Citation Nr: 21010221 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 10-13 994A DATE: February 24, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a disability manifested by bilateral foot pain, other than the already service-connected fungal infections, is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT The Veteran remains employed during the pendency of this appeal, and the evidence does not reflect that his employment is marginal in nature. The evidence does not show that the Veteran is rendered unable to secure and follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria to establish entitlement to a TDIU rating are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1984 to August 2004. He appeared before the undersigned Veterans Law Judge in a videoconference hearing in July 2016 to present testimony on the service connection issues on appeal. This appeal was last before the Board of Veterans’ Appeals (Board) in February 2018 at which time additional evidentiary development was requested to comply with due process requirements. Specifically, the medical opinions of record were insufficient, and the appeal was remanded to obtain adequate medical evidence in support of the Veteran’s claims. Unfortunately, the evidentiary record still has not been adequately developed in substantial compliance with all prior Board remand instructions and an additional remand is necessary to adjudicate the service connection determinations needed. Stegall v. West, 11 Vet. App. 268 (1998). Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. Previously, the February 2018 remand noted that any decision with respect to the service connection claims could affect the Veteran’s claim for a TDIU rating and as such found that they must be remanded together. Upon further review, the Board does not find that the service connection claims and a TDIU claim are inextricably intertwined here given the facts of this case. See Parker v. Brown, 7 Vet. App. 116, 119 (1994) (two issues are “inextricably intertwined” when they are so closely tied together that one could not be adjudicated without reference to the other). Here, the question before the Board with regard to the TDIU claim is not a matter of which disabilities may render the Veteran unable to secure and follow substantially gainful employment because the evidence unequivocally shows that the Veteran maintains current employment. As such, the TDIU claim is not inextricably intertwined, and may be adjudicated separately from the service connection claims herein. Also, the Board’s February 2018 remand returned the TDIU issue to the agency of original jurisdiction (AOJ) only on the basis that it was inextricably intertwined. No further development specific to the TDIU claim was requested. As such, the Board proceeds with a decision on the TDIU matter at this time. A TDIU rating is denied. A total rating based on individual unemployability may be granted where a Veteran is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16; see also 38 C.F.R. §§ 3.340(a), 3.341(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). In determining whether the Veteran can obtain and maintain substantially gainful employment, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) listed some factors the Board may consider to guide its determination. In Ray, the Court held that the phrase “unable to secure and follow a substantially gainful occupation” has both an economic and a noneconomic component. Ray, 31 Vet. App. at 73. The Court further held that “[i]n determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to”: (1) The veteran’s history, education, skill, and training; (2) Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) Whether the veteran has the mental ability to perform the activities required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Additionally, the Court held that, “By discussing [the] potentially relevant factors, we don’t create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it.” Id. at 62. In this case, the preponderance of the evidence reflects that the Veteran has the physical and mental abilities to secure and follow a substantially gainful occupation because he has continued to do so throughout the period on appeal. He retired from the Navy in August 2004 where he served as a drug and alcohol counselor. He provided testimony in July 2016 that he no longer worked “in engineering” as he once had during service, which he could no longer do because of his mental and physical conditions, but he reported continuing to work despite the career change. Board hearing transcript, July 2016. The September 2016 remand found a claim seeking TDIU to be raised by the record based on the Veteran’s testimony, but upon further review and with additional evidence since received, it does not appear that the Veteran was presenting any evidence of his unemployability in his July 2016 testimony, but stating the reason that he had transitioned from one career path to another during his naval service. Nonetheless, the Veteran was afforded the opportunity to present evidence that he was unable to secure and follow a substantially gainful occupation because of service-connected disabilities if he believed he qualified for such a benefit. He was sent a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability along with a January 2017 notice letter. The Veteran did not respond by submitting that application or any other evidence that he was unemployable. Instead, VA treatment records from September 2018 confirm that during service the Veteran had previously been an engineer machining parts for ships and welding, but “re-trained” as a substance abuse counselor due to the impairment presented by his knee disabilities. He has reported working as a substance abuse counselor since June 2006. See, e.g., VA treatment records, September 2018, July 2018, June 2017, March 2010, October 2008. As recently as August 2020, the record reflects the Veteran’s continued employment. VA treatment records reflect that the Veteran sought a medical note from his primary care provider for his employer to allow continued telework accomodation due to COVID-19. This accomodation was requested not because of any functional impairments resulting from his disabilities, but because having chronic medical conditions placed the Veteran at greater risk from a possible COVID-19 infection. VA treatment record, August 2020. The Veteran did not assert that he was unable to work due to his impairments, but wished to work from a different venue to accommodate his risk factors. In any event, the record confirms the Veteran’s continued employment over the course of the present appeal. In sum, at no time has the Veteran presented evidence that he was unable to secure or follow a substantially gainful occupation. There is no indication that his employment during the pendency of this appeal has been marginal employment, such as in a family business or protected work environment. Instead, the Veteran appears to have training, skills, and experience in a professional field as a currently employed substance abuse counselor and remains able to follow a substantially gainful occupation. As a result, there is no basis upon which the claim seeking entitlement to a TDIU rating may be granted. The appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a disability manifested by bilateral foot pain is remanded. 3. Entitlement to service connection for obstructive sleep apnea is remanded. The Board cannot make a fully-informed decision on these issues of service connection because the medical opinions obtained to date are incomplete. No VA examiner has opined whether the Veteran’s observed lumbar spine arthritic changes, as well as the diagnosed disc bulges, are attributable to the Veteran’s in-service complaints of back pain or are caused or aggravated by other service-connected disabilities. The examiner addressing the Veteran’s sleep apnea did not adequately address the Veteran’s competent and credible lay evidence of daytime sleepiness during service, as well as snoring and gasping during sleep as reported to him by others. Finally, the examinations of record regarding the Veteran’s bilateral foot claim do not adequately address the Veteran’s diagnosed pes planus, right 5th toe status post exostosis, and degenerative changes at the first metatarsophalangeal joint identified on x-ray in August 2019, as well as the assertion that his foot pain is due to pronation from genu varum of the knees. With regard to the Veteran’s claim of service connection for a bilateral foot disability, the Board notes that service connection is already in effect for fungal infections of the feet, and impairment from that disability is excluded from consideration here as it would result in impermissible pyramiding. The Board also acknowledges that service connection for the Veteran’s right foot fifth digit exostosis (post-operative hammer toe correction) was previously adjudicated by the AOJ in a June 2010 rating decision that was not appealed. However, because testimony was taken to include the right foot exostosis condition during the Veteran’s July 2016 hearing before the Board, and this impairment was explicitly included as a part of the claimed bilateral foot disability in prior remands occurring in September 2016 and February 2018, it is considered as a part of the present appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Thus, the bilateral foot claim is framed as above. Additional medical evidence is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding whether the Veteran’s lumbar spine degenerative or arthritic changes, as well as the identified disc bulging, is at least as likely as not related to the Veteran’s reported back pain during service, or is proximately due to service-connected disability, or is aggravated beyond its natural progression by service-connected disability. 2. Obtain an addendum opinion, from a different provider than the one offering the September 2020 opinion and October 2020 addendum if possible, regarding whether the Veteran’s obstructive sleep apnea is at least as likely as not related to the Veteran’s reported daytime sleepiness during service or his reports of being told by others that he snored and gasped during sleep. The examiner is reminded that the Veteran is competent to describe his observable symptoms, and the Board finds no reason to doubt the veracity of his reports of daytime sleepiness during service, or that others have told him he has snored and/or gasped in his sleep. The examiner should accept this reported history as true for the purpose of providing the requested opinion. 3. Obtain an addendum opinion regarding whether the Veteran’s pes planus, right 5th toe status post exostosis, or degenerative changes identified on x-ray in August 2019, are at least as likely as not related to the Veteran’s reported sore arches or foot pain experienced during service, the result of the Veteran’s wearing of military boots during service, or is proximately due to service-connected disability, or is aggravated beyond its natural progression by service-connected disability. In this regard, the examiner is specifically asked to comment on the July and September 2017 VA podiatry findings that the Veteran’s foot pain may be due to pronation resulting from genu varum of the knees. As such, is any current disability manifested by bilateral foot pain caused or aggravated by the Veteran’s service-connected knee disability; why or why not? For the sake of clarity, the Board also notes that prior examiners have differed in their opinions as to whether the Veteran’s currently diagnosed pes planus pre-existed his military service. However, as the condition is not noted on his service entry examination, the Board finds that as the record stands, there is not clear and unmistakable evidence that the pes planus disability preexisted service. The Veteran’s feet should therefore be presumed to be in sound condition at the time of his entry into service for the purposes of the opinion requested here. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, 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.