Citation Nr: 18142711 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-41 885 DATE: October 16, 2018 ORDER Entitlement to a total rating for compensation purposes based on unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating greater than 20 percent for gout is remanded. Entitlement to a rating greater than 10 percent for a low back disability is remanded. Entitlement to a rating greater than 10 percent for a right knee disability is remanded. Entitlement to an initial rating greater than 40 percent for urinary frequency is remanded. Entitlement to a rating greater than 20 percent for left upper extremity peripheral neuropathy is remanded. Entitlement to a rating greater than 20 percent for right upper extremity peripheral neuropathy is remanded. Entitlement to a rating greater than 10 percent for left lower extremity peripheral neuropathy is remanded. Entitlement to a rating greater than 10 percent for right lower extremity peripheral neuropathy is remanded. FINDING OF FACT The Veteran’s service-connected disabilities meet the schedular requirements for a TDIU and it is unlikely that he can secure and follow substantial gainful employment due to his service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1970 to May 1990. This appeal to the Board of Veterans’ Appeals (Board) is from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified before the undersigned during a Travel Board hearing, a transcript of the hearing is of record. It was agreed at the hearing that the record would remain open for 30 days to allow time for the Veteran and his representative to submit private treatment records; however, no records have been received since the hearing. 1. Entitlement to a TDIU VA will grant a TDIU when the evidence shows that a Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total 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 as a result of 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; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. The Veteran’s service-connected disabilities meet the schedular requirements for a TDIU. See August 2012 Rating Decision – Codesheet. On his application, he reported being self-employed as a mechanic from January 2000 to January 2009 and that he stopped working because his disabilities prevented him from standing long enough or using his hands to work with the necessary tools. He reported having no other skills for employment. His highest level of education was completing 4 years of high school and he has had no other education or training. On March 2012 VA examinations, the Veteran reported he was not currently employed. He had previously been an equipment mechanic and was currently a cattle rancher. He was not able to run the ranch on his own, so he relied on his grandson and hired hands. The examiner indicated the Veteran could continue to work in an occupational environment, but with restrictions. These restrictions were not lifting more than 10 pounds and not doing repetitive lifting. He also could not climb ladders, operate machinery, or do repetitive bending. He was prohibited from standing or walking more than 5 minutes per hour and doing prolonged keyboard work for more than 30 minutes per hour. In June 2014, he submitted employment information that showed he was self-employed and owned a trucking company; he was last employed in 2014 and the last 12 months prior to when he stopped working he earned $40,000. He ran the business, but did not physically work. Instead, he hired employees to run the business and do the work. See June 2014 VA 21-4192 Request for Employment Information in Connection with Claim for Disability. In March 2018, the Veteran testified that he could no longer drive for his trucking company and that his wife had helped in the business. He used to be able to fix his trucks, but he cannot do that anymore. Last year he only earned $2,000. He planned to turn the business over to his one of his sons soon because he could no longer run the business. Although the VA opinion indicates the Veteran was capable of working, based on his prior occupations and level of education the restrictions placed on him would preclude him from engaging in the type of employment for which he is qualified and has experience. Some evidence indicates that at least at one point during the appeal his income was above the poverty level. Marginal employment is shown to exist, however, even though the earned annual income was above the poverty threshold because he works in a protected environment. See 38 C.F.R. § 4.16(a). The Veteran has indicated that he has relied on his wife to operate the trucking business and his grandson to operate the cattle ranch. He also made a statement to the effect that he relied on others to run his business. Since he appears to have a family run business or at least depended heavily on family to do so, the Board finds that this is a protected environment. Resolving reasonable doubt in his favor, the Board finds the Veteran is unable to secure and follow substantial gainful employment. REASONS FOR REMAND 1. Entitlement to higher ratings for gout, low back disability, right knee disability, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, and urinary frequency are remanded. During the hearing, private treatment records were identified and the record was left open for 30 days to allow the Veteran and his representative to obtain and submit them. Since these records have not been received, VA must assist the Veteran in obtaining these records. The Veteran also testified that all the service-connected disabilities on appeal had worsened since his last VA examinations in 2012. Consequently, he must be afforded new examinations to obtain current findings. The matters are REMANDED for the following action: 1. Ask the Veteran to identify private medical providers for his service-connected disabilities and complete a VA Form 21-4142 for each provider identified. Specifically ask him to complete the forms for Dr. K. A. at Community Care and Dr. S. G. Make two requests for the authorized records from these providers unless it is clear after the first request that a second request would be futile. 2. After # 1 is completed, schedule a VA examination for the Veteran to determine the current severity of his gout and make the claims file available for review by the clinician. Elicit from the Veteran a history of his gout since the last VA examination in 2012. a) All indicated tests and studies should be performed and findings should be reported in full. b) The examiner should report the severity and extent of all symptoms associated with the Veteran's gout, to include whether the disease is active or inactive, the number of exacerbations per year, the number of incapacitating episodes per year, the extent to which symptoms cause impairment of health (i.e., definite impairment, severe impairment, or total incapacitation), and whether there is any associated weight loss or anemia. 3. After # 1 is completed, schedule a VA examination for the Veteran to determine the current severity of his low back disability and make the claims file available for review by the clinician. Elicit from the Veteran a history of his low back disability since the last VA examination in 2012. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The following should be included in the report: a) Range of motion testing should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing and non-weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. b) The examiner should offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including the Veteran’s lay statements. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. c) The examiner should also address whether there is a difference in active range of motion versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the any associated functional limitations. d) The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, and functional loss manifestations related to flare-ups, to include whether there have been any changes since the last examination. e) If the examiner is unable to render the requested opinions without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 4. After # 1 is completed, schedule a VA examination for the Veteran to determine the current severity of his right knee disability and make the claims file available for review by the clinician. Elicit from the Veteran a history of his right knee disability since the last VA examination in 2012. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The following should be included in the report: a) Range of motion testing should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing and non-weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. b) The examiner should offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including the Veteran’s lay statements. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. c) The examiner should also address whether there is a difference in active range of motion versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the any associated functional limitations. d) The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, and functional loss manifestations related to flare-ups, to include whether there have been any changes since the last examination. e) If the examiner is unable to render the requested opinions without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 5. After # 1 is completed, schedule a VA examination for the Veteran to determine the current severity of his bilateral upper extremity peripheral neuropathy and make the claims file available for review by the clinician. Elicit from the Veteran a history of his bilateral upper extremity peripheral neuropathy since the last VA examination in 2012. Any tests and studies deemed necessary by the examiner should be conducted. All symptoms and clinical findings of the Veteran’s bilateral upper extremity peripheral neuropathy should be reported in detail, to include the functional impact of such in consideration of both medical and lay evidence. 6. After # 1 is completed, schedule a VA examination for the Veteran to determine the current severity of his bilateral lower extremity peripheral neuropathy and make the claims file available for review by the clinician. Elicit from the Veteran a history of his bilateral lower extremity peripheral neuropathy since the last VA examination in 2012. Any tests and studies deemed necessary by the examiner should be conducted. All symptoms and clinical findings of the Veteran’s bilateral lower extremity peripheral neuropathy should be reported in detail, to include the functional impact of such in consideration of both medical and lay evidence. 7. After # 1 is completed, schedule a VA examination for the Veteran to determine the current severity of his urinary frequency and make the claims file available for review by the clinician. Elicit from the Veteran a history of his urinary frequency since the last VA examination in 2012. Any tests and studies deemed necessary by the examiner should be conducted. All pertinent findings should be reported in detail. The examiner should also comment on whether the Veteran’s recurrent urinary tract infections (UTIs) are associated with his service-connected urinary frequency. If they are then include in the report the findings associated with the UTIs. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst