Citation Nr: 21032344 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-43 948 DATE: May 26, 2021 ORDER Entitlement to an increased disability rating in excess of 50 percent for body dysmorphic disorder is denied. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to a total disability rating based on individual unemployability ("TDIU") due to service-connected disabilities is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms of body dysmorphic disorder did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for body dysmorphic disorder have not been met. 38 U.S.C. §§ 1155, 5107, 7104, 7105; 38 C.F.R. §§ 3.156, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9404. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to September 1975. These matters come before the Board of Veterans' Appeals ("Board") by an August 2020 order of the United States Court of Appeals for Veterans Claims ("CAVC"), setting aside and remanding the portions of the December 2018 Board's decision, which denied service connection for bilateral knee disabilities and an evaluation in excess of 50 percent for body dysmorphic disorder. The issues initially arose from May 2015 and November 2015 rating decisions of the Department of Veterans Affairs ("VA") Regional Office ("RO"). Entitlement to an increased disability rating in excess of 50 percent for body dysmorphic disorder. The Veteran contends that a higher rating for his service-connected body dysmorphic disorder should be assigned, which is rated as 50 percent disabling under 38 C.F.R. § 4.130, effective from May 23, 2003. In a June 2004 rating decision, the Veteran was granted an entitlement to service connection for body dysmorphic disorder as secondary to the service-connected disability of cystic acne. The RO assigned a 50 percent rating from May 23, 2003, date of diagnosis of body dysmorphic disorder. Rating period for the increased rating claim: The Veteran filed an increased rating claim for service-connected cystic acne on August 5, 2015. A VA employee called the Veteran in September 2015 to clarify if the Veteran also wanted to file an increased rating claim for service-connected body dysmorphic disorder, since it was associated with cystic acne. The Veteran confirmed that he wished to file increased rating claims for both service-connected conditions, including cystic acne and body dysmorphic disorder. Hence, the applicable rating period for service-connected body dysmorphic disorder starts from up to one year prior to August 5, 2015, the date of receipt of the Veteran's claim for increase. The Board notes that the Veteran's representative filed arguments in March 2021, in which he specifically stated that the rating period of increased rating claim for the Veteran's service-connected body dysmorphic disorder should begin from March 17, 2003, when the Veteran filed the initial claim for entitlement to service connection for a psychiatric disability. The representative argued that in April 2005 the Veteran received psychiatric treatment at the VA Medical Center in Hot Springs, South Dakota, which was within one year of the June 2004 rating decision granting entitlement to service connection for body dysmorphic disorder. Therefore, under 38 C.F.R. § 3.156(b), the appeal is pending since the initial filing on March 17, 2003. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020) (holding that for purposes of § 3.156(b), "[m]edical records created by the VAMC as a result of the treatment of a specific veteran are necessarily received by the VA adjudicator of that veteran's claims because all such records can reasonably be expected to be connected to the veteran's claims.") The relevant part of 38 C.F.R. § 3.156(b) provides "[n]ew and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." 38 C.F.R. § 3.156(b). The representative argued that the April 2005 psychiatric treatment at the VA Medical Center in Hot Springs, South Dakota, should be considered as new and material evidence. Therefore, the beginning of the rating period for the increased rating claim should be March 17, 2003. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. However, a claim is reopened, and the former disposition is reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). When "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran filed claim for entitlement to service connection for posttraumatic stress disorder (PTSD) in March 2003. In a June 2003 rating decision, the RO denied an entitlement to service connected for PTSD because no diagnosis of PTSD was established, and the medical record only indicated diagnosis of body dysmorphic disorder and anxiety. In a February 2004 written statement, the Veteran converted PTSD claim into a claim for entitlement to service connection for a mental disorder. The Veteran was afforded a VA medical examination in May 2004, in which he was diagnosed with body dysmorphic disorder, and the examiner also noted anxiety. Consequently, in a June 2004 rating decision, the RO granted entitlement to service connection for body dysmorphic disorder with an evaluation of 50 percent effective May 23, 2003, which was the date of diagnosis of body dysmorphic disorder. The Board notes that the Veteran received psychiatric treatment in April 2005 at the VA Medical Center in Hot