Citation Nr: 1803020 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 11-26 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to pes planus. 2. Entitlement to service connection for a right hip disability, to include as secondary to pes planus. 3. Entitlement to higher evaluations for bilateral pes planus rated as 10 percent disabling before October 20, 2016, and 30 percent disabling from October 20, 2016. 4. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active service with the United States Army from January 1953 to December 1954. This matter comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2015, the Veteran testified before the undersigned at a videoconference hearing and a transcript is of record. In September 2015, the Board remanded the appeal for additional development. In an April 2017 rating decision, the RO granted the Veteran's bilateral pes planus a 30 percent rating effective from October 20, 2016. See Hart v. Mansfield, 21 Vet. App. 505 (2007), This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). All the appeal issues except entitlement to a TDIU from January 26, 2016, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT From January 26, 2016, the Veteran's service-connected disabilities preclude substantially gainful employment at all times during the pendency of the appeal. CONCLUSION OF LAW The criteria for a TDIU rating have been met at all times from January 26, 2016. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that his service-connected disabilities prevent substantial employment at least from January 26, 2016. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Total disability will be considered to exist 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran's service connected orthopedic disorders. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342, 356 (2000). The Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board finds that the Veteran's service-connected disabilities (i.e., bilateral hearing loss, tinnitus, bilateral pes planus, right ankle disability, and left ankle disability) affect a single body system. See 38 C.F.R. § 4.16(a)(3). Therefore, the Board finds that his disabilities meet the schedular criteria set forth in 38 C.F.R. § 4.16(a) at all times from January 26, 2016. Thus, the question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). Significantly, the Board finds that a review of the record on appeal shows that his service-connected bilateral pes planus, right ankle disability, and left ankle disability would adversely impacts his ability to be work in an area that requires manual labor because he would be unable to stand and walk for prolonged periods of time. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO). Likewise, the Board finds that the Veteran's service-connected bilateral hearing loss and tinnitus would significantly impair his ability to interact with others in the work place and to stay focused enough to work with and/or supervise other in a sedentary work setting. Id. Given the above the Board finds that the Veteran's service-connected disabilities prevent him from securing or following a "substantially gainful" occupation given the collective adverse impact his service-connected bilateral pes planus, right ankle disability, and left ankle disability would have on performing jobs that require manual labor, the adverse impact his service-connected bilateral hearing loss and tinnitus would have on performing jobs that require him to interact with co-workers and others in a sedentary work setting. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities render his incapable of substantial gainful employment. The Board therefore finds that the criteria for a TDIU have been met. Moreover, because the collective adverse impact of the Veteran's service-connected disabilities have on employment was substantially the same, the Board finds that he met the criteria for a TDIU at all times from January 26, 2016. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). ORDER Subject to the law and regulations governing the payment of monetary benefits, TDIU benefits are granted all times from January 26, 2016. REMAND As to the claims of service connection for low back and right hip disabilities, to include as secondary to pes planus, the Board in September 2015 remanded these issues to obtain needed etiology opinions. Moreover, the post-remand record shows that the Veteran was provided a VA examination in August 2016 to obtain these etiology opinions. However, the Board does not find the etiology opinions provided by that examiner adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board has reached this conclusion because, despite the September 2015 remand specifically directing that examiner to provide an opinion as to, among other things, whether the Veteran's already service-connected pes planus aggravated any current low back and/or a right hip disability, the examiner failed to provide such an opinion. Therefore, the Board finds that another remand to obtain this needed medical opinion is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). As to the claim for higher evaluations for bilateral pes planus before and after October 20, 2016, the Board finds that none of the existing VA examinations included range of motion testing in both active and passive motion, weight-bearing, and non-weight-bearing situations as well as opinions as to the Veteran's range of motion during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, the Board finds that another remand is necessary to provide the Veteran with a new VA examination to conduct the appropriate range of motion testing. As to the claim for a TDIU before January 26, 2016, the Board finds that this issue must also be remanded because its adjudication is inextricably intertwined with the above issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). While the appeal is in remand status, the AOJ should obtain and associate with the record any other outstanding VA and private treatment records. See 38 U.S.C.A. § 5103A(b) (West 2014). Accordingly, the appeal is REMANDED to the AOJ for the following actions: 1. After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 2. Associate with the claims file all of the Veteran's post-February 2017 treatment records from the San Antonio VA Medical Center. 3. Notify the Veteran and his representative that they can submit lay statements from the claimant and from other individuals who have first-hand knowledge of the observable in-service and any post-service problems caused by his low back and right hip disorders as well as the current problems caused by his bilateral pes planus. The Veteran should also be advised to submit lay evidence regarding the impact of his service-connected disabilities on his ability to work before January 26, 2016. Provide the Veteran with a reasonable time to submit this evidence. 4. Provide the Veteran a VA Form 21-8940 and request that he complete and submit it in conjunction with his TDIU claim. 5. Schedule the Veteran for a VA examination to determine the onset and/or etiology of his low back and right hip disabilities. The claims folder should be made available to and reviewed by the examiner. After a review of the claims file and an examination of the Veteran, if needed, the examiner should provide an answer to the following question: As to each diagnosed low back and right hip disability, is it at least as likely than not that it was aggravated (i.e., permanently worsened) to any degree by his service-connected pes planus? The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. Schedule the Veteran for an appropriate VA examination to determine the nature and severity of his bilateral pes planus. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should opine functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional impairment during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 7. Then, after conducting any further development deemed warranted, adjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) that gives the Veteran notice of all the evidence added to the record since the last SSOC. The Veteran should be given an appropriate opportunity for response before returning the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs