Citation Nr: 21004558 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-58 116 DATE: January 27, 2021 ORDER From September 15, 2015, a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Service connection for hypertension is remanded. An initial compensable rating for service-connected right ear hearing loss is remanded. FINDING OF FACT Giving the Veteran the benefit of the doubt, from September 15, 2015, the Veteran’s service-connected disabilities precluded him from being able to secure and follow substantially gainful employment. CONCLUSION OF LAW From September 15, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1983 to January 1989. The Veteran also served in the Army National Guard from October 1993 to October 1999. This matter originally came before the Board of Veterans’ Appeals (Board) from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This matter was previously remanded by the Board for further development in December 2018. This matter is again before the Board and has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). The Board notes that the issue of a TDIU has been raised during the appeal period. See June 2020 VA 21-8940. As such, the issue is considered part and parcel of the Veteran’s pending claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). From September 15, 2015, a TDIU is granted. The Veteran believes that a TDIU is warranted. See June 2020 VA 21-8940. A schedular total disability evaluation for compensation purposes may be assigned when the schedular rating is less than 100 percent, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Among other things, disabilities of one or both upper extremities are considered one disability for TDIU purposes. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a TDIU claim, the issue is whether a veteran’s service-connected disability or disabilities preclude the veteran from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As of September 15, 2015, the Veteran had a 20 percent disability rating for a lumbar spine disability, a 20 percent disability rating for a left shoulder disability, a 20 percent disability rating for a right shoulder disability, a 10 percent disability rating for a right knee disability, a 10 percent disability rating for a left knee disability, and a 10 percent disability rating for tinnitus. As of that date, the Veteran had a combined disability rating of 70 percent. See October 2020 Rating Decision - Codesheet. Because the left shoulder disability and right shoulder disability are disabilities of both upper extremities, they are considered one disability for TDIU purposes. When the two 20 percent disability ratings are combined, they result in a disability rating of 40 percent. See 38 C.F.R. § 4.25 (2016). Therefore, as of September 15, 2015, the Veteran met the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a schedular TDIU because the Veteran had at least one disability ratable at 40 percent or more and had sufficient additional disability to bring the combined rating to 70 percent or more. A schedular TDIU is available from that date if the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. After a review of the evidence of record, the Board resolves any doubt in the Veteran’s favor and finds that the Veteran was unable to secure and follow a substantially gainful occupation due to service-connected disabilities from September 15, 2015. Records show that the Veteran last worked in 2012. The Veteran reported that in 2012, he became too disabled to work and had not tried to obtain employment since that time. The Veteran’s past work experience was in plumbing and construction. The Veteran’s highest educational degree was from high school. See June 2020 Medical Treatment Records; October 2015 C&P Exam; June 2020 VA 21-8940. An August 2015 lumbar spine examination found that the Veteran had constant pain, which had increased in intensity. There was constant aching, which became sharp and intensified with bending, twisting, prolonged standing, and walking. There was daily stiffness with prolonged sitting and the Veteran had to constantly change positions to relieve the discomfort. The Veteran had decreased flexibility and decreased range of motion, which limited his ability to bend forward. The Veteran frequently needed to sit down to relieve his back pain if he walked or stood for more than 20 minutes. The Veteran could not lift, push, pull, or carry objects which weighed more than 10 pounds, and could not do activities which required rapid trunk movement or repetitively alternating between sitting and standing. The Veteran was limited to working in a sedentary job. An August 2015 right knee examination found that the Veteran’s pain continued. The right knee gave way while walking. Knee pain increased with stair climbing, sitting with his knees bent, walking, or squatting. The Veteran had a decreased ability to squat or deep knee bend, to climb stairs, and to ambulate. See August 2015 C&P Exam. An October 2015 shoulder examination found that the Veteran could not lift heavy equipment and was unable to use some tools. The Veteran reported that he was unable to do overhead activities and was unable to rotate his shoulders during flare-ups. An October 2015 tinnitus examination found that the Veteran’s tinnitus caused difficulties in quiet settings and while resting. An October 2015 left knee examination found that the Veteran had difficulty bending his knee with prolonged standing during flare-ups. The Veteran had difficulty with prolonged knee bending, heavy lifting, and pushing and carrying equipment. See October 2015 C&P Exam. In 2016, the Veteran reported shoulder and back pain in the mornings and that his knees made it hard to use the stairs. See September 2016 Correspondence. A September 2016 lumbar spine examination found that the Veteran reported severe back pain and had problems with sleeping. A September 2016 right knee examination found that the Veteran reported continued severe knee pain and a giving way sensation. The Veteran had difficulty walking. See September 2016 C&P Exam. Evidence from people who knew the Veteran in 2015 and 2016 showed that the Veteran quit doing household chores because of his lumbar spine disability. The Veteran limped at times because of his right knee disability. The lumbar spine disability caused difficulty with walking. The Veteran had to go upstairs sideways. The Veteran reported that he could not remain seated or stand for more than 20 to 30 minutes because of pain. He could not work because of his service-connected disabilities. See May 2018 Translation Related; October 2018 Translation Related. Finally, medical records show that since May 2012, the Veteran’s lumbar spine disability hurt constantly and limited his ability to comfortably move. His knees were in constant pain, which limited his ability to walk on a constant basis. The Veteran was unable to work or complete housework. It was very hard for the Veteran to find a comfortable resting position. See June 2020 Medical Treatment Records. The Board notes that it does not appear that any of the Veteran’s service-connected disabilities have shown improvement during the appeal period. See October 2020 Rating Decision – Codesheet. The Board finds the Veteran and others who provided lay statements competent to make those statements. The Board has no reason to doubt their credibility. The Board gives their lay statements great probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also finds the above medical evidence highly probative. The Board resolves all reasonable doubt in the Veteran’s favor and finds that the evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment from September 15, 2015. Specifically, the Veteran’s highest educational degree was a high school diploma. The Veteran’s work history consists of jobs involving physical labor. The Veteran is unable to sit, walk, or stand for prolonged periods. The Veteran is unable to constantly alternate between sitting and standing. The Veteran cannot move objects that weigh more than 10 pounds. Even working in a quiet environment causes problems for the Veteran. As such, the Veteran is unable to work in occupations which require physical labor and is unable to work in sedentary occupations. In sum, the combined effect of the Veteran’s service-connected disabilities precluded the Veteran from engaging in substantially gainful employment. Therefore, giving the Veteran the benefit of the doubt, from September 15, 2015, a schedular TDIU is granted. REASONS FOR REMAND Service connection for hypertension and an initial compensable rating for service-connected right ear hearing loss are remanded. The Veteran believes that service connection for hypertension and an initial compensable rating for right ear hearing loss are warranted. See July 2016 NOD. The Board’s December 2018 remand instructions told the RO to review the claims file and translate any untranslated documents from Spanish into English, including VA treatment records from December 2016 to March 2017. See December 2018 BVA Decision. The Board finds that its remand instructions were not substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, VA treatment records from December 2016, as well as other documents in the claims file were not translated from Spanish into English. See January 2017 CAPRI. Therefore, a remand is needed to have the Board’s previous remand instructions substantially complied with. Additionally, the Board finds the November 2020 hypertension examination inadequate because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, the examination did not consider/was unable to consider a medical record from 2018 stating that the Veteran had the comorbidity of arterial hypertension, medical records from 2014 apparently showing that the Veteran began taking medication for hypertension and arterial hypertension, the Veteran’s 2016 report that he was possibly exposed to toxic gases during service, and multiple recorded instances of high blood pressure during service. See November 2020 CAPRI; September 2016 Correspondence; May 2014 STR - Medical. Therefore, a remand is needed for a new hypertension examination. Finally, the claims file does not contain the Veteran’s National Guard records nor evidence of any attempts to obtain those records. Therefore, a remand is needed to get the Veteran’s National Guard records. See 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to August 2020. 2. Contact all appropriate sources to obtain the Veteran’s Army National Guard/Army Reserve service treatment and personnel records. All efforts to obtain these records should be documented, and if the records cannot be located, a formal finding of unavailability should be associated with the Veteran’s claims file. The record suggests that, at a minimum, the Veteran served in the Army National Guard from October 1993 to October 1999. The Veteran also had inactive service prior to serving on active duty. 3. Make a formal finding for all periods of active service, ACDUTRA, and/or INACDUTRA in terms of specific dates. If this cannot be accomplished, provide an explanation. 4. Review the claims file, and translate from Spanish into English any untranslated document, to include the Veteran’s: December 2016 VA treatment records, medical records from the Social Security Administration, September 2015 claim, and January 2014 claim. 5. Schedule an appropriate VA examination for the Veteran’s hypertension conditions. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Identify all hypertension related disabilities existing at any point during the pendency of the appeal (i.e. since September 2015), even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is related to the Veteran’s active duty service, active duty for training (ACDUTRA), and/or inactive duty for training (INACDUTRA)? If so, for which periods? (C) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities)? (D) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was aggravated beyond its natural progression by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities)? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (E) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities) caused or aggravated the Veteran’s obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (F) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated any or all of the Veteran’s hypertension related disabilities including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (G) Is it at least as likely as not (a 50 percent or greater probability) that any hypertension manifested to a compensable degree within one year after the Veteran’s separation from a period of active duty service? In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) A list of the Veteran’s service-connected disabilities. See October 2020 Rating Decision – Codesheet. (2) A medical record from 2020 showing that the Veteran was diagnosed with hypertension in 2010. See November 2020 C&P Exam. (3) Medical records from 2010 showing an assessment of hypertension, without medication being part of a treatment plan. Medical records from 2012 showed that the Veteran did not appear to be prescribed medication for hypertension. The Veteran had a body mass index of 25.7. Medical records from 2014 showed that the Veteran was now on hydrochlorothiazide and sildenafil citrate. The Veteran had elevated blood pressure, which appeared to be related to feeling anxious. Medical records from 2015 showed that the Veteran’s hypertension was not well controlled, and that diet, low salt, and walking were recommended. The Veteran had a body mass index of 25. Medical records from 2017 showed that the Veteran was taking sildenafil citrate for arterial hypertension. Medical records from 2018 showed a comorbidity of arterial hypertension and a body mass index of 25.3. Medical records from 2019 showed a body mass index of 26. Medical records from 2020 showed that exercise (as tolerated) was recommended. See November 2020 CAPRI. (4) The Veteran’s 2017 report that for years, he had reported that his hypertension was due to his service-connected disabilities. See January 2017 VA 646. (5) The Veteran’s 2016 report of possible exposure to toxic gases from weapon system explosions while on active duty. The Veteran also reported “injuring his blood pressure” from over 80 airborne jumps while on active duty. The Veteran went on to give more specific details about both situations. See September 2016 Correspondence. (6) Service records showing that the Veteran had a parachute badge and served in the artillery section as well. Upon entrance into active duty service, the Veteran’s blood pressure reading was 110/60. The Veteran had, at a minimum, the following blood pressure measurements during active duty service: 146/90, 110/86, 130/90, 144/84, and specifically 134/80 at separation. In 1988, the Veteran’s average percentage for developing heart disease in the next 8 years was .7%. The major problem noted was blood pressure. The Veteran was a non-smoker. See May 2014 Military Personnel Record; May 2014 STR – Medical. (7) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran’s documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community’s knowledge or due to the limits of the examiner’s medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 6. Readjudicate the issues on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.