Springs, South Dakota, for service-connected body dysmorphic disorder. The treatment record clearly indicates that the medical assessment did not change in April 2005 and the examiner noted body dysmorphic disorder and anxiety. The April 2005 treatment record could be considered as a new evidence since it was not in existence at the time of the grant of service-connection. However, the April 2005 treatment record would not be "material" because it does not relate to an unestablished fact necessary to substantiate the claim of service-connection since the June 2004 grant of entitlement to service connection for body dysmorphic disorder was a full grant for an acquired psychiatric disorder. Additionally, the April 2005 treatment record did not diagnose any new psychiatric condition and noted previously diagnosed body dysmorphic disorder and anxiety. Furthermore, the April 2005 psychiatric treatment at the VA Medical Center in Hot Springs, South Dakota, did not indicate any worsening of service-connected body dysmorphic disorder. The Veteran reported of having some anxiety as he had lost a job, however, there was no indication of substantial worsening of service-connected body dysmorphic disorder. Hence, the April 2005 psychiatric treatment without indication that there had been substantial worsening of the service-connected body dysmorphic disorder, establishing that a higher rating was warranted; or some statement that the Veteran was intending to seek a higher rating would not serve as an informal claim for an increased rating. Consequently, the Board finds that the April 2005 psychiatric treatment is new but not material to keep the claim pending since March 2003, under 38 C.F.R. § 3.156(b). Therefore, the applicable rating period of the increased rating claim for service-connected body dysmorphic disorder begins from up to one year prior to August 5, 2015, the date of receipt of the Veteran's claim for increased rating. Disability rating for body dysmorphic disorder: Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.21. When a question arises as to which of two ratings applies under a Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Veteran's service-connected body dysmorphic disorder is rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9404. Under Diagnostic Code 9404, a noncompensable rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9404. A 10 percent rating is warranted for 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 symptoms controlled by continuous medication. Id. A 30 percent rating is warranted when there is 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, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted when 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is 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. In order to be assigned a specific rating, a veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002). The symptoms listed under each rating are not exhaustive. Id. The key element for a rating under the general formula for mental disorders is the degree of social and occupational impairment caused by those symptoms, rather than how many of the listed symptoms the veteran exhibits. Id. The Veteran's entire history is to be considered when assigning disability rating. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.1. The Board should consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the period of claim on appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. In addition to assessing the current severity, frequency, and duration of the Veteran's service-connected psychiatric symptoms during the relevant appeal period, it should also be considered whether such symptoms result in a degree of occupational and social functioning to warrant a higher rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013) (holding that veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage); see also 38 C.F.R. § 4.126. The Board has reviewed the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence during the appeal period for the issue on appeal. After filing of the increased rating claim, the Veteran was afforded a VA examination in September 2015 to determine the severity of his mental health condition. The examiner opined that the Veteran's mental health condition was manifested by occupational and social impairment with reduced reliability and productivity. The examiner stated that the Veteran's preoccupation with his largely imagined facial disfigurement caused him clinically significant distress, as well as moderate impairment in social and occupational functioning. The examiner noted symptoms, which included depression, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, feeling of guilt or worthlessness, appetite disturbance or weight loss, distorted body image, mild irritability, distressing dreams, and difficulty in adapting to stressful circumstances, including work or worklike setting. Few of these symptoms correspond to 30 percent criteria, such as chronic sleep impairment, depression, anxiety. The symptom of difficulty in establishing and maintaining effective work and social relationships corresponds to 50 percent rating; and the symptom of difficulty in adapting to stressful circumstances, including work or worklike setting corresponds to 70 percent rating criteria. The Veteran reported that he felt depressed once or twice a month when he got acne outbreaks on his face. He reported feeling anxious in crowds, however, he did not describe recurrent panic attacks. He reported irritability toward family members, however he did not show prominent anger during the examination. He also reported that he had good long-term memory. This indicates that the Veteran had few symptoms more frequent than the other. The September 2015 examiner also noted the Veteran's social and family history, and that he was living with his second wife of 21 years. The Veteran described his marital relationship as "up and down, because of his nightmares." He reported pretty good relationship with his son but "up and down" relationship with his daughter. He also reported that he maintained contact with his three brothers and one sister, however, he did not have any close friends. He liked going for walks, working on little things around the house and caring for his four horses. As far as relevant occupational and educational history is concerned, the September 2015 examiner noted the Veteran's work history from 1980 and onwards. The Veteran worked as a carpenter from August 1980 to September 1981 at GBA & Associates, a construction company in South Dakota. From November 1981 until April 1982, and for a few months in 1983, he worked as a police officer for the Oglala Sioux Tribe. From March 1984 to May 1984 and March 1989 to March 1991, he worked as a carpenter and quit the job because of conflict with his boss. He worked again for GBA & Associates as a carpenter from March 1992 until June 1994 and quit this job as well due to conflict with his boss. In September of 1994, he returned to GBA & Associates to work as a carpenter on a full-time basis; but quit the job again in June 1996 due to conflict with his boss. He worked for a theater company for a few months in 1996; then from August 1996 to June 1998, he worked as a carpenter on a full-time basis for the Bureau of Indian Affairs. From August 1998 until September 1998, he worked for the Steven Construction Company as a carpenter. From 2000 to 2004, he worked for Oglala Sioux Tribe Housing Authority as a carpenter on a full-time basis, where he became a lead carpenter, however, he was demoted to a regular carpenter. The Veteran reported missing of work for four days in twelve months due to anger management issues arising from conflicts with other workers or supervisors. Veteran also reported that in 2005 while working as a carpenter he happened to hit one of his bosses and was asked to resign. He then worked for a different employer as an admin assistant, where he got into an argument and was asked to resign. He then worked for a construction company for five months, until the roofing project he was working on was completed. In the end the Veteran reported that he could not find a hob for the past five years or so. The examiner also noted that the Veteran was alert and well oriented, had stable affect, logical and coherent thought, and speech processes. He denied feelings of hopelessness or suicidal ideation. Based on the Veteran's symptoms, family, social and occupational history, the examiner noted that the Veteran presented with poor coping skills during stress in a work setting; and assigned a level of occupational and social impairment with reduced reliability and productivity, which corresponds with 50 percent rating criteria under Diagnostic Code 9404. 38 C.F.R. § 4.130, Diagnostic Code 9404. The July 2017 correspondence from the Veteran's representative, alleged that the most recent VA examination showed thoughts of suicide, delusions, thoughts of homicide, and long and short-term memory impairment, among other symptoms. However, none of these symptoms were noted during September 2015 examination. The Veteran underwent another VA examination in April 2019 to determine the severity of his mental health condition. The examiner noted the diagnosis of body dysmorphic disorder and resulting symptoms of anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner noted the Veteran had poor dental hygiene, and his speech was soft but clear and coherent. His motor behavior was normal and there were no overt signs of anxiety. Concerning the Veteran's relevant social, marital, and family history, the examiner noted that he was separated from his wife three weeks ago after he had conflict with his daughter and granddaughter. The Veteran stated that he would divorce his wife. He was living with his cousin and continued to have good relationship with his brother and other siblings. The examiner also noted that the Veteran liked to work on cars and cut wood with friends, and had other leisure activities, including fishing, woodworking, riding horses, and watching TV. The Veteran reported being anxious in crowds. Often, he would remain in his vehicle while his wife did the shopping. The was unable to articulate why being around others made him anxious. Regarding occupation, the Veteran reported he had not worked since 2005. He last worked in the construction field. He reported that he had not worked because he could not attend to his hygiene at work. The examiner also noted the Veteran's mental health history and individual psychotherapy with the VA psychologist at Hot Springs VA since November 2017. The therapy focused on anxiety, which revealed that the Veteran had been anxious about money regarding unexpected hospital expenses related to his grandson's overdose. The Veteran also had ongoing sleep problems. The examiner also noted that the Veteran had not focused on body dysmorphic disorder issues in therapy in the 7 visits with a psychologist since November 2017. He did report a near suicide attempt in December 2018, which he told his therapist was related to deaths of close family members. However, during the November 2019 examination, the Veteran provided a different reason and stated that he became suicidal after his family went to visit other family members and he began feeling lonely. He explained that his older brother interrupted his suicide attempt and took his gun away. The Veteran reported the only medication he was taking for mental health purposes was Benadryl. The examiner also noted a September 2002 psychiatric note, which revealed at times the Veteran was having dreams of his face being burned and the delusion that his face smelled when it rained. However, during April 2019 examination, the Veteran stated that his face was better, but he was still dealing with several spots on his face, forehead, arms, and chest. He further explained that he had been using antibacterial spray to clean his infection. The face infection was not apparent to the examiner, however, the examiner noted skin eruptions on the Veteran's arm. The Veteran also reported he was unable to work at his preferred job in construction because it was difficult for him to find jobs where he could attend to the hygiene needs for his acne 3 times a day. The Veteran denied psychiatric hospitalization, military sexual trauma, panic attacks (although he reports anxiety attacks with symptoms of shaking and shortness of breath when around a lot of people), manic episodes, obsessions, compulsions, memory problems, depressive symptoms since December 2018, traumatic brain injury, and current intent to harm himself or others. He stated that he was not normally anxious when he was in his own world, that is at home and not around a lot of people. He reported chronic problems with restless sleep and bad dreams, which included dreams of snakes, insects in his skin, and his skin's being burned. The examiner noted that the Veteran was fully oriented with good attention and mildly impaired concentration, and without problems with short-term memory. The Veteran described his mood as neutral neither up nor down. His affect was appropriate and consistent with mood. The Veteran's thoughts were organized and goal-directed. He denied hallucinations, and no delusions were elicited. The examiner believed that the Veteran was not an imminent risk to harm himself, but he was a greater risk than average in light of his near attempts in the past. The examiner opined that the Veteran's irritability in regard to small matters would hamper his ability to work around others, and he would do better in a supportive environment where most of his work was solitary, such as ranch work. Based on Veteran's symptoms, family, social and occupational history, the examiner noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Board notes that this level of occupational and social impairment corresponds with 10 percent rating criteria under Diagnostic Code 9404. 38 C.F.R. § 4.130, Diagnostic Code 9404. Even though the examiner assigned lower level of occupational and social impairment during April 2019 examination, however, the examiner noted the Veteran's report of one near suicide attempt in December 2018. In some cases, the mere presence of suicidal ideation (ranging from passive thoughts of one's own death to active thoughts of engaging in suicide-related behavior), may cause occupational and social impairment with deficiencies in most areas. See Bankhead, 29 Vet. App. at 21. However, the mere presence of suicidal ideation alone will not necessarily warrant an automatic, 70 percent rating. "VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment." Id. At 22. In this case the Board finds the Veteran's psychiatric symptom, including suicidal ideation were not of a severity, frequency, and duration sufficient to warrant a higher rating of 70 percent. There is no evidence of suicidal ideation in November 2017, December 2017; April, May, June, August, and September 2018; and February 2019 VA psychiatric treatments. During all these treatments, the examiner noted low risk of suicide. Hence, there are no frequent reports of suicidal ideation during the rating period. The Board has considered the Veteran's contentions that he is entitled to a higher rating. The Veteran is competent to report symptoms of his mental health condition, as doing so requires only personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 471 (1994). However, the Veteran is not competent to render an opinion as to the relative severity of his condition, as doing so requires specialized medical knowledge or expertise the Veteran has not been shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds that the evidence of record indicates that the Veteran demonstrated he was oriented to time and place and had thoughts well organized and goal-directed. The evidence of record also indicates that the Veteran has an inconsistent relationship with his daughter and wife, however, he has a good relationship with his siblings, and is able to do leisure activities. There are instances of occupational difficulties, however, they were prior to the beginning of rating period and mostly with the same employer, and also were not frequent. The record indicates that the Veteran has not worked since 2005 because it was difficult for him to find jobs where he could attend to his hygienic needs for his acne during work, as noted by the examiner during April 2019 examination. Hence, the Board finds that throughout the appeal period, the level of impairment caused by the Veteran's psychiatric symptoms are more closely approximates the level associated with a 50 percent rating. While the Veteran did experience few symptoms contemplated by a 70 percent rating, including some suicidal ideations, difficulty in adapting to stressful circumstances; however, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating because the Veteran does not have deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood. A preponderance of the evidence must be against the claim for benefits to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the Veteran reports to the clinicians and clinical assessments have greater probative value than the Veteran's statements to the VA for compensation purposes for ascertaining the frequency and severity of psychiatric symptoms, including suicidal ideation. The preponderance of the evidence is against the claim, consequently, entitlement to an increased disability rating greater than 50 percent for the Veteran's service-connected body dysmorphic disorder is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral knee condition is remanded. The Veteran contends that he fell from height of eight feet during service, in which he hit his both knees on a vehicle and was treated with pain medication. He reported taking medication as needed after service and was able to work in the construction industry with mild pain. During April 2015 VA examination, the examiner noted one time in-service treatment regarding knee pain. However, based on lack of other indication of knee pain and continuous chronic condition during and after the service, the examiner opined that the Veteran's mild degenerative joint disease and patellofemoral pain syndrome of bilateral knees was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. In its December 2018 decision, the Board denied the entitlement to service connection for bilateral knee disability based on April 2015 VA examination. In the August 2020 order, the CAVC set aside the Board's December 2018 decision and remanded the matter for development and readjudication. In relevant part of the August 2020 order, the CAVC found that the April 2015 VA examination was inadequate because the examiner noted the Veteran's report of continuing knee pain since service, but did not factor those statements into the opinion as to whether the Veteran's current knee disabilities are related to service. Since the Board did not discredit the Veteran's lay statement, the CAVC found these statements credible. Therefore, the CAVC remanded the matter to obtain a new VA medical opinion that adequately addresses that Veteran's credible lay statements of continuity of symptoms since service. Consequently, the Board finds that a remand is warranted for the RO to obtain a supplemental opinion pursuant to the CAVC orders. 2. Entitlement to a total disability rating based on individual unemployability ("TDIU") due to service-connected disabilities is remanded. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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)(1), 4.15. TDIU can either overtly stated or implied by a fair reading of the claim or of the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU should be considered based on the appealed increased rating claim. Id. (noting that a claim for a TDIU rating is part of an increased rating claim when such a claim is raised by the record). As noted earlier, the Veteran's psychiatric symptoms have impacted his ability to work, therefore, TDIU has been raised as part and parcel of the increased rating claim for service-connected body dysmorphic disorder. The record shows that the Veteran has also independently and separately asserted entitlement to TDIU, which is being considered as a separate appeal under Appeal Modernization Act (AMA). However, the TDIU portion of this particular increased rating claim for body dysmorphic disorder would include consideration of the whole record, and not have the evidentiary limitations as the other appeal. The claim of entitlement to service connection for the Veteran's bilateral knee condition is being remanded for further development and any grant of service connection may impact the Veteran's eligibility for TDIU on a schedular basis. Therefore, the issue of entitlement to a TDIU must be remanded as it is inextricably intertwined with the claim of entitlement to service connection for bilateral knee condition. Hence, the TDIU adjudication must be deferred until development is complete with regard to the Veteran's other remanded claims. The matters are REMANDED for the following action: 1. