Citation Nr: 21012272 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-48 543 DATE: March 4, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 20 percent for a back disability is remanded. FINDING OF FACT The Veteran’s service-connected disabilities precluded substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1973 to September 1994. In August 2019 the Veteran passed away. In June 2020, the regional office (RO) granted the Veteran’s spouse’s motion for substitution making her the appellant in this appeal. In a March 2019 decision by a Veterans’ Law Judge not the undersigned the Board of Veterans’ Appeal (Board), among other things, denied a rating in excess of 20 percent for a back disability. The Veteran appealed the March 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court) which appeal was continued by his wife after he passed away in August 2019. In an August 2020 order, that incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board’s March 2019 decision to the extent that it denied a rating in excess of 20 percent for a back disability. The Board finds that the appeal raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU Claim In May 2019, shortly before his death in August 2019, the RO received Veteran’s claim for his TDIU because he believed that his service-connected disabilities prevented him from working. 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. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Prior to his death, the record shows that the Veteran was service-connected for the following disabilities: • posttraumatic stress disorder (PTSD) rated as 30 percent disabling; • a back disability rated as 20 percent disabling; • left leg radiculopathy rated as 20 percent disabling; • left leg radiculopathy rated as 20 percent disabling; • a post-operative back scar 10 percent disabling; • a second post-operative back scar rated as noncompensable. In summary, the Board finds that this record shows that the Veteran meet the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher at all times when his back disability, right and left leg radiculopathy, and post-operate back scars are treated as one disability and he had a combined rating of 70 percent or higher. The question for the Board to consider is when, if ever, his service-connected disabilities rendered him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the Veteran’s VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), dated in May 2019, he reported, in substance, that he had not worked full-time was July 2011 and he became too disabled to work since July 2012 because of his service-connected disabilities. As to his work history, the Veteran reported that from 1994 to 2002 he worked for the State as the Director of Transportation, for 4-months in 2002 he worked as the Director of Joint Services for Parsons, from 2002 to 2006 he worked for L-3 Communications in Naval Joint Projects; for 9-months in 2006 he worked for Caliber as the Director of Joint Warfare, and from 2009 to 2010 he worked for Human Terrain Servicing as a Team Manager of a system team. As to his education, the Veteran did not provide it in the TDIU Claim Form and it is not otherwise found in the record except to note that he did not have any other education of training. Significantly, as to the Veteran’s being able to work prior to his death performing jobs that require sedentary employment and non-sedentary employment, including his past employment in management, as well as other possible employment that could have made use of his work experience, the Board finds that the medical records show that the problems caused by his service-connected PTSD along with his service-connected back disability, right and left leg radiculopathy, and post-operate back scars would have adversely impacted his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected PTSD along with his service-connected back disability, right and left leg radiculopathy, and post-operate back scars would have made it dangerous for the Veteran to have worked in most non-sedentary employments. Id. Similarly, the Board finds that that his service-connected PTSD and the pain caused his service-connected PTSD back disability, right and left leg radiculopathy, and post-operate back scars would have made it very difficult to learn the new skills needed to work in most sedentary employments and thereafter interact with his co-workers as well as any customers as well as carry out the duties required by such employment. Id. Given the above, the Board finds that the Veteran’s service-connected disabilities prevented him from securing or following a “substantially gainful” occupation given his prior vocational history, work experience, and the impact his service-connected PTSD along with his service-connected back disability, right and left leg radiculopathy, and post-operate back scars would have had on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment in management, because of the problems they would cause in any work environment. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities rendered him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities would have had on all employment and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. REASONS FOR REMAND Initially, as to all the remanded issue, the Board notes that as discussed above the Veteran met the criteria for a TDIU. Therefore, while the remaining issue on appeal is in Remand status, the appellant, after consultation with her representative, may wish to withdraw the below claim (in writing). Entitlement to a rating in excess of 20 percent for a back disability is remanded. The JMPR vacated and remanded the Board’s March 2019 decision because the May 2015 VA examination it relied upon when adjudicating the claim was not adequate because the examiner did not provide back motion in both active and passive motion and in weight-bearing and non-weight-bearing as required by the Court in Correia v. McDonald, 28 Vet. App. 158 (2016) as well as because the examiner did not provide the range of motion of the back during flare-ups as required by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, the JMPR stated that “the Board must obtain a retrospective opinion that complies with 38 C.F.R. §§ 4.40 and 4.45 (2020), and Sharp, 29 Vet. App. at 32; Correia, 28 Vet. App. at 169-70; Mitchell, 25 Vet. App. at 43-44; and DeLuca, 8 Vet. App. at 205-07 and provides an adequate discussion of the Veteran’s functional loss.” Initially, the Board notes that the issue on appeal neither includes a claim for an earlier effective date for the grant of the 20 percent rating for the back disability or a claim for an increased rating for a back disability where the appellant was assigned staged ratings (see Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999)). Therefore, notwithstanding the above language in the JMPR, the Board finds that there are no grounds for obtaining a “retrospective” medical opinion. Next, the Board notes that the May 2015 VA examiner clearly had no idea regarding the new requirements cited to by the Court in Correia, supra, which was not decided until July 5, 2016, and Sharp, supra, which was not decided until September 6, 2017. Nonetheless, given the language found in the JMPR and notwithstanding any doubt the Board may have in the ability of a VA examiner to provide a Veteran’s back’s range of motion in accordance with Correia, supra, and Sharp, supra, when he passed away in August 2019, it will non-the-less Remand the appeal to attempt to obtain this information or, if medically impossible, an adequate explanation as to why the range of motion estimates cannot be provided. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); but see Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Lastly, the Board notes that since the regional office (RO) issued the September 2016 statement of the case (SOC) additional evidence was added to the claims file and VA amended some of its’ criteria for rating musculoskeletal disabilities, including the back under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5242, effective February 7, 2012. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Therefore, a Remand is also required for the RO to provide the appellant with a new supplemental statement of the case (SSOC) which considers the additional evidence and the new rating criteria. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). Given the grant of TDIU, the appellant, in consultation with the representative, may wish to withdraw this claim (in writing). This issue is REMANDED for the following actions: 1. In order to comply with the JMPR, obtain a medical opinion from a suitably-qualified medical professional as the severity of Veteran’s back disability before his death in August 2019. The claims folder should be made available to and reviewed by the examiner. After a review of the claims file, the examiner should provide answers to the following questions: (a) The examiner should identify all back pathology found to be present in the record. (b) In order to comply with the JMPR and Correia, supra, the examiner based on the Veteran’s lay statements and the other evidence of record should provide back range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing taking into account pain, weakened movement, excess fatigability, instability of station and incoordination present. (c) In order to comply with the JMPR and Sharp, supra, the examiner based on the Veteran’s lay statements and the other evidence of record provide an opinion estimating any additional degrees of limited back flexion, extension, side to side, and rotation caused by functional loss during a flare-up and after repeated use over time. (d) The examiner based on the Veteran’s lay statements and the other evidence of record should also state the number of weeks of incapacitating episodes caused by the back disability in each 12-month period during the pendency of the appeal. (e) The examiner based on the Veteran’s lay statements and the other evidence of record should state the nature, extent, and severity of any loss of sphincter and bladder control caused by the service-connected disability. In order the comply with the JMPR, if the examiner cannot provide either and/or both the above range of motion estimates in accordance with Correia, supra, and Sharp, supra, he/she 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). In order the comply with the JMPR, the examiner when providing the above opinions should consider and discuss the significance, if any, of the Veteran’s use of a back brace as an assistive device to manage his disability as it related to his functional loss. In providing the opinions, the examiner should consider the competent lay claims from the Veteran found in the record regarding observable symptomatology. The examination report, including any statement that the examiner cannot provide any of the requested opinions, must include a complete rationale for the opinion expressed. 2. After undertaking the above development, the RO should issue the appellant a SSOC that, among other things, considers and adjudicates the claim for an increased rating for the back disability taking into account all evidence added to the record since the September 2016 SOC and the new musculoskeletal Diagnostic Codes. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.