Citation Nr: 22016644 Decision Date: 03/23/22 Archive Date: 03/22/22 DOCKET NO. 91-42 431 DATE: March 23, 2022 ORDER A total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a disability manifested by right-sided weakness, claimed as the result of VA inpatient care in April 1989, is remanded. Entitlement to a temporary total rating for convalescence following an October 2016 lumbar spine surgery is remanded. Entitlement to service connection for a neurological disorder of the bilateral lower extremities, as secondary to a back disability, is remanded. FINDING OF FACT The Veteran's service-connected lumbar spine disability as likely as not of such nature and severity as to prevent her from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 1990 and March 2007 rating decisions by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Procedural History The Veteran claimed compensation under 38 U.S.C. § 1151 (then 38 U.S.C. § 351) and stated that she experienced a stroke during an April 1989 VA hospitalization. See September 1989 Deferred Rating Decision; February 1990 VA Form 21-4138. An April 1990 rating decision denied compensation under 38 U.S.C. § 351. In October 1990, the Veteran testified at the AOJ. In January 1991 she perfected this appeal, and this matter was certified to the Board in August 1991. See January 1991 VA Form 9; August 1991 VA Form 8. In November 1991, the United States Court of Veterans Appeals (Veterans Court) decided Gardner v. Derwinski, 1 Vet. App. 584 (1991). The Veterans Court held that compensation under 38 U.S.C. § 1151 was payable when a veteran suffered an injury or aggravation of an injury resulting in an increase in disability as a result of VA hospitalization, medical treatment, or surgical treatment, without regard to whether this increase in disability was due to the fault or negligence of the VA. The VA appealed this decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In February 1992, the Board remanded this matter to the AOJ pending further appellate action in Gardner. See February 1992 VA Memorandum. The Veteran was notified by letter that action on her appeal was stayed pending the resolution of this appellate action. See February 1992 Notification Letter. Subsequently, the Veterans Court decision was affirmed by the Federal Circuit in Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), and that decision was affirmed by the United States Supreme Court in Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552 (1994). Separately, a March 2007 rating decision continued the Veteran's 20 percent rating for a back disability. The Veteran perfected an appeal of the March 2007 rating decision. These matters returned to the Board in November 2012. See November 2012 Board Remand. The Board broadened and recharacterized the claim for compensation under 38 U.S.C. § 1151 to encompass any disability manifested by right-sided weakness and remanded this claim for additional development and to afford the Veteran remedial notice. See id. at 3-5. The Board also remanded for additional development the issue of entitlement to an increased rating for a back disability and noted that the issue of entitlement to a TDIU was raised by the record and was part and parcel of that claim. See id. at 5-6. In August 2016, the AOJ issued a rating decision that awarded an increased 40 percent rating for a back disability effective October 22, 2015. In February 2020, the Board remanded all three issues (compensation under 38 U.S.C. § 1151, higher rating for the back, and TDIU). With respect to the claim for compensation pursuant to 38 U.S.C. § 1151, the Board noted that the Veteran had not been provided notice of the information and evidence needed to substantiate a claim under the law and regulations governing this appeal, as had been directed by the November 2012 Board remand. The Board remanded the issue of entitlement to an increased rating for a back disability for additional development and for the issuance of a Supplemental Statement of the Case (SSOC). The Board remanded the issue of entitlement to a TDIU as intertwined with the increased rating claim. See February 2020 Board Remand. In July 2020, the Board granted a rating of 40 percent, but no higher, for chronic lumbosacral strain (back disability), effective August 15, 2006. Notwithstanding, the Board found that the issues of entitlement to a temporary total rating for a lumbar spine surgery and entitlement to service connection for a neurological disorder of the bilateral lower extremities had been raised by the record and were aspects of the increased rating claim on appeal. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) (noting that the Board must consider all schedular alternatives, including secondary service connection, as part of an increased rating claim). The Board remanded both raised issues for additional development. The Board also remanded the claim for compensation pursuant to 38 U.S.C. § 1151 and the claim for a TDIU. Regarding the claim under 38 U.S.C. § 1151, the Board directed that the AOJ (1) provide the Veteran notice as to the information and evidence necessary to substantiate a claim for compensation under the version of 38 U.S.C. § 1151 that was in effect at the time that she filed her claim and (2) obtain a medical opinion that adequately addresses whether the Veteran experienced an increase in disability during her April 1989 hospitalization that is compensable under the applicable version of 38 U.S.C. § 1151. See, e.g., October 2015 Central Nervous System Disability Benefits Questionnaire (DBQ) at 7 (addressing whether VA was at fault). Finally, the Board remanded the TDIU claim for referral to the Director of Compensation Service for extraschedular consideration. 1. A total disability rating based on individual unemployability (TDIU) is granted. A total disability 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 due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where 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 C.F.R. § 4.16(a). In this case, service connection is currently in effect only for chronic lumbosacral strain, rated as 40 percent disabling since August 15, 2006. As such, the Veteran does not meet the criteria for consideration of a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). Nevertheless, it is VA's established policy 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. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In July 2020, the Board remanded the issue of entitlement to a TDIU for extraschedular consideration. In August 2021, the AOJ recommended that entitlement to an extraschedular TDIU be denied. 08/03/2021, VA Memo. In November 2021, the Compensation Service concurred with the AOJ's recommendation to deny TDIU benefits. 11/18/2021, VA Memo. This case has now been returned to the Board for further review. In this regard, although the Board may not in the first instance award a TDIU on an extraschedular basis, the Board is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU because the Court has determined that the Director's decision is in essence a decision by the AOJ and is no different than a RO's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran is entitled to TDIU under 38 C.F.R. § 4.16(b). Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of her service-connected back disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. Turning to the evidence, the Veteran, in March 2013, reported that she last worked full-time in December 2002. She described her occupation as "sitter (nursing)." She reported a college education. 03/08/2013, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. A December 2006 VA examination indicates that the Veteran had to give up full-time employment as a nurse partially due to his lumbar pain. It was noted that the Veteran only did some part-time private duty work that required no lifting. The record also shows that the Veteran has been found to be disabled for Social Security Administration (SSA) purposes since July 2007. This finding, however, is based on diagnoses of diabetes mellitus and essential hypertension. 11/06/2007, SSA-831 Disability Determination and Transmittal. In March 2008, the Veteran reiterated that she unable to work due to her lumbar spine disability. 03/06/2008, VA 21-4138 Statement in Support of Claim. The record also show that the Veteran was previously enrolled in vocational rehabilitation for her service-connected disability, but her rehabilitation program was concluded due to her achieving independent living rehabilitation as opposed to vocational rehabilitation. See May 2009 Vocational Rehabilitation Determination, in 08/04/2017, VR&E-General. An April 2010 VA back examination indicates that the Veteran reported severe back pain 75 percent of the time, and some degree of back pain all the time. It was noted that she used a cane for ambulation almost all the time and she could walk at least 100 yards with her cane. She reported that her back was worse with exertion and fatigue and that her back pain frequently kept her awake. She added that her back sometimes goes out and she is unable to get up because of weakness rather than pain. She reported being unable to do housework and often cannot leave her home, adding that she also cannot exercise or go shopping. A February 2016 VA examination describes the Veteran's symptoms as low back pain, stiffness in the low back area, restricting range of motion, inability to maintain normal posture due to stiffness and/or pain, muscle spasms both with activity and at rest, and pain that persists for a maximum of 10-14 days. More recently, a January 2018 VA examination reflects that the Veteran described her pain a sharp, stabbing, aching, and burning, and rated it as 15/10 in severity. She reported not being walk, sit, or stand for long periods, make her bed, clean her house, or cook. Similarly, she could not run, jump, squat, or bend. The Veteran was noted to have muscle spasms resulting in abnormal gait or abnormal spine. It was noted that symptoms interfered with driving, riding, lifting, prolonged positions, and sleeping. The Veteran was noted to require constant use of cane and walker, and occasional use of a wheelchair. In her final remarks, the examiner noted that the Veteran had had more pain, decreased sensation, and a recent fall due to increased generalized weakness. Based on the evidence above, the Board finds that the Veteran's service-connected lumbar spine disability is as likely as not of such nature and severity as to prevent her from securing or following substantially gainful employment. As detailed above, the evidence establishes that the Veteran experiences severe pain, stiffness with limited range of motion, muscle spasms resulting in abnormal gait, and weakness, which limit her ability to walk, sit, or stand for prolonged periods or lift/carry heavy things. Additionally, she requires assistive devices for ambulation. As mentioned, the Veteran has history of work as a nurse or caregiver. In the Board's estimation, the limitations caused by the Veteran's service-connected lumbar spine disability are incompatible with work in nursing or caregiving, as the latter requires physical ability that exceeds the Veteran's capabilities. In simpler terms, it is unreasonable to expect that the Veteran would be able to assist or take care of a patient, given the physical limitations associated with her service-connected lumbar spine disability. For these reasons, a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to compensation under 38 U.S.C. § 1151 for a disability manifested by right-sided weakness, claimed as the result of VA inpatient care in April 1989, is remanded. As mentioned above, the Veteran has claimed compensation under 38 U.S.C. § 1151 (then 38 U.S.C. § 351) and stated that she experienced a stroke during an April 1989 VA hospitalization. See September 1989 Deferred Rating Decision; February 1990 VA Form 21-4138. In November 2012, the Board broadened and recharacterized the claim for compensation under 38 U.S.C. § 1151 to encompass any disability manifested by right-sided weakness. More recently, in July 2020, the Board remanded the claim for compensation pursuant to 38 U.S.C. § 1151, directing the AOJ to (1) provide the Veteran notice as to the information and evidence necessary to substantiate a claim for compensation under the version of 38 U.S.C. § 1151 that was in effect at the time that she filed her claim and (2) obtain a medical opinion that adequately addresses whether the Veteran experienced an increase in disability during her April 1989 hospitalization that is compensable under the applicable version of 38 U.S.C. § 1151. See, e.g., October 2015 Central Nervous System Disability Benefits Questionnaire (DBQ) at 7 (addressing whether VA was at fault). In September 2020, the AOJ provided notice as to the information and evidence necessary to substantiate a claim for compensation under the version of 38 U.S.C. § 1151 that was in effect at the time that she filed her claim. 09/18/2020, Correspondence. In December 2020, the AOJ obtained a VA opinion. The December 2020 VA opinion addresses the Veteran's assertion that she had a stroke resulting in hemiparesis due to in-patient VA treatment in April 1989. The examiner opined that it is less likely than not that the Veteran incurred additional disability, to include any functional limitation manifested by right-hand weakness, due to her VA hospitalization in April 1989. In support of this conclusion, the examiner noted that examinations from 1996 and 2003 did not confirm a stroke or residuals of one. The examiner further noted that the Veteran had several conditions, such as diabetes and lumbar conditions that may present the same manifestation of right-sided weakness. Based on this evidence, the examiner concluded that the claimed right-side weakness due to stroke was non-existent. The examiner further concluded that there had been no increase in disability because medical records do not support a diagnosis of stroke. The examiner explained that the onset of headaches, blurred visions, and back pain during the Veteran's hospitalization was related to other conditions that the Veteran is noted to have, such as depression, diabetes, hypertension, and lumbar conditions. Finally, the examiner stated that the medical certificate indicating the Veteran's physician believes that she may have had a stroke productive of right-side weakness was not definitive and did not provide neurological and physical findings consistent with stroke. In July 2021, the AOJ obtained an opinion from a different VA examiner. The July 2021 VA examiner also opined that it is less likely than not that the claimed right-sided weakness was caused by or occurred as a CVA during her April 1989 VA hospital admission. It was noted that the Veteran was hospitalized in April 1989 for an evaluation of abdominal pain, but there was a dearth of details of the admission. The examiner further noted that there is no diagnosis of a CVA and no medical evidence to support the Veteran's claim of right-sided weakness from a CVA ever occurred or that the April 1989 hospitalization caused, predisposed, or accelerated her previous or current medical disabilities. Regarding the December 2020 VA opinion, the Board finds that the examiner focused on the question of whether the Veteran had had a stroke and did not adequately address the question of whether the Veteran had experienced additional disability a result of the April 1989 hospitalization. Rather, the examiner's explanation for the conclusion that there had been no increase in disability was that medical records do not support a diagnosis of stroke. Moreover, the examiner acknowledged that the Veteran developed headaches, blurred visions, and back pain during her hospitalization, likely related to other conditions that the Veteran had, such as depression, diabetes, hypertension, and lumbar conditions. The examiner, however, did not discuss whether these symptoms were caused or aggravated by the in-patient treatment. Regarding the July 2021 VA opinion, the Board finds that the opinion relies overwhelming on the absence of corroborating evidence and lacks an adequate medical rationale. Significantly, the examiner did not provide a medical rationale for the conclusion that the April 1989 hospitalization less likely than not caused, predisposed, or accelerated the Veteran's previous or current medical disabilities. For these reasons, the Board finds that the December 2020 and July 2021 VA opinions are inadequate. Another remand is therefore necessary. The Board sincerely regrets the additional delay, but it is necessary to protect the Veteran's right to a decision that is based on a complete and adequate evidentiary record. 2. Entitlement to a temporary total rating for convalescence following an October 2016 lumbar spine surgery is remanded. The Veteran underwent lumbar spine surgery outside of the VA in October 2016. See, e.g., April 5, 2017, VA CT Scan Report; September 11, 2019, VA Primary Care Note. Moreover, she provided a release for VA to obtain her records from her private physician, Dr. Lewis. See February 2018 VA Form 21-4142. In July 2020, the Board instructed the AOJ to obtain all outstanding relevant treatment records, to include records of the October 2016 lumbar spine surgery. The record shows that the AOJ sent a development letter to the Veteran in August 2020. No response from the Veteran was received, and the AOJ did not make additional effort to assist the Veteran in obtaining the private treatment records. Since the Board is remanded other issues for different reasons, and in view that the AOJ only once contacted the Veteran regarding the outstanding treatment records, the Board finds the Veteran is entitled to a second opportunity to submit, or authorize the release of, the records of her October 2016 lumbar spine surgery. The Veteran should be aware that these records are critical to her claim of a temporary total rating for convalescence after the October 2016 spine surgery. 3. Entitlement to service connection for a neurological disorder of the bilateral lower extremities, as secondary to a back disability, is remanded. A December 2020 VA opinion indicates that the Veteran has had bilateral lower extremity radiculopathy since at least 2010, that his back disability was described as degenerative disc disease with spinal stenosis and lumbar radiculopathy in 2016, and that she underwent lumbar spine surgery in 2016 apparently due to spinal nerve impingement. Based on this evidence, the examiner opined that the Veteran's radiculopathy is at least as likely as not proximately due to the Veteran's back disability. However, in July 2021 VA opinion, a different examiner found that there was no nexus from the Veteran's service-connected lumbosacral strain to her lumbar radiculopathy, degenerative disc disease, spinal stenosis, or peripheral neuropathy. Based on this finding, the examiner opined that it is less likely than not that "the claimed back conditions" were aggravated beyond their natural progression of because of any service-connected event, injury or illness. The Veteran is service connected for a lumbosacral strain that incurred in service. However, service connection is not in effect for degenerative disc disease with spinal stenosis. In fact, the Veteran has a claim of service connection for degenerative disc disease of the lumbar spine that is currently pending at the Board. The record shows that the Veteran recently provided oral testimony before a different Veterans Law Judge (VLJ) at Board hearing held on March 10, 2022. When read together, the December 2020 and July 2021 VA opinions suggest that the Veteran's bilateral lower extremity radiculopathy is related to her non-service-connected lumbar spine disability, rather than the service-connected lumbosacral strain. However, the July 2021 VA examiner did not provide a medical rationale for the conclusion that the there was no nexus from the Veteran's service-connected lumbosacral strain to her lumbar radiculopathy, degenerative disc disease, spinal stenosis, or peripheral neuropathy. As such, the opinion is inadequate. Since the Veteran has a separate appeal that includes the issue of service connection for degenerative disc disease of the lumbar spine, the Board finds that the appropriate course of action is to defer adjudication of the issue of service connection for a neurological disorder of the bilateral lower extremities, as secondary to a back disability, until after the claim for the degenerative disc disease is adjudicated. Once that happens, and assuming that service connection for a neurological disability secondary to the back condition has still not been established, the AOJ should obtain a new VA opinion regarding the etiology of the Veteran's neurological disability of the bilateral lower extremities. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records, to include records from Dr. Lewis concerning the Veteran's October 2016 lumbar spine surgery. See February 2018 VA Form 21-4142. 3. After completing #1 and #2, obtain an independent medical opinion pursuant to 38 U.S.C. § 5109 to determine the Veteran's claimed additional disability due to the April 1989 VA hospitalization. No examination of the Veteran is necessary unless the examiner determines otherwise. The claims file should be made available to and reviewed by the examiner. After a review of the claims file, the examiner should provide answers to the following inquiries: (a) Is it at least as likely as not (a probability of approximately 50 percent) that the Veteran incurred additional disability, to include any functional limitation manifested by right-sided weakness, due to her VA hospitalization in April 1989? (b) If additional disability exists or existed and has resolved, what is or was the nature of such additional disability? Please address each sub-part separately. The examiner should address whether any increase in disability was the result of the hospitalization or the natural progress of a disease. The examiner's attention is invited to the Veteran's treatment notes during and shortly after her hospitalization, to include an April 10, 1989 note showing an onset of headaches, blurred vision, and back pain during her hospitalization, as well as a May 19, 1989 VA treatment record showing an impression of a conversion disorder. See Medical Treatment Records Received July 31, 1989. The examiner should address the medical certificate indicating that the Veteran's physician believed that she may have had a stroke productive of right-sided weakness. See April 1989 VA Form 10-10; April 1989 VA Form 10-1000. The examiner is advised that under the VA regulation applicable to this matter, there is no requirement that any increase in disability be due to negligence or other fault by the VA. A rationale must be provided for all opinions rendered. If the examiner cannot provide any requested opinion without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 4. Defer adjudication of the issue of service connection for a neurological disorder of the lower extremities until after the claim of service connection for degenerative disc disease of the lumbar spine has been adjudicated. Once that happens, refer the claims file to an examiner for preparation of an addendum opinion as to the nature and etiology of the Veteran's reported lower extremity neurological symptoms. No examination of the Veteran is necessary unless the examiner determines otherwise. After a review of the claims file, the examiner should provide answers to the following inquiries: (a) Please diagnose all neurological disorders of the lower extremities. (b) For each disorder diagnosed in part (a), please opine as to whether it is as least as likely as not (probability of approximately 50 percent) that such disorder: (i) is proximately due to the Veteran's service-connected back disability; or (ii) is aggravated (worsened beyond natural progression) by the Veteran's service-connected back disability. The examiner's attention is invited to March 2007, July 2010, and October 2015 VA Examination Reports. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. Garrett Morales Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.