Citation Nr: 21013470 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-08 481 DATE: March 9, 2021 ORDER New and material evidence has been received to reopen a claim of service connection for a bilateral knee disability, and the claim to reopen is granted. As new and material evidence has not been received, reopening of the claim for service connection for asthma is denied. As new and material evidence has not been received, reopening of the claim for service connection for migraine headaches is denied. As new and material evidence has not been received, reopening of the claim for service connection for chronic fatigue syndrome (CFS) is denied. As new and material evidence has not been received, reopening of the claim for service connection for a disability manifested by joint swelling and stiffness is denied. As new and material evidence has not been received, reopening of the claim for service connection for a back disability is denied. As new and material evidence has not been received, reopening of the claim for service connection for a skin disorder is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. REMAND Entitlement to service connection for a bilateral knee disability is remanded. FINDINGS OF FACT 1. The RO denied service connection for bilateral knee disabilities in a January 2004 rating decision; the Veteran did not appeal that decision. 2. New evidence received since the time of the final January 2004 decision relates to an unestablished fact necessary to grant the Veteran’s claim for service connection for right and left knee disabilities. 3. The RO denied service connection for asthma in a January 2004 rating decision; the Veteran did not appeal that decision. 4. No new and material evidence has been received since the time of the final January 2004 decision relating to an unestablished fact necessary to grant the Veteran’s claim for service connection for asthma. 5. The RO denied service connection for joint stiffness and swelling in a January 2004 rating decision; the Veteran did not appeal that decision. 6. No new and material evidence has been received since the time of the final January 2004 decision relating to an unestablished fact necessary to grant the Veteran's claim of entitlement to service connection for joint swelling and stiffness. 7. The RO denied service connection for a skin disability, in a January 2004 rating decision; the Veteran did not appeal that decision. 8. No new and material evidence has been received since the time of the final January 2004 decision relating to an unestablished fact necessary to grant the Veteran’s claim of entitlement to service connection for a skin disorder. 9. The RO denied service connection for migraine headaches in a January 2009 rating decision; the Veteran did not appeal that decision. 10. No new and material evidence has been received since the time of the final January 2009 decision relating to an unestablished fact necessary to grant the Veteran’s claim for service connection for migraine headaches. 11. The RO denied service connection for a back disability in a January 2009 rating decision; the Veteran did not appeal that decision. 12. No new and material evidence has been received since the time of the final January 2009 decision relating to an unestablished fact necessary to grant the Veteran’s claim for service connection for a back disability. 13. The RO denied service connection for chronic fatigue syndrome, in a May 2010 rating decision; the Veteran did not appeal that decision. 14. No new and material evidence has been received since the time of the final May 2010 decision relating to an unestablished fact necessary to grant the Veteran’s claim for service connection for chronic fatigue syndrome. 15. The preponderance of the evidence is against a finding that the Veteran’s diagnosed sleep apnea is related to his active service. 16. The Veteran’s service-connected disabilities do not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The January 2004 rating decision denying service connection for bilateral knee disabilities, asthma, joint stiffness and swelling, and a skin condition is final. 38 U.S.C. § 7015(c), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. Evidence received sufficient to reopen service connection for left and right knee disabilities is new and material. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. No new and material evidence has been received sufficient to reopen the claim for service connection for asthma. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 4. No new and material evidence has been received sufficient to reopen the claim for service connection for a disability manifested by joint swelling and stiffness. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 5. No new and material evidence has been received sufficient to reopen service connection for a skin disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 6. The January 2009 rating decision denying service connection for migraine headaches and a back condition is final. 38 U.S.C. § 7015(c), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 7. No new and material evidence has been received sufficient to reopen service connection for migraine headaches. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 8. No new and material evidence has been received sufficient to reopen service connection for a back disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 9. The May 2010 rating decision denying service connection for chronic fatigue syndrome is final. 38 U.S.C. § 7015(c), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 10. No new and material evidence has been received sufficient to reopen the claim for service connection for chronic fatigue syndrome. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 11. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 12. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1987 to July 1991. He was awarded a combat action ribbon and Southwest Asia service medal. This current matter was were remanded in April 2020 to accord the agency of original jurisdiction (AOJ) an opportunity to consider additional VA medical records that had been added to file but not yet considered by the AOJ. Since then, the AOJ has issued a Supplemental Statement of the Case in consideration of these documents, and the case has returned to the Board for adjudication. New and Material A. Finality A rating decision becomes final if the veteran does not file an appeal or submit new and material evidence within one year of the issuance of the rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103. While the Agency of Original Jurisdiction has reopened claims for a bilateral knee disability, headaches, and a back disability in a June 2017 rating decision, the Board must determine of its own accord whether new and material evidence is of record to reopen the claims before it may consider them on the merits. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). B. New and Material Evidence VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Bilateral Knee By way of history, in a January 2004 rating decision, the Veteran was denied service connection for, among other things, bilateral knee pain. He was notified of this decision, but did not file a formal appeal. Therefore, the January 2004 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the January 2004 decision, the Veteran filed a claim to reopen the issue of bilateral knee pain in March 2011, which was denied in a December 2012 rating decision due to a lack of new and material evidence showing that the Veteran had a diagnosed knee condition. The Veteran appealed. While this appeal was active, the RO issued an additional rating decision reopening the claim, but denying on the merits in June 2017. Additionally, the Veteran filed another claim to reopen this issue in September 2018. The Board notes that the rating decision on appeal is the December 2012 rating decision. The Veteran’s initial claim was denied in January 2004 due to a lack of medical evidence showing a current clinically diagnosed disability. The decision acknowledged in-service complaints of bilateral knee pain. Of note at that time, however, was the fact that he had failed to report for a scheduled VA examination. Relevant evidence received since the previous final denial includes competent evidence of current knee disabilities. Further, such evidence, in light of the several medical records reflecting in-service complaints of knee pain, constitute new and material evidence. Thus, the Board finds that this previously denied claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Asthma By way of history, in a January 2004 rating decision, the Veteran was denied service connection for asthma or respiratory disease, among other claims. The Veteran was notified of this decision, but did not file a formal appeal. Therefore, the January 2004 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the January 2004 decision, the Veteran filed a claim to reopen the issue of service connection for asthma in March 2011, which was denied in a December 2012 rating decision due to a lack of new and material evidence showing that the Veteran due to a lack of evidence of a diagnosis. The Veteran appealed. The Veteran’s initial claim was denied in January 2004 due to a lack of objective medical evidence in service treatment records of illness involving asthma, bronchitis, or pneumonia. Since that previous denial, several VA and private medical records have been added to the claims file. While some records indicate a previous medical history of asthma, a specific VA medical record from January 2008 shows that the Veteran reported that he was “born” with asthma, but had not had an attack since he was 13 years of age. While some records show a history of asthma, there is no record of current treatment, or a medical opinion linking the Veteran’s asthma to his active service. Therefore, while the evidence is new, it is not material within the meaning of 38 C.F.R. § 3.156(a) because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. A claim to reopen without more does not meet the low bar for reopening a claim. The record still lacks any evidence of asthma during service, nor is there any evidence demonstrating that the Veteran’s asthma was incurred in or is otherwise related to his active service. Accordingly, the Board finds that the evidence received subsequent to the January 2004 decision is not new and material and does not serve to reopen the Veteran’s claim. The claim to reopen the issue of service connection for asthma must be denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. Joints By way of history, in a January 2004 rating decision, the Veteran was denied service connection for, among other things, joint swelling. The Veteran was notified of this decision, but did not file a formal appeal. Therefore, the January 2004 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran’s initial claim was denied in January 2004 due to a lack of evidence in service treatment records of a chronic joint condition (service medical records showed treatment for conditions of the musculoskeletal system that seem to be resolved), and that the Veteran failed to report for a scheduled VA medical examination. The Veteran filed a claim to reopen service connection for joint stiffness and pain in March 2011, which was denied in a December 2012 rating decision. The Veteran appealed. Since the previous denial, several VA and private medical records have been added to the claims file. While some records indicate the Veteran has right acromioclavicular joint widening, it has been attributed to a car accident, and there is no record of treatment or a medical opinion linking the Veteran’s joint issue to his active service. Further, there are no treatment records showing diagnosis or treatment for joints swelling or stiffness. Therefore, while the evidence is new, it is not material within the meaning of 38 C.F.R. § 3.156 (a) because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim for service connection. A claim to reopen without more does not meet the low bar for reopening a claim. The record still lacks any evidence of a chronic joint condition during service, nor is there any evidence demonstrating that the Veteran’s joint condition was incurred in or is otherwise related to his active service. Accordingly, the Board finds that the evidence received subsequent to the January 2004 decision is not new and material and does not serve to reopen the Veteran’s claim. The claim to reopen the issue of service connection for joint swelling and stiffness must be denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. Skin By way of history, in a January 2004 rating decision, the Veteran was denied service connection for, among other things, a skin condition. The Veteran was notified of this decision, but did not file a formal appeal. Therefore, the January 2004 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran’s initial claim for skin and body rashes was denied in January 2004, as the condition resulted from his diagnosed tinea pedis, onychomycosis, and other conditions, none of which were service-connected at the time. Since the previous denial, the Veteran’s tinea pedis with onychomycosis of the right 4th toe has been service-connected. Additionally, several medical records have been added to the claims file, including a VA examination on skin conditions from February 2010. In the February 2010 examination report, the examiner indicated that the Veteran’s skin condition is the tinea pedis that progressed to include onychomycosis. Medical evidence added to the record does not show complaints, diagnosis, or treatment for a chronic skin or body rash separate from tinea pedis with onychomycosis for which he is already service-connected. Therefore, while the evidence is new, it is not material within the meaning of 38 C.F.R. § 3.156 (a) because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the evidence received subsequent to the January 2004 decision is not new and material and does not serve to reopen the Veteran’s claim for a separate skin condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 5. Migraine Headaches The Veteran’s initial claim was denied in January 2004 due to a lack of evidence in service treatment records of complaints of migraine headaches. Of note at that time was the fact that he failed to report for a scheduled VA medical examination. Since the January 2004 decision, the Veteran filed a claim to reopen service connection for headaches in August 2007, which was denied in a January 2009 rating decision due to a lack of new and material evidence showing current treatment, or, evidence of a headache condition in service. The Veteran did not appeal, and there was no new and material evidence added to the file within one year of the January 2009 rating decision, that decision, therefore, became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran again filed to reopen service connection for headaches in December 2009, which was denied in a December 2012 rating decision for lack of new and material evidence. The Veteran appealed. While this appeal was active, the RO issued an additional rating decision reopening the claim, but denying on the merits in June 2017. The Board notes that the December 2012 decision was timely appealed and is the rating decision of consideration in this appeal. Since the previous denial, several VA and private medical records have been added to the claims file. While some records indicate a previous medical history of headaches and migraines, many associate the symptom of headaches with other conditions, such as sinusitis, depression, and vision issues. While some records show a history of headaches, there is no opinion linking the Veteran’s headaches to his active service. Therefore, while the evidence is new, it is not material within the meaning of 38 C.F.R. § 3.156 (a) because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. A claim to reopen without more does not meet the low bar for reopening a claim. The record still lacks any evidence of migraine headaches during service, nor is there any evidence demonstrating that the Veteran’s headaches were incurred in or are otherwise related to his active service. Accordingly, the claim to reopen the issue of service connection for headaches must be denied. Accordingly, the Board finds that the evidence received subsequent to the January 2004 decision is not new and material and does not serve to reopen the Veteran’s claim. The claim to reopen the issue of service connection for migraine headaches must be denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 6. Back The Veteran’s claim for service connection was previously denied in rating decisions in March 2003 and January 2004, which became final. The Veteran filed a claim to reopen the issue of service connection for a back condition in August 2007, which was denied in January 2009. The Veteran did not appeal, and there was no new and material evidence added to the file within one year of the January 2009 rating decision. Therefore, that decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In December 2009, he filed an additional claim to reopen, which was not addressed. In October 2015, the Veteran filed another claim to reopen, which was denied in a January 2016 rating decision and again in a June 2017 decision. After filing a Notice of Disagreement in January 2018, the Veteran filed yet another claim to reopen service connection on a secondary theory of entitlement in September 2018. The RO issued a Statement of the Case in October 2018, and he filed a timely appeal in November 2018. The Board notes that the January 2016 rating decision is on appeal, dating back to the Veteran’s December 2009 claim. The 2003 and 2004 decisions acknowledged the Veteran complained of back pain and groin pain during his active service, but there was no evidence of recurrence, a chronic condition, or report of continuing problem at separation. The January 2009 decision denied service connection due to a lack of new and material evidence showing a chronic back condition. Since the previous denial, several VA and private medical records have been added to the claims file, including a June 2018 VA medical examination expressing a negative nexus opinion. While this evidence is new, and its credibility is presumed, a negative etiology opinion cannot be considered “new and material” because the information cannot be interpreted as raising a reasonable possibility of substantiating the claim. Therefore, it is not new and material evidence. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for back condition has not been received. As such, the January 2004 decision remains final, and the appeal must be denied. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993); 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 7. Chronic Fatigue The Veteran’s initial claim was denied in January 2004 due to a lack of evidence in service treatment records of complaints of a chronic undiagnosed illness involving chronic fatigue. Of note at that time was the fact that the Veteran failed to report for a scheduled VA medical examination. The Veteran filed a claim to reopen in December 2009, which was denied in a May 2010 rating decision due to a lack of evidence of a chronic undiagnosed illness involving chronic fatigue syndrome. The Veteran did not appeal and there was no new and material evidence submitted to the file within one year of the May 2010 rating decision. That decision, therefore, became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran filed an additional claim to reopen in March 2011, which was denied in a December 2012 rating decision due to a lack of evidence of a diagnosed condition. The Veteran appealed. Since the previous denial, several VA and private medical records have been added to the claims file. While some records indicate a medical history of fatigue, there is no record of current treatment, or a medical opinion linking the Veteran’s headaches to his active service. Therefore, while the evidence is new, it is not material within the meaning of 38 C.F.R. § 3.156(a) because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. A claim to reopen without more does not meet the low bar for reopening a claim. The record still lacks any evidence of fatigue or chronic fatigue, nor is there any evidence demonstrating that the Veteran’s fatigue was incurred in or is otherwise related to his active service. Accordingly, the Board finds that the evidence received subsequent to the January 2004 decision is not new and material and does not serve to reopen the Veteran’s claim. The claim to reopen the issue of service connection for chronic fatigue syndrome must be denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Service Connection – Sleep Apnea The Veteran contends that his sleep apnea is related to his active service. The Board finds, unfortunately, that service connection is not warranted for this disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A sleep study completed at a private provider in January 2019 confirms the Veteran’s diagnosis of severe obstructive sleep apnea. On VA examination in August 2020, the Veteran reported the onset of his symptoms to be 1992, and two subsequent hospital visits concerning his sleep apnea that did not result in a diagnosis. The examiner indicated the Veteran was diagnosed in 2011. The examiner opined that the Veteran’s sleep apnea was most likely weight related and was less likely than not incurred in or caused by his active service. In explaining the rationale for this opinion, the examiner noted that service medical records do not contain complaints, treatment, or diagnosis for this condition and the Veteran’s body mass index (BMI) was 21 upon his enlistment in 1987. When the Veteran diagnosed with sleep apnea in 2011, two decades after his separation from active service, his BMI was 32. Based on the medical evidence of record, the Board finds that the preponderance of the evidence is against service connection for sleep apnea. The examination report of record offered a well-reasoned opinion that the Veteran’s sleep apnea is unrelated to his active service. For this reason, service connection for sleep apnea must be denied. TDIU A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, but the percentage requirements of § 4.16(a) are not met, the matter may be referred to the Director, Compensation Service, for consideration of entitlement to the benefits on an extraschedular basis. 38 C.F.R. § 4.16(b). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). VA’s duty to maximize benefits requires it to assess all of a claimant’s service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, 22 Vet. App. 280, the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C. § 1114(s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a “total” rating. When a veteran is awarded a TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded as long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall be deemed to exist when a veteran’s earned annual income does not exceed the poverty threshold for one person, or on a facts found basis when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Id. A determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual decision rather than a medical question. Thus, VA is responsible for the ultimate decision of whether a veteran is capable of securing or following substantially gainful employment, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the disability makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the purposes of assigning effective dates, TDIU claims are treated as if they are increased rating claims. 38 C.F.R. § 3.400 (o). Here, the Veteran meets the schedular criteria for TDIU with a combined rating of at least 70 percent since April 15, 2015 and a current combined rating of 80 percent. Currently, he is service-connected for posttraumatic stress disorder (PTSD) (30% from 11/1/2010, 50% from 4/15/2015, and 70% from 9/1/2016); flat feet (10% from 6/6/2002 and 30% from 2/22/2017); tinnitus (10%); tinea pedis with onychomycosis of the right 4th toe (0% from 6/6/2002 and 10% from 12/28/2009); and noncompensable ratings for sinusitis and allergic rhinitis. In his application for TDIU, the Veteran indicated that he last worked full time in 2016. Information from his former employer indicated that the Veteran was laid off in 2016 due to business slow down and that the employer was not aware of the Veteran’s disabilities. On VA examination for PTSD in June 2017, the Veteran reported that he was working at Trane as an installer of air conditioning and gas furnace units. On June 2018 VA examination, the examiner indicated that his back condition (which is not service-connected) affected his ability to work. However, there was no discussion as to the Veteran’s current employment status. In July 2018 correspondence, VA requested additional information concerning an update to the Veteran’s employment history. In December 2018, the Veteran responded by stating he was unsuccessful in obtaining statements from his former employers. He did not, however, provide any statement, assertion, or evidence that he was no longer employed by Trane, as he had reported in June 2017. The most recent evidence concerning the Veteran’s employment is the June 2017 examination during which he reported he was working. His employment appeared to be full time as an installer, and there is no evidence that it was marginal or was not gainful. As such, there is no evidence that the Veteran’s service-connected conditions prevent him from obtaining and maintaining gainful employment, and TDIU must be denied. REASONS FOR REMAND Service connection for a bilateral knee disability The Veteran contends that he has bilateral knee conditions related to his active service. The Board granted reopening of this claim because new and material evidence of a current condition was added to the record after the previous final decision. However, there still remains insufficient evidence upon which to adjudicate the claim for service connection, and remand is necessary. The Veteran has been diagnosed with osteoarthritis of the right knee and associated pain in his left knee. His in-service complaints of knee pain have been acknowledged. As such, the Veteran should be afforded an examination to determine the nature of his current bilateral knee condition and whether any such diagnosed disability is etiologically related to his active service. Accordingly, this matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. Contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations for such records. 2. Accord the Veteran an appropriate examination to determine the nature and etiology of his current bilateral knee condition. Specifically, on examination, the examiner is asked to opine as to whether any such diagnosed disorder(s) of either knee is(are) as likely as not (50 percent probability or better) related to his active service. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.