Citation Nr: 21074133 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-67 423 DATE: December 14, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for right knee medial instability associated with degenerative arthritis with patellofemoral syndrome, with scars, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the right knee due to degenerative arthritis with patellofemoral syndrome, with scars, is remanded. Entitlement to an initial rating in excess of 10 percent for a lumbosacral strain is remanded. Entitlement to service connection for a left shoulder disability is remanded. FINDING OF FACT The Veteran meets the schedular criteria for TDIU, and his service-connected disabilities have been shown to render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16(a) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from July 2007 to November 2010. He was awarded the Combat Action Badge for his service, among many other decorations and medals. In September 2021, the Veteran testified before the undersigned at a Board of Veterans' Appeals (Board) virtual hearing. A transcript of the hearing is of record. The Board notes that the issue of entitlement to a TDIU is part and parcel of any appeal of a claim seeking an increased disability rating where there is evidence of unemployability due to service-connected disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Because the Veteran in this case raised the matter of unemployability at his hearing, the Board may properly exercise jurisdiction over his TDIU claim. 1. Entitlement to a TDIU The Veteran contends that he is unable to work due to his service-connected disabilities, particularly due to occupational impairment caused by his posttraumatic stress disorder (PTSD) and by his right knee and lumbosacral spine disabilities. The Veteran is service connected for PTSD (rated as 70 percent disabling); medial instability of the right knee (10 percent disabling); limitation of flexion of the right knee due to degenerative arthritis (10 percent disabling); and lumbosacral strain (10 percent disabling, effective August 31, 2015). His combined rating for these disabilities is 80 percent. Accordingly, the Veteran meets the schedular criteria for a TDIU throughout the entire appeal period. See 38 C.F.R. § 4.16(a) (to qualify for TDIU, the evidence must show that a veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent). The remaining question on appeal is whether the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. For the following reasons, the Board finds that a TDIU is warranted under 38 C.F.R. § 4.16(a) to the extent allowable by law. In a VA Form 21-8940 ("Application for Increased Compensation Based on Unemployability") submitted in November 2021, the Veteran indicated that he became too disabled to work in January 2011. The instant appeal period originates from his June 2015 claim for service connection for right knee and left shoulder disabilities. In June 2015, the Veteran was afforded a VA examination for his PTSD. The report reflects the examiner's conclusion that the Veteran suffered occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The Veteran told the examiner that he had had one job since being discharged from service, but that he was only able to work for four months; he reported that he got into an argument with his boss and quit. The examiner observed that the Veteran suffered from (among many other symptoms) panic attacks more than once a week, mild memory loss, impaired judgment, difficulty in adapting to stressful circumstances (including work or a worklike setting), and an inability to establish and maintain effective relationships. In 2015, the Veteran received a psychological evaluation in conjunction with his application for Social Security Administration benefits. The report from that evaluation reflects that the Veteran was able to function in a work setting only under strict parameters, e.g., "with a calm, soothing, understanding yet firm female supervisor who allowed for him to have breaks when experiencing frustration tolerance." An additional comment noted that, "strictly in terms of cognitive/emotional factors, he will have chronic difficulty following through with work tasks and will experience problems with general productivity standards." The psychologist further stated that the Veteran would have "chronic difficulty adapting to normal work stressors associated with a full day of scheduled work tasks." In March 2016, the Veteran was afforded VA examinations for his right knee and back. The reports reflect his descriptions of significant pain as well as a variety of functional impairments including difficulty walking, climbing stairs, squatting, and prolonged standing. In June 2020, the Veteran was provided a second PTSD examination. The report from that examination described symptoms largely consistent with those noted in the June 2015 VA examination report. Notably, the Veteran indicated that he became certified in welding in 2019 but did not believe he was able to work. At his September 2021 Board hearing, the Veteran testified that he had not been able to hold down a job since his separation from service. He described both mental and physical obstacles to his maintaining employment. He noted that he had been trained as a welder and auto mechanic but that his knee and back problems rendered it impossible for him to engage in physical labor for extended periods. The Veteran also described mental impairment consistent with the VA examinations of record; he was crying throughout the hearing. In this case, the Board finds that the evidence of record clearly demonstrates that the Veteran's service-connected disabilities, particularly his PTSD in combination with his right knee and lumbosacral spine disabilities, have rendered him unable to secure and follow substantially gainful employment throughout the appeal period. The Board bases this finding on the collective functional impairment described in the Veteran's VA examination reports and SSA psychological evaluation; the daily struggles articulated by the Veteran in his various statements and testimony; and the Veteran's documented work and educational history. In particular, the Board finds that the limitations imposed by the Veteran's service-connected knee and lumbosacral spine disabilities render physical employment (especially the type of work which the Veteran is specifically trained to perform) untenable, while the serious and debilitating nature of his PTSD makes it unreasonable to expect him to obtain and sustain any type of employment, to include sedentary employment. In sum, it is clear that the Veteran's service-connected disabilities make it very difficult for him to get through each day, much less secure and follow a substantially gainful occupation. Accordingly, the Board concludes that entitlement to a TDIU is warranted pursuant to 38 C.F.R. § 4.16(a). To this extent, his claim will be granted. REASONS FOR REMAND 2. Entitlement to increased initial ratings for right knee and lumbosacral spine disabilities The Veteran contends that he is entitled to increased initial ratings for right knee and lumbosacral spine disabilities. After reviewing the record, the Board finds that a remand is warranted, as the Veteran testified at his Board hearing that his symptoms had worsened since his most recent VA examinations, and updated examinations are therefore necessary. Moreover, the VA examination reports of record are inadequate in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was most recently provided VA examinations in connection with his claims in March 2016. The United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, supra at 168. On review, the VA examination reports of record include only active range of motion findings and do not include range of motion findings for passive range of motion of either the right knee or the lumbosacral spine. They also do not specify whether the results are weight-bearing or nonweight-bearing. No substantive explanation was provided as to why such testing was not performed. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, new examinations are necessary. Additionally, in Sharp v. Shulkin, the Court held that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Sharp, supra at 34. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). Here, the VA examination reports of record reflect a positive indication of flare-ups. However, no estimate was provided regarding the specific loss of range of motion during such episodes. Although the Board acknowledges the Veteran's reticence to participate in further examination, VA's duty to assist requires that additional examinations be performed in order to accurately determine the current nature and severity of the Veteran's claimed disabilities. 3. Entitlement to service connection for a left shoulder disability The Veteran seeks service connection for a left shoulder disability. His VA outpatient records show that he has been treated for recurrent left shoulder dislocation, with associated pain, since at least 2015. In January 2016, a VA clinical note reflects an examiner's acknowledgment of this disability, characterized as a recurrent left A-C joint dislocation. The examiner noted that he was familiar with the nature of the Veteran's military occupational specialty, including his combat experiences, and stated that the Veteran's injuries were "fully consistent with this duty." However, the examiner did not provide an explicit nexus opinion. (There is no evidence of any left shoulder injuries in the Veteran's service treatment records.) The Board is aware that the Veteran has not articulated a specific basis for his claim (he declined to discuss his left shoulder disability at his Board hearing). Notwithstanding, the evidence discussed above warrants a VA examination to determine the nature and etiology of the Veteran's current left shoulder disability. See 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006) (describing the circumstances under which VA has a duty to provide a VA medical examination or opinion). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his right knee disabilities, to include instability and limitation of motion. To the extent possible, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's right knee disabilities. The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his lumbosacral strain. To the extent possible, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's lumbosacral strain. The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his left shoulder disability. The examiner must review the record and opine as to whether it is at least as likely as not (50 percent probability or greater) that this disability began in active service or is otherwise related to active service, to include from injuries incurred in combat. The clinician is advised that the Veteran is competent to report symptoms, treatment, events, and injuries, including those that occurred in service (including combat service), and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinions. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.