Citation Nr: 22018036
Decision Date: 03/28/22	Archive Date: 03/28/22

DOCKET NO. 17-22 141A
DATE: March 28, 2022

ORDER

Service connection for a bilateral shoulder disability is denied.

Service connection for a bilateral arm disability is denied.

Service connection for a sleep disability is denied.

An effective date of July 14, 1978, but no earlier, for depressive disorder is granted.

An initial rating in excess of 20 percent, but no higher, for left lower extremity radiculopathy is granted.

REMANDED

Entitlement to a total disability based on individual unemployability (TDIU) prior to February 11, 2014, is remanded.

FINDINGS OF FACT

1. The weight of the competent and probative evidence is against a finding that the Veteran has a current diagnosis of a bilateral shoulder disability and/or a bilateral arm disability separate from his now service-connected bilateral upper extremity radiculopathy.

2. The Veteran does not have a sleep disability that is separate from his service-connected depressive disorder.

3. On July 14, 1978, VA received the Veteran's original claim of entitlement to service connection for an acquired psychiatric disorder. The claim was not addressed by the agency of original jurisdiction (AOJ). 

4. The weight of the competent and probative evidence shows moderate incomplete paralysis of the left lower extremity.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a bilateral shoulder disability are not met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for entitlement to service connection for a bilateral arm disability are not met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. The criteria for entitlement to service connection for a sleep disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for an earlier effective date of July 14, 1978, but no earlier, for service connection for depressive disorder are met. 38 U.S.C. §§ 1110, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400

5. The criteria for an initial rating of 20 percent, but no higher, for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a  Note (1), 4.124a, Diagnostic Code (DC) 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1972 to January 1974. Further, he had additional service with the Army National Guard of Puerto Rico, to include a period of inactive duty training in February 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2015, March 2017, and August 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

This appeal has been before the Board previously. To assist with adjudication of the matters listed above, the Board will provide a brief, historical summary. In August 2019, the Board remanded the issues on appeal for further development. Regarding the issue of an earlier effective date for depressive disorder, the Board directed the AOJ to obtain a retrospective opinion as to the earliest date that it could be ascertained that the depressive disorder had its onset. Regarding the issues of service connection for a bilateral upper extremity disability, a bilateral shoulder disability, and a sleep disability, the Board directed the AOJ to obtain VA examinations regarding whether the above-stated disabilities were caused by service. Regarding the issue of an increased rating for left lower extremity radiculopathy, the Board directed the AOJ to implement the grant of an earlier effective date and then adjudicate the increased rating claim. Finally, regarding the issue of a TDIU, the Board directed the AOJ to adjudicate the above-stated claims and if the percentage rating does not meet the schedular threshold, the claim should be referred to the Director of Compensation for extraschedular consideration. Subsequently, after a June 2021 supplemental statement of the case considered the record, this matter was returned to the Board for appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Service Connection

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009).

The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

1. Service connection for a bilateral shoulder disability.

2. Service connection for a bilateral arm disability.

The Veteran contends service connection for a bilateral shoulder and bilateral arm disabilities. Specifically, the Veteran reported that his disabilities are due to an injury during training in 1977, where he hurt his lower back, right shoulder, and neck. See 1/13/2015 VA 21-4138.

Here, the Veteran's treatment records lack a diagnosis of bilateral shoulder disability or bilateral arm disability. For example, post-service records show no indication of any symptoms that functionally impair the Veteran's earning capacity. Accordingly, the Board finds that the competent and probative evidence of the record weighs against a finding that the Veteran has a current diagnosis of a bilateral shoulder disability or bilateral arm disability.

The Board acknowledges the Veteran's reports that he currently has a bilateral shoulder disability and bilateral arm disability. He is competent to describe such observable symptoms. However, as a lay person without medical training or expertise, he is not competent to say that he has a bilateral shoulder disability or a bilateral arm disability, complex medical issues concerning the body's musculoskeletal and/or neurological system that do not lend themselves to lay opinion. The Veteran has not been shown to have the knowledge, and/or expertise necessary to diagnose such complex medical issues. Therefore, the Veteran's statements that he has a bilateral shoulder disability, and a bilateral arm disability are not considered competent evidence demonstrating a current disability and lack weight. See Jandreau, 492 F.3d at 1377.

Moreover, the June 2021 rating decision granted service connection for a cervical spine disability and bilateral upper extremity radiculopathy with an effective date of March 18, 2009.

