Case A26040306

Summary

The Veteran, who served from March 1979 to October 1980, appeals a June 2021 rating decision. The Veteran sought an earlier effective date for total disability based on individual unemployability (TDIU) and Dependents' Educational Assistance (DEA). The Board granted entitlement to TDIU and DEA with an effective date of November 23, 2019, finding the Veteran met the criteria for these benefits and the fully developed claim submission. The Board noted the Veteran's conflicting statements regarding employment history but found the evidence supported unemployability and the November 2020 TDIU claim submission date. The Veteran also appealed denials of increased ratings for degenerative joint disease of the lumbar spine and degenerative joint and disc disease of the cervical spine. The Board remanded these claims for a new addendum opinion from a VA examiner. The existing June 2021 VA examinations showed no ankylosis but indicated symptoms that might be the functional equivalent of ankylosis. The Board found a duty-to-assist error in failing to obtain an opinion on this functional equivalent. A private medical opinion was given minimal probative value due to lack of in-person examination and rationale. The remand instructions require the examiner to determine the severity of the spinal conditions and whether ankylosis or its functional equivalent was present during the appeal period, considering the Veteran's reported symptoms.

Rationale

Board found criteria for TDIU met; Effective date of November 23, 2019 granted; Veteran submitted fully developed claim

Full Decision Text

Citation Nr: A26040306
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 210713-171625
DATE: April 29, 2026

ORDER

Entitlement to an effective date of November 23, 2019 for total disability due to individual unemployability is granted.

Entitlement to an effective date of November 23, 2019 for Dependents' Educational Assistance is granted.

REMANDED

Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine is remanded.

Entitlement to a disability rating in excess of 30 percent for degenerative joint and disc disease of the cervical spine is remanded.

FINDINGS OF FACT

1. The Veteran is entitled to TDIU from November 23, 2019 due to filing a fully developed claim.

2. Based on the grant of an earlier effective date for a TDIU to November 23, 2019, herein, the Veteran met the basic eligibility requirements for Chapter 35 benefits as of June 30, 2020.

CONCLUSIONS OF LAW

1. The criteria for an effective date of November 23, 2019 for total disability due to individual unemployability have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 4.16.

2. The criteria for an effective date of November 23, 2019 for Dependents' Educational Assistance have been met. 38 U.S.C. §§ 3500, 3501, 5102, 5107; 38 C.F.R. §§ 3.807, 21.3020, 21.3021.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1979 to October 1980. The Board thanks the Veteran for his service.

On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). Pub. L. No. 115-55, 131 Stat. 1105 (2017) went into effect. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review on or after February 19, 2019. As this case is an appeal of a June 2021 rating decision, this decision has been written consistent with the new AMA framework.

However, when, as here, there are pre-decisional, duty-to-assist, errors it is permissible for the Board to have them corrected before deciding the claim on appeal.

In July 2021, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal) electing a hearing with a Veterans Law Judge. A Board hearing was held on November 15, 2024.

Therefore, the Board may only consider the evidence of record at the time of the June 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claims of increased ratings for degenerative joint disease of the lumbar spine and degenerative joint and disc disease of the cervical spine, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

EFFECTIVE DATE

1. Entitlement to an effective date of November 23, 2019 for total disability due to individual unemployability

2. Entitlement to an effective date of November 23, 2019 for Dependents' Educational Assistance

After review, the Board finds that earlier effective dates are warranted.

The assignment of
 included with this decision. 

However, because the Board is remanding the claims of increased ratings for degenerative joint disease of the lumbar spine and degenerative joint and disc disease of the cervical spine, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

EFFECTIVE DATE

1. Entitlement to an effective date of November 23, 2019 for total disability due to individual unemployability

2. Entitlement to an effective date of November 23, 2019 for Dependents' Educational Assistance

After review, the Board finds that earlier effective dates are warranted.

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400.

For claims for an increase in a service-connected disability, 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); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98.

In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014).

Additionally, there are different rules for the assignment of effective dates that are specific to claims decided under the fully developed claim (FDC) process. In such cases, the effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. 38 U.S.C. § 5110(b)(2)(A).

Total disability ratings for compensation based upon individual unemployability 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 as a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided 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. §§ 3.340, 3.341, 4.16(a).

In evaluating entitlement to a TDIU, the central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled.

In a newly submitted November 2020 VA Form 21-8940, the Veteran reported that he stopped working full time in approximately 2005. The Veteran's maximum education level completed was noted to be at a high school level.

The Board notes that at the time of submission, the Veteran was in receipt of the 80 percent combined disability rating that he obtained in September 2019.

Notably, the Veteran's reporting of his last full-time job conflicts with the April 2013 form that he submitted, where he reported last working full-time in September 2011.

In making this determination the Board has contemplated
 are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled.

In a newly submitted November 2020 VA Form 21-8940, the Veteran reported that he stopped working full time in approximately 2005. The Veteran's maximum education level completed was noted to be at a high school level.

The Board notes that at the time of submission, the Veteran was in receipt of the 80 percent combined disability rating that he obtained in September 2019.

Notably, the Veteran's reporting of his last full-time job conflicts with the April 2013 form that he submitted, where he reported last working full-time in September 2011.

