Citation Nr: 21025061 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 11-31 755A DATE: April 27, 2021 ORDER Entitlement to service connection for a right hand Dupuytren’s contracture is granted. Entitlement to service connection for a left hand Dupuytren’s contracture is granted. Entitlement to service connection for migraine headaches is granted. Entitlement to an effective date prior to December 29, 2009 for the grant of service connection for depressive disorder with polysubstance abuse is denied. Entitlement to a 70 percent rating, but no higher, for depressive disorder with polysubstance abuse from December 29, 2009 to February 29, 2012 is granted. Entitlement to a rating in excess of 70 percent for depressive disorder with polysubstance abuse from March 1, 2012 to January 11, 2016 is denied. Entitlement to a 70 percent rating, but no higher, for depressive disorder with polysubstance abuse since January 12, 2016 is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from December 29, 2009 to June 30, 2012 is granted. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a right leg/lower extremity disorder is remanded. Entitlement to service connection for a left leg/lower extremity disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a liver disorder is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for dysphagia is remanded. Entitlement to a rating in excess of 20 percent for bilateral hearing loss is remanded. Entitlement to a TDIU since July 1, 2012 is remanded. Entitlement to a temporary total rating under 38 C.F.R. § 4.30 for right hand Dupuytren’s contracture is remanded. FINDINGS OF FACT 1. The Veteran has a right hand Dupuytren’s contracture which is aggravated by his polysubstance abuse. 2. The Veteran has a left hand Dupuytren’s contracture which is aggravated by his polysubstance abuse. 3. The Veteran has migraine headaches which are aggravated by service-connected tinnitus. 4. No communication or document was received by VA prior to December 29, 2009 that can be construed as a claim for entitlement to service connection for a depressive disorder with polysubstance abuse. 5. Since December 29, 2009, the Veteran’s depressive disorder with polysubstance abuse was manifested by symptoms causing occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 6. From December 29, 2009 to June 30, 2012, the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hand Dupuytren’s contracture are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for a left hand Dupuytren’s contracture are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for entitlement to an effective date prior to December 29, 2009 for a grant of service connection for a depressive disorder with polysubstance abuse have not been met. 38 U.S.C. §§ 5107, 5110, 7105; 38 C.F.R. §§ 3.1(p), 3.155, 3.157 (2014); 38 C.F.R. §§ 3.1(r), 3.104, 3.105, 3.400, 20.200, 20.201, 20.202 20.302, 20.1103, 20.1400. 5. The criteria for entitlement to a 70 percent rating, but no higher, for depressive disorder with polysubstance abuse from December 29, 2009 to February 29, 2012 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code (DC) 9434. 6. The criteria for entitlement to a rating in excess of 70 percent for depressive disorder with polysubstance abuse from March 1, 2012 to January 11, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130, DC 9434. 7. The criteria for entitlement to a 70 percent rating, but no higher, for depressive disorder with polysubstance abuse since January 12, 2016 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130, DC 9434. 8. The criteria for entitlement to a TDIU from December 29, 2009 to June 30, 2012 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130, DC 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to September 1979, from October 1984 to December 1984, and from November 1990 to September 1991. He also had additional service in the Reserves. These matters are before the Board of Veterans’ Appeals (Board) on appeal of January 2013, June 2014 and June 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, October 2016 and May 2018 the Board remanded the appeals for further development. The issues have now been returned to the Board. Entitlement to service connection for migraine headaches is granted. The Veteran contends his migraines are due to his active-duty service or to his service-connected tinnitus. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). A veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail in a service connection claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). At a May 2014 VA examination, the Veteran was diagnosed with headaches not otherwise specified. The examiner opined against an in-service etiology of headaches but did not provide any clear rationale. In August 2014 a private physician, Dr. H.S. diagnosed the Veteran with migraine headaches and opined that they were at least as likely as not aggravated by his service-connected tinnitus. The examiner cited to a medical journal article in support of the conclusion but provided no further rationale. In February 2015, a VA physician opined that it was less likely than not that migraines were caused or aggravated by tinnitus. The examiner reasoned that the May 2014 VA examination and August 2014 report of Dr. H.S. did not provide a specific history of tinnitus as a stimulus or etiology of headaches. The examiner stated that medical literature did not support tinnitus as an etiology of headaches. The examiner went on to cite literature noting that potential migraine triggers included “stress” and “sleep disturbances” were probable and possible migraine trigger factors respectively. The examiner also noted alcohol as a potential trigger. In August 2020 a VA examiner diagnosed the Veteran with “headache,” but opined against an in-service etiology. The examiner did not provide a clear rationale explaining that conclusion. In October 2020 a VA examiner opined that the Veteran’s migraines were less likely than not “proximately due to or the result of” tinnitus or depressive disorder with polysubstance abuse. The examiner reasoned that medical evidence did not support a “causal relationship” between tinnitus and headaches and that psychiatric records reviewed did not reflect specific complaints of headaches. The examiner did not explicitly address whether migraine headaches were aggravated by tinnitus or depressive disorder with polysubstance abuse. None of the VA examinations of record have provided separate findings and rationales with respect to the independent questions of causation and aggravation with regard to the Veteran’s migraines. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018) (holding that causation and aggravation are independent concepts and should have separate findings and rationales). The most recent October 2020 VA opinion failed to explicitly address the question of aggravation at all. As such, the VA medical opinions in this regard are afforded little probative value, while the August 2014 opinion of Dr. H.S. is also afforded low probative value due to the lack of a clear rationale explaining the conclusion reached. As such, the evidence in relative equipoise as to whether migraine headaches were aggravated by the Veteran’s tinnitus. Accordingly, entitlement to service connection for migraine headaches is granted. Entitlement to service connection for right and left hand Dupuytren’s contracture is granted. In January 2016, a VA examiner diagnosed the Veteran with bilateral Dupuytren’s contractures and opined that the disorders were, at least as likely as not, aggravated by his substance abuse. The examiner reasoned that smoking and alcohol were related to increased risk of Dupuytren’s contractures. The Veteran was awarded service connection for polysubstance abuse in a June 2018 rating decision. As there is no evidence contradicting this positive opinion, the preponderance of the evidence supports a finding that the Veteran’s bilateral Dupuytren’s contracture is aggravated by his service-connected polysubstance abuse. Accordingly, entitlement to service connection for right and left Dupuytren’s contracture is granted. Entitlement to an effective date prior to December 29, 2009 for the grant of service connection for depressive disorder with polysubstance abuse is denied. The Veteran asserts that he is entitled to an effective date prior to December 29, 2009 for the grants of service connection for depressive disorder with polysubstance abuse. The statutory and regulatory guidelines for assigning an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Prior to March 25, 2015 a “claim” was defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Also prior to March 25, 2015, any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA could be considered an informal claim. See 38 C.F.R. § 3.155 (b). Effective March 25, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary (i.e., VA Form 21-526). See 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increased ratings (previously found in § 3.157) and revised 38 C.F.R. § 3.400(o)(2). Id. In this case, the record clearly demonstrates that the Veteran first submitted a claim for entitlement to service connection for an acquired psychiatric disorder which was received on December 29, 2009. The Veteran was granted service connection for depressive disorder with polysubstance abuse effective the date of receipt of his claim. No communication or document was received by VA prior to December 29, 2009 that can be construed as a formal or informal claim for service connection for an acquired psychiatric disorder. Accordingly, the evidence preponderates against finding that an effective date prior to December 29, 2009 for service connection for depressive disorder with polysubstance abuse is warranted. The claim is denied. Entitlement to a 70 percent rating, but no higher, for depressive disorder with polysubstance abuse from since December 29, 2009 is granted. The Veteran contends that his depressive disorder with polysubstance abuse is more severely disabling than represented by the 30 percent rating assigned from December 29, 2009 to February 29, 2012, the 70 percent rating assigned from March 1, 2012 to January 11, 2016 and the 30 percent rating assigned since January 12, 2016. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  The Veteran’s depressive disorder with polysubstance abuse is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9434. Under the general formula, a 30 percent evaluation is assigned when the evidence demonstrates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id.  A 50 percent rating is assigned where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id.  