Citation Nr: 21028052 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-24 739 DATE: May 10, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) from January 29, 2015, is granted. REMANDED Entitlement to service connection for a skin condition is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether, as of January 29, 2015, the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment consistent with his education and experience. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for the assignment of a TDIU beginning January 29, 2015, is met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This matter was previously before the Board in February 2019, wherein the Board denied the claims for entitlement to service connection for a skin condition and sleep apnea. The claim for entitlement to a TDIU was remanded as the Board found that the issue was inextricably intertwined with the appeal for entitlement to service connection for a lumbar spine disability. The Veteran appealed the portion of the Board decision that denied entitlement to service connection for a skin condition and sleep apnea to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 Memorandum Decision, the Court remanded the matters to comply with the Memorandum Decision. In a January 2020 rating decision, the RO granted service connection for lumbosacral strain with degenerative arthritis of the spine and intervertebral disc syndrome (IVDS) and left and right lower extremity radiculopathy. The matter returned to the Board in November 2020, wherein the claims were remanded for additional development, to include scheduling the Veteran for VA examinations. The matter has returned to the Board for adjudication. 1. Entitlement to a TDIU from January 29, 2015 The Veteran asserts that he is unable to work due to his service-connected lumbar spine disability. 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board must consider whether the Veteran's service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As noted above, the Veteran was granted service connection by way of a January 2020 rating decision. He was assigned a 20 percent rating for his lumbar spine disability, along with secondary conditions of right lower extremity radiculopathy and left extremity radiculopathy, both also assigned an evaluation of 20 percent. Additionally, he was granted service connection for tinnitus in a May 2017 rating decision. For purposes of a TDIU, the Board finds that the Veteran meets the schedular requirements under 38 C.F.R. § 4.16(a) as his service-connected lumbar spine disability, right lower extremity radiculopathy, and left lower extremity radiculopathy result from a common etiology and is evaluated at a combined 60 percent. In April 2015, the Veteran submitted VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability. He specified that his back injury prevents him from securing or following any substantially gainful occupation. The Veteran last worked in 1991 and was an engineering manager. The Veteran noted that he had a college education. He also stated that over the past ten years, he was treated with epidural steroid injections to ease his back pain and increase mobility but with limited success. Turning to the evidence of record, a May 2004 letter from Dr. W.H. states that the Veteran is unable to return to any type of work and should not do so in the future. However, the physician's statement is unclear as to what condition or conditions prevented the Veteran from working. The Veteran was examined by the VA for his back disability in October 2019. The Veteran explained that his condition started in 1967 in service when a rope slipped during mountain repelling in officer school and he fell approximately fifteen to twenty feet to rocks at the base of a cliff. The Veteran reported that the impact of the condition is that he is unable to sit for more than thirty to forty minutes before numbness spreads down both thighs. After standing for ten minutes, he must bend over to ease the pain and after about four to five hours, he has to lay down with a pillow under his thighs. The Veteran noted that pushing or pulling on anything causes pain in the lower back and both thighs, with pain more severe in the left side. He also explained that he cannot put on his pants without leaning against a wall for support and cannot bend enough to put on his shoes. He is unable to perform yard work at home. When traveling in a car, he can only ride for forty-five minutes to an hour before he must stop and get out to ease the pain. The VA examiner found that the Veteran's back condition impacted his ability to work and stated that the Veteran's back pain and IVDS symptoms are too severe for Veteran to work. In support of the Veteran's claim for a TDIU, the Veteran's attorney submitted a vocational assessment in June 2020. The vocational expert conducted a telephonic interview with Veteran and reviewed his VA claims file. The Veteran reported that he has daily back pain ranging from a pain level of 5 to 6 with daily flare-ups, difficulty with sitting, standing, and walking as well as numbness in the lower extremities resulting in a need to constantly change positions. The Veteran reported he has used a walker for ambulation during flare-ups and wears a back brace all day. He further indicated that he has difficulty concentrating secondary to tinnitus. The vocational expert detailed the Veteran's work history and noted that his job duties as a sales engineer and productions engineer required him to be on his feet for several hours a day, required driving long distances to customer sites, and walking to the point where his back pain increased which caused him to miss several days of work. At his last employment as an engineering manager in 1991, the Veteran was on his feet for several hours a day and consequently lost feeling in both of his legs in 1991. He required surgery and the surgeon did not release him back to work. She opined that considering only the service-connected disabilities, the Veteran is more likely than not unable to secure and follow substantially gainful employment due to his service-connected lumbosacral strain with degenerative arthritis of the spine and IVDS, right and left lower extremity radiculopathy, and tinnitus since at least January 2015 and continuing to present. She further explained that the Veteran's limitation in sitting, standing, and walking for prolonged periods, due to his service-connected back condition and bilateral lower extremity radiculopathy are inconsistent with the exertional demands of even sedentary employment. The vocational expert also opined that due to the high rate of off-task behavior, he would be work preclusive at all physical demand and skill levels, including unskilled sedentary employment. Regarding service-connected tinnitus, she stated that the Veteran reported that his tinnitus is "annoying." He has tried to reduce the constant ringing by making a yawning motion. The vocational expert stated that the constant ringing from his tinnitus would only further contribute to his difficult concentrating on work tasks during the day, especially during conversations. The final determination with respect to the Veteran's entitlement to a TDIU is an adjudicatory, not a medical, function. In weighing the lay and medical evidence of record, as well as the Veteran's educational background and prior work experience, the Board finds that it is unlikely that the Veteran would have been able to find substantially gainful employment given his service-connected back and bilateral lower extremity radiculopathy disabilities. The Veteran had indicated he was unable to sit, drive, and walk for prolonged periods of time. The VA examiner who conducted the back examination in October 2019 found that his service-connected back disability was too severe for him to work. The findings from the June 2020 vocational assessment supports the reasons why the Veteran cannot work based on his service-connected disabilities. The Board affords great probative weight to the findings of the vocational assessment report from June 2020. Specifically, the vocational counselor carefully and extensively recited to the relevant evidence, demonstrating that she had reviewed the Veteran's medical records, history, statements, and assertions. In assigning high probative value to this opinion, the Board notes that the counselor reviewed the records and fully supported her conclusions with specific citation to the record and expertise in rehabilitative counseling. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities in combination preclude him from engaging in substantially gainful employment. Regarding the effective date for the grant of the TDIU, the Board finds that the entitlement date is January 29, 2015. A claim must be filed in order for any type of benefit to accrue or be paid. 38 U.S.C. § 5101 (a); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). An intent to apply for benefits is an essential element of any claim, whether formal or informal. Criswell v. Nicholson, 20 Vet. App. 501 (2006). A claim or an application is "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to benefit. 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34 35 (1998); see also Lalonde v. West, 12 Vet. App. 378, 380, 81 (1999). An informal claim is any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Here, the Veteran meets the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a) from January 14, 2015, the date the VA received his informal claim for service connection for a back disability. However, in the January 14, 2015 informal claim, he did not indicate that he was applying for a TDIU at that time. In a January 29, 2015 statement, the Veteran did indicate that he was permanently and totally disabled due to his injuries. See January 29, 2015 Statement in Support of Claim. The Veteran filed a formal claim for a TDIU in April 2015 when he submitted VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. As the January 14, 2015 did not indicate an intent to file a TDIU claim at that time, the Board finds that it cannot grant entitlement to a TDIU from that date. As such, the Board finds that the effective date is the date he submitted his informal claim for a TDIU, January 29, 2015. REASONS FOR REMAND 1. Entitlement to service connection for a skin condition The Veteran contends that his skin condition is related to his active duty service when he developed recurrent bumps, itching, and a rash during service when he was stationed in Germany. The February 2019 Board decision denied service connection for a skin condition because it found that there was no current diagnosis regarding a skin condition. A VA examination was not conducted as the Board found there was absence of competent evidence indicating that the Veteran has a current disability and thus, no examination was required. The April 2020 Memorandum Decision found that the Board provided an inadequate statement of reasons or bases on whether the Veteran was entitled to a medical examination for his skin-condition claim. The Court found that the Board failed to discuss whether the record contains evidence of persistent or recurrent symptoms a skin condition. The matter was remanded by the November 2020 Board decision for a VA examination in accordance with the April 2020 Memorandum Decision. The Veteran was afforded a VA examination in February 2021. The VA examiner found that there was no current diagnosis of any skin condition. However, in the physical examination portion, the VA examiner indicated that he has dermatitis, but also stated that he has none at this time. The examiner explained that the Veteran described a condition that sounded like contact dermatitis but objectively, he does not have any skin issues at this time. The Veteran stated that his doctor has him on sertraline for allergies as needed, but he does not take medication every day for any skin condition. The examiner opined that the claimed condition was less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She provided rationale that there is no chronic diagnosis for skin condition and that the objective examination is normal. The symptoms are subjective only and a nexus has not been established. The examiner explained that there is no documentation in the patient's file of a skin condition of complaint during time of service. She found that at this time, there is no diagnosis warranted. Here, the Board finds that the February 2021 VA examination is inadequate as it was based on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The examiner stated that there is no documentation in the patients c-file of a skin condition of complaint during time of service. However, she failed to consider the June 1967 STR that documented the Veteran complained of a skin rash. The November 2020 Board decision specifically indicated that the VA examiner must address the June 1967 STR documenting a rash and whether the Veteran has persistent or recurrent symptoms of a skin condition, to include the statements submitted regarding reported skin rashes during service and since, and extreme itching. The law mandates that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. 