Citation Nr: 21071755 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-02 097 DATE: December 1, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to service connection for disability of the thoracolumbar spine is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT Service-connected disabilities render the Veteran unemployable. CONCLUSION OF LAW The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States (U.S.) Navy from January 1978 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and December 2012 rating decisions by a U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This issue was previously before the Board, most recently in August 2020, when remanded for further development. In a June 2021 rating decision, the RO granted service connection for cervical strain and assigned a 20 percent evaluation effective November 3, 2010. The issue of service connection for a neck condition is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. The Veteran seeks a TDIU. In November 2010, the Veteran opined he was unemployable due to medication prescribe for service-connected knee disabilities. In June 2013, the Veteran reported that all service-connected disabilities combined have prevented substantially gainful employment since May 1997. In May 2018 and November 2021, the Veteran through an authorized representative, contended prior denials by the RO contained inadequate reasons and bases. The Veteran has submitted a November 2018 Social Security Statement showing earnings since 1972 consistent with the Veteran's contentions. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they can perform the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected since November 3, 2010: maxillary sinusitis (rated 50 percent since November 2010); depressive disorder (rated and 50 percent since November 2010); residuals, right knee surgery, degenerative joint disease (rated 40 percent from November 2010 to February 2015); right ulnar neuropathy (rated 30 percent since May 2004); residuals of right total knee arthroplasty (rated 100 percent from February 2015 and 30 percent since April 2016); cervical strain (rated 20 percent since November 2010); residuals, third degree burns left hand/forearm (rated 10 percent since October 1996); fracture, right fibula (rated 10 percent since November 2010); tinnitus (rated 10 percent since December 2012); fracture, right fifth finger (rated 0 percent since October 1996); fracture, right second toe (rated 0 percent since October 1996); fracture, left fourth toe (rated 0 percent since October 1996); fracture, right great toe (rated 0 percent since October 1996); fracture, right fifth toe (rated 0 percent since October 1996); residuals lacerations of left forearm, right thumb and second & third fingers (rated 0 percent from since October 1996); and hearing loss (rated 0 percent since August 2012). Based on the forgoing, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more since November 3, 2010. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The Board finds that a TDIU is warranted. In August 2007, the Veteran reported to the Social Security Administration two years of college and military training completed in 1996. The Veteran was a cook in the Navy and last worked as a commercial fisherman in 2006 and 2007. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of maxillary sinusitis, degenerative joint disease and residuals of right total knee arthroplasty, right ulnar neuropathy, cervical strain, right toe fractures, and hearing loss. In November 2010, the Veteran reported that knee pain medication prevented employability. In November 2011, the Veteran reported that right fibula fracture and right ankle pain progressed as activity increased, weakness with an inability to grip with right ring and little fingers, and difficulty breathing through nose during heavy physical exertion. In November 2012, the Veteran reported not being able to hear high-pitched sounds and having to turn the television "way up." In December 2012, the Veteran reported that sinusitis made it hard to wear a continuous positive airway pressure mask prescribed to treat sleep apnea. In November 2013, the Veteran reported hearing loss that led to lip-reading to understand people, trouble deciphering what is being said on television, and not hearing birds or music without hearing aids. In November 2013, a VA examiner opined that the Veteran's foot conditions prevented the Veteran from working on his feet for extended periods without a rest. The VA examiner also diagnosed right ulnar neuropathy status post open release of the cubital tunnel and opined that ideally the Veteran's work should have minimal requirements for heavy lifting with the right arm or repetitive type of work with the right arm. The VA examiner also diagnosed right status post anterior cruciate ligament repair in service and opined that ideally the Veteran's work should have minimal requirements for squatting, heavy lifting, prolonged walking or standing. The November 2013 VA examiner opined that light duty employment was not precluded. In November 2015, a VA examiner diagnosed right cubital tunnel/ulnar neuropathy and opined that the Veteran would be limited regarding working with paper or small objects such as screws and paper clips. Another VA examiner diagnosed right knee degenerative arthritis and residuals fracture right fibula/ankle and opined that: The veterans SC condition R knee condition should not preclude employment or occupational duties with respect to light or sedentary activities. . . . He would need to be allowed to use a cane for any walking required. Carrying would be precluded except for very small, very light items as he would need to carry the item in one hand with the cane in the other. There is no objective evidence that his SC R ankle condition would preclude employment of a light or sedentary nature. In May 2021, a VA examiner diagnosed a cervical strain and opined that the Veteran had "joint pain that prevents him from functioning. He is unable to work." The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of depressive disorder. In November 2011, November 2013, November 2015, VA examiners diagnosed major depressive disorder and found 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. The November 2015 VA examiner added that: The Veteran's SC mental disorder does not impair his/her ability to retain instructions or sustain attention in simple tasks, but it may contribute to mild impairment in sustaining concentration on complex tasks. The Veteran's SC mental disorder may contribute to mild impairment in task persistence and pace. The Veteran's SC mental disorder may contribute to moderate impairment in his/her ability to respond appropriately to coworkers, supervisors, or the general public. The Veteran's SC mental disorder may contribute to moderate impairment in his/her ability to respond appropriately to changes in the work setting. Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The Board gives probative weight to the medical opinions of record, especially the May 2021 VA examiner's opinion, which is the most recent, that the Veteran was unable to work. Accordingly, a TDIU. The claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for disability of the thoracolumbar spine is remanded. 2. Entitlement to service connection for sleep apnea is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues of entitlement to service connection for disability of the thoracolumbar spine and sleep apnea. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2020, the Board directed the RO to obtain a VA medical opinion on whether the Veteran's current back disorder was proximately due to or aggravated by the Veteran's service-connected disabilities. The Board also directed the examiner to consider and comment on the Veteran's reported medical history and lay reports. The May 2021 VA medical opinions did neither of these things. The May 2021 VA examiner checked a box that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected condition but offered no rationale for this conclusion. A medical opinion must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The VA examiner reported that the "Veteran does not state a lower extremity issue is causing pain in the back," but in November 2021, this is exactly what the Veteran, through an authorized representative, has argued. The May 2021 VA medical opinions also did not address the Veteran's October 2012 lay statements that the sleep apnea symptoms began during service. In November 2021, the Veteran has also opined that service-connected disabilities caused the obesity that cause the sleep apnea. New VA medical opinions to address these theories of entitlement are warranted. The matters are REMANDED for the following actions: In remanding these matters, however, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand order. 1. Request an addendum opinion from an appropriate examiner to determine the nature and cause of the Veteran's thoracic and lumbar spine disorder. The Veteran's claims file must be made available to the examiner for review. The examiner must consider the Veteran's complete history and lay reports. If the examiner finds a new physical examination is required, then it should be scheduled. Upon review of the full record, the examiner must provide an opinion answering the following question: 2. Is there a thoracic or lumbar spine disorder that is at least as likely as not proximately due to disabilities of the lower extremities? 3. Is there a thoracic or lumbar spine disorder that is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by disabilities of the lower extremities? The Veteran is service connected for right knee, right fibula, and bilateral toe disabilities. In providing the requested opinion, consider the Veteran's description of in-service injury and symptoms as well as his post-service symptoms. Although the examiner should review the claims file in its entirety, attention is drawn to the Veteran's service treatment record documenting treatment for back problems in April 1979 and September 1982. Stated another way, do the Veteran's reports about symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Request an addendum opinion from an appropriate examiner to determine the nature and cause of the Veteran's sleep apnea. The Veteran's claims file must be made available to the examiner for review. The examiner must consider the Veteran's complete history and lay reports. If the examiner finds a new physical examination is required, then it should be scheduled. Upon review of the full record, the examiner must provide an opinion answering the following questions: 5. Is the Veteran's sleep apnea at least as likely as not (50 percent or greater probability) caused by military service? 6. Whether service-connected disabilities at least as likely as not affects the Veteran's ability to limit caloric intake and causes obesity or aggravates it beyond its natural progression; and 7. Whether the obesity at least as likely as not causes the Veteran's sleep apnea or aggravates it beyond its natural progression. In providing the requested opinion, consider the Veteran's description of in-service injury and symptoms as well as his post-service symptoms. The examiner is asked to consider and comment on the Veteran's report of snoring and sleep apnea in January 1996 documented in the Veteran's service treatment records. Stated another way, do the Veteran's reports about symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner is reminded that a complete rationale should be provided for all opinions. If an opinion cannot be provided without resorting to speculation, then the examiner must explain why this is the case. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.