A rating of 70 percent is assigned where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id.  A 100 percent schedular evaluation contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.  The Board observes that to adequately evaluate and assign the appropriate disability rating to the Veteran’s service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the enumerated factors listed in 38 C.F.R. § 4.130, DC 9434. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Id.   On VA examination in November 2010, the examiner reported that the Veteran denied “any psychiatric symptoms.” However, the examiner noted the Veteran was drinking a 12-pack of peer and 1 pint of vodka about 4 days per week and was “on and off” smoking cocaine. The Veteran was separated from his wife due to affairs and substance abuse. The examiner noted depression and anxiety, problems with concentration, sleep and fatigue. The examiner noted a “very high risk” the Veteran would “squander his money on alcohol and drugs.” The Veteran was noted to demonstrate poor social judgment. He was unemployed, “primarily” due to his substance use disorder. He had “1 close friend,” was “close to his family” and “occasionally” attended church. The examiner noted the Veteran’s psychiatric symptoms and substances abuse “impaired his social activities and occupational functioning.”  In December 2012 the Veteran stated that his psychiatric medications were causing him to oversleep, interfering with his job opportunities and computer class. On VA examination in March 2012, the Veteran’s psychiatric symptoms were reported to include depressed mood, anxiety, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. The Veteran was noted to recently have quit his job due to difficulty understanding instructions and was currently taking classes in which he was struggling. The Veteran was noted to have a girlfriend whom he usually got along with, but “said mean things to her when he was drunk.” The examiner summarized the level of occupational and social impairment as occupational and social impairment with deficiencies in most areas.  In March 2015, H.H., a private psychologist reported psychiatric symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran was reported to be living with his wife, but to be otherwise socially isolated. The Veteran was noted to have last worked for 2 and a half years until February 2015. H.H. opined that the Veteran’s psychiatric symptoms would preclude him from engaging in any gainful activity. She summarized the level of occupational and social impairment as occupational and social impairment with deficiencies in most areas and opined that this level of functional impairment was evident from the date of the Veteran’s claim on December 9, 2009.  On VA examination in January 2016, the Veteran’s psychiatric symptoms were reported to include depressed mood, anxiety, mild memory loss, and disturbances of motivation and mood. The Veteran was noted to be working as a dishwasher part time and was awarded “employee of the month for December 2015.” While he described some moments of anger and irritability at work, he indicated getting along adequately with peers and supervisors. The examiner summarized the level of occupational and social impairment as with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. In January 2017, a private psychologist, R.W. described psychiatric symptoms including depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, speech intermittently illogical, obscure, or irrelevant, difficult in understanding complex commands, impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, impaired impulse control, such as unprovoked irritability with periods of violence, persistent delusions or hallucinations, and intermittent inability to perform activities of daily living, including maintenance of minimum personal hygiene. The Veteran admitted to “moderate use of alcohol to present.” The Veteran was noted to be working part-time as a dishwasher. He was living alone but had a girlfriend, and reported difficulty in intimate, social and work relationships. R.W. summarized the level of occupational and social impairment as occupational and social impairment with deficiencies in most areas.  On VA examination in May 2017, the Veteran’s psychiatric symptoms were reported to include depressed mood, anxiety, mild memory loss, and disturbances of motivation and mood. The Veteran reported not using alcohol since about 2015, and not using cocaine since about 2010. The Veteran continued to work part time as a dishwasher and was taking classes in computer repair, although he struggled to retain information over time. He reported getting along adequately with peers and supervisors. He reported maintaining positive relationships with his son and friend. The examiner summarized the level of occupational and social impairment as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. On VA examination in September 2019, the Veteran’s psychiatric symptoms were reported to include depressed mood and anxiety. The Veteran reported currently drinking a 6-pack of beer 3 times per week but reported a 4-day inpatient stay at the VA for alcohol detox in February 2019. The Veteran reported being unemployed after he was terminated from his previous job for “tardiness and no-show.” He described his relationship with his co-workers and supervisors as “maybe an eight.” He reported living alone but had an “excellent” relationship with his son and described his current social relationships as “medium.” The examiner summarized the level of occupational and social impairment as due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner noted that the diagnostic picture was “not clear” due to the Veteran’s substance abuse and suggested that the Veteran could be reevaluated after substance abuse was discontinued. With regard to the entirety of the period on appeal, the Board finds that a 70 percent rating is warranted. The VA and private examinations of record present deficiencies in “most areas,” including work, school, family relations, judgment, and mood. In this regard, the record demonstrates numerous psychiatric symptoms interfering with work, including difficulty in adapting to stressful circumstances, including work or a worklike setting, and reckless behaviors related to substance use including failing to show up for work and failing to complete tasks. While the Veteran demonstrated periods of maintaining gainful employment, his history with the legal system due to substance abuse has caused deficiencies in his employability throughout the appeal period. The Veteran reported enrollment in computer classes during the appeal period which were impaired by side effects of psychiatric medication as well as difficulty concentrating and completing tasks. Irritability and substance use have been noted to interfere with the Veteran’s romantic relationships, and he has been reported as isolative at times. Deficiencies in judgment are noted by numerous VA and private examinations, including substance abuse. Finally, the VA and private examinations have noted numerous deficiencies of mood to include depression and anxiety, with periodic suicidal ideation. The reported symptoms reasonably approximate the type of symptoms stipulated as warranting a 70 percent rating, including suicidal ideation, impaired impulse control, neglect of personal appearance and hygiene, and difficulty in adapting to stressful circumstances. On balance, this evidence is at least in equipoise as to whether the depressive disorder with polysubstance abuse caused deficiencies in “most” areas throughout the period on appeal.  The Board acknowledges that the November 2010, January 2016, May 2017 and September 2019 VA examinations found that psychiatric symptoms were less severe. In the November 2010 and September 2019 VA examinations, the examiners appear to have attempted to distinguish the level of functional impairment attributable to the Veteran’s depressive disorder independent of those of his polysubstance abuse. The Veteran is service connected for polysubstance abuse, and the symptoms of that disorder are part of his symptom picture for evaluation purposes. Accordingly, the Board attributes greater probative value to the March 2012 VA examination, March 2015 report of Dr. H.H., and January 2017 report of R.W. which provide a complete assessment of the Veteran’s psychiatric symptoms, inclusive of his polysubstance abuse. With regard to the January 2016 and May 2017 VA examination reports, the March 2015 and January 2017 private reports are substantially contemporaneous, but provide much more severe symptom pictures. As this evidence is at least in equipoise, the Board will resolve reasonable doubt in the favor of the Veteran and find that he suffered from deficiencies in most areas throughout the appeal period. However, the depressive disorder with polysubstance abuse symptoms do not more nearly approximate the severity of symptoms stipulated as supporting a 100 percent rating at any time during the appeal period. The evidence preponderates against finding that any psychiatric symptoms caused total social impairment. In this regard, while the record reveals some reports of symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, intermittent inability to perform activities of daily living, including maintenance of minimum personal hygiene, the preponderance of the evidence is against finding that these or any other psychiatric symptoms caused total social impairment. On the contrary, evidence throughout the appeal period indicates that the Veteran has maintained relationships with romantic partners and with his son. He has reported support from his church, as well as some friends, and has even reported average relationships with coworkers. This evidence preponderates against finding total occupational and social impairment necessary to support a 100 percent rating.  The Board notes that, as discussed further below, records from the Oklahoma Department of Rehabilitation Services pertaining to a July 19, 2011 evaluation, as well as the decision awarding Social Security disability benefits are outstanding. However, remand is not required with regard to the present claim for an increased rating for depressive disorder with polysubstance abuse symptoms, pending the receipt of such records. In this regard, the issue of entitlement to a rating in excess of 70 percent for depressive disorder with polysubstance abuse will not be impacted by any additional evidence pertaining to the Veteran’s employability or occupational functioning. Rather, as discussed above, a 100 percent rating is not warranted for a depressive disorder with polysubstance abuse because the preponderance of the evidence is against finding total social impairment. While records relating to a claim for vocational rehabilitation or disability benefits may pertain to the issue of occupational impairment, they would not bear on the pertinent issue of the Veteran’s social impairment in this case. Even to the extent that such records did suggest a more severe level of social impairment, the evidence currently of record conclusively demonstrates that the Veteran has not exhibited total social impairment during the period on appeal, nor has he contended such. Accordingly, remand to obtain such evidence would only serve to delay this determination and would provide no further benefit to the appellant. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that remand is unnecessary where it would impose additional burdens on the Board with no benefits flowing to the veteran). Accordingly, remand pending the receipt of records of the July 19, 2011 evaluation and decision awarding Social Security disability benefits is not warranted. Accordingly, entitlement to a 70 percent rating, but no higher, for depressive disorder with polysubstance abuse since December 29, 2009 is granted. Entitlement to a TDIU from December 29, 2009 to June 30, 2012 is granted. The Veteran first submitted a claim for TDIU in May 2011. However, the issue of entitlement to an increased rating for depressive disorder with polysubstance abuse is currently before the Board, to include consideration of the period since December 29, 2009. The Veteran contends that he is unable to secure or maintain gainful employment, in significant part due to the depressive disorder with polysubstance abuse. The issue of entitlement to a TDIU since December 29, 2009 is therefore part of the claim for increased rating before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU is authorized for any disability or combination of disabilities where the schedular rating is less than total, and the claimant is unable to secure and maintain substantially gainful employment because of the severity of service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. If two or more disabilities, at least one must be rated as at least 40 percent disabling, with sufficient additional service-connected disability to bring the combined rating to 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). For the above purpose, VA will consider disabilities resulting from common etiology, a single accident, or affecting a single body system as one disability. 38 C.F.R. § 4.16 (a). For a TDIU, the critical question is whether the veteran’s service-connected disabilities alone are sufficient to cause unemployability, absent consideration of any nonservice-connected condition. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include her employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Since December 29, 2009, the Veteran’s depressive disorder with polysubstance abuse is rated 70 percent disabling. He is also service connected for bilateral sensorineural hearing loss rated 20 percent disabling since December 29, 2009; tinnitus rated 10 percent disabling since December 29, 2009; and irritable bowel syndrome rated 30 percent disabling since November 10, 2011. His combined rating is 80 percent from December 29, 2009 to November 9, 2011, and 90 percent disabling since November 10, 2011. Thus, the appellant met the schedular requirements for a TDIU since December 29, 2009. 38 C.F.R. § 4.16. At his November 2010 VA examination, the examiner noted the Veteran was currently unemployed and had a very fragmented work history, doing many odd jobs. The examiner stated, “the reason he is unable to attend to such jobs, is primarily related to his alcohol and drug abuse.” In his May 2011 application for increased compensation based on unemployability, the Veteran reported last working full time as a dishwasher from May 2010 to July 2010, with no other paid employment since December 2009. In the March 2015 private report, H.H. opined that due to the Veteran’s psychiatric symptoms he would be unable to sustain the stress from a competitive work environment and could not be expected to engage in gainful activity due to his depressive disorder. Dr. H.H. opined that this level of functional impairment was evident since the Veteran’s December 29, 2009 claim. In a September 2018 rehabilitation needs inventory, the Veteran reported no gainful employment between December 29, 2009 to June 30, 2012. In this case, the evidence of record is at least in equipoise as to whether the Veteran’s service-connected disabilities alone precluded all forms of substantially gainful employment from December 29, 2009 to June 30, 2012. The evidence indicates that the Veteran sustained only brief periods of employment during this time. While the Veteran partly attributed his unemployability to non-service connected disorders, the Board finds that the level of impairment described in the November 2010 VA examination and March 2015 private report of H.H. indicates that his service-connected disabilities alone would reasonably preclude any form of substantially gainful employment during this period. As the evidence is at least in equipoise, entitlement to a TDIU from December 29, 2009 to June 30, 2012 is granted. REASONS FOR REMAND Entitlement to service connection for a low back disorder, right leg/lower extremity disorder, left leg/lower extremity disorder, right foot disorder, left foot disorder, liver disorder, sleep disorder, respiratory disorders and dysphagia; entitlement to a rating in excess of 20 percent for bilateral hearing loss; and entitlement to a TDIU since July 1, 2012 is remanded. Potentially relevant to all of these claims, in its May 2018 remand, the Board directed the AOJ to obtain “the report of [the Veteran’s] July 19, 2011 vocational rehabilitation audiology evaluation (noted in his July 2011 statement).” There is no specific attempt by the AOJ to obtain that audiology evaluation. However, on review of the Veteran’s July 2011 statement, it appears that he was referring to a claim through the Oklahoma Department of Rehabilitation Services, rather than the VA’s Veteran Readiness Employment program. The Veteran stated that “part of that evaluation was the ability to hear and follow directions” but, there is no indication the claims was limited to the Veteran’s hearing loss disability. Accordingly, remand is required to request any available records from the Oklahoma Department of Rehabilitation Services. Additionally, in its May 2018 remand, the Board directed the AOJ to specifically request “any decision and/or determinations” pertaining to the Veteran’s claim for Social Security Disability benefits. Social Security records were obtained in October 2020, but they only contain Disability Determination and Transmittal forms and medical records which were previously obtained. There is no indication that any specific request was made for the written decision of the Social Security Administration in the Veteran’s claim for disability benefits, as instructed by the May 2018 Board remand. Remand is required to ensure compliance with the Board’s May 2018 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding the Veteran’s claim for sleep and respiratory disorders, the record indicates that the Veteran’s breathing problems may be due to smoking. The Veteran is service-connected for polysubstance abuse, to include a history of smoking cocaine. Additionally, the Veteran has an extensive history of tobacco use. With respect to a tobacco-related disability, for claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C. § 1103(a). However, VA’s Office of General Counsel has held that neither 38 U.S.C. § 1103(a), nor its implementing regulations at 38 C.F.R. § 3.300, bar a finding of secondary service connection for a disability related to use of tobacco products after service. VAOPGCPREC 6-2003 (October 28, 2003). As the Veteran’s alcohol and cocaine use have been attributed to his depressive disorder, it is possible that his post-service tobacco use is similarly related. On remand a medical opinion must be obtained addressing whether the Veteran’s respiratory and sleep disorders are related to his polysubstance abuse or to any tobacco use related to his depressive disorder. Entitlement to a temporary total rating under 38 C.F.R. § 4.30 for right hand Dupuytren’s contracture is remanded. This issue must be deferred pending the assignment of an effective date for the right hand Dupuytren’s contracture for which service connection has been granted herein. The effective date of that grant is a “downstream” issue which is not within the Board’s jurisdiction. Accordingly, this claim is remanded for consideration by the AOJ following the implementation of this decision. The matters are REMANDED for the following action: 1. Request that the Veteran complete an updated application for increased compensation based on unemployability (VA Form 21-8940). He should specifically note any employment after June 30, 2012. 2. Ask the Appellant to complete a VA Form 21-4142 for the Oklahoma Department of Rehabilitation Services. Make two requests for any authorized records unless it is clear after the first request that a second request would be futile. 3. Specifically request the written decision awarding Social Security disability benefits from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 4. After the development in steps #1, 2 and 3, request an addendum medical opinion from an appropriate clinician to determine the nature and etiology of any respiratory and sleep disorders. The examiner should state: 5. What diagnosed respiratory disorders have been present at any time since December 29, 2009 and what diagnosed sleep disorders have been present at any time since May 12, 2011? 6. For each such respiratory and sleep disorder is it at least as likely as not (50 percent probability or greater) incurred in, or related to an injury, event or illness during active-duty service, to include exposure to smoke from oil fires in Southwest Asia? 7. For each such respiratory and sleep disorder is it at least as likely as not proximately caused by depressive disorder with polysubstance abuse, to include tobacco use due to a depressive disorder? 8. For each such respiratory and sleep disorder is it at least as likely as not aggravated beyond its natural progression by depressive disorder with polysubstance abuse, to include tobacco use due to a depressive disorder? 9. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul J. Bametzreider 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.