Citation Nr: 21009678 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-18 848 DATE: February 23, 2021 ORDER From April 18, 2007 to April 17, 2008, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 20 percent for the service-connected low back pain syndrome with degenerative arthritis since May 31, 2008 is remanded. Entitlement to a rating in excess of 10 percent for right knee degenerative arthritis since November 3, 2016 is remanded. Entitlement to a rating in excess of 10 percent for right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus since November 3, 2016 is remanded. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee since November 3, 2016 is remanded. FINDING OF FACT From April 18, 2007 to April 17, 2008, the Veteran’s service-connected right knee, lumbar spine, and psychiatric disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW From April 18, 2007 to April 17, 2008, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.59, 3.340, 3.41, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1970 to September 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2009 rating decision. The Veteran testified in December 2015 at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. In a November 2020 letter from the Board, the Veteran was notified that the VLJ who conducted the December 2015 hearing was no longer employed by the Board and he was presented with an opportunity to request another hearing. In December 2020, the Board received the Veteran’s response stating that he did not want a new hearing. In May 2016 and February 2018, the Board remanded the issues for evidentiary development. The case has since been returned to the Board for appellate review. As previously noted by the Board in the February 2018 decision, while the Veteran’s electronic claims file reflects his March 2015 appointment of the Disabled American Veterans as his representative, the Veteran reported at the December 2015 hearing that he had dismissed that organization as his representative and that he was representing himself. The record does not show that he has since appointed a new representative. Additionally, in the February 2018 decision, the Board denied entitlement to increased ratings for the low back disability for the period prior to May 31, 2008, and for the bilateral knee disability for the period prior to November 3, 2016. Consequently, only the subsequent portion of the appeal periods for these increased rating claims remain on appeal. The Board notes that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) was previously remanded. An August 2020 rating decision awarded TDIU, effective from April 18, 2008 to August 10, 2018. However, the record reflects that the Veteran's claim for a TDIU was raised in conjunction with his increased rating claims for his right knee disabilities and lumbar spine disability. As the Veteran filed an increased rating claim for these already established disabilities on April 18, 2008, the appeal period begins one year prior to that date on April 18, 2007. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 3.400(o)(2). Accordingly, VA must consider whether entitlement to a TDIU should be awarded for the portion of the appeal period prior to April 18, 2008 as part and parcel of the Veteran's claimed for entitlement to higher ratings for these disabilities. Harper v. Wilkie, 30 Vet. App. 356 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue remains before the Board for this period. The record also reflects that the Veteran has been in receipt of a combined 100 percent disability rating effective from August 10, 2018. However, the presence of a 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). However, the Court has held that a separate TDIU rating must be predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability, separately rated at 60 percent or more, in order to warrant special monthly compensation under 38 U.S.C. § 1114(s). Id. However, the Veteran is already in receipt of SMC based on housebound criteria effective August 10, 2018. Consequently, the issue of entitlement to a TDIU is moot on and after this date. 1. Entitlement to a TDIU prior to April 18, 2008. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1555; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As noted above, the appeal period for the Veteran's TDIU claim begins on April 18, 2007. For this portion of the appeal period prior April 18, 2008, the Veteran has been in receipt of a 30 percent rating for major depressive disorder associated with degenerative arthritis of the right knee, a 20 percent rating for low back pain syndrome with degenerative arthritis associated with degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus of the right knee; a 10 percent rating for degenerative arthritis of the left knee; a 10 percent rating for degenerative arthritis of the posterior horns of the medial and anterior meniscus and lateral meniscus of the right knee, and a 10 percent rating for degenerative arthritis of the right knee. His combined disability rating was 60 percent. The Board notes that for the purpose of determining entitlement to TDIU based on a single disability, multiple disabilities resulting from a common etiology will be considered as one disability. 