Citation Nr: 21011128 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-28 669 DATE: March 1, 2021 ORDER From September 30, 2020, a total disability individual unemployability (TDIU) rating is granted. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to an initial rating in excess of 10 percent status post meniscus surgery, right knee is remanded. Entitlement to an initial compensable rating for right knee instability prior to February 10, 2020 and in excess of 10 percent thereafter is remanded. Entitlement to a TDIU rating for the period prior to September 30, 2020 is remanded. FINDINGS OF FACT For the period from September 30, 2020, the Veteran’s service-connected disabilities are shown to render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW For the period from September 30, 2020, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to November 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The transcript of that hearing is of record. This matter was remanded in August 2019 for further development. While pending return to the Board the RO issued a September 2020 rating decision granting service connection for the claims for a low back disability, sinusitis, rhinitis, and respiratory disorder. The Board considers this to be a full grant of the benefits sough on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Within the 2020 rating decision, the RO also granted a separate 10 percent rating for right knee instability. The Veteran has continued his appeal. AB v. Brown, 6 Vet. App. 35 (1993). TDIU Under certain circumstances, a claim for an increased rating for a service-connected disability includes a claim of entitlement to a total disability rating based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). VA examinations reflect the Veteran’s right knee disability impairs his employability. The issue of TDIU is thereby considered raised by the record and is considered part and parcel to the claim for initial increased rating for the right knee. The period on appeal will be from the date of service-connection for the right knee, September 23, 2013, forward. A total rating for compensation 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 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. § 4.16 (a). 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 (a). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). From September 23, 2013 Veteran is in receipt of a 50 percent rating for sleep apnea with COPD, individual 10 percent ratings for tinnitus, lumbar strain, and right knee status post meniscal surgery, a 20 percent rating for diabetes, and individual noncompensable ratings for right knee scar, sinusitis, rhinitis, and bilateral hearing loss. From February 10, 2020, the Veteran’s disabilities were increased to 60 percent for sleep apnea with COPD, 30 percent for sinusitis, 10 percent for rhinitis, and 20 percent for lumbar strain. He also received a separate 10 percent rating for right knee instability. From September 30, 2020, the Veteran received individual 10 percent ratings for bilateral lower extremity diabetic peripheral neuropathy of the sciatic and femoral nerves and a noncompensable rating for erectile dysfunction. The Veteran met the schedular requirements for TDIU throughout the appeal. 38 C.F.R. §§ 4.16. After reviewing pertinent evidence of record, the Board finds that the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation from September 30, 2020 forward. The period prior to September 30, 2020 is discussed in the remand. A “combined-effects medical examination report or opinion” is not required to adjudicate a TDIU claim. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). The ultimate responsibility for a TDIU determination is a factual rather than a medical question and, as such, is an adjudicative determination properly made by the Board or the RO. Geib, 733 F.3d at 1354. That said, Social Security Administration (SSA) records reflect the Veteran last worked in 2012. Current private treatment records also confirm the Veteran, as of 2020, remains retired. SSA application records document that since service separation in 1989 the Veteran’s only form of employment was as a firefighter. His highest level of education was high school. As to lay assertions of TDIU, while seeking SSA benefits the Veteran reported retiring, in part, as a result of his service-connected COPD impairments. On Board hearing, the Veteran essentially echoed that his breathing impairments precluded him from performing at the same level as his former colleagues. He similarly testified that his various orthopedic disabilities, to include his back and knees, limited his ability to work. Following consideration of the record, the Board finds that the combined impact of the Veteran’s disabilities precludes obtaining and maintaining substantially gainful employment. February 2020 VA examinations of the spine, knee, neurological, and respiratory systems confirm that the Veteran is precluded from engaging in any physically demanding form of employment. As such, he would be precluded from engaging in his former work as a firefighter which is the only field in which he has subject matter expertise. Service personnel records document that even the Veteran’s military specialty occupations throughout his decades of service revolved around preventing fires. What remains is ascertaining whether the Veteran is precluded from engaging in all other forms of employment. The combined findings of the February 2020 VA examinations revealed spine/knee disabilities resulting in pain throughout range of motion testing. His disabilities were also found to cause instability and to preclude bending at the waist, squatting or kneeling, and/or standing or walking for protracted periods. The above knee/spine findings suggest that the Veteran’s general mobility is so limited that he would likely require employment that allows him to be constantly seated. From September 30, 2020, such limitations are only magnified by the Veteran’s bilateral neuropathy in his lower extremities which further limits his mobility, stability, and overall sensation; likely making employment requiring movement a hazard. A February 2021 Disability Benefits Questionnaire, which was submitted by the Veteran, includes significant findings as to how the Veteran’s now service connected peripheral neuropathy of the lower impacts his ability to move and maintain balance. Beyond the Veteran’s mobility and stability problems are the impairments associated with his respiration, sinus, and hearing disabilities which the Board finds would also severely impact his ability to successfully maintain employment. To that end, a February 2020 sinus examiner opined that the Veteran suffers from regular “severe episodes” associated with his sinusitis. His episodes “are characterized by headaches, pain, and purulent discharge.” He also suffers from daily drainage issues which, per the examiner, are a distraction to his ability to function. In addition, a February 2020 VA sleep apnea examiner confirmed that even with the use of a CPAP machine the Veteran suffers from residual daytime sleepiness. Finally, the Veteran has also, on July 2014 VA examination, reported a decreased hearing acuity associated with his hearing loss and tinnitus that impairs his comprehension of spoken words. Given the above, the Board finds it highly unlikely that the Veteran would be able to obtain or maintain substantially gainful employment. The Veteran is precluded from all forms of employment that are physically demanding. As a result, he cannot engage in his former employment as a firefighter or employment reliant on labor. He also, as a result of his combined musculoskeletal and nerve disability picture, is highly likely to be precluded from engaging in any employment which cannot be in a conducted in a constantly seated position. What remains is sedentary employment. The Board finds it highly unlikely that given the Veteran’s limited educational history and limited employment experience only in firefighting he would be able to obtain substantially gainful employment generally. The likelihood of his obtaining and maintaining such employment is even further decreased by his frequent “severe episodes” which include distracting headaches and pain. The impact of these impairments is only further worsened by his persistent sleepiness and hearing impairments which would likely greatly limit his ability to concentrate on newly learned materials. Finally, paired with the above, the Veteran essentially deals with constant pain/decreased sensation throughout his body as a result of his musculoskeletal, nerve, and sinus conditions, all of which would likely further diminish is ability to concentrate. Resolving all doubt in the Veteran’s favor and finds that his service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation consistent with his education and work history for the entire appeal period. Thus, a TDIU is warranted as of September 30, 2020. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for GERD. The Veteran asserts that his service-connected diabetes and the medication used to treat the condition either caused or aggravated his GERD. In February 2020, a VA examiner opined that the Veteran’s service-connected diabetes/medication caused him to be obese. The examiner then opined that obesity can contribute to GERD. However, the examiner explained that in the instant case the record lacked sufficient objective evidence to ascertain whether such aggravation/causation occurred. A remand is required. First, the examiner’s findings do not appear to sufficiently address the holding of Walsh v. Wilkie. 32 Vet. App. 300 (2020). In Walsh, the Court held, that the Board needs to consider the obesity-intermediate step theorem predicated on aggravation where appropriate. Here such consideration is appropriate as the VA examiner’s opinion raised the issue. See Garner v. Tran, No. 18-5865, 2021 U.S. App. Vet. Claims LEXIS 81 (Vet. App. Jan. 26, 2021). As Walsh is applicable the examiner should have considered both proximate causation and aggravation by indicating: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran’s obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. Such is required as answering these questions in the affirmative allows for a current disability to be service connected on a secondary basis. Walsh, 32 Vet. App. 300 (2020). The lack of this complete discussion requires remand pursuant to the provisions of Walsh. Second, the examiner’s opinion essentially constitutes a finding that a correlation between the Veteran’s diabetes induced obesity and his GERD cannot be provided without resorting to mere speculation. When an examiner determines that an opinion cannot be provided without resorting to mere speculation, an examiner must explain why it is not feasible to provide a medical opinion, stating what, if any, additional evidence would permit such an opinion to be made. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). An examiner should also indicate whether they have exhausted the limits of current medical knowledge in providing an answer to that particular question(s). In the instant case, the examiner appears to state that the record lacks necessary objective evidence to determine whether the Veteran’s GERD and obesity are interrelated. That said, the opinion requires clarification as the examiner did not specify what objective evidence is necessary to ascertain whether the Veteran’s GERD and obesity are etiologically related. In addition, the examiner’s opinion is also unclear whether determining the relationship between GERD and obesity generally is even possible or if it is beyond the limitations of current medical knowledge. As a result of the above, a remand for clarifying opinion is warranted. Finally, additional potentially relevant treatment medical records were associated with the claims file following the VA opinion. These records should be considered on remand. 3. Entitlement to an initial rating in excess of 10 percent for right knee status post meniscus surgery. 4. Entitlement to an initial compensable rating for right knee instability prior to February 10, 2020 and in excess of 10 percent thereafter. A remand is required. The Veteran was afforded a February 2020 VA examination and an September 2020 addendum opinion. Both examiners confirmed right knee pain limited the Veteran’s functional ability and range of motion during flare-ups. However, both examiners found the record insufficient to provide an estimation as to the degree of loss of range of motion during flare ups. In relevant part, both examiners indicated that the Veteran’s self-reports on 2020 in-person examination were insufficient to make such a determination. The Veteran reported his flares ups in terms of loss of mobility, e.g. an inability to walk great distances, crouch, or kneel, rather than in terms of loss of range of motion, therefore they could not render an opinion. However, the examination report is negative for an indication that the examiner attempted to elicit information from the Veteran regarding additional loss of range of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Attempting to elicit such relevant information is required. Id. As result, the examination is inadequate. Additionally, the Veteran has recently received a separate rating for instability. Although the 2020 VA examiner determined that the Veteran suffered from slight instability, no basis was provided for this finding. The examination report is also negative for the Veteran’s description of his instability. Moreover, the record is silent for an indication that the examiner elicited information from the Veteran as to the severity of his instability, its frequency, or its durations during flares. Such failures also render the examination inadequate. Id. Finally, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the Evaluation of musculoskeletal disabilities.” Id. Importantly, diagnostic code 5257, pertaining to instability, was amended. In relevant part, DC 5257 now requires a Veteran be prescribed the use of assistive devices, to include a brace, in order to receive a rating in excess of 10 percent. In the instant case, the record including VA examination confirms the Veteran uses a right knee brace, but there is no indication whether it was prescribed by a medical provider. This must be clarified on remand. Given the aforementioned, a remand is warranted. While on remand, the RO must confirm that all VA and private treatment records, for the entire appeal period, are associated with the claims file. 5. Entitlement to a TDIU prior to September 30, 2020. Although the Veteran meets the schedular criteria for a TDIU prior to September 30, 2020, there are remaining questions as to whether his service-connected disabilities at that time precluded employment. In order to ascertain the Veteran’s true disability picture for the period prior to September 30, 2020, the Board finds that a remand for VA retrospective examination opinion is necessary. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Such a remand is also appropriate as the Veteran’s right knee disability is still pending an examination and retrospective opinion as to its severity throughout the period on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991). While on remand, the Veteran should also be afforded adequate notice of the criteria necessary to substantiate his claim for TDIU. The matters are REMANDED for the following action: 1. Obtain all outstanding private and VA treatment records from the Veteran. 2. Provide the Veteran with notice of the requirements to substantiate a claim for TDIU, including a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. 3. Request addendum opinions from the VA examiner who performed the February 2020 VA addendum. If that examiner is not available, request an addendum opinion from a qualified medical professional, who must state that she/he has undertaken a complete and thorough review of the Veteran's claims folder. The VA examiner should furnish an opinion with respect to the following questions: (a.) whether the Veteran's service-connected diabetes (1) caused the Veteran to become obese or (2) aggravated the Veteran’s obesity? Both causation and aggravation must be addressed. (b.) if so, whether the obesity or aggravation of obesity was a substantial factor in causing the current GERD? (c.) whether the Veteran’s GERD disabilities would not have occurred but for obesity caused or obesity aggravated by the service-connected diabetes disability? (d.) The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. (e.) Note, In February 2020, a VA examiner opined that the Veteran’s service-connected diabetes/medication caused him to be obese. The examiner then opined that obesity can contribute to GERD. However, the examiner opined that in the instant case the record lacked sufficient objective evidence to ascertain whether such aggravation/causation occurred. The examiner’s opinion essentially constitutes a finding that a correlation between the Veteran’s diabetes induced obesity and his GERD cannot be provided without resorting to mere speculation. The opinion requires clarification as the examiner did not specify what objective evidence is necessary to ascertain whether the Veteran’s GERD and obesity are etiologically related. In addition, the examiner’s opinion is also unclear whether determining the relationship between GERD and obesity generally is even possible or if it is beyond the limitations of current medical knowledge. The above must be addressed. (f.) Post examination, additional potentially relevant treatment medical records were associated with the claims file. The examiner must consider this evidence, and any other treatment records, and indicate whether it contains the kind of objective evidence which would support an etiological relationship between the claimed GERD and the Veteran’s service-connected diabetes and noted obesity. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of his right knee disability during the appeal period. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (a.) Test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Retrospectively, indicate whether the lay and/or medical evidence indicates that the range of motion has been worse or better at any other time during this appeal and, if so, explain. (b.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss, to include in terms of range of motion, during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Retrospectively, indicate whether the lay and/or medical evidence indicates that the Veteran had flare-ups resulting in additional functional loss different from the current findings and, if so, both explain and provide an estimate of the additional functional loss in range of motion (if possible) and its duration. (c.) Clearly identify all limitations or functional impairment caused solely by his service-connected right knee disability during the appeal period. (d.) Clearly elicit from the Veteran the extent of his instability and the functional impairment associated with said instability. Note the previous 2020 examiner indicated the Veteran suffered from slight instability but provided no rationale for the determination and did not elicit information from the Veteran regarding the onset of the condition or manifestation during flare ups, with repeated use over time, or with general mobility. This information must be obtained. (e.) Clearly identify all assistive devices used by the Veteran throughout the appeal and ascertain from the Veteran whether such devices, to include his knee brace, were prescribed by a treating physician. (f.) Comment upon whether the Veteran has suffered from the below, or symptomatology/disability equivalent to the below: Recurrent subluxation or instability: (*) Unrepaired or failed repair of complete ligament tear causing persistent instability (*) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (*) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation (*) Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation Patellar instability: (*) A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker (*) A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker (*) A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker (*) Note, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. (*) Note, A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 5. Provide the Veteran’s claims file to an appropriate clinician to provide a retrospective opinion regarding the impact of the Veteran’s service-connected disabilities on his ability to work for the period from September 23, 2013 to September 30, 2020. An in-person examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. (a.) Based on a review of the claims file, the examiner must provide a functional assessment of the Veteran’s service-connected disabilities and the occupational limitations associated with these conditions, without consideration or any mention of his age or non-service-connected disabilities. (b.) A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. (c.) Note, the lack of a compensable rating is not a sufficient basis for opining that a disability does not have functional impairment. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.