Citation Nr: 21015638 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-23 926 DATE: March 18, 2021 REMANDED Entitlement to a temporary total evaluation based on convalescence following treatment for service-connected degenerative disc disease L5-S1 (lower back condition) is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected conditions is remanded. REASONS FOR REMAND The Veteran served on active duty in the Unites States Marine Corps from August 1964 to January 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) regional office. In December 2020, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. See December 2020 Board Hearing Transcript. 1. Entitlement to a temporary total evaluation based on convalescence following treatment for service-connected lower back condition is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. Specifically, a remand is warranted as the evidence indicates that there may be relevant private medical records, of which VA is aware, that are not associated with the electronic claims file. The claims file indicates that the Veteran has received treatment for his lower back condition from Dr. H. Tung and at Scripps Memorial Hospital and Sheppard Spine and Sports Clinic. However, only excerpts of such treatment have been associated with the claims file and there is no indication that such records have been requested. See Dr. H. Tung records, received July 2013 and December 2014; Scripps Memorial Hospital records, received March 2014; Sheppard Spine and Sports Clinic records, received July 2019; July 2013 VA Form 21-4142. As such, a remand is necessary to allow the AOJ to obtain pertinent private medical records. See 38 U.S.C. § 4103(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). 2. Entitlement to a TDIU due to service-connected conditions is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the AOJ to conduct additional development. First, as discussed above, a remand is necessary as the evidence indicates that there may be private medical records pertaining to treatment for his service-connected lower back condition that are not associated with the electronic claims. Additionally, the claims file indicates that the Veteran has received treatment for his service-connected unspecified depressive disorder (psychiatric condition) that are not associated with the electronic claims file. Specifically, the claims file indicates that the Veteran has received treatment from Dr. D. Houts since 2015. See August 2020 Private Mental Disorders Disability Benefits Questionnaire (DBQ). However, no records relating to such treatment have been associated with the claims file, nor is there any indication that such records have been requested. See 38 U.S.C. § 4103(a)(1), (b)(1); Ivey v. Derwinski, supra. Second, given that the Veteran has asserted that he is unable to work due to his service-connected disabilities, a remand is necessary to afford the Veteran with adequate examinations regarding the severity of such conditions and their impact on his ability to work. The Veteran was last afforded VA examinations regarding his back condition in January 2014 and his psychiatric condition in June 2020. See January 2014 VA Back Conditions DBQ; June 2020 Mental Disorders DBQ. However, as discussed above, relevant private medical records have not been associated with the claims file. As such, the January 2014 and June 2020 examinations are inadequate for ratings purposes as the respective examiners were unable to consider the Veteran’s prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Additionally, with respect to the Veteran’s lower back condition, a remand is necessary in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. at 168. Here, the January 2014 examination did not specify whether active and passive motion were tested or whether the results provided were weight-bearing or non-weight-bearing. See January 2014 VA Back Conditions DBQ. Additionally, in Sharp, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their severity, frequency, and duration, name the precipitating and alleviating factors, and estimate, per the veteran, to what extent, if any, flare-ups and repetitive use over time affect functional impact. Sharp, 29 Vet. App. at 26. Further, VA examiners are expected to offer opinions on functional loss that would occur during flare-ups and repetitive use over time based on estimates derived from relevant sources, including the Veteran’s lay statements. Id. at 34. In other words, stating that the examination was not conducted during a flare-up or following repetitive use over time as the sole rationale for not addressing the functional impacts of such is not sufficient. Here, the January 2014 examination noted that the Veteran reported experiencing flare-ups, during which he must cease activity, rest, and take medication. However, the examiner did not opine as to the resulting range of motion (ROM), stating that an accurate estimate could not be given. Moreover, the examiner did not address the functional impacts of repetitive use over time; no rationale was provided. See January 2014 VA Back Conditions DBQ. As the January 2014 examination did not fully satisfy the requirements of 38 C.F.R. § 4.59, Correia or Sharp, the Board finds that a remand is necessary to obtain a retrospective opinion regarding the severity of his service-connected lower back condition. Lastly, a remand is warranted for referral to the Director of the Compensation and Pension