical spine, right ankle, left shoulder, left wrist, and left elbow disabilities all resulted from a single accident; therefore, they are considered one disability for schedular TDIU purposes. See April 2014 Rating Decision – Narrative; June 2009 Rating Decision – Narrative; January 1956 Rating Decision. They combine to a 60 percent disability rating. Therefore, as of April 25, 2008, the Veteran met the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a schedular TDIU. A schedular TDIU is available from that date if the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. After a review of the evidence of record, the Board resolves any doubt in the Veteran’s favor and finds that the Veteran was unable to secure and follow a substantially gainful occupation due to service-connected disabilities from April 25, 2008 until May 28, 2014. The Veteran reports he has not worked since the 1980s. His work history included jobs as a construction supervisor and as a welder. See September 2019 CAPRI. Although it is unclear exactly what the Veteran’s highest level of education was, it appears that the Veteran never achieved a level of education higher than a high school diploma. See April 2015 VA 21-8940. Medical records from 2008 showed cervical spine, left shoulder, and left arm pain, weakness, and numbness; right ankle weakness and giving way; and a prescription for an electric scooter due to severe cervical stenosis. See March 1983 Medical Treatment Record; May 2008 Medical Treatment Record. The pain in the left neck, left shoulder, and left arm had gotten much worse, and the Veteran was miserable. He could only elevate his left arm to 60 degrees. See June 2008 Medical Treatment Record. The Veteran had numbness and tingling, dropped things, and had aggravated pain with turning and extension. See October 2008 Medical Treatment Record. During a July 2008 examination, the Veteran reported great difficulty with the right ankle. There was a daily burning sensation, swelling, weakness, and increased pain with movement. The Veteran also reported weekly flare-ups which lasted for hours. The examination found that the Veteran was unable to stand or walk for more than a few minutes or for a few yards. The right ankle gave way, was unstable, caused pain, was stiff, and was weak. During the severe weekly flare-ups, the Veteran was unable to place full pressure on the ankle. The Veteran had an antalgic gait, which was broad based and unsteady. There was tenderness, painful movement, abnormal motion, and guarding of movement. The examination did not provide an opinion on the right ankle’s effect on employment because the Veteran was not employed. However, the examination did find that the right ankle affected the Veteran’s ability to perform daily activities. There was a severe impact on his ability to do chores, exercise, and travel; sports were out of the question; and there was a moderate impact on shopping, recreation, bathing, dressing, toileting, and grooming. Additionally, the examination found that tonsillectomy residuals resulted in hoarseness, frequent breathing difficulty, a sore throat, and nasal congestion. The Veteran reported swallowing difficulty, swelling, and excess mucus which caused spitting. See July 2008 VA Examination. Medical records from 2009 showed right ankle pain, weakness, and decreased motion. The Veteran had problems with tripping. See December 2009 Medical Treatment Record. The Veteran also reported that his left shoulder pain had recently worsened, that he had cervical spine pain, and that his left upper extremity had numbness. An examination found limited left shoulder range of motion with joint tenderness and limited cervical spine range of motion, especially with forward flexion and extension. See January 2010 Medical Treatment Record; February 2010 Medical Treatment Record; July 2012 CAPRI. During an April 2009 examination, the Veteran reported constant left shoulder and left elbow pain. The pain radiated to the hand. He had difficulty lying on his left side as well as difficulty raising his arm overhead. Any pushing or pulling increased pain. Flare-ups occurred once or twice per week and lasted for hours. During flare-ups, the Veteran had throbbing pain and was unable to use the left arm at all. The examination found mild muscle wasting of the left shoulder, weakness of the left arm, and poor muscle bulk in the left arm. There was increased weakness, incoordination, and guarding of the left shoulder from repetition. There was pinpoint tenderness of the left elbow, which was extremely guarded. The left wrist had increased weakness, incoordination, fatigability, and guarding due to repetition. See April 2009 VA Examination. Medical records from 2010 showed the Veteran’s report that the left shoulder pain was getting worse and that he had limited range of motion. Sitting for prolonged periods aggravated the shoulder. The pain in the Veteran’s cervical spine, left elbow, and left wrist was an 8/10. He had reached the maximum benefit from physical therapy. See March 2018 CAPRI. The cervical spine had guarding, pain with motion, and tenderness. See July 2012 CAPRI. In 2010, the Veteran’s daughter reported that the Veteran’s right ankle caused problems with walking, that the left shoulder caused the Veteran to be unable to lift things, and that the left wrist caused problems with lifting and pulling. It appeared that the whole left side of the Veteran’s body had decreased strength. The Veteran complained of severe neck pain that radiated down the left side. See January 2010 Statement in Support of Claim. A March 2010 examination found that the right ankle gave way; was unstable; had pain, stiffness, weakness, incoordination, decreased speed of joint motion, severe weekly flare-ups which lasted for hours, tenderness, weakness, guarding of movement, loss of function, and muscle weakness; and resulted in tripping. The Veteran’s left elbow had problems with giving way, instability, pain, incoordination, decreased speed of joint motion, tenderness, weakness, guarding of movement, and severe weekly flare-ups which lasted for hours. The Veteran had constant severe daily cervical spine pain, which was sharp and pinching, and severe weekly flare-ups which lasted for hours. The Veteran was unable to walk for more than a few yards or stand for more than a few minutes. The examination did not provide opinions on the effects of the Veteran’s left elbow, right ankle, cervical spine, and left shoulder conditions on employment because the Veteran was not employed. However, the examination did generally find that each condition affected the Veteran’s ability to perform chores, shop, travel, recreate, bathe, dress, and groom, among other things. Chores, shopping, travel, and recreation were the most severely affected. See March 2010 VA Examination. During a July 2010 examination, the Veteran reported an increase in left wrist pain and numbness. The severe pain occurred every day and there were weekly flare-ups. The Veteran had difficulty raising his left arm. The examination found pain, stiffness, weakness, decreased speed of joint motion, and severe weekly flare-ups which lasted for hours. During the flare-ups, the Veteran was unable to use the left wrist at all. There was a moderate effect on the Veteran’s ability to drive. The Veteran also reported that the tonsillectomy residuals caused swallowing difficulties, laryngitis, swelling, soreness, and excess mucus. The examination found hoarseness and a moderate affect on the Veteran’s ability to eat. See July 2010 VA Examination. During a July 2011 examination, the Veteran reported left shoulder weakness, stiffness, heat, giving way, lack of endurance, locking, pain, and dislocation. Flare-ups were preceded by physical activity. He had difficulty with standing and walking. His side hurt when he lowered his shoulder. He had a lifting impairment. The examination found that the Veteran was limited in his ability to lift, push, and pull more than 10 pounds. See July 2011 VA Examination. Medical records from 2012 showed that the Veteran was unable to work in part due to his cervical spine stenosis. The Veteran also had constant and sharp pain in the left shoulder and right ankle, which was worse with movement. There was also left elbow pain. See July 2011 Third Party Correspondence; March 2018 CAPRI. In 2012, the Veteran also reported that he experienced constant severe pain from his left shoulder, left elbow, and left wrist disabilities. As a result, he was not able to be substantially employed. See July 2011 Statement in Support of Claim. During an August 2012 examination, the Veteran reported that his left shoulder and left elbow had arthritis, stiffness, and constant pain. During flare-ups, the Veteran was unable to lift anything, including his arm. It was very painful. The examination found left shoulder ankylosis; frequent episodes of recurrent dislocation; a history of mechanical symptoms like clicking, catching, etc.; reduced range of motion; and weakness in the left upper extremity. Due to left shoulder and left elbow pain, the Veteran could not grip and lift objects. There was easy fatigability with physical activity and left shoulder muscle weakness. The Veteran also reported that the left elbow and left forearm had severe constant pain, arthritis, were unable to bend, and were very painful to move. Flare-ups resulted in stiffness, severe pain, and an inability to use the left elbow and left forearm. The examination found left elbow ankylosis and muscle issues on flexion and extension. See August 2012 VA Examination. During an October 2013 examination, the Veteran reported severely painful left shoulder flare-ups and intermittent pain during the day. The pain was worse with driving and with increased movement. The examination found that the Veteran could not perform a full range of motion and had problems working on things overhead. Next, the Veteran reported left elbow intermittent pain and decreased range of motion when performing repetitive tasks at home. The Veteran also reported left wrist flare-ups, constant pain, and left wrist pain with repetitive motion tasks like raking or sweeping. Finally, the Veteran reported right ankle flare-ups and constant pain. He constantly used a cane for walking and occasionally used a brace. The Veteran could not stand or walk for extended periods of time or walk for more than half to one block without having to stop and rest. The examination found that the Veteran would not be able to perform or engage in strenuous labor. He could not perform heavy lifting. He had problems standing and walking. See October 2013 VA Examination. Medical records from 2014 showed neck pain, stiffness, popping, guarding, and shoulder pain. See August 2014 Medical Treatment Record. The Board finds the medical evidence above highly probative.  The Board also finds the Veteran and others competent to make the above lay statements.  The Board has no reason to doubt their credibility.  The Board gives the lay statements great probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).   