Citation Nr: 22007705 Decision Date: 02/10/22 Archive Date: 02/10/22 DOCKET NO. 20-29 379 DATE: February 10, 2022 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to an earlier effective date prior to October 29, 2018, for the award of an increased rating of 40 percent for a back disability, is denied. Entitlement to a rating in excess of 40 percent prior to June 29, 2021, and 20 percent thereafter, for a back disability is denied. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Bilateral hearing loss was incurred in service. 2. Tinnitus had its onset in service. 3. There is no evidence in the record showing the Veteran's entitlement to an increased rating for his back disability arose prior to October 29, 2018. 4. Prior to June 29, 2021, there was no evidence of unfavorable ankylosis of the thoracolumbar spine. From June 29, 2021, there was no evidence of finding of forward flexion limited to 30 degrees or ankylosis of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for an effective date prior to October 29, 2018, for the award of an increased rating of 40 percent for a back disability have been not met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for entitlement to a rating in excess of 40 percent prior to June 29, 2021, and 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1998 to February 2002 with the United States Marine Corps. In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript has been associated with the record. The Board additionally acknowledges that the Veteran has filed AMA claims for service connection for an acquired psychiatric disorder and headaches. See May 2021 VA Form 10182, Notice of Disagreement. AMA claims (the new system) are adjudicated separately from claims under the legacy system (the old appeals system), and the Board cannot merge AMA claims with legacy claims. Therefore, the Veteran's claims for service connection for an acquired psychiatric disorder and headaches are not currently before the Board and will be addressed in a separate AMA Board decision. Moreover, hearing testimony suggests that the Veteran's back disability contributes to his inability to continue working in a restaurant. Thus, the Board finds that the record raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, this issue has been added above as one of the issues on appeal. This issue the Board can consider. Service Connection Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. In order to prevail on the issue of service connection, generally, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307; see also Davidson v. Shinseki, 581 F.3d 1313,1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38C.F.R. §3.309 (a), such as organic diseases of the nervous system to include sensorineural hearing loss and tinnitus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran contends that his bilateral hearing loss and tinnitus began during active duty service. Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304; Hensley, 5 Vet. App. at 159-60. The United States Court of Appeals for Veterans Claims (Court) in Hensley also held that "audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss." Hensley, 5 Vet. App. at 157. The Veteran asserts, in substance, that service connection is warranted for his bilateral hearing loss and tinnitus because they are due to acoustic trauma caused by his service working on air conditioners and generators during active duty. The Board notes that the Veteran also contends he was exposed to acoustic trauma while working on a flight line in Japan. See March 2021 Hearing Transcript. However, his service records do not show evidence of foreign service. Service records do show evidence of a Sea Service Deployment Ribbon, but the records do not indicate a location for deployment. Initially, the Board finds that the Veteran has a diagnosis of bilateral hearing loss and tinnitus as defined by VA. See, e.g., March 2020 VA Examination. Next, the Veteran's DD 214 lists his occupational specialty as a refrigeration mechanic. Given this record, the Board concludes that he had an injury (i.e., acoustic trauma) while on active duty. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Further, given the nature of the Veteran's service (refrigeration mechanic) it is reasonable for the Board to find that he had problems with ringing in his ears and difficulty hearing during and since service after being subject to repeated noise exposure from large machinery. See Davidson, 581 F.3d at 1316; Owens v. Brown, 7 Vet. App. 429, 433 (1995). On VA examination in March 2020, the examiner opined that it is less likely than not that the current hearing loss and tinnitus are related to military noise exposure. In reaching this rationale, the examiner noted the Veteran's military occupational specialty in utilities and that it had a low probability noise exposure. Furthermore, there are no complaints or reports of hearing loss or tinnitus in the Veteran's claims file during military service or within a reasonable time frame following service. Here, the evidence shows a current diagnosis of bilateral hearing loss for VA purposes with tinnitus and military acoustic trauma. Additionally, the Veteran has consistently reported the onset of hearing difficulties and tinnitus in service associated with in-service noise exposure. The Board must weigh the evidence of record as a whole and finds the evidence is in approximate balance. Therefore, the benefit of the doubt doctrine applies, and the Board will grant the claims. See 38 U.S.C. § 5107 (b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Effective Date 3. Entitlement to an earlier effective date prior to October 29, 2018, for the award of an increased rating of 40 percent for a back disability. The Veteran contends that he is entitled to an effective date earlier than October 29, 2018, for the 40 percent evaluation of his back disability. In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(1). However, for an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date will be the date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(2). Thus, initially, the Board must determine the date of receipt of the claim. In October 2018, the Veteran submitted a VA 21-526EZ, Fully Developed Claim (Compensation), for the evaluation of his back disability. Here, it is undisputed that the Veteran's claim was received on October 29, 2018. The Board has considered whether there was a non-final claim that would allow for an earlier effective date but found none. Furthermore, the Board has reviewed the available treatment records, and finds there is no factually ascertainable increase in the disability attributable to the Veteran's service-connected back disability in that time period. The RO increased the Veteran's disability rating for a back disability to 40 percent based on VA medical examination findings in January 2019. Therefore, the Veteran is currently in receipt of the earliest effective date legally available, the date of receipt of the claim. The Veteran also has not identified or submitted any evidence demonstrating entitlement to an earlier effective date for the 40 percent rating for his service-connected back disability. In summary, the Board finds that the criteria for entitlement to an earlier effective date for the grant of a 40 percent rating for a back disability prior to October 29, 2018, have not been met. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 4. Entitlement to a rating in excess of 40 percent prior to June 29, 2021, and 20 percent thereafter, for a back disability. During the pendency of the appeal, the Veteran's back disability was reduced to 20 percent, effective June 29, 2021. The Veteran was also granted entitlement to service connection for bilateral lower extremity radiculopathy secondary to his service-connected back disability and was assigned 10 percent disability ratings, effective June 29, 2021. Moreover, the Veteran seeks entitlement to a rating in excess of 40 percent prior to June 29, 2021, and 20 percent thereafter. Prior to the regulatory change, the rating schedule provided for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). As of February 7, 2021, the criteria for IVDS will be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other diagnoses. The Veteran's service-connected back disability is currently rated under Diagnostic Code 5242. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also Plate V. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. On VA examination in January 2019, the examiner noted forward flexion to 10 degrees and extension to 5 degrees with evidence of painful motion. Right lateral flexion was to 10 degrees and left lateral flexion was to 10 degrees. Right lateral rotation was to 15 degrees and left lateral rotation was to 15 degrees with painful motion. The examiner noted that pain and lack of endurance significantly limit functional ability during flare-ups. However, the examiner was unable to describe in terms of range of motion. There was no change in range of motion upon repetitive motion. There were no incapacitating episodes, IVDS, or disc herniation noted. Ankylosis was not noted upon examination. However, private medical records showed lumber flexion to 60 degrees and extension to 20 degrees with pain and IVDS. See April 2019, Siller Chiropractic Chart Notes. On VA examination in April 2020, range of motion for forward flexion was measured to 35 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees. Pain was noted on examination and caused functional loss. There was no change in range of motion upon repetitive motion or repeated use over time. The examiner noted that pain significantly limited functional ability with flare-ups and estimated forward flexion to 25 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 15 degrees. IVDS was noted without any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician within the past 12 months. Ankylosis was not noted upon examination. A private medical opinion was provided in May 2021. Range of motion testing was not included. Moreover, the physician opined that the Veteran has developed IVDS and should be rated as 60 percent disabled based on incapacitating episodes. The physician did not go into further discussion or detail on whether incapacitating episodes require bed rest prescribed by a physician and treatment by a physician. A detailed review of the report provides many questions as to how the conclusions were reached based on the objective medical evidence. Overall, the Board finds that the opinion, particularly considering the objective medical evidence, is entitled to very limited probative value. The Veteran underwent another VA examination for his back in June 2021. Initial range of motion measurements were not provided. Active range of motion testing showed forward flexion to 40 degrees, extension to 18 degrees, right lateral flexion to 20 degrees, left lateral flexion to 16 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 16 degrees. The examiner was unable to perform passive range of motion testing because testing was contraindicated due to safety. Evidence of pain was noted with weight-bearing and active motion but does not result in or cause functional loss. There was no change in range of motion upon repetitive motion and no evidence to suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability after repeated use of time or flare-ups. Ankylosis and IVDS was not noted upon examination. After reviewing the medical evidence, the preponderance of the evidence shows the Veteran's back disability does not warrant higher ratings. While the May 2021 private medical opinion provides evidence in favor of the Veteran's claim and some evidence of IVDS with incapacitating episodes, it is highly inconsistent with the multiple VA examinations that suggest otherwise. The Board does not dispute the evidence showing some IVDS. The Board only disputes the evidence of incapacitating episodes and