38 C.F.R. § 4.16(a). The record shows that the agency of original jurisdiction (AOJ) awarded a separate 10 percent evaluation for degenerative arthritis of the right knee as part of its evaluation of the Veteran’s already service-connected degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus of the right knee. See June 1999 Rating Decision and Rating Codesheet. The AOJ also granted entitlement to service connection for depression as secondary to the Veteran's service-connected degenerative arthritis of the right knee; and service connection for the Veteran's lumbar spine disability was granted as secondary to his service-connected degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus of the right knee. See 38 C.F.R. § 3.310; August 2006 rating decision. Therefore, these secondary disabilities as well as the Veteran’s primary right knee disabilities which share a common etiology are treated as one disability under 38 C.F.R. § 4.16(a). As the combined disability rating of these disabilities was 60 percent, the Veteran met the schedular requirements for a TDIU during this period. See 38 C.F.R. § 4.25; Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (concluding that 38 C.F.R. § 4.16(a) clearly requires aggregation based on the combined ratings table to determine whether multiple service-connected disabilities "considered as one disability" meet the 60 percent or 40 percent thresholds). A VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, submitted by the Veteran in April 2008, shows that he last worked fulltime in December 2003. The record also does not indicate that he had any form of employment during the appeal period. The Veteran indicated that the combined effect of his service-connected disabilities prevented him from securing or following any substantially gainful employment. The Veteran's recent work history included working in a clerical position for a human resources company from January 1990 to December 2002; and a in a housekeeping position from December 2002 to December 2003. The Veteran indicated that he left his last employment position as a result of his disability. The Veteran additionally reported that he had a high school education, and he had not received any education or training since he became too disabled to work. VA examinations from prior to, and soon after, the appeal period provide insight into the functional effects of the Veteran’s disabilities during this period. In February 2006, a VA examination related to the lumbar spine showed that the Veteran had low back pain that was chronic, sharp, and variable in its intensity. He also had flare ups preceded by sudden movements that were variable. The examiner stated that there was no additional range of motion or functional impairment beyond the pain. The examiner also opined that there was no occupational aggravation. Pain also increased with repetitive movements. Another February 2006 VA examination related to the knees noted that the Veteran had intermittent pain, stiffness, swelling, giving way, and locking of the bilateral knees. He also experienced flare ups caused by prolonged sitting, standing, and ambulation. The duration of these events was variable. The examiner opined that there was no additional range of motion or functional impairment beyond the pain. However, the Veteran was only able to ambulate with a straight cane up to 100 feet until he experienced pain. The examiner stated that the Veteran had been unemployed for 2 to 3 years, but there was no occupational aggravation. Range of motion testing showed painful motion with bilateral knees flexion. The right knee had over 90 degrees of flexion, and the left knee had over 120 degrees of flexion. Pain increased with repetitive movements, mostly on the right. Additional limitation factors included pain, weakness, and lack of endurance. These factors additionally limited joint function of the right knee by 10 degrees, but additional limitation of the left knee could not be determined with resorting to mere speculation. During a May 2006 VA examination, the Veteran reported that his knees gave out, swelled, tightened up with pain, and he was limited in his walking. He also had low back pain, and the pain was consistently on a level of 8 to 9 out of 10. The Veteran also had nightmares. He had not worked since 2004, and he reported being unable to work due to his legs, arms, hands, and back. He ambulated with a cane. His mental status examination revealed that he had poor concentration and attention. Although he reported having panic attacks, he had difficulty identifying how often they occurred. The examiner noted that he suffered from nightly insomnia. During a May 2008 VA examination related to the Veteran's lumbar spine disability, he reported that he had pain in his back as well as daily flare ups that the examiner indicated were preceded by walking. He was currently treating his symptoms with pain medication. The examiner noted that the Veteran was let go from his pervious employment performing maintenance work due to the severity of his depressive disorder and pain as well as symptoms of diabetes mellitus type II. The examiner indicated that the Veteran's knees had symptoms of pain, weakness, stiffness, and swelling. He continued to use a cane. He also had flare ups caused by weather. The examiner indicated that the pain was generally a 3 to 4 out of 10, but it could increase to an 8 to 9 out of 10 with walking. During a June 2008 VA examination related to the Veteran's psychiatric disability, the Veteran reported that he was too depressed to work and had no plans to work in the foreseeable future. In addressing the Veteran's present medical, occupational, and social history in the past year; the examiner noted the Veteran's report that he felt depressed most of the day, nearly every day. He reported that he obtained little joy out of most activities on a daily basis. He rarely slept for more than 2 hours a night, and he felt fatigued on a daily basis. The Veteran additionally described having difficulty making decisions and often being indecisive. He had recurring thoughts of death. The Veteran reported that he argued a great deal with his wife, and he had no close friends. The Veteran felt uncomfortable around others and tried to keep to himself. The examiner stated that he had a severe deficit in social as well as vocational functioning. He had not worked in many years and had no plans to return to work. The examiner explained that the Veteran would not return to work due to symptoms associated with major depressive disorder. The June 2008 VA examination indicated that the psychiatric symptoms supportive of the Veteran’s severe vocational impairment had been present in the year prior to the examination, and the fatigue associated with lack of sleep noted during the June 2008 VA examination is also consistent with the insomnia noted in the earlier May 2006 VA examination. The above examination reports also reflect that the functional impairment related to pain and flare ups from the Veteran’s service-connected lumbar spine and right knee disabilities further contributed to the Veteran’s inability to secure or follow substantially gainful employment. Although the Board has considered the February 2006 VA medical opinions that the right knee and lumbar spine disabilities did not cause occupational aggravation, the Veteran has indicated that the pain from these disabilities was a factor in the loss of his prior employment in maintenance. In addition, when the identified limitations associated with the right knee and lumbar spine disabilities are considered alongside the vocational impairment attributed the Veteran’s psychiatric disability, the weight of the evidence supports the conclusion that no form of employment would appear to be appropriate for the Veteran as a result of these symptoms. The Board has considered this evidence as well as the Veteran's education and work history in concluding that the Veteran would have been unable to function in any type of employment as a result of symptoms from his service-connected right knee, lumbar spine, and psychiatric disabilities during the appeal period. The Board also notes that the Veteran appeared able to perform certain aspects of daily living. However, the law recognizes that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity. See 38 C.F.R. § 4.10. In addition, a Veteran does not have to prove that he is 100 percent unemployable in order to establish an inability to secure or follow a substantially gainful occupation, as required for a TDIU award. See 38 C.F.R. § 3.340(a); Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Resolving all benefit of the doubt in the Veteran's favor, the Board finds that the combined functional limitations of Veteran's service-connected right knee, lumbar spine, and psychiatric disabilities rendered him unable to secure or follow a substantially gainful occupation from April 18, 2007. Thus, entitlement to a TDIU is warranted for the entire appeal period. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for the service-connected low back pain syndrome with degenerative arthritis since May 31, 2008 is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee degenerative arthritis since November 3, 2016 is remanded. 3. Entitlement to a rating in excess of 10 percent for right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus since November 3, 2016 is remanded. 4. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee since November 3, 2016 is remanded. In the February 2018 decision, the Board remanded the Veteran's increased rating claims for his lumbar spine and bilateral knee disabilities in part to obtain a VA examination that complied with Sharp v. Shulkin, 29 Vet. App. 26 (2017). In the examination instruction, the Board stated that the examiner should address any reported history of flare ups, to include the flare ups as reported during the November 2016 VA examination. The Board notes that examinations for both the lumbar spine and bilateral knee disabilities were conducted in November 2016. The Board further noted that the examiner should address the functional impairment associated with any reported flare ups, to include, if feasible, an estimate of any such additional functional impairment in terms of degrees of range of motion. The Board additionally instructed the VA examiner to provide a retrospective medical opinion regarding the nature and any functional limitation due to Veteran's lumbar spine disability after repetitive movement since May 31, 2008. In providing such an opinion, the examiner was directed to consider any relevant reports from the Veteran, as well as the results of the November 2012 VA examination. The Board noted that if any requested opinion could not be rendered without resorting to speculation, the examiner needed to state whether the need to speculate was caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record of the examiner, i.e., additional facts were required, or the examiner did not have the medical knowledge or training. VA examinations concerning the lumbar spine were subsequently obtained in August 2018 and September 2019, and addendum opinion was provided in April 2020. A VA examination concerning the bilateral knee disabilities was conducted in September 2019. In the September 2019 VA examinations, the Veteran reported having flare ups related to his lumbar spine and bilateral knee disabilities. In terms of the left and right knee disabilities, the examiner marked in the report that the examination was being conducted during a flare up. However, the examiner stated that he was unable to state without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare ups. Despite the examiner's earlier response, the examiner noted in the rationale that there were no flare ups at that time. The examiner separately estimated that the flare ups occurred 2 to 3 times a week and had a durations 15 minutes for both knees. In addressing range of motion during flare ups, however, the examiner only noted that there was no decrease in range of motion on repetition. The examiner added that there was no further clinical evidence of additional limitation with flare ups beyond this estimate/description. In addressing the lumbar spine, the examiner noted that the examination was not being conducted during a flare up and the examination was medically consistent with the Veteran's statements describing functional loss during flare ups. However, the examiner stated that he was unable to opine without resorting to mere speculation whether pain, weakness, and fatigability, or incoordination significantly limited functional ability with flare ups. The examiner noted in the rationale that there were no flare ups at that time. The examiner separately estimated that flare ups occurred 3 times a week for 5 minutes at a time. Similar to the knee examination, the examiner addressed range of motion by stating that there was no decrease in range of motion on repetition. The examiner also reported the finding that there was no further clinical evidence of additional limitation with flare ups beyond this estimate/description, and any further comments on flare ups or repetitive motion in so far as fatigue, lack of endurance, increased pain, change in range of motion, weakness, or incoordination, would be speculation. The examiner repeated this opinion in an April 2020 addendum. In addition to the inconsistent responses for the knee examination regarding whether the examination was being conducted during a flare up of either knee, the Board does not find that the examiner’s observation that there was no additional loss of motion on repetition is sufficient to address whether the Veteran has additional loss of range of motion with flare ups for his bilateral knee or lumbar spine disabilities. The examiner’s statement that any further estimate cannot be provided without speculation is also inadequate as it is not responsive to the Board’s instruction to provide an accompanying explanation as to whether the need to speculate was caused by a deficiency in the state of general medical knowledge, the need for additional facts, or the examiner’s lack of medical knowledge or training. In addition, the examiner did not provide a retrospective opinion related to the lumbar spine disability as instructed by the Board’s February 2018 remand. Although the examiners who completed the August 2018 and September VA examinations related to the lumbar spine discussed the medical history that was noted in the November 2016 VA examination, neither examiner addressed the November 2012 VA examination as instructed by the remand or otherwise provided a clear opinion regarding the nature of any functional limitation after repetitive movement since May 31, 2008. This deficiency was not remedied by the subsequent April 2020 addendum opinion in which the examiner repeated the same opinion. It is unclear whether the September 2019 VA examiner's finding that there was no additional loss of motion with repetition only contemplated the September 2019 examination findings or extended to the period dating from May 31, 2008. Based on the foregoing, additional VA examinations related to the Veteran’s lumbar spine and bilateral knee disabilities that comply with the Board's prior remand instructions should be obtained on remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Given the potentially overlapping right knee symptoms, the issues of entitlement to higher ratings for right knee degenerative arthritis and right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus will be collectively remanded for further evidentiary development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his bilateral knee and lumbar spine disabilities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include any treatment records dated since August 2020. 2. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his service-connected low back pain syndrome with degenerative arthritis, degenerative arthritis of the left knee, degenerative arthritis of the right knee, and right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected disabilities. Perform all necessary tests to determine the current nature and severity of the spine and knee disorders. In evaluating the Veteran, the examiner should report complete range of motion findings. The examiner should indicate whether pain or weakness significantly limits functional ability during flare-ups or when the joints are used repeatedly over a period of time. The examiner should address whether the joints exhibit weakened movement, excess fatigability or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss due to any weakened movement, excess fatigability or incoordination. The examiner must specifically address any reported history of flare-ups, to include as reported during the November 2016 VA examination, August 2018 VA examination, and September 2019 VA examinations. If the Veteran reports flare ups or the record reveals flare-ups of knee or lumbar spine symptoms, the examiner must expressly address the severity, frequency and duration; name the precipitating and alleviating factors and estimate "per the veteran" the extent to which they affect functional impairment. If feasible, an estimate of any such additional functional impairment should be expressed in terms of degrees of range of motion. The examiner is to specifically test the range of active, passive, weight-bearing and nonweight-bearing motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not possible in this case, he or she should clearly explain why that is so. The examiner must specifically provide a retrospective opinion, addressing the nature of any functional limitation due to a low back pain syndrome with degenerative arthritis after repetitive movement since May 31, 2008. In connection with the foregoing, the examiner should consider any relevant reports of the Veteran, as well as the results of the November 2012 examination. The examiner should attempt to estimate the additional limitation of motion after repetitive movement of the lumbar spine. If feasible, such estimate should be expressed in terms of degrees of range of motion loss. The examiner must specifically describe any and all functional impairment due to a low back pain syndrome, degenerative arthritis of the knees, and right knee degenerative tears of the posterior horns of the medial and anterior meniscus and lateral meniscus. A complete rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. (Continued on the next page)   3. Thereafter readjudicate the issues on appeal. K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Erin J. Trojanowski, 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.