In making this determination the Board has contemplated the findings of the VA medical records, VA examinations, lay statements, and any other treatment records.

During his hearing, the Veteran testified that he didn't think that he worked in 2019, but also stated that he may have worked. However, he reported having significant pain that interfered with his ability to work.

The Board concludes that an effective date of November 23, 2019 is proper. The Board notes that the Veteran's initial TDIU claim was denied in an April 2013 rating decision, but was never appealed. However, the evidence is consistent that he was unemployable up to a year prior to his submission. Further, the evidence indicates that he submitted a fully developed claim for TDIU.

As such, the Board finds that the Veteran's TDIU benefits are effective from November 23, 2019. Accordingly, entitlement to a TDIU is warranted from that day. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.

Additionally, basic eligibility for certification of Survivors' and DEA benefits exists if a veteran has a permanent total service-connected disability.

By virtue of the decision above, the Veteran has had a permanent and total service-connected disability since November 23, 2019. Accordingly, the criteria for basic eligibility for Chapter 35 benefits are established from that date.    

REMANDED

1. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine is remanded.

2. Entitlement to a disability rating in excess of 30 percent for degenerative joint and disc disease of the cervical spine is remanded.

After review, the Board finds that remand is warranted for an addendum opinion.

In Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that in the absence of a medical diagnosis of ankylosis, a claimant may still receive benefits associated with ankylosis based on the functional equivalent of ankylosis (i.e., the claimant's symptoms sufficiently resemble ankylosis despite the absence of a formal diagnosis). In short, if a claimant's functional loss "is the functional equivalent of ankylosis," a higher rating may be warranted on that basis. Id. at 11. 

The Board will first discuss examinations for the Veteran's lumbosacral spine, and then for his cervical spine.

The Board notes that this appeal covers the June 2021 rating decision. Given this, the Board may only review the June 2021 VA examinations.

The Veteran was afforded June 2021 VA examinations for his cervical and lumbosacral spinal regions.

For the lumbosacral spine, observed repetitive use testing resulted in a forward flexion of 55 degrees. Combined range of motion was found to be 130 degrees. Repeated use over time testing resulted in a forward flexion of 50 degrees, with a combined range of motion of 100 degrees. Flare ups were estimated to cause a forward flexion of 45 degrees with a combined range of motion of 70 degrees. Ankylosis was not found.

For the cervical spine, observed repetitive use testing resulted in a forward flexion of 35 degrees. Combined range of motion was found to be 215 degrees. Repeated use over time testing resulted in a forward flexion of 30 degrees, with a combined range of motion of 185 degrees. Flare ups were estimated to cause a forward flexion of 25 degrees with a combined range of motion of 120 degrees. Ankylosis was not found.

IVDS of either spine region was not found. Ankylosis was not found in either spinal region.

The Board notes that the examination results for both examinations appear to indicate that the Veteran's symptoms may be productive of the functional equivalent of ankylosis, even if he does not have ankylosis.

Given this, the Board finds that the AOJ committed a duty to assist error by not obtaining an addendum medical opinion on potential functional ankylosis. As such, a
 of 30 degrees, with a combined range of motion of 185 degrees. Flare ups were estimated to cause a forward flexion of 25 degrees with a combined range of motion of 120 degrees. Ankylosis was not found.

IVDS of either spine region was not found. Ankylosis was not found in either spinal region.

The Board notes that the examination results for both examinations appear to indicate that the Veteran's symptoms may be productive of the functional equivalent of ankylosis, even if he does not have ankylosis.

Given this, the Board finds that the AOJ committed a duty to assist error by not obtaining an addendum medical opinion on potential functional ankylosis. As such, a new opinion discussing functional ankylosis is warranted.

The Board notes that the Veteran has provided a February 2021 medical opinion from Dr. F.G., arguing that higher ratings are warranted. However, the Board finds this opinion holds minimal probative value. First, the private examiner endorsed a review of the Veteran's treatment records but did not conduct an in person or physical exam. Specifically, the private examiner did not conduct a compensation and pension examination of the Veteran or provide any measurements. Second, the examiner provided little to no rationale for his opinions. For at least these reasons, the Board cannot utilize this opinion.

The matters are REMANDED for the following action:

1. Return the claims file to the June 2021 VA examiner in order to obtain a retrospective medical opinion to determine the severity of the Veteran's cervical and lumbsacral degenerative disc disease throughout the period on appeal. The VA examiner should only provide a medical opinion; a new examination of the Veteran is not requested.

If the examiner is unavailable, return the claims file to a new VA examiner of appropriate expertise. If this must be done, the RO should make reasonable efforts to obtain an opinion from a specialist if possible.

The VA examiner should answer whether the Veteran, at any point during the appeal period, had ankylosis or the functional equivalent in either the cervical spinal region or the lumbosacral spinal region. The VA examiner MUST consider the Veteran's reporting. The Veteran is competent to report his symptoms and experiences. The examiner is prohibited from discounting the Veteran's reporting solely because it is not documented in treatment records.

A complete rationale for any opinion expressed should be provided in a report. The VA examiner should consider the reports of flare-ups and functional loss as a part of functional ankylosis when providing this opinion.

 

 

Melanie J. Mann

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Nelson, Jonah A

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.