Citation Nr: 21028558 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 13-22 119 DATE: May 11, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) from April 11, 2014, is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for a service-connected low back disability is remanded. Entitlement to a TDIU prior to April 11, 2014, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities from April 11, 2014, to the present. CONCLUSION OF LAW The criteria for entitlement to a TDIU from April 11, 2014, to the present have been met. 38 U.S.C. §§ 1155, 5103A, 5107;38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from 1989 to June 1992. The issues are appealed from a June 2012 rating decision. The issues on appeal were denied by the Board of Veteran's Appeals (Board) in September 2017. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board's denial and remanded the appealed issue by way of a May 2018 Amended Joint Motion for Partial Remand (JMR). Thereafter, the appeal was returned to the Board in September 2018 and remanded to the Agency of Original Jurisdiction (AOJ) for further development. The appealed issues were again remanded by the Board most recently in May 2020, when it was determined that another remand was necessary. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to a TDIU from April 11, 2014 is granted. A TDIU 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 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 U.S.C. §1155 ; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry for TDIU is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, as of April 11, 2014, the Veteran has a combined disability rating of 70 percent and a single disability, major depressive disorder, rated as 50 percent. Therefore, the Veteran's service-connected disabilities meet the threshold for schedular TDIU consideration from April 11, 2014. The Veteran reported that he has completed three years of college. See April 2006 VA Form 21-8940. He last worked as security guard in August 2007. Prior to that, the Veteran worked as a truck driver. Review of the medical evidence of record reflects that the Veteran's service-connected back disability significantly limits physical activities, such as prolonged standing (longer than 15 minutes) and prolonged walking (longer than 1 block), as well as lifting and carrying anything heavier than 10 lbs. See November 2015 VA back examination; see also May 2019 & November 2020 back condition disability benefit questionnaires (DBQ). In addition to his physical limitations, the Veteran's service-connected headaches and major depressive disorder would likely significantly limit his productivity at a job. To that end, a November 2015 VA examination reflects that the Veteran gets "more sensitive headaches," approximately once every two weeks, that cause him to move slower than normal. Moreover, the Veteran's major depressive disorder is manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired speech, disturbance of motivation and mood, as well as difficulty in establishing and maintaining effective work and social relationships. See June 2015 VA examination. His condition was found to result in occupational and social impairment with reduced reliability and productivity. Id. Furthermore, in support of his claim, the Veteran submitted an employability evaluation completed in March 2020 by a private vocational consultant. The consultant reviewed the Veteran's claims folder and conducted a phone interview. The consultant discussed the Veteran's medical and occupational history in detail and set forth an occupational analysis focusing on the Veteran's prior civilian employment as a truck driver and security guard. It was his vocational opinion that the Veteran's service-connected disabilities have at least as likely as not precluded him from securing and following substantially gainful employment. In general, the evidence of record reflects that the Veteran has significant difficulty with mobility. Combined with his psychiatric disability and frequent headaches, his physical limitations cause impairment that will likely preclude employment that is consistent with his level of education and previous work experience. Reviewing the totality of the evidence of record in light most favorable to the Veteran, and resolving reasonable doubt in his favor, the Board finds that the Veteran is precluded from securing or following a substantially gainful occupation due to his service-connected disabilities during the appeal period from April 11, 2014. Therefore, the Board finds that a TDIU is warranted for this period. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for a service-connected low back disability is remanded. Pursuant to the Board's most recent remand directives, the Veteran underwent VA examination in November 2020. The Veteran's range of motion testing showed that he had full range of forward flexion. The examiner noted that the Veteran had pain that causes functional loss. Specifically, the examiner indicated that the Veteran has pain when bending forward and with lifting objects. This finding suggests that the Veteran had pain during forward flexion, but the examination report does not show where pain begins on range of motion testing. Moreover, while the November 2020 examiner noted that the Veteran has pain on passive motion, the examination report does not reflect that a range of motion testing was conducted in passive motion. The Board's remand directive asked the examiner to conduct range of motion testing in passive motion, in weight-bearing, and in nonweight-bearing, and indicate when pain begins. The examiner was also asked to explain if such test could not be conducted. Therefore, the November 2020 examination does not reflect that the examiner complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, to the extent the examination does not contain passive range of motion measurements, it does not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016). For the foregoing reasons, a remand to obtain another examination is necessary before the claim can be adjudicated. 2. Entitlement to a TDIU prior to April 11, 2014, is remanded. Prior to April 11, 2014, the Veteran's combined disability rating was less than 70 percent. As such, the threshold for TDIU consideration is not met during this appeal period. However, because the Veteran's back disability maybe entitled to an increased rating, the issues are inextricably intertwined for the appeal period prior to April 11, 2014. Accordingly, a remand of the claim for entitlement for TDIU for the appeal period prior to April 11, 2014 is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). When conducting range of motion testing, the examiner should specifically state when pain starts. In addition, 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). (Continued on the next page) In assessing functional loss, the examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.