Citation Nr: 21075911 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-30 488 DATE: December 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period beginning April 18, 2016, is granted. REMANDED Entitlement to service connection for insomnia is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. Entitlement to a rating in excess of 10 percent for chronic strain of the right knee is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis for the period prior to April 18, 2016, is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1997 to December 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in December 2018, on which occasion the claims were remanded. 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period beginning July 21, 2021. Based on a review of the record, the Board finds that the Veteran's service-connected disabilities preclude substantially gainful employment for the period beginning July 21, 2021. A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). The Veteran was last employed in July 2008 as a "house parent" at the American Legion's Children's Home. (9/16/2021, VA 21-8940, p. 1-2). For the period beginning July 21, 2021, service connection was in effect for obstructive sleep apnea (50 percent from April 18, 2016), degenerative joint disease of the left knee (10 percent from January 23, 2012), chronic right knee strain (10 percent from January 23, 2012), right ankle strain (10 percent from May 12, 2015), left ankle strain (10 percent from May 12, 2015), surgical scar of the left knee (zero percent from September 28, 2012), and major depressive disorder (zero percent from May 12, 2015). His combined rating is 70 percent from April 18, 2016. As such, the Veteran meets the threshold requirements set forth under 38 C.F.R. § 4.16(a). The Board finds that the Veteran's service-connected major depressive disorder renders him unable to secure and follow a substantially gainful occupation. As such, entitlement to a TDIU is warranted effective April 18, 2016. In this regard, the Board notes that the Veteran was declared incompetent to handle the disbursement of funds by VA. In rendering this decision, the RO noted a medical opinion by the Veteran's primary care provider indicating that he does not have the ability to manage his own financial affairs. The Board additionally notes that the Veteran is in receipt of Social Security Disability. The Social Security Administration (SSA) found that the Veteran is disabled as of October 10, 2008, due to a primary diagnosis of "affective/mood disorder." The SSA found that the Veteran's mental health disability causes marked limitations in the ability to respond appropriately to changes in the work setting and moderate limitations in the ability to understand, remember, and carry out detailed instructions; work in coordination with or proximity to others without being distracted by them; make simple work-related decisions; interact appropriately with the general public; and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. (4/22/2015, Medical Treatment Record, p. 3, 10). Based on the aforementioned evidence, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. As such, a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for insomnia is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In the Board's December 2018 decision, a claim of service connection for insomnia was remanded for a new VA medical examination and opinion. In May 2021 a new VA medical examination and opinion regarding PTSD were proffered. However, the examiner did not address insomnia. (5/3/2021, C&P Exam, p. 1). A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the May 2021 examiner failed to address insomnia, the Board finds that there has not been substantial compliance with the Board's previous remand directives. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. 3. Entitlement to a rating in excess of 10 percent for chronic strain of the right knee is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In the Board's December 2018 remand, the Veteran's claims were remanded for a new VA knee examination. The Veteran was afforded a new VA examination in December 2020. The examiner indicated that pain, weakness, fatigability, or incoordination significantly limits the Veteran's functional ability with repeated use over a period of time and during flare-ups. However, the examiner indicated that they could not describe the functional loss in terms of range of motion. (2/9/2021, C&P Exam, p. 7). The examiner provided no explanation for why they were unable to describe the Veteran's functional loss. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (holding generally that where a rating is based on loss of range of motion, limitation of functional ability should, if feasible, be "portrayed" in terms of the degree of additional range-of-motion loss). As the examiner failed to describe the Veteran's functional loss with repeated use over a period of time and during flare-ups in terms of loss of range of motion, the Board finds that the examination is inadequate. Therefore, the claim must once again be remanded for further development. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis for the period prior to April 18, 2016, is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration for the period prior to April 18, 2016. For the period in question, the Veteran had the following service-connected disabilities: degenerative joint disease of the left knee (10 percent from January 23, 2012), chronic right knee strain (10 percent from January 23, 2012), right ankle strain (10 percent from May 12, 2015), left ankle strain (10 percent from May 12, 2015), surgical scar of the left knee (zero percent from September 28, 2012), and major depressive disorder (zero percent from May 12, 2015). His combined rating during this period was 40 percent from May 12, 2015, and 20 percent from January 23, 2012. Based on the foregoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). The Board may not consider a claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, as there is a reasonable possibility that he was unemployable during this period by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from May 2021 to the present. 2. Schedule the Veteran for a VA examination for his insomnia. The examiner must review the claims file and provide a response to the following: (a.) Is the Veteran's insomnia at least as likely as not related to service? (b.) Is the Veteran's insomnia at least as likely as not proximately due to his service-connected knee disabilities? (c.) Is the Veteran's insomnia at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected knee disabilities? If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected knee disabilities. 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. 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. 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. 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. 4. Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration for the period prior to April 18, 2016. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.