Citation Nr: 1602885 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 07-34 743A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a left hip disability. 4. Entitlement to a disability rating in excess of 30 percent for left knee disability. REPRESENTATION Appellant represented by: Robin Hood, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1984 to October 1994. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2008, the Veteran testified at an RO hearing before a Decision Review Officer. A transcript of that proceeding is of record. In April 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is also of record. The Board most recently remanded the case for additional development in February 2013; the case has now been returned to the Board for further appellate action. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. The issues of entitlement to service connection for low back and left hip disabilities, as well as entitlement to a disability evaluation in excess of 30 percent for left knee disability are addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT Throughout the period on appeal, the Veteran has met the threshold percentage requirements and has been unable to maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for entitlement to a TDIU. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2015) before the Board decides the claim. Legal Criteria 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 totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis As a threshold matter, the Board notes service connection has been established for major depressive disorder (MDD), rated as 50 percent disabling; left knee anterior cruciate ligament deficiency, rated as 30 percent disabling; as well as degenerative arthritis of the right knee, right hip bursitis, left knee instability, and tinnitus, each rated as 10 percent disabling. In addition, the Veteran is also service-connected for bilateral hearing loss and hemorrhoids, each noncompensably evaluated. The combined rating is presently 80 percent. As such, the Veteran has satisfied the scheduler criteria for a TDIU under 38 C.F.R. § 4.16(a). After consideration of the record, and resolving all reasonable doubt in favor of the Veteran, the Board finds the service-connected disabilities, notably the MDD, left knee disabilities, right knee disability, and right hip disability, have rendered him unable to maintain substantially gainful employment consistent with his education and occupational background. The Veteran has previously worked as an investigator, inventory control man, mail handler, and electrical technician. These jobs generally required some degree of communication/interpersonal skills, as well as a large measure of manual labor. The Board observes the Veteran has obtained a four year degree in Criminal Justice, as well as a Master's degree in 2009. During the period on appeal, the Veteran has received outpatient psychiatric therapy at the Gainesville VA Medical Center (VAMC). His global assessments of functioning have ranged from 55-70 throughout the period on appeal, which are indicative of mild to moderate impairments resulting from his psychiatric disorder. His outpatient treatment records and private treatment reports show consistent manifestations of psychiatric symptoms that include depressed and anxious mood, constricted affect, irritability, with episodes of violence, panic attacks, and mild short-term memory impairments. In an occupational setting these symptoms clearly would result in problematic interpersonal interactions. The Board has also reviewed the Veteran's medical records and administrative determinations rendered by the Social Security Administration (SSA). In sum, the Board notes the Veteran was found unable to obtain or maintain substantially gainful employment by SSA in a February 2014 decision. In pertinent part, the SSA adjudicator determined the Veteran's arthropathies and mood disorder were the predominant disabilities that rendered him unemployable. The Board also notes an October 2013 statement provided by the Veteran's VA primary care physician, which in pertinent part states, "left knee degenerative joint disease...has caused multiple secondary disabilities right knee, right hip joint disease, depression resulting in an inability to get or keep gainful employment." In addition, the Board notes the Veteran has undergone several examinations of his knees and right hip. In the course of the Veteran's most recent September 2014 VA examinations, the examiner stated the Veteran's ability to perform heavy physical activities, heavy lifting, prolonged walking, and/or standing may be affected by his bilateral knee disabilities. In January 2011 a VA examiner stated the Veteran's knee disabilities would cause "significant effects" on occupational activities. The examiner noted severe impairments with activities such as chores, shopping, exercise, sports, and recreation. The Board acknowledges that the individual VA examiners have stated the Veteran's service-connected disabilities in isolation do not totally preclude him from obtaining and maintaining all forms of substantially gainful employment. However, the Board notes these opinions do not address the Veteran's service-connected disabilities in combination, and also fail to consider the Veteran's occupational background. In this regard, the RO has denied the Veteran's claim for TDIU, indicating the evidence shows he could obtain and maintain some form of sedentary employment. The Board observes that the RO also failed to provide even slight consideration relative to the Veteran's educational and occupational backgrounds. In sum, affording the Veteran the benefit of all reasonable doubt, the Board is satisfied that evidence establishes his service-connected disabilities are sufficiently severe in concert to render him unable to maintain any form of substantially gainful employment consistent with his education and occupational background. Although the record indicates he has obtained advanced degrees, the evidence shows his prior work experience involved jobs that required some level of physical activities. In addition, although the Veteran was found able to perform some sedentary employment, the Board finds even sedentary employment would be significantly impaired by a combination of his psychiatric impairments and pain resulting from his service-connected orthopedic disabilities. Accordingly, a TDIU is warranted. ORDER Entitlement to a TDIU is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND Although further delay is regrettable, the Board is of the opinion that additional development is required before the Veteran's remaining claims are decided. Initially, the Board notes that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a February 2013 remand, the Board instructed the RO or the Appeals Management Center (AMC) to afford the Veteran VA examinations relative to the Veteran's left hip, lumbar spine, and left knee disabilities on appeal. At that time, the Board noted the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board indicated the Veteran's VA treatment records reveal an August 2007 diagnosis of left hip trochanteric bursitis. The examiner was instructed to specifically comment on the etiology of all disorders diagnosed during the pendency of the claim, to expressly include his left hip trochanteric bursitis. The Board also noted an October 2006 VA radiograph that revealed a grade 1 anterolisthesis due to probable bilateral L5 pars defect. Additionally, while the case was in remand status, the Veteran was also diagnosed with severe degenerative disc disease (DDD), with spondylolysis and spondylolisthesis. In the February 2013 remand, the Board instructed that the VA examiner was to identify each and every lumbar spine disability that had been present during the pendency of the claim. In addition, the examiner was instructed to state whether each disability represented either a congenital/developmental defect, or whether the condition was an acquired disability. Finally, the Board also instructed the RO or the AMC to afford the Veteran a current examination of his left knee disability. Initially, the Board notes the September 2014 examiner again determined, "there is insufficient objective evidence to warrant the diagnosis of an acute or chronic left hip disorder." The examiner wholly failed to comment on the etiology of the Veteran's left hip trochanteric bursitis, which was indeed diagnosed in August 2007. In addition, during the Veteran's back examination, the examiner diagnosed the Veteran with DDD, spondylolysis and spondylolisthesis; however, the examiner again ignored the Board's instruction to identify all lumbar spine disabilities present during the pendency of claim, and state whether each disability is a congenital/developmental defect or an acquired disorder. The examiner then stated the Veteran's lumbar spine DDD, with spondylolysis and spondylolisthesis is less likely than not proximately due to his bilateral knee disability. In support of her conclusion, the examiner attributed the Veteran's current DDD, with spondylolysis and spondylolisthesis to his "morbid obesity." Interestingly, the Board notes the report of a January 2011 examination, which states the Veteran's service-connected knee disabilities "severely" inhibit his ability to exercise. Further, the examiner did not explain why the Veteran's claimed gait impairment did not contribute to his lumbar spine disabilities, or address the March 2012 statement from the Veteran's primary care physician indicating his low back pain was attributable to his knee instability as a result of altered gait. In addition, the Board observes that although the examiner has attributed the Veteran's back disability to his weight, she failed to acknowledge or explain her findings in light of his long history of back complaints dating to 2006 when his outpatient records indicate his weight was substantially lower than it is presently. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Finally, the September 2014 examiner determined the Veteran's left knee could not be assessed. Initially, the examiner stated the Veteran's "pain behavior prevented...formal measurement of the [V]eteran's bilateral knee ROM." However, the examiner then stated the Veteran did not exhibit objective evidence of painful motion. Based on the above-noted numerous deficiencies, the Board finds new examinations are necessary to fully evaluate the Veteran's service-connected left knee, as well as to obtain competent medical opinions, which substantially comply with the Board's February 2013 remand instructions. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the remaining issues on appeal, to include any more recent treatment records related to the claimed disabilities. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, who has not previously examined this Veteran, to address the etiology of the Veteran's claimed left hip and lumbar spine disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Initially, relative to the Veteran's claimed lumbar spine disability, the examiner must identify all lumbar spine disorders that have been present during the period of the claim and state, with respect to each such disorder whether it is a congenital/developmental defect or an acquired disability. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to each acquired lumbar spine disorders present during the period of the appeal as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder: a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected disabilities, to include a gait imbalance or weight gain caused by his service-connected bilateral knee disability; or c) was permanently worsened by his service-connected disabilities, to include a gait imbalance or weight gain caused by his service-connected bilateral knee disability. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. In addition, the examiner should consider the Veteran's treating physician's March 2012 statement that attributes his back pain to an altered gait, as well as the January 2011 VA examiner's statement indicating the Veteran's ability to exercise was "severely" inhibited by his bilateral knee disabilities. In addition, relative to the Veteran's claimed left hip disability, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disorder: d) was caused by his service-connected disabilities, to include a gait imbalance or weight gain caused by his service-connected bilateral knee disability; or e) was permanently worsened by his service-connected disabilities, to include a gait imbalance or weight gain caused by his service-connected bilateral knee disability. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The Veteran also should be afforded a VA examination by an examiner with sufficient expertise, who has not previously examined this Veteran, to accurately assess his service-connected left knee disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes, to include, to the extent feasible, an assessment of the extent of any additional limitation of motion during flare-ups and on repeated use. 4. The RO or the AMC should also undertake any other indicated development. 5. Finally, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs