Citation Nr: 21075842 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-41 444 DATE: December 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) since October 2, 2015 is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to an initial rating in excess of 10 percent disabling for left knee patellofemoral syndrome (PFS) and in excess of 10 percent disabling for left knee instability is remanded. Entitlement to an initial compensable disability rating for hypertension is remanded. FINDING OF FACT For the entire period on appeal, since October 2, 2015, the Veteran's service-connected disabilities have prevented him for securing and following substantially gainful employment. CONCLUSION OF LAW For the entire period on appeal, the criteria for a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. § 1155, 5107 (2012); 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 Army from August 2012 to October 2015. This appeal was last before the Board in April 2021 when it was remanded for VA examinations and medical opinions regarding the Veteran's left knee and his hypertension. Although the examinations were provided, the Board finds they are insufficient for adjudication purposes and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a total disability rating based on individual unemployability (TDIU) since October 2, 2015 As an initial matter, the agency of original jurisdiction (AOJ) issued a rating decision in September 2021 with favorable findings: 1) "You are not working due to your disabilities. Evidence of record suggests you are not substantially gainfully employed based on service-connected disabilities. 2) "Your service-connected disabilities meet the schedular criteria for entitlement to individual unemployability." The Board is bound by favorable findings by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104(c). It appears that the AOJ denied the TDIU claim for want of a completed VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability, however, the presence of this form is not required for the Board to adjudicate the claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities 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. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions as well as those of private medical professionals or vocational experts are not dispositive. However, the observations of these professionals may provide probative evidence as to a veteran's ability to obtain and maintain employment consistent with his or her education and experience. As noted above, the Veteran meets the schedular criteria for TDIU for the entire period on appeal. He is rated at 50 percent disabled for migraine headaches; 50 percent disabled for PTSD; 50 percent disabled for dermatophytosis; 20 percent disabled for right shoulder strain; 10 percent disabled for left knee PFS; 10 percent disabled for left knee instability; and noncompensable ratings for vasovagal syncope and hypertension. Based on a thorough review of the Veteran's file, the Board finds that the probative evidence of record shows that the combination of the Veteran's service-connected disabilities precludes him from securing and following substantially gainful employment. The Board observes that the symptomology reflected in the 50 percent disability rating for his mental health disorder, the 50 percent disability rating for his migraine headaches, which in itself is indicative of severe economic inadaptability, in combination with his physical disabilities, shows that his service-connected disabilities prevent him from working. In the June 2021 VA Knee and Lower Leg examination, the examiner noted that the Veteran experienced flare-ups two times a week that last one to two hours and determined that there was functional loss as "the knee will feel like it wants to give out." The examiner concluded that his service-connected knee diagnoses impact his ability to work and noted that the Veteran experiences, "pain with prolonged sitting or standing. Increased activity causes stiffness." In an August 2018 primary care physician note, the Veteran's migraine headaches were described as: "migraines with aura...patient reports daily to every other day migraines...He experiences photo and phonophobia. He gets nausea but no vomiting. He will try to lay down and be in in a dark quiet room." In addition, the note reported that the Veteran's chronic pain in his right shoulder, left knee and lumbar spine is an established condition, which has required prescription pain medications and steroid shots. In the December 2016 VA PTSD examination, the Veteran's symptoms were noted as: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and, difficulty adapting to stressful circumstances, including work or a work-like setting. The Board observes that the Veteran's previous employment was as an EMT and in the December 2016 VA Knee and Lower Leg examination, he reported that he could no longer work: "I cannot carry, push or ruck weight for EMT." Based on the foregoing, the Board finds that the probative evidence of record shows that the combination of the Veteran's service-connected physical and psychological disabilities renders him unable to secure or follow a substantially gainful occupation. Accordingly, a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent disabling for left knee patellofemoral syndrome (PFS) and in excess of 10 percent disabling for left knee instability is remanded. When this issue was last before the Board in April 2021, the Board remanded for an addendum opinion to clarify the January 2021 VA examination which raised the issue of a meniscus disorder when the examiner reported, "He has a positive McMurray's test, suspicious for meniscus pathology." In July 2021, the examiner determined that the Veteran had a meniscal condition which resulted in knee instability. Since the Veteran may receive a separate rating for his meniscal condition under diagnostic code 5258, Cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion of the joint, an examination is required to ascertain the severity of the Veteran's meniscal condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted); 38 C.F.R. § 3.327(a). 2. Entitlement to an initial compensable disability rating for hypertension is remanded. When this issue was last before the Board in April 2021, the Board explicitly, in all capital letters, asked for a new VA hypertension examination to obtain current blood pressure readings, as the previous VA hypertension examination included only readings that were several years old. Inexplicably, the VA Hypertension examination provided in September 2021 was only a records review, in which the old blood pressure readings were repeated under "Section 2E, Current Blood Pressure Readings." Agency of Original Jurisdiction (AOJ) compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. The Board is obligated by law to ensure that the AOJ complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, remand is required for compliance with the April 2021 Board remand directives. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disability, with particular attention to any meniscus/cartilage conditions. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's left knee disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). (CONTINUED ON NEXT PAGE) 2. Schedule the Veteran for an in-person examination by an appropriate clinician to determine the current severity of his service-connected hypertension. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include current blood pressure readings. 3. Then, readjudicate the claims for increased ratings for the Veteran's service-connected left knee and hypertension. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.