provides little probative weight to the May 2021 medical opinion. The Board finds that prior to June 29, 2021, the Veteran is not entitled to a rating in excess of 40 percent. To warrant a 50 percent rating, there must be evidence of unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. During this period, ankylosis was not noted for the thoracolumbar spine. Considering all the evidence of record, including range of motion testing results, the evidence weighs against a finding of unfavorable ankylosis of the thoracolumbar spine. Therefore, the Board finds that prior to June 29, 2021, a rating in excess of 40 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Effective June 29, 2021, the Veteran's back disability was evaluated as 20 percent disabling. To warrant a 40 percent rating, there must be evidence of limitation of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. During this period, the only recorded range of motion findings show the Veteran's flexion was no worse than to 40 degrees with pain. Considering all the evidence of record, including range of motion testing results, the evidence weighs against a finding of forward flexion limited to 30 degrees or less, even considering with repetition or during flare-ups. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, there is no evidence of ankylosis of the thoracolumbar spine. Therefore, the Board finds that a rating in excess of 20 percent is not warranted after June 29, 2021. 38 C.F.R. § 4.71a, Diagnostic Code 5242. This finding does not suggest, in any way, that the Veteran is not having back problems, the only question is the degree based on evidence and criteria cited above, nothing more. The Board finds that a disability rating higher than 40 percent for a back disability prior to June 29, 2021, and a rating higher than 20 percent thereafter, are not warranted. The Board finds that the preponderance of the evidence is against the assignment of any ratings higher than those assigned. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a neck disability. The Veteran contends that his neck disability is secondary to his service-connected back disability. The Veteran had an examination for his neck in January 2019. The examiner noted the Veteran had a diagnosis of degenerative disc disease of the cervical spine. The Veteran reported the onset of neck pain several years ago. Overall, the examiner opined it is less likely than not the Veteran's neck disability is proximately due to ot the result of his service-connected back disability. However, the examiner did not address whether the Veteran's neck disability was aggravated by his service-connected back disability. Furthermore, treatment records show complaints of neck pain as early as 2004. See June 2004, Primary Care Initial Evaluation Note, Sacramenta VAMC. Therefore, a remand is necessary for another examination, as the January 2019 examination was inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to a TDIU is remanded. The evidence of record raises a claim of entitlement to TDIU. Rice, 22 Vet. App. at 447. As noted in the hearing testimony, the Veteran claims that his back disability contributes to his inability to continue working in a restaurant. The Board thus finds that he has reasonably raised a claim for a TDIU per Rice; however, a remand is required prior for adjudication of the claim for a TDIU. The RO has not yet addressed the Veteran's TDIU claim in the first instance. Furthermore, the record does not show the Veteran has been provided notice of the laws and regulations governing a TDIU claim. In adjudicating a claim for a TDIU the Board must ascertain if the Veteran's service-connected disability would prevent him from securing or following a "substantially gainful" occupation given his prior vocational history, work experience, education. The collective impact his service-connected disability would have in performing jobs that require sedentary and non-sedentary employment, including his past employment working in a restaurant, must be considered. Therefore, a remand to obtain a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, with the stated information is required. See 38 U.S.C.§ 5103A (b); 38 C.F.R. §§ 3.340, 4.16, 19.9; Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding 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 regional office). Thus, the Board finds that a remand for further development of the Veteran's TDIU claim is required. See 38 U.S.C. §§ 5103; 5103A(b); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding VA and private medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. Schedule the Veteran for an appropriate examination for his neck disability to determine its nature and etiology. The examiner should opine as to the following: (a) Whether it is at least as likely as not the Veteran's neck disability (if any) is related to an in-service, injury, event, or disease? (b) Whether it is at least as likely as not the Veteran's neck disability is proximately due to or aggravated by his service-connected back disability? The examiner should also consider the Veteran's neck pain that was reported in June 2004. A complete rationale should be provided for any opinion or conclusion expressed. 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, whether he continues to be unemployed, the approximate date he stopped working full or part time, and how his service-connected disabilities prevent him from obtaining and maintaining substantial gainful employment in both fields that are sedentary (i.e., administrative) and physically demanding (i.e., bartending). (Continued on the next page) Any help from the Veteran and his representative in obtaining this information would be appreciated. The request should also notify the Veteran that his claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing the VA with a Form 21-8940 (Application for Increased Compensation Based on Unemployability). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.