Citation Nr: 21025693 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-23 134 DATE: April 28, 2021 ORDER Entitlement to a schedular total disability rating due to individual unemployability (TDIU) is granted from April 19, 2018. REMANDED Entitlement to a rating in excess of 10 percent prior to April 19, 2018, and in excess of 30 percent thereafter, for degenerative disc disease (DDD) of the cervical spine is remanded. Entitlement to an extraschedular TDIU from October 22, 2013, to April 19, 2018, is remanded. REFERRAL TO THE AGENCY OF ORIGINAL JURISDICTION In October 1999, the Veteran filed a claim for compensation for chronic low back pain, a thoracic spine disability, and a cervical spine disability, among others. See October 1999 Application for Compensation or Pension. In a February 2000 rating decision, the Regional Office (RO) adjudicated the issue of service connection for a cervical disability, but did not separately adjudicate the issue of a back condition as a distinct disability. See February 2000 rating decision (granting service connection for cervical spine DDD). Then in a March 2008 Statement in Support of Claim, the Veteran requested an increase in his “service connected disability for my back and neck,” even though at the time he was only service-connected for the neck and the RO had not adjudicated the issue of service connection for the back. See February 2000 Codesheet (indicating service connection for cervical spine DDD and left ankle fracture, and that service connection was not established for a left knee condition). In a July 2008 rating decision, the RO continued the Veteran’s rating for service-connected cervical spine DDD and did not address the issue of entitlement to service connection for a back disability. In an August 2008 Statement in Support of Claim, the Veteran again stated that he injured his back in service. In September 2009, the Veteran filed a claim for a back injury, among others. See September 2009 Application for Compensation or Pension. In October 2013, the Veteran filed a claim for “service connected neck and back severe pain.” See October 2013 VA Form 21-526EZ. In a June 2014 Notice of Disagreement (NOD), the Veteran stated that he injured his back in two separate incidents in service. In April 2018, the Veteran requested “an increase for secondary back pain condition.” See April 2018 VA Form 21-526EZ. In a May 2020 Application for Increased Compensation Based on Unemployability, the Veteran asserted that he cannot secure or follow a substantially gainful occupation because of a “neck and back” disability, as well as posttraumatic stress disorder (PTSD) and depression. In a May 2020 Subsequent Development Letter, the RO stated that it had received a claim for a back disability and depression, and requested the Veteran to re-file the claim on a VA Form 21-526EZ. The record does not contain a VA Form 21-526EZ received since May 2020. Although the May 2020 Subsequent Development Letter requested the Veteran to file his claim for a back disability on the required standardized form, it is clear from numerous correspondences from the Veteran that he claimed service connection for a back disability separate and distinct from his cervical disability numerous times since October 1999, including on several standardized forms. See April 2018 VA Form 21-526EZ; October 2013 VA Form 21-526EZ; September 2009 Application for Compensation or Pension; October 1999 Application for Compensation or Pension. Furthermore, on numerous occasions since the October 1999 claim, the Veteran has made numerous statements in correspondences to the VA indicating that his claim for a back disability is separate and distinct from his already service-connected cervical spine disability. See May 2020 Application for Increased Compensation Based on Unemployability; June 2014 Notice of Disagreement; August 2008 Statement in Support of Claim; March 2008 Statement in Support of Claim. While the Board recognizes that on a few occasions the Veteran has referred to his back disability as service connected, which it is not because that issue has never been adjudicated by the RO, it is clear from context that the Veteran has been intending to claim service connection for a back disability since October 1999 that is separate and distinct from the already service-connected cervical condition. And yet, as of the date of this decision, the RO has not adjudicated entitlement to service connection for a back disability. As the Board cannot adjudicate entitlement to service connection for a back disability in the first instance, this issue is referred to the RO for initial adjudication. The RO is advised that the Veteran first filed a claim for service connection for a back disability in October 1999, on a standardized VA Form 21-526, Veteran’s Application for Compensation or Pension, as well as on several subsequent VA Forms 21-526EZ. As such, the RO should not request that the Veteran re-file his claim on a current standardized form. FINDING OF FACT The Veteran’s service-connected DDD of the cervical spine and PTSD preclude him from securing or following a substantially gainful occupation since April 19, 2018. CONCLUSION OF LAW The criteria for entitlement to a schedular TDIU are met from April 19, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1989 to January 2000. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the matter for further development. In May 2020, the RO obtained medical opinions regarding a TDIU. In July 2020, the RO obtained another medical opinion regarding a TDIU and the Veteran underwent an examination for his service-connected cervical spine DDD. In an August 2020 Supplemental Statement of the Case, the RO continued the denial of the claims. 1. Entitlement to a schedular TDIU is granted from April 19, 2018. The Veteran asserts that he is unable to secure or follow a substantially gainful occupation due to his service-connected PTSD, cervical spine DDD, and left ankle disability. See May 2020 and April 2020 VA Forms 21-8940; June 2014 NOD. The Board agrees. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the Veteran is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In October 2013, the Veteran filed a claim for an increased disability rating for his service-connected cervical spine DDD. In his June 2014 NOD, the Veteran stated that his cervical spine DDD has “prevented [him] from getting employment.” When unemployability is raised during an appeal for an increased rating, a claim for entitlement to a TDIU is considered to be “part and parcel” of the underlying claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, the period on appeal is from the October 22, 2013 application for an increased rating for service-connected cervical spine DDD. The Veteran, however, did not meet the schedular criteria for a TDIU until April 19, 2018. See September 2018 Codesheet. In this regard, the Board notes that as of April 19, 2018, the Veteran was in receipt of a 50 percent rating for PTSD, a 30 percent rating for cervical spine DDD, a 20 percent rating for left ankle fracture, a 20 percent rating for left upper extremity radiculopathy, a 20 percent rating for right upper extremity radiculopathy, and a combined evaluation of 70 percent. See 38 U.S.C. § 4.16(a). Accordingly, the period on appeal for schedular TDIU is from April 19, 2018. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran asserts that he last worked full-time in January 2017. See April 2020 VA Form 21-8940. He further asserts that he has not earned any income during the past 12 months prior to April 2020. See id. In a February 2020 Work History Report submitted to the Social Security Administration (SSA), the Veteran indicated that he was an owner of a wellness company until June 2019, earning approximately $833 per month and working approximately 4 hours per day. The Board notes that an income of $833 per month is below the poverty threshold for one person, and thus this period may be considered for a TDIU. Moreover, on his April 2020 VA Form 21-8940, he contrarily reported part-time self-employment in his wellness company only through 2017, as opposed to 2019, which would be before the schedular period for a TDIU. To the extent that his reported level of earnings exceeds the poverty threshold in 2017 ($8000 in one month), this matter will be addressed below in the discussion of the Veteran’s entitlement to an extraschedular TDIU. However, for the purposes of the instant decision and the schedular TDIU period, the Board finds the economic component is met. See Ray, 31 Vet. App. at 73. Turning to the noneconomic component, the Veteran has a four-year college degree in Business Administration. See May 2020 and April 2020 VA Forms 21-8940; March 2009 private psychological evaluation; May 2008 private psychiatric evaluation. The Veteran endorsed receiving no other education or training before or after becoming too disabled to work; however, he did represent to the SSA on a Disability Report that he had taken a massage training program in September 2019. Id. As for his employment history, the evidence shows the Veteran’s past jobs include customer service position at a hotel, personnel management at a temp agency, personnel management in the military, retail manager, owner of a wellness company, administrative job for the Government, contractor for the Government, administrative job for property management company involving apartment building, property manager for storage units, work at a gas station, manager at a car rental company, and a manager at a textile business. See May 2020 and April 2020 VA Forms 21-8940; February 2020 and September 2008 SSA Forms 3369 Work History Reports; November 2016 C&P PTSD examination; March 2009 private psychological evaluation. During service, the Veteran’s military occupational specialty was administrative specialist and heavy weapons infantryman. See January 2000 DD 214. As the Veteran’s employment history, education, and training consists of work in customer service, retail, sales, human resource management, and business administration, the Board will focus on how his service-connected disabilities affect his ability to perform the type of work required in those settings. A May 2018 C&P examination of the Veteran’s service-connected cervical disability indicated the Veteran reported flare-ups, pain, stiffness, limited range of motion, and difficulty lifting heavy objects. The examiner noted that these limitations would impact his ability to work. The examiner observed limited range of motion and pain that produced functional loss. The examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use. The examiner also reported that the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up. The examiner additionally observed that the Veteran exhibited objective evidence of pain on passive range of motion testing of the neck and objective evidence of pain on non-weight bearing testing of the neck. An August 2018 C&P examination of the Veteran’s service-connected cervical disability indicated that the Veteran reported upper extremity tingling, numbness, and difficulty with repetitive motion. The examiner noted that these limitations would impact his ability to work. The examiner observed limited range of motion and pain that produced functional loss. The examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use. The examiner also reported that the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up. The examiner indicated that the Veteran manifested objective evidence of pain on passive range of motion testing of the neck and non-weight bearing testing of the neck. A May 2020 medical opinion regarding how the Veteran’s service-connected disabilities impact his ability to work indicated that the