Citation Nr: 21011860 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-13 079 DATE: March 2, 2021 REMANDED An increased rating in excess of 20 percent for degenerative joint disease (DJD) of the thoracolumbar spine prior to December 8, 2019; and in excess of 40 percent since December 8, 2019 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1983 to November 2006. This appeal arises from a January 2012 rating decision, which partially increased the Veteran’s thoracolumbar DJD from 10 to 20 percent, effective from October 20, 2011, the date of an increased rating claim. The Veteran testified at a Board hearing at the RO (Travel Board) in June 2019, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In October 2019, the Board remanded the case to the AOJ for additional development and consideration. On remand, the AOJ’s September 2020 rating decision increased the Veteran’s thoracolumbar spine DJD from 20 to 40 percent, effective from December 8, 2019. The file is again before the Board for further appellate review. 1. An increased rating in excess of 40 percent for DJD of the thoracolumbar spine The Board remanded the issue of an increased rating in excess of 20 percent for DJD of the thoracolumbar spine to the AOJ for the primary purpose of obtaining another VA examination to assess the severity of the back disability. On remand, the AOJ provided a VA back examination in December 2019. A September 2020 rating decision then increased the Veteran’s thoracolumbar spine DJD from 20 percent to 40 percent, under 38 C.F.R. § 4.71a, DC 5242, for effective from December 8, 2019, the date of the VA spine examination. Notably, the General Rating Formula for Diseases and Injuries of the Spine provides for higher ratings, such as a 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine. A Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise. See AB v. Brown, 6 Vet. App. 35, 39 (1993). However, the September 2020 supplemental statement of the case (SSOC) did not list the issue of an increased rating for a back disability in excess of 20 percent prior to December 8, 2019, nor did it address the possibility of an increased rating in excess of 40 percent since December 8, 2019. The Veteran’s representative’s December 2020 informal hearing presentation (IHP) correctly pointed out that the AOJ must issue another SSOC that addresses the increased rating claim for thoracolumbar spine DJD. 38 C.F.R. § 19.38. 2. Entitlement to a TDIU As an initial matter, per § 4.16 (a), the Veteran has met the schedular requirements for eligibility for a TDIU. The Veteran is service-connected for thoracolumbar spine DJD (40 percent) along with associated left-sided and right-sided lower extremity radiculopathies rated at 10 percent for each side, and a combined evaluation of 70 percent. The percentage criteria are met. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of “sedentary employment.” Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, “the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran’s education, training, and work history.” Id. at 149-150. The physician who conducted the December 2019 VA back examination provided an August 2020 addendum medical opinion on occupational impairment due to his thoracolumbar spine DJD, stating, “Vet currently does not work. Vet’s service connected back condition makes it difficult for vet to perform prolonged walking beyond a few blocks, run and stand for long periods and to do heavy lifting, pushing or pulling. These limitations impact vet’s ability to secure and maintain gainful employment in a physically strenuous work environment. However, in my opinion these limitations do not prevent the vet from securing and maintaining gainful employment in a sedentary setting with appropriate work accommodations/restrictions including frequent breaks.” However, the Veteran testified at his June 2019 Board hearing that his civilian work history involved work as a military contractor in Kosovo. He testified that he worked at NATO headquarters and was a small UAV (unmanned aerial vehicle) operator. When asked about the nature of his duties, he testified, “Of course, office duties within the headquarters, advising the command on use of the UAV and then going out into the field and operating the launch of the UAV.” See June 2019 Board hearing transcript, at 10. Thus, some clarification is needed on the opinion, particularly given the Veteran’s reported mix of administrative and “field” duties of a more physically strenuous nature in his work history. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds further medical comment would be helpful to resolve this claim. On remand, the Board finds it is necessary for the AOJ to obtain an addendum opinion on the TDIU claim to assist with adequate consideration of the Veteran’s particular work history as a military contractor. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion on the Veteran’s TDIU claim from a qualified VA clinician, different than the clinician who provided an opinion in August 2020. The clinician should indicate that the record was reviewed. If the clinician determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Rationale must be provided for the opinions provided. On review of the record, the clinician should respond to the following: Identify any occupational impairment, concerning his prior military contractor duties, involving both office duties and field duties, (i) due to his service-connected thoracolumbar spine disability and associated radiculopathies alone; and (ii) due to all of his service-connected disabilities (i.e., thoracolumbar spine DJD and associated radiculopathies, right shoulder arthritis, right knee arthritis, left knee arthritis, left shoulder impingement, and hemorrhoids) combined. 2. Then readjudicate the issues of a TDIU and an increased rating for thoracolumbar spine DJD. If these claims are not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case and allow an appropriate time for response. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.