Thus, based on the evidence above, the Board finds that, while the Veteran asserts that he has a current diagnosis of a bilateral shoulder disability and a bilateral arm disability, the more probative evidence weighs against finding that the Veteran either has a current diagnosis of a bilateral shoulder disability and a bilateral arm disability, or that such a diagnosis began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110,  5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Additionally, he has been service connected for bilateral upper extremity radiculopathy, and there is no indication from the claims file that he has bilateral shoulder/arm disabilities that are separate from the now service-connected disabilities. 

Service connection claims require that the Veteran have a current disability. 38 U.S.C. § 1110. The claimant satisfies the current disability requirement when the claimant has a disability proximate to the filing of a claim for VA benefits or has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). For the reasons explained above, this has not been met here.

The competent and probative evidence weighs against finding that the Veteran has a bilateral shoulder disability and a bilateral arm disability; therefore, the service connection claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

3. Service connection for a sleep disability.

The Veteran contends service connection for a sleep disability.

VA treatment records showed that his service-connected psychiatric disorder includes symptoms, such as sleep disturbance, among others. See 8/4/2016 CAPRI, at pages 280 and 319; see also 9/20/2016 CAPRI, at page 8.

Additionally, in a March 2021 VA addendum opinion, the examiner opined that the Veteran does not meet the diagnostic criteria for a separate diagnosis of a sleep disability. In this regard, the examiner stated that the Veteran had insomnia and that it is a symptom of the Veteran's service-connected depressive disorder. According to the examiner, the Veteran's sleep disability is a secondary manifestation of his depressive disorder rather than a separate mental disability, meaning that the sleep disorder is subsumed in the Veteran's already service-connected depressive disorder and not a separate disability. See 3/25/2021 C&P Examination.

Furthermore, in a private mental disorder disability benefits questionnaire, Dr. H.H.G., Ph.D., stated that chronic sleep impairment is a symptom of the Veteran's depressive disorder. See 5/2/2017 Disability Benefits Questionnaire (DBQ)  Veteran Provided.

The Board acknowledges the Veteran's reports that he has a sleep disability. He is competent to describe such observable symptoms. However, as noted above, the Veteran is a lay person without medical training or expertise; as such, he is not competent to say that he has a sleep disability. The Veteran has not been shown to have the knowledge, and/or expertise necessary to diagnose such a complex medical issue. Therefore, the Veteran's statements that he has a sleep disability are not considered competent evidence demonstrating a current disability and lack weight. See Jandreau, 492 F.3d at 1377.

Thus, based on the evidence above, the Board finds that, while the Veteran asserts that he has a current diagnosis of a sleep disability, the more probative evidence shows that the Veteran's sleep disability is not separate from his already service-connected depressive disorder. There is no competent evidence in conflict with this finding.

As most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable and the claim for a sleep disability as separate from service-connected depressive disorder is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

4. An earlier effective date for depressive disorder.

Earlier Effective Date

In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400.

For increases, the effective date will be the receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o). The effective date of an increase in disability compensation is 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 is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2).

If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(3); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998).

Effective dates "should not be assigned mechanically based on the date of diagnosis." Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead, "all the facts should be examined" to determine the date the increase in disability first manifested. DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011).

Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This case involves dates after to March 24, 2015, as it appears to begin with VA's receipt of an intent to file received in May 2017. 

A "claim" means a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by VA submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p) (2021). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a).

The Veteran contends entitlement to an effective date earlier than February 11, 2014, for the award of service connection for depressive disorder. See 12/14/2017 NOD.

After a review of the claims file, the Board finds that an earlier effective date of July 14, 1978, is warranted.

For background, the Veteran first filed a claim for benefits for an acquired psychiatric disorder (claimed as a nervous condition), among others, on July 14, 1978. See 7/14/1978 VA 21-526. The claim was never addressed by the AOJ. The Veteran again filed an informal claim for an acquired psychiatric disorder, among others, on February 11, 2014. See 2/11/2014 Correspondence. The claim was denied in a January 2015 rating decision. An August 2017 rating decision granted service connection for depressive disorder with an effective date of February 11, 2014, the date that the AOJ received the claim for a psychiatric disorder. Subsequently, the Veteran filed a timely notice of disagreement with the effective date in the August 2017 rating decision. See 12/14/2017 NOD. After that, in August 2019, the Board remanded the claim for an earlier effective date for depressive disorder to obtain a retrospective opinion as to the earliest date that it could be ascertained that the depressive disorder had its onset.

As directed by the August 2019 Board remand, the AOJ obtained a VA retrospective opinion as to the earliest onset of the depressive disorder. The reviewing clinician opined that the Veteran had varying severity of depression since his accident in 1977 as well as from when he was medically discharged from the military. See 3/25/2021 C&P Examination.

Thus, resolving all reasonable doubt in the Veteran's favor on this material issue, the Board finds that the proper effective date for the grant of service connection for depressive disorder is July 14, 1978, the date of receipt of the Veteran's original claim for service connection for a psychiatric disorder. 38 C.F.R. § 3.400(o). Since no claim for compensation benefits for a psychiatric disorder was received within one year of separation from active service or at any other time prior to July 14, 1978, an effective date prior to July 14, 1978, is precluded as a matter of law. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

5. An initial rating in excess of 10 percent for left lower extremity radiculopathy.

Increased rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). 

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 

The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

The Veteran asserts that he is entitled to a disability rating in excess of 10 percent for left lower extremity radiculopathy.

The record shows that the Veteran's left lower extremity radiculopathy is rated at 10 percent from February 11, 2014, pursuant to the criteria under DC 8520. 

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under DCs 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a.

The words "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The Board turns to a dictionary to define these terms. In this regard, mild is generally defined as "not severe." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 787 (11th ed. 2003). Moderate is generally defined as "tending toward the mean or average amount." Id. at 798. Severe is generally defined as "of a great degree" or "serious." Id. at 1140.

"Marked," is defined as "having a distinctive or emphasized character." Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/marked, Definition 2.

Additionally, moderately severe, therefore, could be construed as falling beyond or outside of the mean or average amount while falling short of being a great degree or serious.

VA has recognized that moderate incomplete paralysis will likely be described by the Veteran and medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. In Miller v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) held that "[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level." 28 Vet. App. 376, 380 (2017).

After review of the competent and probative evidence, the Board finds that a rating of 20 percent, but no higher, for the Veteran's left lower extremity radiculopathy is warranted for the entire period on appeal.

Turning to the competent medical evidence, the Veteran was afforded a VA back (thoracolumbar) disability benefits questionnaire in January 2015. The neurologic examination showed, in pertinent part, that the Veteran did not experience left lower extremity radicular symptoms. The objective examination showed that the Veteran had normal strength, reflexes, and sensation, and no muscle atrophy. The Veteran also had an abnormal gait due to muscle spasms and guarding. He used a wheelchair occasionally and a cane constantly. Finally, as functional impact, the examiner reported that the Veteran could only perform light physical and sedentary tasks. See 1/15/2015 VA Examination.

Additionally, a VA peripheral nerves disability benefits questionnaire was afforded in February 2016. The Veteran reported weakness of his left lower extremities. The neurologic examination showed, in pertinent part, that the Veteran experienced symptoms, such as moderate left lower extremity intermittent pain, numbness, and paresthesias and/or dysesthesias. The objective examination showed that the Veteran had decreased left lower extremity sensation, reflexes (1+), and knee extension strength (4/5). However, he also had a normal gait and no muscle atrophy or trophic changes. The examiner described the Veteran's neurological findings as showing mild incomplete paralysis of the Veteran's left lower extremity. The Veteran used a wheelchair and crutches regularly. Finally, as functional impact, the examiner reported that the Veteran could perform light physical and sedentary activities. See 2/1/2016 C&P Examination.

The most recent VA peripheral nerves conditions examination was afforded in May 2021. The Veteran reported that he experienced constant leg pain. The neurologic examination showed, in pertinent part, that the Veteran experienced symptoms, such as mild left lower extremity constant pain, numbness, and paresthesias and/or dysesthesias. The objective examination showed that the Veteran had normal muscle reflexes, sensation, and strength, except for decreased ankle dorsiflexion (4+). Additionally, he had a wide based gait and no muscle atrophy or trophic changes. Regarding the left lower extremity nerves, the examiner stated that the Veteran had moderate left incomplete paralysis of the sciatic nerve. The Veteran used a wheelchair regularly. Finally, as functional impact, the examiner stated that the Veteran would experience difficulty walking due to pain and would need assistance. See 5/21/2021 C&P Examination.

Furthermore, VA treatment records generally showed that the Veteran reported symptoms, such as sharp pain, tingling, numbness, and loss of sensation in his left lower extremity. Moreover, objective neurological examinations generally showed that the Veteran had decreased reflexes, strength, and sensation. However, he also had normal gait and muscle tone of the affected limbs. See 8/4/2016 CAPRI, at pages 35, 168, and 284.

Based on the totality of the evidence above, the Board finds that the competent and probative evidence shows that a schedular rating of 20 percent, but no higher, for the Veteran's left lower extremity radiculopathy is warranted for the entire period on appeal. In that regard, the Veteran reported, and the record showed that he experienced mild left lower extremity constant pain, numbness, and paresthesias and/or dysesthesias. Additionally, the May 2021 VA examiner opined that the Veteran would experience difficulty walking due to pain and would need assistance. Further, as mentioned above, the May 2021 VA examination showed that the Veteran had moderate left lower extremity incomplete paralysis. 

Additionally, a rating in excess of 20 percent is not warranted. Although the evidence shows that the Veteran has impairment in his ability to ambulate, the record generally shows that the Veteran retained sensation and reflexes in his left lower extremity, and that motor strength loss has not been less than 4/5. 

The Veteran did not have muscle atrophy or tropic changes. Moreover, he did not have severe radiculopathy symptoms as shown in the examination reports. Indeed, the examination reports reflected, at most, moderate symptoms. At other times, the examiners reported mild symptoms. Overall, these examination reports reflect the left lower radiculopathy is moderate severity or "tending toward the mean or average amount," rather than moderately severe or "beyond or outside of the mean or average amount while falling short of being a great degree." 

When viewing the relevant evidence and overall disability picture of the left lower extremity, the Board finds that the above evidence does not tend to show neurological symptomatology falling beyond or above the mean or average amount while falling short of being a great degree or serious. In other words, the evidence does not show that the Veteran has the physical manifestations required for a higher rating for the Veteran's paralysis of the sciatic nerve. As such, the criteria for a disability rating higher than 20 percent under DC 8520 for the Veteran's left lower extremity radiculopathy are not met.

In sum, entitlement to a rating of 20 percent, but no higher, for left lower extremity for the entire period on appeal is warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8520.

REASONS FOR REMAND

A TDIU.

With respect to a TDIU, the Board finds that this claim is inextricably intertwined with his newly granted claims for an earlier effective date of July 14, 1978, for depressive disorder and an initial rating in excess of 20 percent for left lower extremity radiculopathy. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact' upon another and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources the two claims are inextricably intertwined). Therefore, the adjudication of TDIU is deferred.

Furthermore, as mentioned above, the August 2019 Board remand instructed the AOJ to provide the Veteran with a VA Form 21-8940 for the Veteran to submit updated education, employment, and earnings information. Pursuant to the August 2019 remand, the AOJ sent the Veteran the VA form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit). See 9/4/2020 Subsequent Development Letter. However, the evidence of record indicates that the Veteran did not submit the requested forms or otherwise respond to the AOJ's September 2020 correspondence. 

The Veteran's representative noted such in a February 2022 brief. See 2/25/2022 Appellate Brief, at page 2. If the Veteran and his representative wish to pursue this claim, the Board encourages them to submit the requested forms. The Board will resolve doubt in favor of the Veteran on this material point and allow the Veteran and his representative yet another opportunity to submit a completed VA form 21-8940 and a completed VA form 21-4192 to pursue the claim of entitlement to a TDIU. 38 U.S.C. § 5107(b). While the forms themselves do not need to be submitted, the Board needs to have the record supplemented with the Veteran's employment information to more precisely understand the nature of the Veteran's employment during the appeal period, to include in the assessment as to whether any employment the Veteran has had during the appeal period, was marginal or protected in nature per 38 C.F.R. § 4.16(a).

In remanding this claim, the Veteran is notified that the duty to assist is not a one-way street; a claimant is obligated to cooperate in the development of a pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In short, any further failure to submit the request information may result in the denial of the issues on appeal. The Veteran is also notified that pursuant to 38 C.F.R. § 3.158(a), when evidence requested in connection with a claim for increase is not furnished within 1 year after the date of the request, the claim is considered abandoned. 38 U.S.C. § 501; 38 C.F.R. § 3.158(a).

This matter is REMANDED for the following actions:

1. Implement the Board's award of an earlier effective date of July 14, 1978, for depressive disorder and an initial rating in excess of 20 percent for left lower extremity radiculopathy.

2. Again, provide the Veteran and his authorized representative with VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit) and advise them to complete and return the forms to support his claim of entitlement to a TDIU. 

Inform the Veteran that the Board needs to have the record supplemented with the Veteran's employment information (and any updated education and or training) to more precisely understand the nature of the Veteran's employment during the appeal period, to include in the assessment as to whether any employment the Veteran has had during the appeal period, was marginal or protected in nature. Additionally, inform the Veteran of the provisions of 38 C.F.R. § 3.158(a).

3. After completing directive # 1 and # 2, if the percentage ratings for the Veteran's service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) for any period prior February 10, 2014, refer the matter of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) to the Director of Compensation and notify the Veteran of such action.

 

 

Garrett Morales

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.F., 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.