Citation Nr: 21005403 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 09-50 840 DATE: February 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) effective from September 13, 2011, to July 8, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for a bilateral hip disorder, to include as secondary to service-connected lumbar spine and lower extremity disabilities, is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected lumbar spine and lower extremity disabilities, is remanded. Entitlement to an increased (compensable) rating for residuals of a fractured left tibia and fibula is remanded. Entitlement to TDIU prior to September 13, 2011, is remanded. REFERRED The issue of entitlement to a government headstone or marker was raised in an April 2018 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. From September 13, 2011, to July 8, 2012, the Veteran was service-connected for a lumbar spine disability, bilateral radiculopathy of the lower extremities, a left knee disability, a bilateral foot disability, a mood disorder, residuals of a fracture of the left tibia and fibula, and erectile dysfunction. 2. From September 13, 2011, to July 8, 2012, the Veteran’s service-connected disabilities were rated 70 percent disabling with the bilateral radiculopathy of the lower extremities being rated as 40 percent disabling. 3. The weight of evidence shows that Veteran’s service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience from September 13, 2011, to July 8, 2012. CONCLUSION OF LAW The criteria for TDIU from September 13, 2011, to July 8, 2012, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1979 to June 1985. The Veteran died in January 2018. The appellant is the Veteran’s surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) from August 2008 (TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009)) and September 2013 (service connection and increased rating for left tibia and fibula) rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the Veteran and the appellant testified at a Travel Board hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the electronic record. In a February 2016 decision, the Board granted TDIU effective July 9, 2012, and remanded the issue of entitlement to TDIU prior to July 9, 2012. Due to the death of the Veteran, the Board in March 2018 dismissed the issues of entitlement to service connection for bilateral knee disabilities, bilateral hip disabilities, and a left foot disability; an increased rating for residuals of a fractured tibia and fibula; and entitlement to TDIU prior to July 9, 2012. In March 2018, the RO granted the appellant’s request for substitution. In August 2018, the Board remanded the claims that were dismissed in the March 2018 decision for further development. As discussed below, the Board is granting TDIU effective from September 13, 2011, to July 8, 2012, the period that the Veteran was eligible for consideration under 38 C.F.R. § 4.16(a). The issue of entitlement to TDIU prior to September 13, 2011, remains pending and is being remanded. In its August 2018 remand, the Board indicated that it will consider whether the lower extremity disabilities are secondary to the service-connected lumbar spine and lower extremity disabilities. In June 2020 rating decision, a RO granted service connection for left knee and left foot disabilities. Pursuant to Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the Board will consider whether the bilateral hip and right knee disabilities are secondary to the now-service-connected left knee and left foot disabilities. 1. Entitlement to TDIU from September 13, 2011, to July 8, 2012 Governing law and regulations TDIU 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 without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose, disabilities affecting the same body system, e.g., neurologic, will considered one disability. 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for TDIU, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Analysis From September 13, 2011, to July 8, 2012, the Veteran was service-connected for a lumbar spine disability, bilateral radiculopathy of the lower extremities, a left knee disability, a bilateral foot disorder, a mood disorder, residuals of a fracture of the left tibia and fibula, and erectile dysfunction. From September 13, 2011, to July 8, 2012, the Veteran’s service-connected disabilities were rated 70 percent disabling with the bilateral radiculopathy of the lower extremities being rated 40 percent disabling. Thus, he has a single disability rated as 40 percent disabling (the compensable neurological disabilities) with combined rating of 70 percent for purposes of TDIU. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) from September 13, 2011, to July 8, 2012. The Board must now consider whether the evidence for the period from September 13, 2011, to July 8, 2012, reflects that the Veteran’s service-connected disabilities rendered him unemployable. In his formal TDIU claim dated in October 2014, the Veteran reported that he last worked full-time in April 1999 doing manual labor. He reported that he had a high school education with no additional education or training. The Veteran added that his service-connected disabilities made it difficult to walk, stand, and sit. In an April 2015 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, the Veteran’s last employer indicated that he was employed doing labor work from 1992 until 1999. A July 9, 2012, VA spine examination report reflects that the examiner noted that although the Veteran was not currently employed, his back condition would cause severe problems with limitations of his overall mobility and would adversely impact and/or preclude activities requiring significant manual labor, such as heavy lifting/bending/carrying, etc. The examiner indicated that the Veteran’s back condition would limit him to fairly sedentary activities. An August 2013 VA knee and lower leg conditions examination report reveals that the examiner indicated that the Veteran’s left knee and left lower leg disabilities impacted his ability to work in that it markedly limited his mobility, and limited walking/standing times. An August 2013 VA foot examination report shows that the examiner indicated that the Veteran’s service-connected bilateral foot disabilities impacted his ability to work in that it limited his mobility. An August 2013 male reproductive system examination report reflects that there was no functional impact from the erectile dysfunction. An August 2013 VA mental health examination report reveals that the examiner found an occupational and social impairment due to mild or transient symptoms that decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. In a submission dated in September 2014, the Veteran reported problems with sitting, standing, and walking for long periods of time due to his service-connected back disability with associated bilateral lower extremity radiculopathy. He also reported problems with sleep. Specifically, he noted that he only received about three hours of sleep a night due to the constant pain. A September 2015 VA spine examination report shows that the examiner noted that the Veteran had a very limited ability to lift and carry most objects and mobility restriction. The examiner found that the Veteran’s service-connected back disability impacted his ability to work. The examiner explained that the Veteran was best-suited for sedentary-type job tasks. Given the Veteran’s credible lay statements regarding the impact of his service-connected disabilities on his ability to work and the functional limitations described by the VA examiners, the Board finds that, for the period from September 13, 2011, to July 8, 2012, the Veteran’s service-connected disabilities prevented him from obtaining and maintaining gainful employment. Though the VA examination reports were dated after July 8, 2012, there were no VA examinations conducted during the period from September 13, 2011, to July 8, 2012. There is, however, no medical evidence indicating that the examination reports were not reflective of functional impairment during the period from September 13, 2011, to July 8, 2012. In that regard, the Board places great weight on the fact that the July 2012 VA back examination was conducted one day after the time period in question ended. The Board thus finds that this examination report is representative of impairment prior to July 9, 2012. The VA examination reports and lay statements reflect that the Veteran was significantly limited by his physical disabilities and also had some limitations from his mood disorder. The evidence shows that the pain from his orthopedic lower extremity disabilities and from the lumbar spine disability with associated neurological impairment to the bilateral lower extremities limited him from prolonged standing, walking, lifting/carrying, and sitting, and would have precluded him from the kind of employment he had previously in manual labor. Moreover, given the Veteran’s reports regarding his inability to perform sedentary tasks that would require him to sit or stand for prolonged periods, the evidence shows that it was unlikely the Veteran could have obtained an office or desk job with his service-connected disabilities. Ultimately, for the period from September 13, 2011, to July 8, 2012, the Board finds that the preponderance of the evidence establishes that the Veteran, given his occupational history and functional limitations, was unable to obtain or retain substantially gainful employment due to his service-connected disabilities. Accordingly, entitlement to TDIU from September 13, 2011, to July 8, 2012, is in order. REASONS FOR REMAND In its August 2018 remand, the Board directed the RO to obtain all records from the Bay Pines VA Medical Center from January 2008 to January 2018. The RO did not attempt to obtain any records from that facility. Therefore, the RO did not comply with the directives of the August 2018 remand. Stegall v. West, 11 Vet. App. 268 (1998). A new medical opinion is necessary to address whether the bilateral hip and right knee disabilities were caused or aggravated by the recently granted service-connected left knee and left foot disabilities. In the August 2018 remand, the Board directed the RO to obtain a medical opinion on whether the service-connected lumbar spine disability, bilateral radiculopathy, right foot disability, and residuals of a fracture of the let tibia and fibula caused the Veteran to become obese. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the United States Court of Appeals for Veterans Claims (the Court) held that the General Counsel Precedent Opinion 1-2017, not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310 (2020). Though the clinician addressed in April and August 2019 medical opinions whether obesity was caused by the service-connected disabilities, another opinion addressing aggravation must be obtained. As for whether obesity caused by the service-connected disabilities, the doctor noted that obesity is a disease of excessive calorie intake and that the service-connected disabilities did not cause an excess of calories to be consumed. Furthermore, the clinician noted in the August 2019 medical opinion that obesity is a complex chronic disease manifested by excessive caloric intake in proportion to expenditure of energy. In a December 2020 written brief presentation, the representative argued that the service-connected disabilities interfered with the Veteran’s ability to perform physical activities. Thus, another medical opinion addressing whether the service-connected disabilities caused a lack of exercise and that such inactivity resulted in obesity is warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the Bay Pines VA Medical Center for the period from January 2008 to January 2018 2. After the development in 1 is completed, the RO should arrange for the Veteran’s electronic claims file to be reviewed by the VA clinician who prepared the April and August 2019 medical opinions for the preparation of an addendum addressing the nature and etiology of the bilateral hip and right knee disabilities. If that clinician is unavailable, arrange for the claims file to be reviewed by another medical professional. The clinician must opine on whether it is at least as likely as not that a disorder in either hip was (1) caused by or (2) aggravated by the service-connected degenerative joint disease of the left knee or degenerative joint disease of the left foot with small calcaneal spur. If the clinician finds that a disorder in either hip was aggravated by the service-connected degenerative joint disease of the left knee or degenerative joint disease of the left foot with small calcaneal spur, then the medical professional should quantify the degree of aggravation. The clinician must opine on whether it is at least as likely as not that the right knee disability was (1) caused by or (2) aggravated by the service-connected degenerative joint disease of the left knee or degenerative joint disease of the left foot with small calcaneal spur. If the clinician finds that the right knee disability was aggravated by the service-connected degenerative joint disease of the left knee or degenerative joint disease of the left foot with small calcaneal spur, then the medical professional should quantify the degree of aggravation. The clinician must opine on whether it is at least as likely as not that the service-connected lumbar spine disability, bilateral radiculopathy of the lower extremities, degenerative joint disease of the left knee, degenerative joint disease of the left foot with small calcaneal spur, residuals of a fracture of the second metatarsal of the right foot, or residuals of a fracture of the left tibia and fibula caused the Veteran to become obese, to include as due to a lack of exercise resulted from those disabilities. If the clinician finds that the service-connected lumbar spine disability, bilateral radiculopathy of the lower extremities, degenerative joint disease of the left knee, degenerative joint disease of the left foot with small calcaneal spur, residuals of a fracture of the second metatarsal of the right foot, or residuals of a fracture of the left tibia and fibula caused the Veteran to become obese, to include as due to a lack of exercise resulted from those disabilities, the clinician should opine as to whether it is at least as likely as not that the obesity caused by any of these service-connected disabilities was a substantial factor in causing a disorder of either hip. If the clinician finds that the obesity caused by a service-connected disability was a substantial factor in causing a disorder of either hip, the clinician should opine as to whether it is at least as likely as not that the Veteran would not have had the hip disorder but for the obesity caused by a service-connected disability. If the clinician finds that the service-connected lumbar spine disability, bilateral radiculopathy of the lower extremities, degenerative joint disease of the left knee, degenerative joint disease of the left foot with small calcaneal spur, residuals of a fracture of the second metatarsal of the right foot, or residuals of a fracture of the left tibia and fibula caused the Veteran to become obese, to include as due to a lack of exercise resulted from those disabilities, the clinician should opine as to whether it is at least as likely as not that the obesity caused by any of these service-connected disabilities was a substantial factor in causing the right knee disability. If the examiner finds that the obesity caused by a service-connected disability was a substantial factor in causing the right knee disability, the clinician should opine as to whether it is at least as likely as not that the Veteran would not have had the right knee disability but for the obesity caused by a service-connected disability. The clinician must opine on whether it is at least as likely as not that the obesity was aggravated by the service-connected lumbar spine disability, bilateral radiculopathy of the lower extremities, degenerative joint disease of the left knee, degenerative joint disease of the left foot with small calcaneal spur, residuals of a fracture of the second metatarsal of the right foot, or residuals of a fracture of the left tibia and fibula, to include as due to a lack of exercise. If the clinician finds that the obesity was aggravated by a service-connected disability, to include as due to a lack of exercise, the clinician should opine as to whether it is at least as likely as not that the aggravation of the obesity by the service-connected disability, to include as due to a lack of exercise, was a substantial factor in causing a disorder of either hip. If the clinician finds that the aggravation of the obesity by a service-connected disability, to include as due to a lack of exercise, was a substantial factor in causing a disorder of either hip, the clinician should opine as to whether it is at least as likely as not that the Veteran would not have the hip disorder but for the obesity aggravated by the service-connected disability. If the clinician finds that the obesity was aggravated by a service-connected disability, to include as due to a lack of exercise, the clinician should opine as to whether it is at least as likely as not that the aggravation of the obesity by the service-connected disability, to include as due to a lack of exercise, was a substantial factor in causing the right knee disability. If the clinician finds that the aggravation of the obesity by a service-connected disability, to include as due to a lack of exercise, was a substantial factor in causing the right knee disability, the clinician should opine as to whether it is at least as likely as not that the Veteran would not have the right knee disability but for the obesity aggravated by the service-connected disability. 3. After the development in 1 is completed, if there is any additional evidence relevant to whether TDIU prior to September 13, 2011, is warranted, then the RO should again refer the claim for a TDIU to the Director, Compensation Service, in order to determine whether the Veteran warranted a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16 (b), prior to September 13, 2011, due to his service-connected disabilities. Factors to be considered are the Veteran’s education and employment history and loss of work-related functions. 4. Thereafter, the AOJ should readjudicate the appellant’s claims. If any claim remains denied, the appellant should be issued a supplemental statement of the case, with a copy to her representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.