Citation Nr: 21041038 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-43 343 DATE: July 7, 2021 ORDER Subject to the applicable laws and regulations governing the payment of monetary benefits, entitlement to an effective date of November 1, 2012, for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for a cervical spine strain is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for bilateral pes planus is remanded. Entitlement to an initial rating in excess of 10 percent for a right wrist carpal tunnel syndrome is remanded. Entitlement to service connection for a vitamin D deficiency is remanded. FINDING OF FACT Effective November 1, 2012, the evidence shows that the Veteran's service-connected disabilities precluded him obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for an effective date of November 1, 2012, for the award of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 3.400, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 2007 to October 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in June 2020 and remanded for additional development. Initially, the Board notes that the Veteran filed a pre-discharge service connection claim on October 29, 2012, seeking service connection for numerous disorders. In October 2013, the Veteran filed an application for TDIU indicating he was unable to work as a result of his numerous service-connected disabilities, all of which were included in his October 2012 service connection claim. Accordingly, the Board finds the Veteran's TDIU claim is part and parcel of the October 2012 service connection claims; thus, the earliest date the Board may grant TDIU is November 1, 2012, the day after the Veteran was discharged from active duty. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); 38 C.F.R. § 3.400(b)(2)(i); see also October 2012, VA Form 21-526c; October 2012, VA Form 21-4138. 1. Entitlement to an effective date prior to October 28, 2013, for TDIU. Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2)(i). It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A "schedular" TDIU may be assigned pursuant to 38 C.F.R. § 4.16(a) where the claimant's service-connected disabilities resulting in unemployability meet the criteria set forth in that section. The Board notes the Veteran has met the schedular criteria for an award of TDIU throughout the appeal period. 38 C.F.R. §§ 4.16(a), 4.25. The Veteran contends that he is entitled to TDIU prior to October 28, 2013, based on his service-connected disabilities. Specifically, he contends TDIU should be effective from November 1, 2012. See January 2021, Appellate brief. After a review of the evidence of record, the Board finds that the preponderance of the evidence supports the conclusion that the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment effective from November 1, 2012. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a veteran need only demonstrate an approximate balance of positive and negative evidence to prevail). In reaching this determination, the Board notes that during the course of this appeal the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that 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 is an adjudicative determination properly made by the Board or the AOJ. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The evidence shows that his educational background includes three years of college and post-service part-time employment at TGI Fridays. The record demonstrates the Veteran has not been employed full time since October 31, 2012. The Veteran stated he dropped out of culinary arts school and was fired from Fridays because he was unable to get along with his classmates or instructors. See September 2017, VA examination; October 2013, VA Form 21-8940. Based on the cumulative impact of the Veteran's service-connected disabilities as demonstrated by the December 2012 VA examinations for his feet, knees, neck, hands, respiratory conditions, rhinitis, and posttraumatic stress disorder (PTSD), the Board finds the Veteran's service-connected disabilities impacted his ability to secure and follow substantially gainful employment since November 1, 2012. Most notably, the Veteran has unprovoked irritability and difficulty establishing and maintaining effective work and social relationships, must avoid certain pollens and outdoor activities due to allergic rhinitis, bilateral neck pain aggravated by prolonged standing, asthma prevents constant physical activity, a left hand disability makes the Veteran unable to carry more than 25 pounds or type for more than one hour before needing a 45 minute break due to asthma, and a bilateral foot disability causes decreased mobility, pain, and weakness. See VA examinations dated December 2012 and September 2017. Accordingly, the Board finds TDIU is warranted effective November 1, 2012. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for a cervical spine strain is remanded. 2. Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. 3. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. The Board finds the September 2020 VA examinations for the cervical spine and knees are inadequate. In those examinations, the VA examiner noted objective pain with non-weight-bearing in the cervical spine and knees but failed to provide range of motion measurements (expressed in degrees) and note at which point pain began in the range of motion. See Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, it is unclear from the VA examinations for the knees and scars whether the Veteran has two or three left knee scars. Accordingly, the Veteran should be afforded another examination to determine the current nature and severity of his service-connected cervical spine and bilateral knee disabilities. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Entitlement to an initial rating in excess of 10 percent for bilateral pes planus is remanded. The Board finds the September 2020 VA examination for the feet is inadequate. The examiner indicated the Veteran did not have flare-ups, but later stated the Veteran reported pain with prolonged standing and walking. As pain with prolonged standing and walking is a description of a flare-up, the examiner should have provided range of motion testing (expressed in degrees) and noted at which point the pain began. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, the Veteran should be afforded another examination to determine the current nature and severity of his service-connected bilateral foot disability. See Stegall, 11 Vet. App. at 271. 5. Entitlement to an initial rating in excess of 10 percent for a right wrist carpal tunnel syndrome is remanded. The June 2020 Board Remand instructions contained a request for an examination of the right wrist that included range of motion testing. Review of the record shows the Veteran was only provided a peripheral nerve condition examination for the right wrist in September 2020. Accordingly, the Veteran should be afforded another examination to determine the current nature and severity of his service-connected right wrist disability. See Stegall, 11 Vet. App. at 271. 6. Entitlement to service connection for a vitamin D deficiency is remanded. The Board finds the September 2020 VA examination for a nutritional deficiency to be inadequate. The VA examiner found there was no evidence of a current vitamin D deficiency, and thus no opinion was provided. The record indicates the Veteran had an in-service diagnosis of a vitamin D deficiency and a low level of vitamin D in December 2014. See December 2014, VA treatment record; STRs dated March 2011, September 2011, October 2011, and February 2012. Inasmuch as the VA examiner did not provide an opinion as to the etiology of a vitamin D deficiency and found the Veteran did not have a current vitamin D deficiency diagnosis because his vitamin D levels were normal as of October 2020, the examination is inadequate. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (finding the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim; the claimant may be granted service connection even if the disability resolves prior to the adjudication of the claim). Hence, the Veteran should be afforded another examination and opinion as to the etiology of any vitamin D deficiency present during the period on appeal, namely since November 1, 2012. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of any in-service and post-service symptomatology regarding any vitamin D deficiency and his service-connected cervical spine, knees, feet, and right wrist. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of record, etc., if an in-person examination is not feasible) to determine the current nature and severity of his cervical spine, left knee, right knee, right wrist, and bilateral foot disabilities. All findings should be reported in detail. The examiner should identify all cervical spine, right knee, left knee, right wrist, and bilateral foot pathologies found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-ups. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If unable to provide such an opinion without resorting to speculation, please 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. If unable to opine without speculation, the examiner should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for a VA examination (or telehealth interview, review of record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any current vitamin D deficiency at any time during the pendency of appeal, namely from November 1, 2012, through present. The examiner is asked to: (a.) Identify a vitamin D deficiency was present at any time during the pendency of the appeal, namely since November 1, 2012. The examiner should address the December 2014 VA treatment record indicating a vitamin D as well as the Veteran's statements of continuous fatigue related to a vitamin D deficiency since discharge from service. (b.) Whether it is at least as likely as not that any current vitamin D deficiency is related to or had its onset in service, to include an in-service diagnosis of a vitamin D deficiency and the Veteran's statements of continuous symptoms of fatigue since the in-service diagnosis. All opinions provided should be supported by rationale. If the evaluating clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why that is so and note whether there is 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. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.