268, 271 (1998). In this regard, the VA examiner failed to consider the June 1967 STR and did not consider the Veteran's lay statements that he has had skin rashes during service and since and extreme itching. She found that there was no current diagnosis at the time of the examination but seemed to indicate that the Veteran did have a skin in the form of dermatitis in the past. She did not indicate whether there was a skin disorder during the pending of the appeal. As such, the Board finds that a remand is necessary to address the deficiencies of the VA skin examination. 2. Entitlement to service connection for sleep apnea The Veteran maintains that his sleep apnea is related to his active duty service and that he did not know that his sleep apnea was an actual condition when he was in service. The February 2019 Board decision denied service connection for sleep apnea because it found that the Veteran's statements regarding sleep apnea were not credible because the record did not show that the Veteran complained about sleep apnea until many years after his discharge. However, in the April 2020 Memorandum Decision, the Court stated that the record contained evidence that might explain the Veteran's lack of complaints. For instance, the Veteran was told by a fellow soldier that during service he appeared to hold his breath or stop breathing while asleep, and he did not know that constituted a medical condition (i.e., sleep apnea) until he was diagnosed in 2012 or 2013. The Veteran had stated that prior to his diagnosis, he had never heard of sleep apnea and instead he "laughed off" his fellow soldiers' comments and did not take them seriously. See January 2015 and June 2015 Correspondence. The matter was remanded by the November 2020 Board decision for a VA examination in accordance with the April 2020 Memorandum Decision. The Veteran was afforded a VA examination in February 2021. The Veteran was diagnosed with obstructive sleep apnea. The VA examiner opined that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that it would be mere speculation to say whether the Veteran did or did not have any understanding of sleep apnea with the signs and symptoms during service time. The VA examiner indicated that the Veteran described a fall after which he states he was witnessed holding his breath during his sleep and that this description does not fit the description of primary obstructive sleep apnea for which the Veteran is diagnosed with at this time. She proceeded to explain that obstructive sleep apnea is an increasingly common, chronic, sleep-related breathing disorder and that it is characterized by periodic narrowing and obstruction of the pharyngeal airway during sleep. Unfortunately, the development directed in the last remand was not accomplished for the reasons described below and therefore, the February 2021 VA examination is inadequate. See Stegall, supra. The November 2020 Board remand instructed the VA examiner to address the Veteran and lay statements submitted on his behalf indicating the Veteran has symptoms of snoring, stopped breathing or holding breath during sleep and whether the Veteran's lack of complaints during active service was due to his lack of knowledge of sleep apnea as a medical condition or the symptoms suggest such. However, she did not address the statements indicating that the Veteran had symptoms of snoring, stopping breathing, or holding his breath during sleep. Additionally, she found that it would be mere speculation to address whether the Veteran did or did not have any understanding of sleep apnea with the signs and symptoms during service time. In this regard, the examiner did not state why it was mere speculation in addressing such an opinion. As the February 2021 VA examination is inadequate, the Board finds that that the claim must be remanded to comply with the previous remand instructions. Additionally, in April 2021, the Veteran submitted additional lay statements from his friends and family members regarding his sleep apnea. These statements should be considered by the examiner on remand. The matters are REMANDED for the following action: 1. Obtain VA treatment records from August 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, obtain an addendum opinion from the VA provider who issued the February 2021 medical opinion for skin condition (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify any diagnoses the Veteran has presented related to the skin disability at any time during the claim period (i.e., from January 2015 to the present). b) For each diagnosis, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such condition had its onset in service or was otherwise related to military service, to include discussion of the Veteran's lay statements indicating symptomatology during service. In rendering the opinion requested above, the examiner must specifically address the June 1967 service treatment record documenting a rash. The examiner must also address whether the Veteran has persistent or recurrent symptoms of a skin condition, to include the statements submitted regarding reported skin rashes during service and since, and extreme itching. 3. After completion of the above, obtain an addendum opinion from the VA provider who issued the February 2021 medical opinion for sleep apnea (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Whether the Veteran's sleep apnea at least as likely as not (a 50 percent or greater probability) had an onset in service or was otherwise related to military service, to include discussion of the Veteran's lay statements indicating symptomatology during service. In rendering the opinion requested above, the examiner must specifically address the Veteran and lay statements submitted on his behalf indicating the Veteran had symptoms of snoring, stopping breathing or holding his breath during sleep and whether the Veteran's lack of complaints during active service was due to his lack of knowledge of sleep apnea as a medical condition or the symptoms suggesting such. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.