Service (Director). A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more, or as a result of multiple service-connected disabilities, provided one of the disabilities is rated at 40 percent or more and the others bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Further, under 38 C.F.R. § 4.16(b), a TDIU may be awarded on an extra-schedular basis if a veteran is unemployable due to service-connected disabilities that do not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Initially, the Board notes that the Veteran has a combined rating of 50 percent prior to March 27, 2020, and a combined rating of 60 percent thereafter. Therefore, the Veteran does not meet the schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). Nonetheless, TDIU may still be awarded on an extra-schedular basis. See 38 C.F.R. § 4.16(b). Although the Board cannot grant a TDIU in the first instance under this regulation, the Board must consider whether referral to the Director for extra-schedular consideration is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience, but not to their age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran contends that his service-connected back and psychiatric conditions render him unemployable. See March 2014 VA Form 21-8940; December 2020 Board Hearing Transcript. The evidence indicates that the Veteran has no education beyond high school, no specialized training, and his previous work experience is of a sales/supervisory nature. See id. Additionally, the Veteran has reported that his employment duties involved standing, walking, and remaining stationary. See id. Further, in a January 2014 VA examination, the examiner noted that prolonged sitting and standing, and any attempted bending, stooping, or lifting, will cause increased discomfort, pain, and radiculopathy, and the Veteran is restricted to semi-sedentary to sedentary activities. See January 2014 VA Back Conditions DBQ. Moreover, the Veteran’s prior employer has asserted that termination occurred as the Veteran was unable to travel or sit at his desk for more than one hour, and a status change report specifically notes that termination was based strictly on physical ability to perform the job. See December 2014 Correspondence; December 2014 VA Form 21-4192. Based on the evidence above, the Board finds that Veteran’s ability to obtain and maintain substantially gainful employment may be impacted by his service-connected disabilities. As such, a remand is necessary for referral to the Director for consideration as to whether a TDIU is warranted on an extra-schedular basis. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the Veteran’s electronic claims file any outstanding pertinent medical records, whether VA or private, to include records relating to treatment from Dr. H. Tung, Dr. D. Houts, Scripps Memorial Hospital, and Sheppard Spine and Sports Clinic. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to determine the severity of his service-connected lower back condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including the progression of symptomatology and employment. (b.) Test and document the ROM for the Veteran’s back in active and passive motion, on weight-bearing and non-weight-bearing, on both an initial and after repetitive use basis. For Each ROM, The Examiner Is Asked To Explicitly Identify The Degree In Which Pain Is First Evidenced By The Veteran’s Visible Behavior. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, a thorough explanation should be provided. (c.) Identify the nature and severity of all current manifestations of the Veteran’s service-connected lower back condition. The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (d.) If the Veteran describes flare-ups, after documenting the frequency, severity, and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. (e.) Provide a RETROSPECTIVE OPINION, utilizing the Veteran’s medical records and lay history, and opine as to the severity of the Veteran’s service-connected lower back condition from February 2010 to current. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to ROM, if possible, from February 2013 to current. • Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. • If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. 4. After completing the development in Section One, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to ascertain the current severity of his service-connected psychiatric condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated studies, tests, or evaluations should be conducted. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including progression of symptomatology, employment, and social interactions. (b.) Provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the Frequency, Severity, and Duration of symptoms. (c.) Identify, to the extent possible, any social or occupational impairment due to his service-connected psychiatric condition alone. • Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. • If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. 5. After completing the above, refer to the Director, Compensation and Pension Service, the matter of whether a TDIU is warranted on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). Should the Director indicate that further evidentiary development is required, such development should be undertaken. 6. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific reports or opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.