Citation Nr: 18160092 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 17-29 135 DATE: December 21, 2018 REMANDED Entitlement to service connection for a left shoulder condition, to include as secondary to service-connected right shoulder is remanded. Entitlement to service connection for left knee patellofemoral syndrome is remanded. Entitlement to service connection for right knee patellofemoral syndrome is remanded. Entitlement to an initial disability evaluation greater than 20 percent for a right humerus fracture with limited motion of the right shoulder is remanded. Entitlement to an initial disability evaluation greater than 50 percent for adjustment disorder with anxiety claimed as posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had a period of active duty for training from June 2003 to December 2003 and served on active duty with the United States Army from June 2005 to October 2006. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an April 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Augusta, Maine. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability, when such evidence indicates that unemployability is due, at least in part, to the underlying disability on appeal. The record reflects that the Veteran reported issues with employability during his March 2016 VA mental disability examination due to his service-connected psychiatric disability. The issue of entitlement to TDIU is therefore found to have been raised in connection with the claims here on appeal, and it has been added to the above list of issues before the Board. 1. Entitlement to service connection for a left shoulder condition, to include as secondary to service-connected right shoulder is remanded. 2. Entitlement to service connection for left knee patellofemoral syndrome is remanded. 3. Entitlement to service connection for right knee patellofemoral syndrome is remanded. The Veteran is seeking service connection for a left shoulder condition, left knee patellofemoral syndrome, and right knee patellofemoral syndrome (bilateral knee disability). The Veteran’s medical treatment records are inconclusive as to whether the Veteran has a confirmed disability with regards to his left shoulder, right knee or left knee. His medical treatment records detail a great degree of pain in his left shoulder, right knee, and left knee. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that “disability” in [38 U.S.C.] § 1110 refers to the functional impairment of earning capacity” and “pain in the absence of a presently-diagnosed condition can cause functional impairment,” en route to its conclusion that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” 886 F.3d at 1363, 1368, 1369. However, the Federal Circuit also made clear that a veteran cannot “demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran’s pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that his pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. As such, VA examinations are needed to address whether the Veteran has definitive diagnoses related to his left shoulder and bilateral knees, and/or whether the Veteran’s pain in his left shoulder and knees amount to a functional impairment. Under these circumstances, the Board will not proceed with final adjudication of the claims until a competent medical opinion with supporting rationale is obtained that adequately addresses the etiology of the Veteran’s claimed disability. 4. Entitlement to an initial disability evaluation greater than 20 percent for a right humerus fracture with limited motion of the right shoulder (right shoulder disability) is remanded. The Board finds that the Veteran’s claim for a right shoulder disability is inextricably intertwined with the Veteran’s claim for a TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). 5. Entitlement to an initial disability evaluation greater than 50 percent for adjustment disorder with anxiety claimed as posttraumatic stress disorder (PTSD) is remanded. In a January 2017 VA Form 21-4138, the Veteran indicated a worsening of his psychiatric disability. Under the circumstances, the Veteran should be afforded a new VA examination to determine the current severity of his service-connected psychiatric disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). 6. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. As discussed above, the issue of entitlement to TDIU has been raised in connection with the Veteran’s increased rating claim. As this issue has not yet been considered by the RO, it is remanded for appropriate development and adjudication. Rice, 22 Vet. App. at 447. In a TDIU claim, a total disability rating for compensation may be assigned when the veteran receives less than a total disability rating (less than 100 percent) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Regulations provide that if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. If a veteran is service-connected for two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (2018). However, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of whether a veteran satisfies the above percentage evaluations. 38 C.F.R. § 4.16(b) (2017). In such a case, the Board may not assign a TDIU without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Here, during the rating period on appeal the Veteran is service connected for the following disabilities: (1) adjustment disorder with anxiety claimed as posttraumatic stress disorder (PTSD), rated at 50 percent; (2) right humerus fracture with limited motion of the right shoulder, rated at 20 percent; and (3) tinnitus, rated at 10 percent. The combined evaluation for these disabilities is 60 percent disabling. See 38 C.F.R. § 4.25 (Combined Ratings Table). Thus, the Veteran does not meet the schedular criteria for consideration of a TDIU at any time during the rating period on appeal. However, the evidence of record, including the Veteran's work history and education indicates that the Veteran's disabilities, specifically his service-connected psychiatric disability, may interfere with his continued employment in the fields in which he has training and experience. The Veteran has expressed the impairment of his ability to work due to his service-connected disabilities. Moreover, the Veteran last employment was in 2015. Thus, based on the evidence of record, the Board concludes that the facts of this case meet the criteria for submission of the Veteran's claim to VA's Director of Compensation Service for consideration of entitlement to a TDIU. Therefore, a remand is warranted at this time. Due to the need for a remand in this matter, the Board will also provide the opportunity for any outstanding medical records related to the treatment of his claimed disabilities. The matters are REMANDED for the following actions: 1. Send the Veteran and his representative a letter requesting that he provide sufficient information and, if necessary, authorization, to obtain any additional evidence from all VA and non-VA health care providers who have treated him for his left shoulder, bilateral knee condition, psychiatric disability, and right shoulder disability that is not currently of record. 2. Provide the Veteran with a VA Form 21-8940 (application for TDIU). Conduct any development needed to adjudicate the issue of entitlement to TDIU. 3. After all records and/or responses received from each contacted entity have been associated with the claim (to the extent possible), schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed left shoulder disability, right knee disability, and left knee disability. The evidence of record, to include a copy of this Remand, must be made available to the examiner and the examiner must indicate that the pertinent medical records and lay statements have been reviewed. Following a review of the record, the examiner must address the following: (a) Identify all diagnoses of the Veteran’s left shoulder, right knee, and left knee. If it is found that the Veteran does not have any disability of the left shoulder, right knee, or left knee, the examiner must opine whether the Veteran’s left shoulder, right knee, or left knee pain reach the level of a functional impairment of earning capacity. (b) Is it at least likely as not (a fifty percent probability or greater) that any left shoulder disability is related to his active duty service? (c) Is it at least as likely as not (50 percent or greater probability) that any left shoulder disability was caused by the Veteran’s service-connected right shoulder disability? (d) Is it at least as likely as not (50 percent or greater probability) that left shoulder disability is chronically worsened (aggravated) by the service-connected right shoulder disability? Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. (e) Is it at least likely as not (a fifty percent probability or greater) that any right knee disability is related to his active duty service? (f) Is it at least likely as not (a fifty percent probability or greater) that any left knee disability is related to his active duty service? The examiner should consider the lay testimony of record. A detailed rationale supporting the examiner’s opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Schedule the Veteran for a VA psychiatric examination to ascertain the current severity of service-connected adjustment disorder. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should opine as to the levels of occupational and social impairment caused by the service-connected psychiatric disability and should describe the frequency and severity of symptoms resulting in those levels of impairment. The examiner should further provide an opinion as to the impact of PTSD on the Veteran’s vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined impact of the service-connected disabilities. (Continued on next page) 5. If, after the above ordered development, the Veteran remains below the schedular threshold for a TDIU at any time during the appeal period, refer the claim to VA’s Director of Compensation Service for consideration of whether a TDIU on an extraschedular basis is warranted. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b) (2018). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel