Citation Nr: 18151697 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-31 288 DATE: November 20, 2018 ORDER Entitlement to total disability based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. Entitlement to a rating in excess of 10 percent for right knee medial meniscus tear is remanded. FINDING OF FACT 1. The Veteran completed high school, and indicated he had two years of college education, but did not complete a degree. He had prior employment as a miner, a department of transportation employee, in human resources, and his Army and National Guard service. 2. For the period on appeal, Veteran’s service connected disabilities were rated as: 70 percent for depressive disorder, 20 percent for lumbar disc herniation, 10 percent for right knee instability, 10 percent for right knee medial meniscus tear, and 10 percent for radiculopathy of the right lower extremity. He had a combined 80 percent rating from May 31, 2011. 3. Due to his service-connected disabilities, the Veteran has been unable to obtain or retain substantially gainful employment. The Veteran filed his claim for TDIU on February 12, 2015. The increased rating claims on appeal (right knee) stemmed from the February 12, 2015 TDIU claim. CONCLUSION OF LAW The criteria for schedular TDIU are met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.16(a), 4.16(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from September 1973 to September 1976, from May 2003 to May 2005, and from February 2007 to July 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2013 (hearing loss/tinnitus) and August 2015 (knees and TDIU) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. Regarding the Veteran’s hearing loss and tinnitus claim, the Board notes that a June 2012 rating decision denied entitlement to service connection for both. In July 2012, the Veteran submitted a statement related to acoustic trauma. Based on this statement, the RO issued an additional rating decision in August 2013 which continued the denial of service connection for hearing loss, but did not address the Veteran’s tinnitus claim again. In March 2014, the Veteran submitted a notice of disagreement (NOD) for both his tinnitus and hearing loss claims. Although timely for the August 2013 rating decision (hearing loss), it was not timely for the June 2012 rating decision (tinnitus). Additionally, it was not a timely NOD for the Veteran’s prior claim for TDIU. A September 2014 rating decision included on the codesheet page that the Veteran’s claim for tinnitus was currently on appeal and would not be addressed in that rating decision. However, an August 2015 rating decision denied reopening a claim of entitlement to tinnitus. A November 2015 Statement of the Case (SOC) only addressed entitlement to service connection for hearing loss, and the Veteran provided a timely appeal. As the Veteran did not seek to appeal the August 2015 decision which most recently addressed his claim for tinnitus, the Board will not address the issue as on appeal. Regarding increased rating claims for the Veteran’s back and psychiatric disorders, the Board notes that the Veteran failed to submit a timely substantive appeal for these issues. A September 2014 rating decision continued the 70 percent (psychiatric) and 20 percent (back) ratings. A timely NOD was submitted in November 2014. A SOC was issued on April 15, 2016. The Veteran had 60 days from the date of notice of the SOC to submit a timely appeal (June 14, 2016). He submitted a substantive appeal post-marked June 28, 2016. The June 28, 2016 substantive appeal was accepted/was timely for his right knee disability claims because June 28, 2016 was within one year of the date of the rating decision addressing his knees (August 6, 2015). The Veteran was notified that his June 28, 2016 substantive appeal was untimely in a February 2017 letter. He did not appeal this finding, and increased rating claims for his back and psychiatric disorders are not currently on appeal. Regarding his increased rating claims on appeal for his right knee disorders, the Board notes that the RO has indicated that these issues were raised via March 18, 2014 evidence. Evidence submitted on March 18, 2014 included two medical records related to hearing loss, a statement related to tinnitus and hearing loss, as well as a request for unemployability, and a claim form addressing back, psychiatric, hearing loss, and tinnitus claims. As far as the Board can discern, the Veteran’s knee disabilities were initially raised via his formal claim for TDIU on February 12, 2015, where he noted he was disabled from work due to his back, knee, and psychiatric disorders. Entitlement to a total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran did not timely appeal the RO denials of TDIU, but he has continued his increased rating claims for his right knee disabilities and has continued to seek a rating of 100 percent/TDIU. As such, the Board is addressing the claim of entitlement to TDIU in this decision. 1. Entitlement to total disability based on individual unemployability (TDIU) VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the 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. 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. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effects of combinations of disability. 38 C.F.R. § 4.15. 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 he 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. The existence or degree of nonservice- connected disabilities will be disregarded if the above stated percentage requirements are met and the evaluator determines that the service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. On his February 2015 claim of entitlement to TDIU, the Veteran reported that he was unable to secure or follow substantially gainful employment due to his service-connected depression, knee, and back disabilities. He reported an employment history of working for the White Sands Missile Range and at a community college, both in Human Resources positions. He noted he last worked at the Missile Range on March 1, 2012, and that this was a full-time position. He worked part-time for the community college for six months in 2012, and as a hospice care worker, part-time, for almost two months between August and September 2014. He indicated he completed high school and two years of college education, towards a degree in “Digital Graphics” but that he did not complete the degree. His college education was between 2012 and 2013. In 2011, the Veteran completed paperwork seeking Social Security Administration (SSA) disability benefits. These benefits were granted based on the primary disability of lumbar spine degenerative disc disorder, and a secondary disability of depressive disorder, with the onset date in May 2011. As part of his paperwork, the Veteran provided a work history of service in the Army National Guard from 2007 to 2008, work as a “government worker” from 2008 to 2011 (the Board presumes this was a Human Resources-type employment), work as a miner from 1986 to 1998, and for the Department of Transportation from 1998 to 2007 (the type of work was not described). SSA records included findings that his “severe impairments” were: hearing loss, degenerative disc disease of the spine with radiculopathy, degenerative joint disease of the right knee with meniscus tear, and major depression and anxiety. The Administrative Law Judge for SSA cited a June 2010 VA joints examination showing that his right knee had significant effects on his usual occupation due to decreased mobility and pain, and that his September 2011 VA spine examination showed that he needed a job where he had the freedom to move around whenever his back bothered him, and that his radiculopathy bothered him with prolonged sitting. The Board notes that during his most recent spine examination in February 2018, his forward flexion was limited to 35 degrees. He reported that he had random flare-ups of symptoms, where “almost any little thing can suddenly cause a pulling and the pain will endure some 4-5 days and he must use the medication and he stops most physical activity until it diminishes.” He reported that bathing was painful and “squatting on the toilet can even hurt when the pain is present.” A June 2015 VA spine examination showed forward flexion to 90 degrees without objective painful motion. A July 2014 VA spine examination showed forward flexion to 70 degrees, with painful motion noted at 60 degrees. Private treatment records from 2017 and 2018 included notations of “major” loss of flexion and extension. In March 2017, it was noted he had increased back pain with activity, decreased active lumbar range of motion, and impaired muscle performance. Psychiatric evaluations from June 2015 and July 2014 both found that the Veteran’s depressive disorder resulted in occupational and social impairment reduced reliability and productivity. His symptoms included depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Veteran reported that he did not like being around crowds and avoided social interaction. He also reported difficulty with frustration and irritability. He reported that he was receiving disability benefits from SSA due to his back and knee problems, and that his back problems were the primary reason he was unemployable. He underwent a depression testing questionnaire which noted he had moderate depression, with moderate limitations in the work setting, including the ability to complete a normal workday and workweek without interruptions from psychological symptoms or to perform at a consistent pace without an unreasonable number and length of rest periods; moderate limitations in the ability to maintain attention and concentration for extended periods and to interact with the general public. He would also have moderate limitations in accepting instructions and responding appropriately to criticism from supervisors. Regarding his right knee, the Veteran reported that he had popping and achy pain in his right knee, of a severity of 7 or 8 out of 10. The Veteran’s work history included both clerical/desk jobs working in human resources, and physically demanding jobs, such as mining and hospice care. His lumbar spine disability has fluctuated in severity during VA examinations, but has clearly worsened in 2017 and 2018 based on both VA examination and treatment records. He would be precluded from physically demanding employment based on his back and knee symptoms, particularly his back symptoms. Although he has a history of clerical employment, the Veteran has reported that his back pain made it difficult for him to sit for extended periods of time, and that he needed the ability to change position when his back was “bothering” him. Additionally, both SSA evaluators and the 2015 VA examiner indicated that the Veteran’s depressive disorder were moderately impact his functioning in detail-oriented work settings. Given the combination of his physical limitations from his back and knee disabilities, and the concentration and social impairment of his psychiatric disorder, the Board finds that entitlement to TDIU is warranted throughout the period on appeal. As noted in the introduction, the Veteran’s TDIU claim is before the Board on the basis of Rice and his increased rating claims for his right knee disabilities. Oddly, the Board could not find a claim for increased ratings for his right knee disabilities which prompted the RO to issue the August 2015 rating decision on appeal. The March 18, 2014 records cited by the RO do not relate to the Veteran’s right knee. However, the Veteran’s February 12, 2015 TDIU claim form noted that he was unable to work, in part, due to his knee. This was the earliest record the Board could locate that may provide an informal claim date for an increased rating for his knee disorders. The Veteran failed to timely appeal his claim for TDIU, which was addressed in the August 2015 rating decision. As such, the Board is granting entitlement to TDIU from February 12, 2015. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court, held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more (“housebound” rate)); see 38 U.S.C. § 1114 (s). Here, the Veteran’s TDIU is not predicated on a single disability, but on the combined effects of his spine, right knee, and psychiatric disabilities. Thus, entitlement to SMC under 38 U.S.C. § 1114 (s) is not currently at issue. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. The Veteran was afforded a VA audio examination in September 2011, which included a negative nexus opinion for hearing loss. The examiner cited the Veteran’s September 1973 enlistment evaluation showed normal to borderline hearing, and his August 1976 separation evaluation showed normal hearing. The examiner provided the negative opinion based on his enlistment and separation audiograms not showing evidence of significant threshold shift. After his hearing loss claim was initially denied in a June 2012 rating decision, the Veteran submitted a July 2012 statement describing acoustic trauma received while serving at the “Dona Ana Missile/Firing Range in El Paso.” He stated he was conducting annual training, trouble-shooting maintenance on the “hydraulic system.” The gun chief then ran a test for the firing mission, and although the Veteran was “wearing [his] Kevlar, but did not have proper hearing protection,” only ear plugs. He argued he suffered a concussion from the three gun-blasts that occurred on testing. He stated an accident report was made, but he never received treatment. The Veteran’s MOS for his first period of service was as a track vehicle mechanic. He was subsequently a light vehicle mechanic, and a wheeled vehicle mechanic. According to the Duty MOS Noise Exposure listing, the Veteran had a high probability of being exposed to hazardous noise in service. As such, his in-service “injury” (exposure to hazardous noise) is conceded. On remand, the Veteran must be afforded an additional VA audio examination with nexus opinion which takes into consideration all of his periods of active duty, his exposure to hazardous noise, and any statements the Veteran has related to the specific incident explained in the July 2012 statement (the statement did not include a date as to when the incident occurred). 2. Entitlement to a rating in excess of 10 percent for right knee instability and right knee medial meniscus tear is remanded. Recently, the case of Correia v. McDonald established additional requirements that must be met prior to finding that a VA examination is adequate, specifically the case indicates that 38 C.F.R. § 4.59 requires testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). Here, the Veteran’s most recent knee examination was in June 2015, prior to the Court’s decision in Correia, and therefore, it did not consider all the range of motion requirements. On remand, the Veteran must be afforded an updated examination. The matters are REMANDED for the following action: 1. Obtain any service treatment records for the Veteran’s periods of active duty from 2003 to 2008. All records/responses received must be associated with the electronic claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hearing loss. The examiner must opine whether it is at least as likely as not (50/50 probability or greater) related to an in-service injury, event, or disease, including the Veteran’s exposure to hazardous noise (conceded based on his MOS), and the incident described by the Veteran of being close to a hydraulic mechanism on a firing range with inadequate hearing protection. 3. A full explanation must accompany each opinion expressed. 4. Schedule the Veteran for an examination of the current severity of his right knee disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his right knee alone and discuss the effect of the Veteran’s right knee instability and meniscus tear on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After completing the development requested above, readjudicate the Veteran’s claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel