Citation Nr: 21020792 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 09-20 192 DATE: April 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 14, 2007, is denied. Entitlement to TDIU is granted effective from July 14, 2007, to July 6, 2008, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to an initial compensable disability rating for a fracture of the left humerus is remanded. Entitlement to an initial disability rating in excess of 10 percent for fracture and dislocation of the left elbow is remanded. Entitlement to an initial disability rating in excess of 10 percent for fracture of the left ulna is remanded. Entitlement to an initial disability rating in excess of 40 percent for left ulnar and radial nerve palsies with pain, muscle wasting, and diminished grip is remanded. Whether there is clear and unmistakable error in a June 2017 rating decision that retroactively discontinued an initial separate 20 percent disability rating for left ulnar nerve pain from July 25, 2006, to June 14, 2017, is remanded. Entitlement to initial disability ratings for residuals of a head injury with depression and secondary insomnia, currently rated as 30 percent disabling prior to October 23, 2008, and 70 percent disabling from October 23, 2008, is remanded. Whether there is clear and unmistakable error in a June 2017 rating decision that retroactively reduced the disability rating for residuals of a head injury from 70 percent disabling to 30 percent disabling from June 25, 2006, to October 22, 2008, is remanded. Entitlement to an initial disability rating in excess of 10 percent for headaches. FINDING OF FACT 1. From July 25, 2006, to July 6, 2008, the Veteran was service-connected for left ulnar and radial nerve palsies, residuals of a head injury with depression and secondary insomnia, left lung collapse with pulmonary embolism, residuals of a splenectomy, a fracture of the left humerus, a fracture and dislocation of the left elbow, a fracture of the left ulna, fractures of the left ribs, a facial scar, an abdominal scar, a left arm scar, headaches, and a rupture of the left diaphragm. 2. From July 25, 2006, to July 6, 2008, the Veteran’s service-connected disabilities were rated 90 percent disabling with the neurological disabilities being rated 40 percent disabling and all disabilities being of a common etiology. 3. The weight of evidence is against a finding that the Veteran’s employment from July 25, 2006, to July 13, 2007, was marginal employment. 4. The weight of evidence is against a finding that from July 25, 2006, to July 13, 2007, the Veteran’s service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. 5. The weight of evidence shows that the Veteran’s employment from July 14, 2007, to July 6, 2008, was marginal employment. 6. The weight of evidence shows that from July 14, 2007, to July 6, 2008, Veteran’s service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU prior to July 14, 2007, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2020). 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to TDIU from July 14, 2007, to July 6, 2008, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2002 to July 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a virtual hearing in front of the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. The Veteran perfected an appeal of the following issues: entitlement to initial increased ratings for residuals of a head injury with depression and secondary insomnia, fracture and dislocation of the left elbow, and fracture of the left humerus. At the hearing, the undersigned Veterans Law Judge indicated that he is taking jurisdiction of all musculoskeletal and neurological issues involving the left upper extremity. Hearing transcript, page 19. Therefore, the issues of entitlement to initial increased ratings for fracture of the left ulna and left ulnar and radial nerve palsies are on appeal. In the May 2007 rating decision, the RO granted service connection for left radial nerve palsy with pain, muscle wasting, and diminished grip effective July 25, 2006, and assigned a 40 percent disability rating effective that same date. The RO also granted service connection for left ulnar nerve pain effective July 25, 2006, and assigned a 20 percent disability rating effective that same date. In a June 2017 rating decision, the RO found that there was a clear and unmistakable error in the May 2007 rating decision that separately rated the left ulnar nerve disability from the left radial nerve disability. The RO retroactively discontinued an initial separate 20 percent disability rating for left ulnar nerve pain from July 25, 2006, to June 14, 2017, and rated the left ulnar nerve disability under the left radial nerve disability effective July 25, 2006. Thus, the issue of whether there is clear and unmistakable error in a June 2017 rating decision that retroactively discontinued an initial separate 20 percent disability rating for left ulnar nerve pain from July 25, 2006, to June 14, 2017, is on appeal. In the May 2007 rating decision, the RO granted service connection for residuals of a head injury with post-concussion syndrome effective July 25, 2006, and assigned a 10 percent disability rating effective that same date. The Veteran perfected an appeal on that issue. In a June 2008 rating decision, the RO granted service connection for depression with secondary insomnia effective November 9, 2007, and assigned a 30 percent disability rating that same date. In a May 2009 rating decision, the RO assigned a 70 percent disability rating for residuals of a head injury effective July 25, 2006. As the 70 percent disability rating is not the maximum rating available for residuals of a traumatic brain injury, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Effective October 23, 2008, VA amended rating criteria for evaluating traumatic brain injury residuals. 