Veteran could perform sedentary work, and could manage some walking, standing, and stair-climbing, but not for prolonged periods. A May 2020 medical opinion regarding the Veteran’s service-connected PTSD pointed to the functional limitations recorded in the November 2016 C&P examination, namely occupational and social impairment with reduced reliability and productivity, chronic sleep difficulty which interferes with productivity, difficulty remembering and completing tasks (short term memory issues), mood disturbances, difficulty getting along with others or working with others, difficulty adapting to stressful situations, and difficulty working in stressful environments. The November 2016 examiner also observed recurrent, involuntary, and intrusive distressing memories of the traumatic event; marked psychological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions; irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; hypervigilance; exaggerated startle response; concentration problems; depressed mood; and anxiety. Although the November 2016 C&P examination was conducted before the period on appeal, the May 2020 medical opinion pointed to its findings as evidence of how the Veteran’s condition would impact employability; thus, the Board finds the November 2016 report probative with respect to the period on appeal. A July 2020 C&P examination of the Veteran’s service-connected cervical disability indicated the Veteran reported pain, stiffness, limited range of motion, numbness, difficulty driving, and difficulty putting on shoes. The Veteran also reported severe daily flare-ups that last 20 minutes. The examiner reported that these limitations would impact his ability to work. The examiner noted that the Veteran “winced and jumped” when his cervical spine was palpated. The examiner observed limited range of motion and pain that produced additional functional loss. The examiner indicated that passive range of motion testing could not be performed as it was not feasible to do so in a safe and reasonable manner. A July 2020 medical examiner, who was asked to discuss how the Veteran’s service-connected disabilities impact his ability to work, reported that the Veteran could work a sedentary job for up to two-thirds of the workday. However, the examiner’s comments indicate that the Veteran would face serious obstacles in even short periods of sedentary employment. In particular, the examiner noted that the Veteran would experience limited ability to type at a computer, look at a keyboard or computer screen, drive a vehicle, and push or pull anything due to his cervical pain and limited range of cervical motion. The examiner opined that manual labor would be unsafe. The examiner further stated that the ability to type for a prolonged period, look down at a computer, and perform “desk work” would be limited by his cervical condition. The examiner opined that the Veteran could only work a limited workday. The examiner further stated that “most job functions” require a greater range of motion than what the Veteran has and would cause the Veteran pain to complete. The Veteran also asserts that his service-connected left ankle disability prevents him from securing substantially gainful employment; however, the Board finds it to be unnecessary to discuss evidence relating to that disability as the evidence of his cervical spine and PTSD limitations is sufficient to support granting a TDIU. In this regard, the evidence shows that the Veteran’s service-connected cervical disability and PTSD preclude him from performing the mental and physical acts necessary to secure and maintain substantially gainful employment, which the Board defines as employment consistent with the Veteran’s work history, education, and training. In this regard, the Board observes that the Veteran’s work history, education, and training consist generally of customer service, retail, sales, human resource management, and business administration. This type of work would likely involve significant amounts of time spent interacting with other people, including the public; prolonged sitting, walking, and standing; and the need to handle a high volume of information, concentrate, analyze, and work at a computer. The Veteran’s service-connected cervical disability and PTSD would preclude him from performing this type of work. Specifically, examinations of the Veteran’s neck revealed limited range of motion, painful flare-ups that further limit range of motion, and even objective evidence of pain when not bearing weight. See July 2020, August 2018, and May 2018 C&P examinations. All the neck examinations indicate that his cervical disability would adversely impact and limit his ability to work. Id. The July 2020 examiner even observed that the Veteran “winced and jumped” in pain when his cervical spine was palpated. The July 2020 medical examiner indicated that due to the functional limitations caused by his neck disability, the Veteran would have difficulty typing at a computer keyboard, looking at a computer screen, performing “desk work” which would involve prolonged sitting, and performing other basic functions such as driving a vehicle or executing pushing or pulling movements. The July 2020 examiner even noted that “most job functions” require a greater range of cervical motion than what the Veteran has and if he were to complete the tasks required of “most job functions,” he would experience pain. These serious limitations regarding range of motion, sitting, working at a computer, and working pain-free would preclude the Veteran from securing or following substantially gainful employment in any type of sedentary job. Additionally, the findings of the November 2016 psychiatric examination, highlighted in the May 2020 medical opinion regarding how his PTSD impacts his ability to work, reveals symptoms productive of serious limitations regarding