Citation Nr: 22012020 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-45 341 DATE: March 2, 2022 REMANDED Entitlement to service connection for a left upper extremity disability, excluding left elbow dislocation with arthritis, limitation of extension of the left forearm, and impairment of supination/pronation of the left forearm, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1963 to August 1967, to include service in the Republic of Vietnam. He is a Purple Heart and Bronze Star Medal recipient. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2012 and January 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020 and September 2021, the Board remanded these matters to the RO for further development. As an initial matter, the Board notes that although the Veteran originally requested a Board hearing for his claims, see September 2016 and July 2018 VA Form 9s, he subsequently withdrew his request for a Board hearing, see May 2019 Correspondence. To date, he has not requested a Board hearing since this withdrawal of his hearing request. As such, although VA notified the Veteran, in February 2022, that he had a hearing scheduled, this is in error and the Board may proceed with addressing his claims. Moreover, as the Veteran's claims are remanded herein, he will have the opportunity to request a Board hearing if his claims are not fully resolved with the Agency of Original Jurisdiction (AOJ) on remand. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a left upper extremity disability, excluding left elbow dislocation with arthritis and left forearm limitation of extension and impairment of supination/pronation The Board notes that the Veteran's above claim has previously been characterized as a claim for service connection for a left shoulder disability. However, upon review of the record, the Veteran's December 2015 VA Form 21-526EZ includes a claim for service connection for a left shoulder/left upper extremity disability and the medical records reflect diagnoses of left cubital tunnel syndrome and carpal tunnel syndrome. The Board notes that when a claimant makes a claim, he or she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that what constitutes a claim is not limited by a lay veteran's assertion of his condition in the application but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). As such, the Board has broadened and recharacterized the Veteran's claim to include entitlement to service connection for a left upper extremity disability, other than his service-connected left elbow dislocation with arthritis and left forearm limitation of extension and impairment of supination/pronation disabilities. In the present case, although the Veteran was diagnosed with left cubital tunnel syndrome at the June 2021 VA peripheral nerves examination, no VA examiner has provided an opinion as to whether any left upper extremity neurologic disorders are related to his active service and/or his service-connected left elbow and forearm disabilities. Therefore, a remand is warranted for an addendum opinion to address these issues. 2. Entitlement to a TDIU due to service-connected disabilities As noted in the October 2020 Board decision, the issue of entitlement to a TDIU was raised during the pendency of the Veteran's increased rating claims pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the record currently stands, the Veteran's percentage ratings do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) for the entire applicable period. The Board is also prohibited from assigning a TDIU on this basis in the first instance without ensuring that the claim is referred to VA's Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). Nevertheless, the Board may consider whether there is sufficient evidence to substantiate a reasonable possibility that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation such that referral of entitlement to a TDIU on an extraschedular basis is warranted under 38 C.F.R. § 4.16(b). In the present case, the medical and lay statements of record show that the Veteran stopped working during the pendency of the appeal. For instance, a May 2013 VA treatment record reflects that the Veteran used to drive a truck but quit working three to four months prior. A subsequent April 2014 VA psychiatric treatment record further reflects the Veteran's report that he had close to 100 jobs since leaving service, that his pattern was to walk away in order to avoid conflict, and that this pattern made it difficult to maintain employment and significant relationships. Moreover, at the June 2016 Decision Review Officer (DRO) hearing, the Veteran testified that his left upper extremity disability had an impact on his employability as a truck driver because he frequently used his arm to drive. Thereafter, in a December 2018 medical letter, a VA treating psychologist opined that due to the severe and chronic nature of the Veteran's psychological illness, he was no longer capable of functioning at an acceptable level in any occupational setting. Given the above, and in light of the Veteran's educational and employment history, the Board finds that this case meets the criteria for consideration of a TDIU as the evidence of record indicates that his service-connected disabilities may preclude him from obtaining and maintaining substantially gainful employment during portions of the appeal period. Therefore, upon remand, if there is any appeal period that the Veteran was unemployed and did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), the AOJ should refer the case to VA's Director of Compensation for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) during those periods. In reaching this conclusion, the Board is cognizant that adjudication of the Veteran's service connection claim may directly impact his TDIU claim, such that the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Holland v. Brown, 6 Vet. App. 443, 445-46 (1994). Specifically, if the Veteran's service connection claim is granted, then the period qualifying for referral to VA's Director of Compensation Service may be altered as a result. As such, the AOJ is instructed to first readjudicate the Veteran's service connection claim to assess the appropriate period for referral. Additionally, although the evidence reflects that the Veteran retired and/or stopped working during the appeal period, the exact date of his retirement remains unclear from the record. Therefore, on remand, the AOJ should also request from the Veteran the date of his retirement and/or last employment. The matters are REMANDED for the following action: 1. Ask the Veteran to clarify the exact date that he retired and/or stopped working full time. Advise him again to fill out a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). 2. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated September 2021. 3. Then, obtain an addendum opinion from an appropriate medical professional, to address the Veteran's claim for entitlement to service connection for a left upper extremity disability, excluding left elbow dislocation with arthritis and left forearm limitation of extension and impairment of supination/pronation. The claims file, including a copy of this Remand, should be made available to, and be reviewed by the examiner. The examiner is asked to respond to the following: (a) Identify/diagnose all left upper extremity disorders during the appeal period (other than the Veteran's already service-connected left elbow dislocation with arthritis and left forearm limitation of extension and impairment of supination/pronation), to include left cubital tunnel syndrome and carpal tunnel syndrome, even if such are asymptomatic and or resolved. The examiner should consider: (1) the August 2015 VA treatment record reflecting that the Veteran was assessed with cubital tunnel syndrome after he reported experiencing radiating pain in his elbow to his shoulder and that he experienced numbness/tingling in all four fingers of the left hand; (2) the October 2015 VA treatment record reflecting that there was electrodiagnostic evidence consistent with a left upper limb sensory polyneuropathy after the Veteran reported shoulder and elbow pain and that his symptoms started in the elbow and radiated up the shoulder; (3) the October 2017 VA treatment record reflecting that the Veteran was still symptomatic with his sensory neuropathy but was stable; and (4) the June 2021 VA peripheral nerves examination reflecting a diagnosis of left cubital tunnel syndrome. If the examiner disagrees with a diagnosis already established in the medical records and June 2021 VA peripheral nerves examination, he/she should so state and explain why. (b) If the examiner identifies peripheral neuropathy as a diagnosis during the appeal period, state whether such qualifies as early-onset peripheral neuropathy. (c) The examiner is also asked to clarify whether the Veteran's reported left shoulder pain symptoms are at least as likely as not a symptom/part of his service-connected left elbow and left forearm disabilities and/or any other identified left upper extremity disability. The examiner must explain the bases for any conclusion reached. (d) For each identified disability, is it at least as likely as not that such had an onset in service or is otherwise related to the Veteran's service, to include his in-service left elbow dislocation and/or presumed in-service exposure to herbicide agents? (e) For each identified disability, is it at least as likely as not that such was (1) caused by OR (2) aggravated by the Veteran's service-connected left elbow and forearm disabilities? If aggravation is found, the examiner should quantify the degree of aggravation, if possible, and state whether there was a medically ascertainable increase in disability regardless of permanence. In rendering his or her opinion, the examiner should address BOTH the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's above service-connected disabilities did not cause any other left upper extremity disability, the examiner should still address whether his service-connected disabilities could have worsened any other left upper extremity disability. The examiner should provide a complete rationale for all opinions provided and should consider any reports of continuous symptomatology. A discussion of the relevant medical literature and principles would be of considerable assistance to the Board. 4. After conducting any other development deemed necessary and readjudicating the Veteran's service connection claim, if there is any period during the appeal period that the Veteran does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a), the AOJ should refer the case to VA's Chief Benefits Director or the Director of Compensation and Pension Service for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) during those periods. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.