Citation Nr: 21064929 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-47 884 DATE: October 22, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. FINDINGS OF FACT The evidence is at least in equipoise as to whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 5107 (2018); 38 C.F.R. § 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from May 1972 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2019, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. Entitlement to a TDIU The Veteran asserts that his service-connected disabilities are of such severity so as to prevent him from obtaining and maintaining substantially gainful employment. At the outset, the Board notes that for the entire period on appeal, the Veteran has had a combined rating of at least 70 percent, with a single disability rated 40 percent or higher. Therefore, the Veteran has met the schedular criteria for assignment of a TDIU for the entire period on appeal. 38 C.F.R. § 4.16 (2019). Therefore, the remaining question for the Board is whether the Veteran's service-connected disabilities prevent him from obtaining and maintaining gainful employment. A review of the record shows that the Veteran last worked full-time in December 2008. The Veteran has experience working as a loader, distributor, foreman, floor sales, and in maintenance. The Veteran has a high school diploma and two year of college education. He has reported that he stopped working as a result of all his service-connected disabilities. At a June 2013 VA examination, the Veteran's sarcoidosis was found to not impact his ability to work. At a June 2013 VA examination, the Veteran's right knee disability was found to impact the Veteran's ability to work. Specifically, he was found to be limited in the following ways: he could only lift 50lbs up to 15 times daily, he could only walk up to 14 of a mile at one time with a maximum distance of 1 mile during an 8-hour work day, he could only sit for 10 minutes or stand for 2-3 minutes and could sit or stand for the entire work day with frequent changes in position. At a July 2017 VA examination, the Veteran's right knee disability was found to not impact his ability to work. At a July 2017 VA examination, the Veteran's neck disability was found to impact his ability to work. The examiner noted that the Veteran's neck had a limited range of motion during all activities. At a July 2017 VA examination for the Veteran's right shoulder disability, the examiner noted that limited range of motion of the shoulders prohibited lifting, pushing, or carrying objects over 20 pounds (lbs). At a July 2017 VA examination, the Veteran's back disability was found to not impact his ability to work. At a September 2019 VA examination, with regard to the Veteran's ability to work, the examiner found that the Veteran's back disability manifested back pain, stiffness, limited range of motion, difficulty with heavy lifting more than 40 lbs, bending, prolong walking over 14 mile or climbing stairs. At a September 2019 VA examination, the examiner found that the Veteran's neck disability impacted his ability to work. Specifically, the examiner noted that the Veteran's neck disability manifested neck pain, stiffness, limited range of motion, difficulty with heavy lifting over 10lbs. At a September 2019 VA examination, the Veteran's right knee disability was found to impact his ability to work, manifesting knee pain, stiffness, limited range of motion, difficulty with bending, prolong standing more than 10 minutes, walking more than 12 mile, or climbing stairs more than 2 flights of stairs. At an October 2019 VA examination, the Veteran reported that he had been unemployed since 2012. He denied that he had attended school or completed any degree. After mental status examination, the examiner found that the Veteran's major depressive disorder (MDD) manifested occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. At a January 2021 VA examination, the examiner found that the Veteran's MDD manifested occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. At a February 2021 VA examination, the Veteran's neck disability was found to impact his ability to work, with the examiner noting neck pain, stiffness, a limited range of motion, and difficulty with lifting over 10 lbs. At a February 2021 VA examination, the Veteran's right shoulder disability was found to impact his ability to work, with the examiner noting shoulder pain, stiffness, limited range of motion, and difficulty with lifting any weight overhead repetitively. At a February 2021 VA examination, the Veteran's right knee disability was found to impact his ability to work. The examiner noted that the disability manifested difficulty standing for more than 15 minutes and difficulty walking more than 100 feet. At a February 2021 VA examination, the Veteran's back disability was found to impact his ability to work. The examiner noted that the Veteran has difficulty lifting more than 10 lbs. repetitively. Of record is an opinion from private psychologist, Dr. H.H, in May 2014, who concluded based on her examination of the Veteran and review of his medical records that that Veteran's MDD renders the Veteran unable to sustain the stress from a competitive work environment and the Veteran cannot be expected to engage in gainful activity due to his mood disorder. Of record is an opinion from a private vocational expert, Dr. S.B., in September 2018, who opined based on her examination of the Veteran and review of his medical records that the Veteran is unable to perform his prior work as a distributor, foreman, or in retail sales. Dr. S.B. noted that these positions require one to be on his feet for most of the workday. She noted that the physical limitations due to his knee disability would prevent this activity and the mental limitations on concentration, memory and sustained work productivity rendered by Dr. H.G. would prevent employment in these positions. Dr. S.B also noted that the Veteran could not perform semi-skilled and skilled task demands of his prior occupations. He would have issues with supervision of others and working with co-workers or customers. He would not meet the demands expected of competitive employment in these positions. Dr. S.B. concluded that the same is true for his ability to perform any other position in the national economy for which he possesses the education and /or training to perform. Based on the limitations described above, the Board finds that the manifestations of the Veteran's service-connected disabilities at least as likely as not prevent him from obtaining and maintaining gainful employment consistent with his education and industrial experience. In fact, the Veteran's industrial experience appears to have required a fair amount of physical or strenuous work, or other duties that would be significantly limited by the effects of his service-connected disabilities. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) REASONS FOR REMAND Service Connection Left Shoulder Disability The Veteran asserts that he has a left shoulder disability that was caused by his active service. Service treatment records (STRs) do not show any complaints, treatment, or diagnoses related to a left shoulder disability during active service. The June 1980 examination notes normal upper extremities, while indicating "muscular back, shoulder, and neck pain." A notation indicated that an attached orthopedic consult should be referenced; that consult specified right, not left, shoulder pain. Post-service treatment records show that the Veteran was diagnosed with degenerative arthritis of the left shoulder in 2007. At an October 2020 VA examination, the examiner opined that the Veteran's left shoulder disability was less likely than not incurred in or caused by active service. As rationale, the examiner noted that there is no evidence of a left shoulder disability, or complaints of left shoulder pain while the Veteran was in service. Additionally, the examiner noted that there is a large lapse in medical records from the Veteran's discharge till he establishes care with VA in 2006, with no indication in that period that the Veteran had a left shoulder disability that was caused by active service. The Board finds that the October 2020 VA examination is inadequate for adjudication purposes. In this regard, the examiner failed to opine whether the Veteran's claimed left shoulder disability was caused or aggravated by a service-connected disability. As such, the Board finds that a remand is required to obtain an addendum opinion in order to address service connection on a secondary theory of entitlement. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's claimed left shoulder disability. The examiner must review the claims file and note that review in the report. Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) the Veteran's service-connected disabilities caused or aggravated his left shoulder disability. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation In so doing, the Board notes that secondary service connection does not require permanent worsening of the secondary condition; rather, any incremental increase in disability is sufficient, regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. The rationale for all opinions expressed must be provided. 3. Confirm that all medical opinions provided comport with this remand and undertake any other development determined to be warranted. (Continued on the next page) 4. Thereafter, readjudicate the claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.