Citation Nr: 18156274 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-45 171 DATE: December 7, 2018 ORDER The issue of entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is granted. REMANDED The issue of entitlement to service connection for depression, to include as secondary to service-connected disabilities, is remanded. The issue of entitlement to an increased evaluation for residual injury, left wrist, with non-union of the left navicular bone, post-operative (non-dominant) currently evaluated as 10 percent disabling, is remanded. The issue of entitlement to an increased evaluation for disability of the lumbosacral spine characterized as degenerative disc disease or degenerative arthritis, currently evaluated as 40 percent disabling, is remanded. The issue of entitlement to an increased evaluation for residual injuries, left knee, currently evaluated as 10 percent disabling, to include whether a separate rating is warranted for instability, is remanded. The issue of entitlement to an increased evaluation for radicular symptoms, left lower extremity, currently evaluated as 20 percent disabling, is remanded. The issue of entitlement to an increased evaluation for radicular symptoms, right lower extremity, currently evaluated as 20 percent disabling, is remanded. FINDINGS OF FACT 1.The Veteran is service-connected for degenerative arthritis of the lumbosacral spine; radicular symptoms in the bilateral lower extremities; residual injury, left wrist; residual injuries, left knee; flat feet, bilateral, and; residual donor site bone graft scar. His combined evaluation is 80 percent for the entire appeal period, with the exception of a several month period in 2016 when he was assigned a temporary total rating. 2. With consideration of the Veteran’s education and work history, the competent clinical evidence, and competent and credible lay evidence, demonstrates that service-connected disability precludes the Veteran from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1979 to December 1986.   Entitlement to TDIU The claim for a TDIU is part of the claims for increased ratings. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran contends that his service-connected disabilities render him unemployable. VA will grant TDIU 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. In this case, the Veteran has a combined rating of 80 percent and meets the schedular criteria for TDIU for the entire appeal period. 38 C.F.R. § 4.16 (a). For a Veteran to prevail on a claim for a TDIU, 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. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The record includes several VA Forms 21-8940, Application for TDIU. See April 2010, December 2012 and December 2015. On each application, the Veteran reported that he worked for the United States Postal Service from approximately 1994 until he became disabled in July 2001. On each application he reported completing high school; on one, he reported one year of college. The record includes a July 2004 Social Security Administration (SSA) decision relates that the Veteran was disabled as of July 2001. The primary diagnosis was disorders of back (discogenic and degenerative) and old left wrist fracture. The SSA decision considered that the Veteran had several years of college studies. Past relevant work included employment as a mail carrier, a collection manager and an assembly worker. The SSA decision states that the evidence supported a finding that the Veteran retained the residual functional capacity to perform less than sedentary or light work for no more than four hours a day with frequent breaks to relieve radicular symptoms. The SSA determination supports his claim. Although the criteria used by SSA are not the same as VA criteria for an award of TDIU, and the SSA determination is not binding on VA, such determinations are probative evidence supporting entitlement to a TDIU. See, e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); Martin v. Brown, 4 Vet. App, 136 140 (1993). Moreover, there is no adequate reason to reject the SSA determination that is favorable to the Veteran’s TDIU claim. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). The Veteran submitted a private medical opinion that he was unable to maintain substantial gainful employment as a result of service-connected disabilities. The opinion noted that these limitations had undoubtedly been present since at least August 2012, when the Veteran initially filed his claim for benefits. The opinion was based on an interview with the Veteran and a review of his claims file. An August 2017 VA spine Disability Benefits Questionnaire (DBQ) relates that the Veteran’s spine disability impacted his ability to work. He would have to avoid work that required increased walking, prolonged standing, and lifting and carrying of weight. He would also need to be able to change positions frequently when sitting. An August 2017 knee and lower leg DBQ relates that the Veteran's residual injuries, left knee, impacted his ability to perform any type of occupational task. The Veteran had to avoid work that required increased walking, squatting, twisting, running and going up and down stairs frequently. An August 2017 wrist DBQ relates that the Veteran's residual injury, left wrist, with non-union of the navicular bone, postoperative, impacted his ability to perform any type of occupational task. The Veteran stated that he could not type, pull, push or lift off with his left hand. An August 2017 foot DBQ relates that the Veteran’s bilateral flat feet impacted his ability to perform any type of occupational task. The Veteran needed to avoid work that required increased walking. The Board finds that the foregoing evidence supports the award of a TDIU for the entire appeal period. Considering the Veteran’s education, job history, and the severity of his service-connected disabilities, entitlement to TDIU is granted. REASONS FOR REMAND Entitlement to service connection for depression, to include as secondary to service-connected disabilities, is remanded. Entitlement to an increased evaluation for residual injury, left wrist, with non-union of the left navicular bone, post-operative (non-dominant) currently evaluated as 10 percent disabling, is remanded. Entitlement to an increased evaluation for disability of the lumbosacral spine characterized as degenerative disc disease or degenerative arthritis, currently evaluated as 40 percent disabling, is remanded. Entitlement to an increased evaluation for residual injuries, left knee, currently evaluated as 10 percent disabling, to include whether a separate rating is warranted for instability, is remanded. Entitlement to an increased evaluation for radicular symptoms, left lower extremity, currently evaluated as 20 percent disabling, is remanded. Entitlement to an increased evaluation for radicular symptoms, right lower extremity, currently evaluated as 20 percent disabling, is remanded. A review of the record indicates there may be outstanding relevant private treatment records. A VA Report of Contact relates that in August 2017 VA received correspondence that a request for Dr. G.’s medical records could not be processed because the authorization contained information that was materially false, as portions of the authorization had been redacted/blacked out and white-out had been used on the dates of service. A November 2009 VA examination report relates that Dr. G, is a neurosurgeon who treated the Veteran's spine. Thus, his records appear relevant to the Veteran's claims for increased evaluations for his spine and radicular disabilities. As the Veteran asserts that his depression is secondary in part to his service-connected back disability, Dr. G.’s records are potentially relevant to the depression claim as well. Although VA notified the Veteran in August 2017 that it had not received medical records from two other private doctors, and that it was the Veteran's responsibility to submit relevant evidence, VA did not notify the Veteran of the issue with Dr. G.’s records or give the Veteran the opportunity to submit a revised VA Form 21-4142. While the record contains contemporaneous VA examinations regarding the Veteran’s residual injury, left wrist, and residual injuries, left knee, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements. It appears that the RO developed a separate claim for service connection for left knee instability; however, this is not a separate claim as VA will evaluate the Veteran's left knee disability under all applicable diagnostic codes and apply a separate evaluation for instability if necessary. Accordingly, the Board has recharacterized the claim for an increased evaluation for the left knee as shown above. Similarly, the Board observes that the RO developed a claim for degenerative disc disease of the lumbosacral spine. As service connection cannot be granted for both degenerative disc disease and arthritis of the lumbar spine, the Board has recharacterized the claim for an increased evaluation for disability of the lumbosacral spine as shown above. The matters are REMANDED for the following action: 1. Notify the Veteran that VA has been unable to obtain records from Dr. G., and provide him an opportunity to submit a revised VA Form 21-4142. 2. After completion of the above, schedule the Veteran for an appropriate examination of the current severity of his left wrist and left knee disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing for each disability. 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 each disability alone and discuss the effect of each of the Veteran’s disabilities 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). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, to include whether a separate evaluation is warranted for left knee instability. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Davitian, Counsel