Citation Nr: 21006860 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-57 462 DATE: February 5, 2021 REMANDED Entitlement to total disability due to individual employability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 16, 1960 to December 9, 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In February 2019, the Board denied the Veteran’s claim for TDIU. The Veteran appealed the February 2019 decision to the U.S. Court of Appeals of Veterans Claims (CAVC). In May 2020, the Court issued an order vacating the February 2019 decision that denied TDIU and remanded that issue for readjudication consistent with the instructions outlined in a May 2020 Joint Motion for Remand (JMR) submitted by both parties. 1. Entitlement to total disability due to individual employability (TDIU) is remanded. In the May 2020 JMR, CAVC found that the Board erred by: (a) relying on a February 2016 VA examination report evaluating the Veteran’s right knee disability because it was inadequate; (b) failing to provide an adequate statement of reasons or bases in denying TDIU for several reasons including (1) not properly addressing the Veteran’s limitations due to his service-connected PTSD and (2) not addressing whether the Veteran’s employment while working for his wife constituted marginal employment; and (c) failed to consider and account for any limitations resulting from the Veteran’s service connected hearing loss and tinnitus in its TDIU analysis. In regard to relying on the February 2016 VA examination, CAVC found that the 2016 examination report was inadequate in light of the holdings in Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011), and Sharp v. Shulkin, (29 Vet. App. 26, 33 (2017). The examiner noted the Veteran had flare ups, but found it was not possible, without resort to mere speculation, to estimate either loss of range of motion or loss of functionality due to pain during flare ups because there was no conceptual or empirical basis for making such a determination without directly observing function under these circumstances. In making this statement, the 2016 VA examiner did not indicate whether further testing or additional information would be helpful in addressing the Veteran’s functional loss after repetitive use or during flare ups. CAVC indicated that the VA examiner’s opinion reflects a “general aversion to offering an opinion on issues not directly observed” rather than a limitation encountered despite consideration of all procurable and assembled data. Sharp, 29 Vet. App. at 33. Accordingly, CAVC directed the Board to provide the Veteran with an adequate VA examination of his service-connected right knee disability consistent with the holdings in Mitchell and Sharp. Additionally, CAVC found that the Board erred in its evaluation of the combined effects of the Veteran’s other service-connected disabilities, including his right knee disability, PTSD, hearing loss, and tinnitus, on his ability to perform substantial gainful employment. His combined evaluation is 80 percent. However, there is no medical opinion addressing the combined effects of his service-connected disabilities. Therefore, the Board finds that a VA examination and medical opinion is needed on the combined effects. In sum, to comply with the May 2020 CAVC JMR, the Board must remand to obtain an adequate VA examination consistent with the above regarding the Veteran’s right knee disability, and a further VA examination and/or opinion regarding the combined effects of his impairments. The matters are REMANDED for the following action: 1. The AOJ Schedule the Veteran for a VA examination for his right knee disability in compliance with Mitchell and Sharp. The examiner must review the claims file. Any indicated evaluations, studies, and tests should be conducted, and evaluations should be performed, including instability and range of motion testing. To the extent possible, the examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for the left shoulder and its opposite joint, the right shoulder. The examiner should also indicate whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in additional functional loss. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also address (1) whether there is additional functional loss during flare-ups and after repetitive use as a result of pain and (2) at what point during range of motion the pain results in functional loss during flare-ups and after repetitive motion; or explain why such a calculation is not feasible. If the Veteran denies having flare-ups during the examination, the examiner should request the Veteran attempt to quantify the functional impairment caused by the flare-ups he reported having previously, if possible. The examiner is reminded that the primary reason that the February 2016 VA examination was inadequate is that the examiner failed to attempt to quantify any functional loss during flare-ups in terms of additional degrees of limitation of motion or explain why such a calculation was not feasible. Simply stating that the Veteran was not examined during a flare up is not sufficient explanation. The examiner’s report must contain either an estimated loss of range of motion, in degrees, caused by flare ups, or a detailed explanation of why information obtained from the Veteran about the effects of flare-ups were not sufficient to allow this calculation. All opinions expressed should be accompanied by supporting rationale. 2. Additionally, the AOJ should schedule the Veteran for a VA examination to determine the combined effects of his service-connected disabilities and any resulting impairment. The examiner should address how the Veteran’s service-connected disabilities alone result in functional impairment and comment on the Veteran’s ability to function in an occupational environment. If possible, he or she should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. A written copy of the report should be associated with the electronic claims folder. 3. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.