The Board resolves all reasonable doubt in the Veteran’s favor and finds that the evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment from April 25, 2008 until May 28, 2014. Specifically, the Veteran had problems standing and walking for more than very short periods of time and had problems with tripping. The Veteran could not lift more than a few pounds, had problems with gripping objects, and had range of motion issues. During flare-ups, which generally lasted for hours, his upper left extremity was unusable, and he could not put full pressure on his right ankle. Additionally, any physical activity or movement increased pain, including repetitive motions. Even sitting aggravated the left shoulder. The Veteran had problems with instability, giving way, incoordination, weakness, and decreased speed. The Veteran also had problems with hoarseness, laryngitis, swallowing, and breathing. The combined effect of the Veteran’s service-connected disabilities precluded the Veteran from engaging in substantially gainful employment. Therefore, a schedular TDIU is granted from April 25, 2008 until May 28, 2014, with April 25, 2008 being the date when the Veteran first met the criteria for a schedular TDIU under 38 C.F.R. § 4.16(a). REASONS FOR REMAND 1. An extraschedular TDIU from May 15, 2007 until April 25, 2008 is remanded. Even when the schedular requirements for a TDIU are not met, entitlement to a total rating on an extraschedular basis may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). From May 15, 2007 until April 25, 2008, the Veteran did not meet the schedular requirements for a TDIU. A February 2020 Board remand instructed the RO to ask the Veteran to provide IRS tax returns and then to refer the TDIU issue to the Director of Compensation Service (Director) for extraschedular consideration if the Veteran did not meet the schedular requirements for a TDIU. See February 2020 Remand BVA. The issue was never referred to the Director because the Veteran did not provide IRS tax returns. See December 2020 SSOC. The Board finds that its remand instructions were not substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, nowhere in the Board’s remand instructions was it required that the Veteran had to provide IRS tax returns before the issue could be referred to the Director for extraschedular consideration. Therefore, a remand is needed. 2. Entitlement to aid and attendance and/or other special monthly compensation is remanded. The record suggests that aid and attendance and/or other special monthly compensation may be warranted due to the Veteran’s service-connected disabilities. See December 2020 CAPRI; January 2012 Buddy / Lay Statement. A claim for increased disability compensation may include the inferred issue of entitlement to special monthly compensation, even where the veteran has not expressly placed entitlement to special monthly compensation at issue. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Aid and attendance special monthly compensation is available if the veteran, as the result of service-connected disabilities, is permanently bedridden or so helpless as to require regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). The Veteran may be eligible for aid and attendance and/or other special monthly compensation. The Board finds that there is currently insufficient medical evidence of record to make a proper determination on the issue. Therefore, a remand is needed for a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Give the Veteran another opportunity to provide IRS tax returns for the years 2007-2008 and to provide a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of the tax returns for the requested years, he may use the IRS form cited to above. 2. Regardless of whether the Veteran provides IRS tax returns, submit the matter of entitlement to a TDIU on an extraschedular basis for the period from May 15, 2007 until April 25, 2008 to the Director for extraschedular consideration under 38 C.F.R. § 4.16(b). To the extent favorable to the Veteran, the determination of the Director should be implemented. 3. Schedule an appropriate VA examination to determine the need for aid and attendance and/or other special monthly compensation due to the Veteran’s service-connected disabilities. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Was/is the Veteran unable to dress or undress, or keep ordinarily clean and presentable? (B) Did/does the Veteran require frequent adjustment of any special prosthetic or orthopedic appliances, which by reason of service-connected disabilities, could not/cannot be done without aid? (C) Was/is the Veteran unable to feed himself through loss of coordination of upper extremities or through extreme weakness, or unable to attend to the wants of nature? (D) Did/does the Veteran have incapacity, physical or mental, that required/requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment? (E) Did/does the Veteran have any disability or disabilities that required/require that he remain in bed? If the examiner determines that the Veteran was/is in need of aid and attendance at any point during the appeal period (i.e. since May 2007), the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected disabilities caused/cause the Veteran to be in need of aid and attendance. If yes, the examiner should provide an opinion as to the specific date ranges during the appeal period that the Veteran was/is in need of aid and attendance due to his service-connected disabilities. The examiner should also describe the effective remaining function of the Veteran’s upper left extremity and lower right extremity (for the hand this would   include acts of grasping, manipulation, etc., and for the foot this would include balance, propulsion, etc.), throughout the entire appeal period (i.e. since May 2007) based upon the Veteran’s service-connected disabilities. Based on these findings, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that at any point during the appeal period (i.e. since May 2007) that no effective function remained/remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance for either extremity? If yes, which extremities? Also, if yes, the examiner should provide an opinion as to the specific date ranges during the appeal period that this was/is true for each extremity. A complete rationale for all opinions offered should be provided. Address the Veteran’s documented history and assertions. All relevant lay and medical evidence should be considered. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community’s knowledge or the limits of the examiner’s medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. Readjudicate the issues on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan, 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.