Citation Nr: 18145535 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-29 612 DATE: October 29, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to service connection for a right hip labral tear is remanded. Entitlement to a temporary total evaluation due to convalescence for a right hip labral tear is remanded. FINDING OF FACT The evidence is at least in equipoise that Veteran’s service-connected disabilities prevent him from securing and following substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2008 to June 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2016 and December 2016 rating decisions by the Department of Veterans Affairs (VA). The Board notes that the issue of entitlement to service connection for a right hip labral tear was originally adjudicated in a January 2016 rating decision and re-adjudicated in the March 2016 rating decision. The Veteran’s April 2016 notice of disagreement (NOD) is stated as being to the March 2016 rating decision, although it is within one year of the January 2016 rating decision as well. Thus, this issue is not considered a request to reopen a previously denied claim. Entitlement to TDIU. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the Veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). The Veteran meets the schedular criteria for TDIU. He reported he has not worked full-time since his discharge from service in June 2011. See July 2016 VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Veteran’s post-service part-time employment has been primarily with his father, who described that he provided special accommodations for his son because of the Veteran’s “daily lack of energy due to his mental and physical well-being,” to include trouble sleeping, an inability to stand for long periods of time due to his hip and shoulder pain, and issues with interacting with coworkers. He also accommodated the Veteran’s need for time off to attend doctor appointments. See August 2017 correspondence. As a result, the Board finds that the Veteran’s post-service work has been in a protected environment. In May 2017, the Veteran underwent a vocational assessment by A. Johnson, MS, CRC, CLCP, wherein Ms. Johnson opined that it is more likely than not that the Veteran is unable to secure and follow substantially gainful occupation due to his service-connected disabilities. In particular, the Veteran’s service-connected physical disabilities prevent him doing more than sedentary work, but his service-connected depressive disorder affects basic requirements necessary to maintain employment, including the ability to sustain focus and attention, attend to work tasks and remain free from distraction or interruption, and attend work on a regular schedule. See May 2017 vocational assessment. While several VA examiners opined that the Veteran’s service-connected disabilities have a minimal impact on his ability to work, see, e.g., September 2017 VA hip, sleep apnea, and sinusitis examinations, these opinions are given little probative weight because they do not opine on the Veteran’s entire disability picture. Additionally, these opinions were considered by Ms. Johnson in a November 2017 addendum and her prior opinion remained unchanged. See November 2017 correspondence. Thus, the evidence is at least in equipoise that the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful occupation, and TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right hip labral tear is remanded. In June 2017, the Veteran submitted a medical article explaining that 15 to 20 percent of labral tears are not seen with gadolinium enhanced MRI. See June 2017 correspondence. While the VA examinations of record provide thorough rationales as to why the Veteran’s labral tear is not related to either his military service or his service-connected right hip bursitis, some of the opinions rely, at least in part, on the fact that the Veteran had a normal MRI of his right hip during service. See December 2015, January 2016, and March 2016 VA examinations. Thus, the Board finds than an addendum opinion is necessary to consider this additional evidence. The Board notes that the Veteran has provided private opinions that he believes support that his right hip labral tear is related to his military service or is caused by his service-connected right hip labral tear. However, neither opinion provided discusses the Veteran’s military service, and both appear to state that the Veteran’s right hip bursitis is caused by his labral tear, rather than his labral tear being caused by his bursitis. See January 2016 and April 2016 correspondence. The Veteran is welcome to submit an addendum opinion from either physician, if he so desires. The Veteran reported that he intended to apply for Social Security Administration (SSA) disability benefits. See June 2017 correspondence. Because this matter is being remanded anyway and the Veteran’s SSA records may reasonably contain information relating to his issues on appeal, the AOJ should attempt to obtain any available SSA records on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). 2. Entitlement to a temporary total evaluation due to convalescence for a right hip labral tear is remanded. This issue is inextricably intertwined with the Veteran’s other remanded issue; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s right hip disability from April 2018 to the present. 2. The AOJ should request directly from the SSA all records regarding any claim for disability benefits. All attempts to fulfill this development should be documented in the claim file. If the records are unavailable, it should so be noted on the record and the reason for unavailability should be provided. 3. After the development in the first two instructions is completed, the AOJ should arrange to obtain an addendum opinion from the January 2016 VA examiner, if available, to the nature and likely cause of the Veteran’s right hip labral tear. If the January 2016 VA examiner is unavailable, the claim file should be reviewed by another competent examiner. An in-person examination should only be conducted if determined necessary by an examiner. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran’s labral tear was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s consistent reports of right hip pain since service and the medical article submitted in June 2017 stating that there is a 15 to 20 percent chance labral tears are not seen with gadolinium enhanced MRI. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel