Citation Nr: 1805863 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 09-14 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a right knee disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Gary Gray, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active air service from July 2005 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Jurisdiction over the case was subsequently transferred to the VA RO in Jackson, Mississippi. The Veteran appeared at a June 2011 hearing before the Board. A transcript is of record. As the Veterans Law Judge (VLJ) who presided over the Veteran's hearing has retired, the Veteran was given an option for another hearing. The Veteran opted to have another hearing. Therefore, in connection with this appeal, the Veteran appeared in November 2017 at a videoconference hearing at the RO with the undersigned VLJ. A copy of that transcript has been associated with the record. This case was previously before the Board in September 2011, at which time it was remanded for additional development. It has now been returned to the Board for further appellate action. The issue of entitlement to an initial rating in excess of 10 percent for a right knee disability is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's has had a combined rating of 80 percent from August 31, 2012, with at least one disability rated at 40 percent or higher. 2. The Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities, and that a TDIU is warranted in this case. A TDIU rating for compensation purposes 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 if there are two or more service-connected 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 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). At the outset, the Board finds that the Veteran has met the preliminary schedular criteria for entitlement to a TDIU. The Veteran is service connected for: migraine headaches associated with generalized tonic clonic convulsive disorder, rated at 50 percent disabling; degenerative disc disease of the lumbar spine, rated at 40 percent disabling; generalized tonic clonic convulsive disorder, rated at 40 percent; and a right knee disability, rated at 10 percent. The Veteran's combined rating has been 80 percent since August 31, 2012. Thus, the schedular criteria for a TDIU rating pursuant to 38 C.F.R. § 4.16 (a) have been met since August 31, 2012. Further, the Board finds that the combined impact of the Veteran's service-connected disabilities have precluded his substantial and gainful employment since that time. Review of the record indicates that the Veteran has completed high school and three years of college, and was previously employed as a bartender and a teleoperations specialist. The Veteran has indicated that he is currently employed part-time at a general nutritional center. However, the Veteran has offered competent and credible testimony regarding the additional circumstances surrounding his employment, and has stated that he has had to take plenty of time off due to his disabilities, and that the only reason he is still employed is because of connections he has at his current job. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Specifically, the Veteran has intimated difficulty in maintaining professional relationships, he commonly has to call out sick if he has a seizure, his driver's license is suspended, and his arthritis affects him to a degree which regularly renders him unable to report for work. The additional evidence of record supports that understanding of the Veteran's disability picture. In June 2017, multiple VA examiners assessed the impact of the Veteran's service-connected disabilities on his employability. In doing so, one examiner opined that the Veteran's migraines and stress often led to his seizures, and although he has not had a seizure in approximately two years, any stress could induce a seizure. Further, it was noted that after the Veteran experienced a seizure, his driving privileges were suspended for six months, and he was therefore unable to get around without sole reliance on additional forms of transportation. With regard to the Veteran's migraines, a VA examiner also stated that when the Veteran experienced a migraine, he had sensitivity to light, changes in vision, and that the migraines could last between 1-2 days at a time. With regard to the Veteran's back and right knee disabilities, another VA examiner stated that the Veteran could not sit for longer than 5-10 minutes without reports of pain. The examiner reported that the Veteran would frequently have to ice his knee and back and lay for a long period of time to obtain any relief. Upon review of the above, the Board finds that the combined impact of the Veteran's service-connected disabilities have rendered him unemployable. His physical limitations would require significant absences from work, and prohibit any task requiring strength and dexterity of the back or right knee, to include the use of manual tools or keyboards. Further, the Veteran's seizure and migraine disorders are productive of severe occupational deficiencies as due to such symptoms as possible incapacitation and sensitivity to light. Thus, in light of the Veteran's educational background, work experience, and degree of physical impairment; the Board finds that the Veteran is precluded from obtaining and maintaining any form of substantially gainful employment. In reaching this conclusion, the Board is cognizant of the Veteran's ongoing employment with a general nutrition company. However, the ability to work sporadically or to obtain marginal employment does not qualify as substantially gainful employment. 38 C.F.R. § 4.16(a) (2017); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In this regard, "marginal employment" is classified as earned annual income that does not exceed the poverty threshold for one person. 38 C.F.R. § 4.16(a) (2017). Here, the Veteran's part-time employment yields monthly earnings that are inconsistent due to his inability to consistently report for work, and, by his own testimony, he has only maintained the job because of a connection at the company. Thus, the Veteran's position constitutes only marginal, and not substantially gainful, employment. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With regard to the Veteran's claim of entitlement to an initial increased rating for a right knee disability, the Veteran has reported that he experiences extreme pain in his left leg and is unable to sit or walk for long periods of time as a result of his active service. The Veteran contends that his disability is not properly contemplated by his current disability rating. The Board notes that in a recent decision of the United States Court for Veterans Claims (Court) the Court found that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2017). A review of the record shows that the Veteran was most recently afforded a VA examination of his left leg disabilities in July 2015. A review of that examination report fails to show findings that are consistent with the holding in Correia. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current level of severity of all impairment resulting from his-service connected left leg disabilities. Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issue on appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected right knee disability. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. The examiner should provide all information required for rating purposes, to specifically include both active and passive range of motion testing. The examiner should also provide weight-bearing and nonweight-bearing range of motion testing for the weight-bearing joints in question. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. 3. Confirm that the VA examination report comports with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the remaining claim on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for a response. Then, return the case 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs