Citation Nr: 21012918 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 13-28 329A DATE: March 5, 2021 ORDER Service connection for polyarthralgia is granted. A total disability rating based on individual unemployability (TDIU) is granted as of March 24, 2017. REMANDED The issue of a TDIU prior to March 24, 2017, is remanded. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether current polyarthralgia had its onset during or is otherwise related to the Veteran’s period of active service. 2. The competent and probative evidence is at least in equipoise as to whether the impairment caused by the Veteran’s service-connected disabilities precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for polyarthralgia are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a TDIU as of March 24, 2017, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1999 to December 1999, November 2001 to May 2002, and June 2008 to May 2009. This case is before the Board of Veterans’ Appeals (Board) on appeal from December 2012 and September 2019 rating decisions from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In April 2016, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. The Board remanded this case for further development in December 2016 and April 2020. As the requested development has been completed, no other action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of service connection for a right elbow disability has not been certified for Board review; therefore, the Board cannot yet adjudicate that issue and cannot refer the matter back to the AOJ. See 01/11/2012, Form 9. Service Connection 1. Polyarthralgia. The Veteran contends his joint pain started in Iraq with joint pain in the fingers, hands, shoulders, and knees. 04/05/2016, Hearing Testimony. The Veteran’s representative notes the Veteran’s polyarthralgia affects his hands, feet, and thorax. 03/09/2020, Appellate Brief. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may alternatively be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310. The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The record demonstrates that the criteria for service connection for polyarthralgia is warranted. The record contains a competent diagnosis of polyarthralgia as of August 2009, which is currently stable and treated with tramadol as needed. 07/26/2019, CAPRI. Competent evidence of a current disability is accordingly found. Service treatment records contain complaints of joint pain. Service treatment records from July 2008, November 2008, and March 2009 all contain joint pain complaints, at times explicitly including the back. 06/04/2012, STR–Dental; 01/22/2010, STR. The Veteran applied for service connection for a joint condition in August 2009. 08/20/2009, VCAA/DTA Letter. An August 2009 VA examiner found no evidence of a spine abnormality. 08/27/2009, VA Examination. VA treatment records reflect ongoing treatment for polyarthralgia. A December 2009 VA treatment note states the Veteran does not have a specific history of joint swelling or other inflammatory articular findings. A March 2010 VA physician noted the Veteran’s chronic polyarthralgia was without any evidence by physical exam or laboratories suggestive of underlying inflammatory arthritis or myopathy, and he opined the Veteran’s musculoskeletal symptoms might be related to his depressive problems. A June 2011 bone scan was ordered to determine the etiology of the Veteran’s chronic polyarthralgia, and it revealed mild degenerative changes of the hands, feet, and thorax. See 07/26/2019, CAPRI. The November 2012 VA examiner provided a negative nexus opinion regarding the etiology of the Veteran’s polyarthralgia because the Veteran does not have evidence of inflammatory arthritis. 11/15/2012, VA Examination. Inflammatory arthritis is not a symptom of polyarthralgia, not to be confused with polyarthritis. In March 2017, the November 2012 VA examiner provided a new opinion. The examiner determined the degenerative changes of the foot and thoracolumbar spine are less likely as not related to service because these conditions were diagnosed in 2011 by bone scan. Before the bone scan, there is no evidence of degenerative changes of the hands, feet, and thoracic spine. The examiner opined as these conditions were diagnosed more than one year after service and are due to the normal progression of the aging process, and service treatment records are silent toward any diagnosis of the back, feet, or hands, they were not as likely as not related to service. 03/28/2017, C&P Exam. The November 2012 VA examiner failed to provide an opinion regarding the etiology of the Veteran’s diagnosed polyarthralgia and did not address the in-service complaints of joint pain in service adequately; thus, the November 2012 VA examiner’s opinions are afforded no probative weight. Considering the totality of the relevant evidence, the competent and probative lay and medical evidence of symptoms of polyarthralgia documented in service and a diagnosis within three months after separation are at least in equipoise as to whether the current polyarthralgia had its onset in or is otherwise related to the Veteran’s period of active service. The Veteran’s continued complaints of joint pain are competent and credible. The June 2011 bone scan further clarified that the polyarthralgia etiology was not exclusively psychological, as speculated by the March 2010 VA physician. Any doubt on the material issue of nexus is resolved in the Veteran’s favor, and the claim of service connection for polyarthralgia is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TDIU 2. Entitlement to a TDIU. The Veteran contends he is unemployable due to his service-connected depressive disorder. 08/05/2019, VA 21-8940. VA may grant a total disability rating where the schedular rating is less than 100 percent, and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. The Veteran’s service-connected disabilities include depressive disorder (50 percent from May 31, 2009), sinusitis (noncompensable from June 21, 2012, and 30 percent from March 24, 2017), irritable bowel syndrome (30 percent from May 16, 2019), allergic rhinitis (noncompensable from June 21, 2012, and 10 percent from March 24, 2017), osteopenia (noncompensable from June 21, 2012), bilateral hearing loss (noncompensable from May 16, 2019). The combined evaluation is 50 percent from May 31, 2009, 70 percent from March 24, 2017, and 80 percent from May 16, 2019. The percentage threshold for schedular TDIU was met as of March 24, 2017. See 38 C.F.R. § 4.25. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Board must, therefore, evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. Marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). An individual’s particular circumstance is the basis for entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). After resolving all reasonable doubt in favor of the Veteran, a review of the record demonstrates the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him unable to secure and maintain substantially gainful employment. The record demonstrates that the Veteran last worked in 2012 for the Navy Reserve. 08/05/2019, VA 21-8940. The evidence is at least in equipoise as to whether the symptoms of the Veteran’s service-connected disabilities and side-effects of the medications used to treat the disabilities rendered him unemployable. A February 2010 VA examiner determined the Veteran had no reduced reliability and productivity due to mental disorder symptoms, no occasional decrease in work efficiency, no intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, and no mental disorder signs or symptoms that are transient or mild and decrease work efficiency or ability to perform occupational tasks during periods of significant stress. 02/01/2010, VA Examination. On December 14, 2010, a private examiner noted the Veteran has occupational and social impairment due to mood problems, anxiety, aggression, inappropriate behavior, and episodes of irritability, episodes of time disorientation, and episodes of inability to perform activities of daily living. His nervous problems have prevented him from driving or working for the past year and a half. The examiner opined it is more probable than not that his nervous condition has deteriorated to the point of being unemployable. See 01/11/2011, Medical Treatment Record–Non-Government Facility. The Veteran and his wife testified to his worsening depressive disorder symptoms in April 2016, noting he is aggressive even with his family, and his wife needs to provide him with his medication. 04/05/2016, Hearing Testimony. January 2014 and March 2017 VA examiners independently opined the Veteran has occupational and social impairment with reduced reliability and productivity with his symptoms including difficulty in adapting to stressful circumstances, including work or a worklike setting. 03/24/2017, C&P Exam; 01/31/2014, CAPRI. The March 2017 VA examiner further noted the Veteran’s mood instability limits his capacity to interact effectively and on a sustained basis with other individuals. The Veteran should also not drive or used heavy machinery as the side effects of his current pharmacotherapy include drowsiness, lethargy, tremor, and parkinsonism. 03/24/2017, C&P Exam. In August 2017, the March 2017 VA examiner clarified that his opinion is that the Veteran at present should not work. 08/22/2017, C&P Exam. An August 2019 VA examiner opined the Veteran can engage in regular sedentary occupations as his mental disorder does not preclude him from any sedentary labor activity. The examiner found the Veteran’s depressive disorder resulted in occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or by symptoms controlled by medication. 08/06/2019, C&P Exam. The August 2019 VA examiner’s opinion is noted; however, the evidence, particularly when considering the other three examiners’ opinions since December 14, 2010, demonstrates the Veteran’s service-connected disabilities rendered him unable to secure and maintain gainful employment during the period on appeal. Specifically, his depressive disorder and the side-effects of his medication, when taken in conjunction with the Veteran’s occupational history, preclude gainful employment of any kind. A TDIU is warranted as of March 24, 2017, the date the percentage threshold for schedular TDIU was met. See 38 C.F.R. § 4.25. REASONS FOR REMAND The issue of a TDIU prior to March 24, 2017, is remanded. If the Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a) after the disability rating evaluation for the now service-connected polyarthralgia is determined, the AOJ should refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. The matters are REMANDED for the following action: 1. If, after assigning disability ratings for the Veteran’s polyarthralgia the Veteran’s combined disability rating does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) prior to March 24, 2017, forward the appeal to the Director of Compensation for consideration of extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.