73 Fed. Reg. 54,693 (2008). In the June 2017 rating decision, the RO determined that there was a clear and unmistakable error in the May 2009 rating decision assigning a 70 percent disability rating for residuals of a head injury effective July 25, 2006. The RO granted an earlier effective date of July 25, 2006, for the grant of service connection for depression with secondary insomnia. The RO reduced the rating for residuals of a head injury from 70 percent to 30 percent from July 25, 2006, to October 22, 2008 (the date prior to the effective date for the new criteria for rating traumatic brain injuries) and rated depression and secondary insomnia as part of the head injury residuals. Accordingly, the issue of whether there is clear and unmistakable error in a June 2017 rating decision that retroactively reduced the disability rating for residuals of a head injury from 70 percent disabling to 30 percent disabling from June 25, 2006, to October 22, 2008, is on appeal. In the June 2017 rating decision, the RO granted service connection for headaches effective October 23, 2008, as part of the residuals of the head injury and assigned a 10 percent disability rating effective that same date. As such, the issue of an initial increased rating for headaches as part of the issues on appeal. In an October 2008 rating decision, the RO granted TDIU effective July 7, 2008, the date of receipt of the Veteran’s formal TDIU claim. In his July 2008 formal TDIU claim, he reported that he could not work because of head injury and left upper extremity disabilities. Since entitlement to TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, it can be part of the initial adjudication of a claim for increase. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Therefore, the issue of TDIU prior to July 7, 2008, is before the Board. VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran has not raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to TDIU prior to July 14, 2007 2. Entitlement to TDIU from July 14, 2007, to July 6, 2008 Governing law and regulations Total disability ratings for compensation based on individual unemployability 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 without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose, disabilities resulting from a common etiology or a single accident will be considered a single disability. 38 C.F.R. § 4.16(a). Substantially gainful employment suggests a living wage. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Age cannot be considered as a factor in evaluating a service-connected disability. Unemployability associated with advancing age or intercurrent disability cannot be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The Board notes that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM-IV and replaced them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In September 2017, the RO certified the appeal to the Board and as such, this claim is governed by DSM-V. Global assessment of functioning (GAF) scores are assigned based on a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing the DSM-IV, p. 32). GAF scores ranging 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 (incorporating by reference the VA’s adoption of the DSM-IV, for rating purposes). Though this claim is governed by DSM-V, a GAF score is still pertinent evidence. Analysis From July 25, 2006, to July 6, 2008, the Veteran was service-connected for left ulnar and radial nerve palsies, residuals of a head injury with depression and secondary insomnia, left lung collapse with pulmonary embolism, residuals of a splenectomy, a fracture of the left humerus, a fracture and dislocation of the left elbow, a fracture of the left ulna, fractures of the left ribs, a facial scar, an abdominal scar, a left arm scar, headaches, and a rupture of the left diaphragm. From July 25, 2006, to July 6, 2008, the Veteran’s service-connected disabilities were rated 90 percent disabling with the neurological disabilities being rated 40 percent disabling and all disabilities being of a common etiology. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) from July 25, 2006, to July 6, 2008. In his July 2008 formal TDIU claim, the Veteran reported that his disability affected his ability to work full time in December 2004, that he last worked full time in December 2004, and that he become too disabled to work in December 2004. He stated that he worked in sales until August 2007 and earned $500 a week. He indicated that he had no earned income in the past 12 months. He noted that he had four years of college and that he had no additional education or training before or after he became too disabled to work. In a December 2007 statement, a private psychiatrist stated that the Veteran’s levels of thinking and memory are severely degraded and that he has significant fatigue, anxiety, and depression, which makes it nearly impossible to drive a motor vehicle. The psychiatrist added that the Veteran sleeps a lot during the day. The doctor stated that his independent employment options are very limited. The physician noted that the Veteran recently attempted to be a salesperson but that while he is very likeable person, his disabilities made it impossible for him to stay employed. Private treatment records reveal that in August 2007 a GAF of 50 was assigned for current impairment. In October 2007, the current GAF was 60 with a GAF of 50 being the lowest in the past year. In January 2008, a GAF of 65 was assigned. In a February 2008 statement, a psychologist noted that the Veteran had memory problems, concentration difficulties, persistent fatigue, insomnia, and persistent problems functioning within various work settings due to the above symptoms. The psychologist added that the Veteran’s prognosis related to his cognitive difficulties is very guarded as his deficits are unlikely to spontaneously remit or improve this long after his head injury. A March 2008 VA examination report reveals that the Veteran reported that his concentration and attention had been considerably affected. He added that his memory, especially short-term memory, was quite bad and that six weeks ago, he was advised by a doctor stop working due to stress. The examiner noted that the Veteran had mild depressive disorder and some features of general anxiety disorder. An August 2008 VA examination report reveals that the examiner determined that the impairment from the left upper extremity limits his ability to use that extremity for more than sedentary functions. The examiner concluded that the impairment reasonably support occupational restrictions precluding using the left upper extremity for activities involving gripping, pulling, pushing, or carrying more than five pounds on less than an occasional basis and that the impairment limits his ability to perform left hand functions that require fine motor function. The examiner noted that cognitive function and possible mental nervous impairment secondary to traumatic brain injury and the necessity for occupational restrictions were not supported by the interview and physical examination. In an August 2008 statement, a former employer reported that the Veteran worked full time as a water treatment engineer from September 2006 to July 13, 2007. The employ noted that he earned approximately 20,500 pounds a year and that he was terminated from employment due to redundancy. In an August 2008 statement, a former employer reported that the Veteran worked full time in sales from September 2007 to October 2007 and that he only earned approximately 1,900 pounds. In October 2007 statement, the former employer noted that the Veteran was leaving the job for medical reasons. An October 2009 VA examination report reflects that a psychiatrist stated that it is unlikely the Veteran would be able to enter into a formal organized vocational job for several years. The physician added that if the Veteran could work, he would most likely end up in a manual-type vocation because of his poor concentration, volition, indecisiveness, memory deficit for short-term events and immediate recall, and difficulty with orientation. Although the Veteran reported that he last worked full time in December 2004 when he was in the motor vehicle accident that led to his service-connected disabilities, he worked full time from September 2006 to July 13, 2007, as a water treatment engineer and his annual salary was approximately 20,500 pounds a year. The Board notes that during this period one pound sterling was worth slightly more than one United States dollar. Therefore, the Veteran was earning more than 20,500 United States dollars a year during that time period. The weight of evidence is against a finding that the Veteran’s employment from July 25, 2006, to July 13, 2007, was marginal employment. The weight of evidence is against a finding that from July 25, 2006, to July 13, 2007, the Veteran’s service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. Therefore, TDIU prior to July 14, 2007, is not warranted. The preponderance of evidence is against the claim, and it is denied. As for the period from July 14, 2007, to July 6, 2008, the Veteran only worked for a month and earned approximately 1,900 pounds during that one-month period. This amount of money in United States dollars is well below the annual amounts established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person for the years 2007 and 2008. The weight of evidence shows that the Veteran’s employment from July 14, 2007, to July 6, 2008, was marginal employment. The Board places great weight on the findings as to cognitive impairment and impairment of the left upper extremity. The weight of evidence shows that from July 14, 2007, to July 6, 2008, the Veteran’s service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. Accordingly, entitlement to TDIU for the period from July 14, 2007, to July 6, 2008, in order. REASONS FOR REMAND At the February 2021 hearing, the Veteran testified that he is currently treated at Royal Air Force Lakenheath (a base used by the United States Air Force) as a military retiree. Hearing transcript, page 10. The RO should obtain those records. The Veteran testified that he sometimes has excruciating pain in his left upper extremity. Id. at 24. The Veteran was last examined for his neurological disorders in December 2016. Given the passage of time and possible worsening, another neurological examination is necessary. The Veteran testified that his headaches and memory have worsened during the appeal period. Id. at 17, 27. The Veteran was last examined for his headaches and psychiatric disorder in December 2016 and for traumatic brain injury in March 2015. Given the passage of time and possible worsening, new examinations addressing headaches, the psychiatric disorder, and traumatic brain injury are required. September 2016 VA elbow and shoulder examination reports reflects that range of motion testing was not conducted for the right elbow and right shoulder. Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The examination reports also reflect that flare-ups or repeated use limit functional ability of the left shoulder and elbow. The examiner, however, did not estimate range of motion due to pain or functional loss during flare-ups or repeated use or indicate that estimated range of motion is not feasible. Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). As noted above, the Veteran’s testimony suggests that his left arm disability has worsened. Hearing transcript, page 24. In light of the above, another VA orthopedic examination is warranted. The issues of whether there are clear and unmistakable errors in the June 2017 rating decision retroactively discontinued an initial separate 20 percent disability rating for left ulnar nerve pain from July 25, 2006, to June 14, 2017, and retroactively reduced the disability rating for residuals of a head injury from 70 percent disabling to 30 percent disabling from June 25, 2006, to October 22, 2008, are inextricably intertwined with the initial increased rating claims for the left radial and ulnar nerve disabilities and residuals of a head injury with depression and secondary insomnia. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his left upper extremity disorders and residuals of a head injury and obtain any identified records. 2. Obtain the Veteran’s military retiree treatment records from Royal Air Force Lakenheath (a base used by the United States Air Force). Document all requests for information as well as all responses in the claims file. 3. After the development in 1 and 2 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected disabilities involving the left radial and ulnar nerves. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. 4. After the development in 1 and 2 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected traumatic brain injury. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. 5. After the development in 1 and 2 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. 6. After the development in 1 and 2 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected depression and secondary insomnia. The examiner should 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 severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. 7. After the development in 1 and 2 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected fracture of the left humerus, fracture and dislocation of the left elbow, and fracture of the left ulna. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing, in both shoulders and both elbows. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 8. After development above has been completed, the RO should readjudicate the Veteran’s claims. If any claim remains denied, the Veteran should be issued a supplemental statement of the case and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.