Citation Nr: 21068574 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 14-27 986A DATE: November 10, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disorders effective December 11, 2010 is granted. REMANDED The issue of service connection for left ankle degenerative arthritis, to include as secondary to service-connected bilateral pes planus is remanded. The issue of service connection for a left wrist fracture as secondary to service-connected right knee status-post arthroscopy, right ankle degenerative arthritis, and/or bilateral pes planus is remanded. FINDING OF FACT With resolution of the doubt in his favor, effective December 11, 2010, the Veteran's service-connected disorders precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria to establish a TDIU effective December 11, 2010 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from May 1989 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Nashville, Tennessee Regional Office (RO) and rating decisions dated December 2016 and November 2017 of the St. Petersburg, Florida RO. In November 2018, the Board remanded the claims of service connection for left ankle degenerative arthritis and left wrist fracture for the RO to issue a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In February 2019 and March 2019, the Veteran requested a Board hearing as to the claims of service connection for left ankle degenerative arthritis and left wrist fracture, respectively. The Veteran was scheduled for a Board hearing on June 10, 2021. In a statement dated June 1, 2021, the Veteran requested that the hearing be cancelled. The Veteran's request for a Board hearing is withdrawn. 38 C.F.R. § 20.704(e). In April 2020, the Board denied the claim for a TDIU. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans' Claims (Court). In March 2021, the Court granted the Parties' Joint Motion for Remand (JMR), vacated the April 2020 Board denial for a TDIU, and remanded the appeal to the Board. TDIU TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, 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, and that, 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. 38 C.F.R. § 4.16(a). The Veteran's service-connected disorders include: bilateral pes planus rated 10 percent disabling from June 22, 1993 to January 14, 1998; 30 percent disabling from January 15, 1998 to January 8, 2003; and 50 percent disabling from January 9, 2003 and continuing thereafter; depression rated 50 percent disabling from May 19, 2017 and continuing thereafter; verruca vulgaris rated 30 percent disabling from August 14, 2014 and continuing thereafter; left shoulder bursitis rated noncompensable from June 22, 1993 to January 14, 1998 and 20 percent disabling from January 15, 1998 and continuing thereafter; right ankle degenerative arthritis rated 10 percent disabling from June 12, 2003 to December 1, 2010 and 20 percent disabling from December 2, 2010 and continuing thereafter; lumbar disc disease rated 20 percent disabling from September 19, 2012 and continuing thereafter; left knee lateral meniscus tear rated noncompensable from June 22, 1993 to January 14, 1998 and 10 percent disabling from January 15, 1998 and continuing thereafter; right lower extremity sciatic nerve radiculopathy rated 10 percent disabling from September 19, 2012 and continuing thereafter; left lower extremity sciatic nerve radiculopathy 10 percent disabling from September 19, 2012; right lower extremity femoral nerve radiculopathy rated 10 percent disabling from September 19, 2012 and continuing thereafter; left lower extremity femoral nerve radiculopathy rated 10 percent disabling from September 19, 2012 and continuing thereafter; right knee status-post arthroscopy rated 10 percent disabling from September 1, 2016 and continuing thereafter, and; erectile dysfunction rated noncompensable from June 6, 2018 and continuing thereafter. The Veteran met the schedular criteria under § 4.16(a) effective January 9, 2003. The remaining questions are whether and at what point the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. Thus, the central question is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). On November 10, 2010, the Veteran's then-employer notified the Veteran that he was placed on administrative leave status until December 10, 2010 due to the employer's determination that there was no work available for the Veteran "within the operational needs of the service" based in part on "current operational needs" and "[the Veteran's] current medical documentation of his work-related injury." The employer indicated a willingness to work with the Veteran to find work that did not exceed his then-current medical restrictions. The letter indicated that the Veteran would be placed on "leave without pay" effective December 11, 2010 if work was not available for the Veteran based on his medical restrictions. On December 3, 2010, the Veteran's then-employer notified the Veteran that there was "no operationally necessary work available" based on the Veteran's "current medical restrictions." The Veteran was placed on leave without pay effective December 11, 2020. In his August 2016 VA Form 21-8940, Application for Increased Compensation Based On Unemployability, the Veteran reported working with the U.S. Postal Service from October 1995 to November 2010. The Veteran indicated becoming too disabled to work on November 1, 2010. In April 2020, the Veteran underwent a non-VA vocational assessment. The examiner noted that the Veteran was employed with the U.S. Postal Service from October 1994 to November 2010 as a mail carrier and mail distribution clerk. The examiner indicated that the Veteran did not possess transferable vocational skills to alternate occupations within the general labor market and opined that the severity of the Veteran's service-connected musculoskeletal disabilities precluded him from securing or following substantially gainful employment effective September 19, 2012. Social security administration (SSA) records reflect the Veteran receiving social security benefits since 2010. The VA examinations concerning the Veteran's service-connected disorders reflect some examiners indicating that the Veteran could work in a sedentary occupation and other examiners indicating that the Veteran could not work in a sedentary or labor-intensive occupation. The Board will grant a TDIU effective December 11, 2010 based on the benefit-of-the-doubt doctrine. The Veteran was placed on "leave without pay" due to his "medical restrictions" on December 11, 2010. Although several VA examiners indicated that the Veteran could work in a sedentary occupation, the record reflects otherwise as evidenced by the severity of functional impairment of the Veteran's service-connected disorders, the April 2020 non-VA vocational examiner indicating that the Veteran's service-connected disorders impacted his ability to work, and several VA examiners indicating that the Veteran cannot work in either sedentary or labor-intensive occupations. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a TDIU is warranted, and the claim is granted. REASONS FOR REMAND The remaining matters are remanded for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR The November 2016 VA negative etiology as to the Veteran's left ankle degenerative arthritis was inadequate because the examiner (1) did not consider the Veteran's documented report of left ankle pain in July 1993 and (2) did not provide an opinion as to aggravation for secondary service connection. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that a medical opinion that focuses solely on causation is inadequate to address whether a service-connected disability aggravated another condition). The October 2017 VA negative etiology opinion as to the Veteran's left wrist fracture was inadequate because the examiner (1) as to causation for secondary service connection, considered the inapplicable theory of "well-grounded claim" and an August 1999 non-precedential Board decision and (2) did not provide an opinion as to aggravation for secondary service connection. El-Amin, 26 Vet. App. at 136. 2. Return the file to the VA examiner who conducted the November 2016 VA left ankle examination and October 2017 VA left wrist examination for a file review and an addendum opinion. If the examiner is not available, have the file reviewed by a similarly qualified examiner. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's questions without examination of the Veteran, another examination should be afforded to the Veteran. All relevant medical and non-medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. Left ankle degenerative arthritis: the examiner must provide the following opinions: Was the Veteran's July 1993 report of left ankle pain a manifestation of left ankle degenerative arthritis? Was the Veteran's left ankle degenerative arthritis caused by service-connected bilateral pes planus? Was the Veteran's left ankle degenerative arthritis aggravated by service-connected bilateral pes planus? Although the examiner must review the VBMS file, his or her attention is drawn to the following: Service treatment records do not show complaints or contemporaneous reports concerning the Veteran's left ankle. During a July 1993 VA examination not focused on the Veteran's left ankle, the Veteran reported left ankle pain. An April 2001 VA treatment record reflects full range of motion for the Veteran's left ankle. During a July 2001 VA examination not focused on the Veteran's left ankle, the examiner noted no left ankle weakness. In VA treatment records dated June 2002, October 2002, and June 2003, the Veteran reported left ankle pain. A November 2007 VA left ankle radiograph revealed a left lateral malleolus old chip fracture, minimal widening of the mortise laterally, and minimal degenerative change with a tiny spur off the medial malleolus. A July 2012 VA treatment record reflects the Veteran's report of left ankle pain. The November 2016 VA examiner diagnosed the Veteran with left ankle degenerative arthritis. Left wrist fracture: the examiner must provide the following opinions: Was the Veteran's left wrist fracture caused by his service-connected right knee status-post arthroscopy, right ankle degenerative arthritis, and/or bilateral pes planus? Was the Veteran's left wrist fracture aggravated by his service-connected right knee status-post arthroscopy, right ankle degenerative arthritis, and/or bilateral pes planus? Although the examiner must review the VBMS file, his or her attention is drawn to the following: In a February 2017 VA treatment record, the Veteran reported "a fall in September 2016 when he landed on his outstretched left hand and arm and has since experienced pain in his left hand." A February 2017 VA left wrist radiograph revealed an ununited chip fracture of the left trapezium at the base of the left first metacarpal. In a March 2017 VA treatment record, the Veteran was provided a left wrist splint. In a June 2017 statement, the Veteran asserted that the "pain and lack of mobility" from his service-connected right knee status-post arthroscopy, right ankle degenerative arthritis, and/or bilateral pes planus "have overtime developed issues clearing the ground surface with the right foot while walking." The Veteran reported tripping over his right foot and falling while using his left hand to minimize impact. A September 2017 VA treatment record reflects the Veteran's report of left wrist pain. During the October 2017 VA examination, the Veteran reported that his "right foot got caught on an uneven surface, he stumbled and fell forward." (CONTINUED ON THE NEXT PAGE) 3. Readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.