Citation Nr: 21028006 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 19-00 216A DATE: May 10, 2021 ORDER Entitlement to service connection for right lower extremity neurological disability is granted. Entitlement to a separate rating for right upper extremity radiculopathy is granted. Entitlement to a separate rating for left upper extremity radiculopathy is granted. Entitlement to an effective date of March 19, 2014, for a total rating based on individual unemployability based on service-connected disability (TDIU) is granted. REMANDED ISSUES Entitlement to service connection for a psychiatric disability, other than posttraumatic stress disorder (PTSD), to include as secondary to service-connected disability, is remanded. Entitlement to service connection for urinary incontinence, to include as a neurological abnormality associated with service-connected spine disabilities, is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint and disc disease of the cervical spine is remanded. Entitlement to an initial rating for right upper extremity radiculopathy is remanded. Entitlement to an initial rating for left upper extremity radiculopathy is remanded Entitlement to a rating in excess of 10 percent for degenerative arthritis with intervertebral disc disease of the thoracolumbar spine is remanded. Entitlement to a rating in excess of 10 percent, prior to March 19, 2014, for left lower extremity sciatica is denied. Entitlement to a rating in excess of 40 percent, on and after March 19, 2014, for left lower extremity sciatica is denied. Entitlement to an initial rating for right lower extremity neurological abnormality or sciatica is remanded. Entitlement to a rating in excess of 20 percent for right shoulder rotator cuff tear with glenohumeral and acromioclavicular joint osteoarthritis is remanded. Entitlement to a rating in excess of 20 percent for left shoulder rotator cuff tear with glenohumeral and acromioclavicular joint ostearthritis is remanded. Entitlement to an effective date prior to March 19, 2014, for TDIU is remanded. INTRODUCTION The Veteran served on active duty from April 1975 to March 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran's right lower extremity neurological disability is proximately due to or is a neurological abnormality associated with his service-connected spinal disability. 2. The Veteran's service-connected cervical spine disability is manifested by right upper extremity neurological abnormalities. 3. The Veteran's service-connected cervical spine disability is manifested by left upper extremity neurological abnormalities. 4. On and after March 19, 2014, it is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for right lower extremity neurological disability as secondary to or a neurological abnormality associated with service-connected spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.71a, Diagnostic Code 5243. 2. The criteria for a right upper extremity neurological abnormality associated with service-connected cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 3. The criteria for a left upper extremity neurological abnormality associated with service-connected cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 4. On and after March 19, 2014, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Right Lower Extremity Sciatica The questions presented by this claim are (1) whether the evidence establishes the presence of a current diagnosis and (2) whether any such disability is etiologically related to the Veteran's active duty or a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310, 4.71a, Diagnostic Code 5243. The evidence of record includes a March 1995 VA examination report indicating the presence of right lower extremity neurological symptoms. However, a July 2018 VA examination report does not demonstrate the presence of right lower extremity symptoms. Throughout the pendency of this appeal, the Veteran has endorsed the presence of right lower extremity symptoms. During the February 2021 hearing, the Veteran testified that he has experienced occasional pain and numbness in his right lower extremity. See Layno v. Brown, 6 Vet. App. 465 (1994). Despite the presence of negative clinical evidence, the Board finds the Veteran's report of lay observable symptoms to be competent and credible evidence. Giving the Veteran the benefit of the doubt, the Board finds that the evidence of record includes a current diagnosis of a right lower extremity neurological disability. Service connection has already been granted for the Veteran's left lower extremity sciatica as secondary to or a neurological abnormality associated with his service-connected spinal disability. Accordingly, there exists a reasonable basis for the Board to find that the Veteran's right lower extremity neurological disability is also secondary to or a neurological abnormality associated with his service-connected spinal disability. As finder of fact, the Board concludes that the Veteran's right lower extremity neurological disability is either secondary to or a neurological abnormality associated with his service-connected spinal disability. Accordingly, service connected is granted. Right and Left Upper Extremity Neurological Disabilities In February 2018, the Veteran underwent a VA examination in order to ascertain the severity of his cervical spine disability, as well as to determine the presence and severity of any associated neurological abnormalities. During this examination, the Veteran reported "tingling" into his both hands, specifically his 4th and 5th fingers, bilaterally. Clinical testing demonstrated the presence of decreased sensation, bilaterally, in his hands/fingers. Further, on reflex examination, the Veteran's triceps and brachioradialis responses were diminished (+1 where +2 is normal). When evaluating ratings for spine disabilities, as is the case here, the rater is directed to evaluate any associated neurological abnormalities. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The results of the February 2018 VA examination demonstrate that the Veteran experiences right and left upper extremity neurological abnormalities associated with his service-connected cervical spine disability. Consequently, the Board finds that service connection is warranted for both. The Board is remanding increased rating claims for these now service-connected disabilities for further development and for the RO to assign ratings in the first instance. TDIU A total disability rating 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 as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. See 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system e.g. orthopedic are considered as one disability. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The Veteran's service-connected disabilities satisfy the schedular TDIU criteria. Here, on and after March 19, 2014, service-connected is in effect for the following disabilities: left lower extremity sciatica at 40 percent; asthma at 30 percent; cervical spine degenerative joint and disc disease with arthritis at10 percent; and thoracic degenerative arthritis with intervertebral disc disease at 10 percent. These disabilities results in a combined rating of 70 percent on and after March 19, 2014. Thus, the Veteran's service-connected disabilities satisfy the schedular criteria set forth in 38 C.F.R. § 4.16(a) since March 19, 2014. After a thorough review of the record, the Board finds that the functional limitations imposed by the Veteran's service-connected conditions precludes his performance of substantially gainful employment on and after March 19, 2014. During this period, his records clearly indicate the severity of his service-connected disabilities, including medical treatments, medications, and physical limitations. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held 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 RO. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As the Federal Circuit made clear in Geib, "VA [is] not required to obtain a single medical opinion that address[es] the impact of all service-connected disabilities on [the veteran's] ability to engage in substantially gainful employment." Id. After resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the evidence supports the conclusion that the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment on and after March 19, 2014. The lay and medical evidence of record makes it at least as likely as not that the Veteran's service-connected conditions have precluded substantial gainful employment consistent with his education and occupational experience from on and after March 19, 2014, that is, the day he met the TDIU criteria. Based on the evidence, the Board, as a finder of fact, concludes that the evidence supports a finding that the functional impairment associated with the Veteran's service-connected disabilities is of such nature and severity as to preclude substantially gainful employment on and after March 19, 2014. The Board finds it significant that the Veteran has not worked since sometime in 1994 and is homeless. Further, a February 2018 VA examiner determined that the Veteran is unable to jog or run; cannot walk more than 100 feet; cannot stand for more than 10 minutes; cannot sit in one position for more than 15 minutes; must avoid stairs; and cannot lift or carry more than 10 pounds. Thus, the Board finds that his disabilities do render the Veteran unable to secure substantially gainful employment on and after March 19, 2014. In light of the foregoing, the Board concludes that entitlement to TDIU is warranted on and after March 19, 2014. REASONS FOR REMAND Psychiatric Disability The Board finds that a remand is warranted in order to provide the Veteran with a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). In making this determination, the Board acknowledges a previous final denial of a service connection claim for PTSD. This prior final denial was limited in scope to PTSD and did not reasonably include non-PTSD psychiatric diagnoses, such as schizophrenia. As such, reopening the claim is not required before VA addresses the merits of the claim. See Murphy v. Wilkie, 983 F.3d 1313 (Fed. Cir. 2020). Neurological Disability A remand is warranted in order to provide the Veteran with VA examinations to ascertain the onset and severity of his service-connected right and left upper extremity and right and left lower extremity neurological disabilities, as well as to ascertain whether his service-connected spinal disabilities are manifested by urinary incontinence (to include as an associated neurological abnormality). Cervical Spine, Thoracolumbar Spine, and Right and Left Shoulder The most recent VA examinations to assess the severity of these disabilities occurred more than 3 years ago. Since then, particularly during the February 2021 hearing, the Veteran asserted that these disabilities have worsened. Consequently, the Board finds that the February 2018 VA examinations are too remote, and the evidence of record is otherwise insufficient, to properly adjudicate the current severity of the Veteran's service-connected cervical, thoracolumbar, right shoulder, and left shoulder disabilities. Accordingly, a remand is warranted in order to provide the Veteran with additional VA examinations. TDIU The issue of entitlement to TDIU prior to March 19, 2014, is inextricably intertwined with the other claims being remanded herein. As such, a remand for contemporaneous adjudication is warranted. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA examination regarding his psychiatric disability. The examiner should opine as to whether it is at least as likely as not that the Veteran's psychiatric disability was incurred in or due to his active duty. In so doing, the examiner must specifically consider and discuss the Veteran's assertions regarding in-service events. The examiner is also asked to provide an opinion as to whether it is at least as likely as not that any found psychiatric disability was caused or aggravated by the Veteran's service-connected disability, to include the aggregate impact of the conditions. Any rendered opinion must include a thorough rationale. 2. Provide the Veteran a VA examination to determine the current degree of severity of his cervical spine, thoracolumbar spine, right shoulder, and left shoulder disabilities. Make all pertinent evidence of record available to the examiner and instruct the examiner to review that evidence. Ensure that the examiner provides all information required for rating purposes. A thorough rationale must be included for any rendered opinions. Provide the Veteran a VA examination to determine the current degree of severity of his right and left upper and lower extremity neurological disabilities. The neurologist is also asked to ascertain whether the Veteran's cervical and thoracolumbar spine disabilities are manifested by neurological abnormalities beyond those already granted service connection, to include, but not limited to, urinary incontinence. The examiner is also asked to ascertain, to the extent possible, the onset of right and left upper and right lower extremity neurological disabilities. Make all pertinent evidence of record available to the examiner and instruct the examiner to review that evidence. Ensure that the examiner provides all information required for rating purposes. A thorough rationale must be included for any rendered opinions. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.