productivity, reliability, concentration, and relating to co-workers, customers, and the public. Specifically, the examiner recorded reduced reliability and productivity, caused in part by chronic sleep impairment, difficulty concentrating and remembering, and difficulty getting along with others. The examiner additionally observed involuntary and distressing memories of traumatic events, lack of interest in activities, detachment or estrangement from others, inability to experience positive emotions, irritability and angry outburst that sometimes result in physical aggression, depressed mood, and anxiety. All these psychiatric symptoms would cause severe impairment in any type of office setting or job requiring interaction with customers or managing employees, especially symptoms of angry outbursts, physical aggression, and detachment. In addition, the Veteran’s reduced reliability and productivity and concentration problems would present serious limitations in the areas of customer service, retail, sales, human resource management, and business administration. In sum, the probative evidence of record demonstrates that the Veteran’s service-connected cervical disability and PTSD preclude him from securing or following substantially gainful employment. Although he has work experience that is readily applicable to a sedentary occupation based on the ordinary meaning of the term, which the Board broadly defines as white-collar office-type work, examiners have highlighted how his cervical and psychiatric symptoms would render substantially gainful sedentary work not possible. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). The evidence shows that while no single disability precludes the Veteran from maintaining or following substantially gainful employment, the collective impact of his service-connected cervical disability and PTSD do prevent substantially gainful employment. Accordingly, entitlement to a schedular TDIU is warranted from April 19, 2018. REASONS FOR REMAND 2. Entitlement to a non-initial rating for service-connected DDD of the cervical spine in excess of 10 percent prior to April 19, 2018, and in excess of 30 percent thereafter is remanded. 3. Entitlement to an extraschedular TDIU from October 22, 2013, to April 19, 2018, is remanded. The Veteran asserts that his service-connected cervical disability has progressively worsened and is, therefore, entitled to an increased evaluation. See June 2014 NOD. During the appeal period, the Veteran has undergone examinations of his cervical disability in April 2014, May 2018, August 2018, and July 2020. The April 2014 examination indicates the Veteran experienced painful flare-ups, weakness, fatigability, and/or incoordination, but that none of these limitations resulted in additional functional loss. Given the Veteran’s reports and the other examinations of record, this finding is dubious. In his June 2014 NOD, the Veteran reports that the examination “was done by eyes, no machine at all.” Additionally, the July 2020 examiner did not provide any measurements or estimates for range of motion after three repetitions. Furthermore, the range of motion findings on the July 2020 examination are drastically more favorable than the findings in prior May 2018 and August 2018 examinations. Thus, the Board finds that remand is warranted to obtain an updated cervical examination and medical opinion. In addition, remand is warranted to refer the matter of extraschedular TDIU to the Director of Compensation Service, along with clarification of his earnings in the extraschedular period. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. 3. Request that the Veteran clarify his employment and earnings information from January 1, 2017 to April 19, 2018. 4. Then schedule the Veteran for a neck examination by an examiner other than those who performed the April 2014 and July 2020 examinations to determine the nature and severity of his service-connected cervical disability. The entire claims file should be made available to the examiner. The examiner should conduct all indicated tests and studies, to include range of motion studies, and must use a goniometer. For the range of motion study, each of the joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, and (4) in non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Considering the Veteran’s reported history, to include in the April 2014 VA examination, please also provide an opinion describing functional impairment of the Veteran’s neck, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined and the reason why those facts cannot be determined if unable to opine without resort to mere speculation (e.g., lack of insufficient information or evidence, the limits of medical knowledge, etc.). A complete rationale must be provided for all opinions expressed or the opinion will be returned as inadequate. If unable to provide a medical opinion without resorting to speculation, the examiner should provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Then refer the matter of entitlement to an extraschedular TDIU from October 22, 2013, to April 19, 2018, to the Director of Compensation Service. The Director is asked to review the entire claims file, with attention specifically invited to the following evidence: (a.) The Veteran’s numerous statements regarding his psychiatric symptoms, to include suicidality. See January 2017, September 2016, and October 2013 Statements in Support of Claim. (b.) A June 2016 VA treatment note indicating chronic neck pain with progressive worsening. (c.) An April 2016 VA treatment note indicating the Veteran reported his neck pain was “killing me the pain is crazy difficult sleeping.” (d.) A November 2017 VA suicide risk assessment note stating the Veteran was “at chronic risk for self-directed violence.” (e.) The November 2016 C&P PTSD examination. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.