Citation Nr: 21077601 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 06-25 412 DATE: December 30, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) from August 11, 2017, to June 14, 2021, is granted. REMANDED Entitlement to an increased rating in excess of 10 percent for degenerative osteoarthritis of the left knee is remanded. Entitlement to an increased rating in excess of 30 percent prior to May 17, 2018, in excess of 30 percent from May 17, 2018, to August 15, 2019, and in excess of 40 percent from August 15, 2019, for residuals, left knee injury status post meniscectomy is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment consistent with his education and experience from August 11, 2017 to June 14, 2021. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for the assignment of a TDIU from August 11, 2017, to June 14, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1980 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge during a May 2015 hearing. A transcript of the hearing is associated with the Veteran's claim file. This matter was previously before the Board in April 2012, July 2017, October 2018, and most recently in November 2020. The matters have returned to the Board for adjudication. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). 1. Entitlement to a TDIU from August 11, 2017, to June 14, 2021 The Veteran contends that he is entitled to a TDIU as he has not been gainfully employed since 2015. The issue of entitlement to a TDIU was raised during the course of the appeal period and is considered part and parcel with the Veteran's pending claim for a higher left knee disability rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board must consider whether the Veteran's service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. From August 11, 2017, the Veteran has an 80 percent combined rating to include a 70 percent for his posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), 20 percent for his left degenerative arthritis with limited extension, and 10 percent for degenerative osteoarthritis of the left knee, status post meniscectomy. The Veteran was awarded a 100 percent rating for his psychiatric disability from June 15, 2021. The most recent November 2020 Board decision remanded the issue for entitlement to a TDIU as the Veteran's work history was unclear as he had not submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. In December 2020, the Veteran submitted the requested VA Form 21-8940. The Veteran indicated that his service-connected PTSD and left knee conditions prevents him from securing or following any substantially gainful occupation. He reported that he worked in 2015 at a metal fabrication warehouse as part of his prison work release program for four months. He reported he last worked in 2017 for a garden tool warehouse but noted that he only earned $300 per month and only worked there for one week. The Veteran stated that he had not been able to hold down a long-term steady job for many years. He cannot stand for an entire workday due to his knee and must sit down and rest due to pain. He also stated that he is not able to sit in one place for long and has to move around to try to get comfortable. He also has a hard time standing to perform daily activities such as to cook and clean. His knee makes it difficult to drive without pain. Furthermore, the Veteran stated that his PTSD caused him to leave previous jobs because he was argumentative and easily angry with his coworkers. His PTSD affects his focus and concentration. He has days where he does not have enough motivation or drive to get up and do things and some days he stays mostly in bed. Since he does not sleep well, he will be groggy and not be motivated the next day. His PTSD medications also cause him to be groggy. He noted that he is not good around other people or crowds and prefers to stay to himself. He stated that he is not able to do any type of physical labor anymore and his mental health is a major issue when it comes to working. He also stated that he has no computer skills and would not be able to work in an office type of setting. Social Security Administration (SSA) records show that the Veteran was disabled beginning in January 2017, due to osteoarthrosis and allied disorders and affective /mood disorders. While it was noted that the SSA determination was based on the additional disabilities related to his cervical spine, bilateral hips, and hypertension which are not service connected, consideration was also given to his left knee disability and psychiatric disability for which he is service connected for. The Board is not bound by decisions of other agencies, but here, it provides some probative evidence that the Veteran is not able to work partly due to his left knee disabilities and psychiatric disability. The Veteran was examined for his PTSD by the VA in January 2018. The Veteran reported that he has not worked since 2016 and that he is unable to work because of his medical and mental health issues. He stated he is significantly withdrawn and is quick to become irritable in public settings. The examiner noted that he has had two psychiatric hospitalizations which both occurred in 2015. The Veteran's symptoms included anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. The Veteran was afforded a VA examination for his left knee in May 2018. He reported that he has functional loss or impairment in that he has constant aching pain, popping with pain, loss of motion, frequent swelling, pain standing after five minutes, and pain which prevents him from warehouse and restaurant work. In a May 2018 VA treatment record, it was noted that the Veteran reported having employment, but where was unknown. An August 2018 VA treatment record showed that the Veteran last worked in June 2018 and worked in warehouse packaging. In an August 2019 VA knee examination, the Veteran reported constant knee pain, frequent swelling, the knee giving out, and unable to fully extend his knee because of pain. The VA examiner indicated that the Veteran's left knee condition impacts his ability to perform any type of occupational task as he has left knee pain with prolonged standing, walking, climbing steps, squatting, and stooping. The Veteran reported he left his packing job in 2016 due to prolonged standing. Additionally, the VA examiner found that the Veteran is able to perform sedentary work. However, this statement by the VA examiner only considered the Veteran's service-connected left knee conditions and not his psychiatric disability. The Veteran's attorney submitted a vocational assessment from a E.C., a vocational consultant in September 2020. The vocational consultant indicated he reviewed the Veteran's entire claim file and held a telephone conversation with him in September 2020 in completing his analysis. It was stated in the report that the Veteran has not worked in any capacity since March 2015. Per the telephone conversation, the Veteran stated that he has seen no appreciable improvement in his PTSD symptoms and finds it difficult and painful to stand even for a few minutes, he cannot bend or squat or lift anything of weight. E.C. found that the Veteran's PTSD and left knee conditions have been the most problematic in affecting his social, personal, and occupational functioning, as well as his ability to perform work at even the sedentary exertion level. Furthermore, he found that the Veteran's psychiatric records are consistent in their documenting the Veteran's difficulty dealing with people or in an occupational setting. Records pertaining to the knees document the difficulty the Veteran was having and continues to have with mobility and ambulation. The vocational consultant stated that the medical records cited since 2009 documents the continued symptoms related to the Veteran's PTSD and knee conditions and their adverse effect on his activities and ability to maintain employment, even though he had continued to work until 2015. The Veteran's PTSD makes being around people, let alone work with them unrealistic, while the knee condition causes frequent pain, reduced ambulation, and limits him to sedentary work, based solely on the knees. Additionally, he noted that the Veteran has only performed unskilled work from which no meaningful transferable skills were acquired. Even at the sedentary level where most jobs are of clerical, business, or customer service-oriented nature, his PTSD prevents even this due to inability to interact with co-workers or the general public. The vocational expert specified that he had only considered the impact of the Veteran's service-connected conditions in his analysis. He concluded that it his opinion that it is at least as likely as not that due to his service-connected conditions, the Veteran has been unable to secure or follow a substantially full-time gainful occupation since leaving his job as a water sprayer in March 2015. In October 2021, the Veteran was afforded another VA examination for his left knee. The VA examiner stated that the Veteran's left knee condition impacts his ability to perform any type of occupational task. She explained that his previous job required prolonged standing and walking, which aggravates his left knee condition. The final determination with respect to the Veteran's entitlement to a TDIU is an adjudicatory, not a medical, function. Given the Veteran's educational and vocational background, it appears unlikely for the Veteran to follow a substantially gainful occupation for which he may be qualified based on his service-connected disabilities. The evidence shows that the Veteran would not have been able to perform in a competitive work environment successfully. The totality of his mental health symptoms suggests that the Veteran would be significantly impeded in workplace productivity based on his psychiatric symptoms. The effects of his psychiatric disability would make it difficult for the Veteran to work alongside other coworkers and stay on task. His physical limitations from his service-connected knee conditions make it difficult for the Veteran to stand up for prolonged periods of time and work any jobs that require physical labor. The findings from the September 2020 vocational assessment supports the reasons why the Veteran cannot work based on his service-connected disabilities. The Board affords great probative weight to the findings of the vocational assessment report from September 2020. Specifically, the vocational counselor carefully and extensively recited to the relevant evidence, demonstrating that he had reviewed the Veteran's medical records, history, statements, and assertions. In assigning high probative value to this opinion, the Board notes that the counselor reviewed the records and fully supported his conclusions with specific citation to the record and expertise in rehabilitative counseling. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment from August 11, 2017, the date the Veteran met the schedular requirements of a TDIU under 38 C.F.R. § 4.16(a) to June 14, 2021, the date prior to when he was awarded a 100 percent disability rating for his service-connected PTSD. As the Veteran's attorney has indicated that TDIU is warranted from August 2017, the date the Veteran met the requirements for a TDIU under 38 C.F.R. § 4.16(a), this is a full grant of the benefits sought on appeal. See September 2020 Third Party Correspondence. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). As in initial matter, the Veteran was awarded a separate rating for left knee recurrent subluxation under Diagnostic Code 5257 (recurrent subluxation and instability). He did not appeal that issue from the October 2021 rating decision, and therefore, it is not a part of the current appeal. 1. Entitlement to an increased rating in excess of 10 percent for degenerative osteoarthritis of the left knee 2. Entitlement to an increased rating in excess of 30 percent prior to May 17, 2018, in excess of 30 percent from May 17, 2018, to August 15, 2019, and in excess of 40 percent from August 15, 2019, for residuals, left knee injury status post meniscectomy The Veteran contends that his left knee conditions warrant a higher evaluation than those as currently assigned. The November 2020 Board decision remanded the issues for a new VA examination as the August 2019 VA examination did not conform to the Court's holdings in Correia and Sharp. In this regard, the VA examiner did not provide range of motion in active motion, passive motion, weightbearing, and non-weightbearing. The VA examiner also did not provide range of motion measurements for where pain began for the Veteran's left knee. Furthermore, the VA examiner was unable to describe additional losses of function or range of motion with repeated use over a period of time. The Veteran was afforded a new VA examination in October 2021. The Veteran reported flare-ups of the left knee which cause aching, throbbing pain, stiffness, and occasional swelling. The flare-ups cause worsening of symptoms and more difficulty in walking and standing for long periods of time. Regarding repeated use over time, the Veteran stated he has more difficulty with walking and standing for long periods of time. The VA examiner noted that both active and passive range of motion were the same but did not include the range of motion with weightbearing and non-weightbearing. Moreover, the VA examiner found that the procured evidence (statements from the Veteran) suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability with repeated use over time and with flare-ups. However, when providing the additional loss of range of motion with repeated use over time and with flare-ups, she provided the same range of motion measurements that was given with active range of motion, which suggests that the examiner did not adequately assess the degree of the Veteran's disabilities based on review of all procurable information. The VA examiner noted that the Veteran's efforts were suboptimal during objective examination and he had the ability to self-propel himself in his wheelchair using lower extremities and arms without assistance as well as self-transfer and ambulation without assistance, but this does not indicate how the Veteran provided a suboptimal effort on range of motion testing. Based on the deficiencies of the October 2021 VA knee examination, the Board finds that there has not been substantial compliance with the November 2020 Board's remand directives. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, in accordance with Stegall, remand for a new VA examination is necessary for full compliance with the Board's prior remand. The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. Schedule the Veteran for a VA examination to assess the severity of the service-connected left knee conditions, preferably with the examiner who conducted the October 2021 VA knee examination. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. Specifically, the Veteran's left knee should be tested for pain in both weightbearing and non-weightbearing positions, and on both active and passive motion. If this cannot be performed, the examiner should explain why. The examiner should record the range of motion of the joints observed on clinical evaluation in terms of degrees in weightbearing, non-weightbearing, passive and active motion. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If the Veteran reports flare-ups, the examiner should ask him to report or demonstrate his range of motion during the flare-ups. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use and/or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use and/or during flare-ups. The VA examiner should assess the additional functional impairment on repeated use and/or during flare-ups in terms of the degree of additional range of motion loss. If the VA examiner is unable to report the degree of additional range of motion loss during repeated use and/or flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during repeated use or flare-ups or explain why it is not feasible to render such an opinion. If the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during repeated use and/or a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Finally, the examiner is also asked to provide a retrospective opinion concerning the functional loss and severity of the Veteran's left knee disability at the October 2021 examination. To this end, the examiner should provide a retrospective opinion addressing the VA examination from October 2021 and the extent of the Veteran's functional loss during repeated use and flare-ups. The examiner is asked to determine whether the Veteran's range of motion results from the October 2021 examinations would have been reduced if tested in weightbearing and non-weightbearing and estimated degree of additional range of motion loss due to repeated use and flare-ups. To the examiner's best ability, the additional range of motion lost should be described in degrees based on the information noted in the VA examinations, pertinent lay statements, VA treatment records, and private treatment records in the Veteran's claim file. If providing any retrospective opinion is not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. All opinions expressed should be accompanied by supporting rationale. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.