Citation Nr: 21071405 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-50 795 DATE: November 30, 2021 REMANDED Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1985 to June 1985 and from January 1986 to March 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision and August 2017 Decision Review Officer (DRO) decision. In addition, this case was most recently previously before the Board in January of 2020. It was remanded at that time for additional development, to include affording the Veteran the opportunity to provide or identify medical records and complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability). While the case has now been returned to the Board for adjudication, the Board finds that an additional remand is warranted before a decision may be made on the merits. More specifically, the VA examiner who provided an opinion regarding employability in relation to his service-connected mental health condition in May of 2020 stated that, "[the] Veteran's last exam was dated 2/2/17 with diagnosis of unspecified depressive disorder by Dr. [P. R.] with a positive MO noting his depressive symptoms are secondary to his SC conditions. As his MH exam is over three years old, commenting on the current state of his mental health and its impact on employment functioning would be resorting to mere speculation. A new exam is required to assess veteran's current diagnoses (if any) and their possible impact on employability." The Veteran also specifically requested, via his representative, the opportunity to be afforded an updated examination in a June 2020 memorandum. Given the lengthy period that has passed since he was last afforded any VA examinations and the above-noted assertions, the Board finds that the Veteran should be afforded the opportunity to attend updated examinations in order to ensure that VA has an accurate depiction of his disability picture. Thereafter, an opinion should be obtained regarding the combined effect of the Veteran's then-service-connected disabilities on his ability to maintain gainful employment. This remand and the accompanying directives are further necessitated as there have recently been regulatory changes that are relevant to his service-connected musculoskeletal conditions. In this case, the Veteran is currently rated at 20 percent for his right knee disability under Diagnostic Code 5257, at 10 percent for his back disability under Diagnostic Code 5237 and at 10 percent for his left knee disability under Diagnostic Code 5260. The criteria for Diagnostic Code 5257, as well as some other Diagnostic Codes pertaining to the knee and spine, were revised during the pendency of this appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Given these regulatory changes, the Board finds that affording the Veteran the opportunity to attend new VA examinations is also necessary to ensure that the Veteran is rated appropriately in accordance with the laws in place at this time. In addition, the Board notes that TDIU is not warranted when the Veteran is employed beyond marginal employment. See e.g. Moore v. Derwinski, 1 Vet. App. 356 (1991). Here, the Veteran has alleged that he has worked part-time for portions of the period on appeal but has not had gainful employment. See e.g. March 2020 Statement in Support of the Claim. As such, an earnings statement should be obtained from SSA and associated with the Veteran's claims file as those currently of record only contain income information up until the year 2015. Lastly, as VA treatment records have not been obtained since June 2020, any that are outstanding and relevant should be obtained and associated with the claims file. The matter is REMANDED for the following actions: 1. Obtain any outstanding relevant VA treatment records and associate them with the claims file. 2. Contact SSA and request the Veteran's earning statements from 2016 through the present, as well as documents pertaining to any application for disability benefits. If SSA responds that it cannot provide earnings statements to VA without the Veteran's approval, undertake the necessary actions to obtain any documentation needed from the Veteran to enable VA to obtain an updated copy of his SSA earnings statements. 3. Schedule the Veteran for a VA examination before an appropriate examiner to determine the current severity of his psychiatric condition(s). The examiner must be provided with and review the entire claims file, to include a copy of this remand and it should be confirmed that such records were reviewed. The examiner should comment on the severity of the Veteran's condition, including whether the evidence has demonstrated a progression of symptoms with particular periods where the severity differed. The examiner should also report all signs and symptoms necessary for rating the Veteran's disability under the General Rating Formula for Mental Disorders and fully describe the functional effects of the Veteran's service-connected mental health condition, including its effects on occupational functioning and daily activities (such as his ability to follow instructions, interact with coworkers, the public, or supervisors, etc.). 4. Schedule the Veteran for VA examinations to assess the current severity of his service-connected (a) right knee (b) left knee and (c) back disability. The examiners must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiners 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. The examiner is specifically asked to opine whether there is additional limitation of motion upon flare-ups or on repetitive use. To the extent possible, each examiner should identify any symptoms and functional impairments due to the disability and discuss the effect of the Veteran's condition 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). 5. Following the completion of steps one through four, obtain an addendum retrospective opinion from an appropriate VA clinician regarding the collective impact of his service-connected conditions on his ability to function in an occupational environment. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were reviewed. Following a review of the evidence of record, to include the lay statements of record, the clinician should address the combined effect of the Veteran's service-connected disabilities on his ability to engage in any type of gainful employment during the relevant period. The clinician should elicit and set forth the pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and industrial capacity. He or she should address the Veteran's ability to function in an occupational environment. The clinician is advised that being unemployed during the period on appeal is not equivalent to being unemployable for VA purposes and the clinician is asked to reconcile, to the extent possible, the Veteran's periodic part-time employment. In responding to these inquiries, any side effects the Veteran experienced from medications for the service-connected disabilities should be considered. If the evidence demonstrates that the Veteran experienced varying levels of impairment at different points during the appeal period, the clinician should so state and provide the basis for such conclusion. Each clinician must provide a comprehensive report, including complete rationales for all conclusions reached. If any clinician is unable to provide any of the requested information without resorting to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 6. After undertaking any additional development deemed necessary, readjudicate the claims on appeal, to include consideration of whether separate rating(s) are warranted under a different Diagnostic Code. If the benefits sought remain denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.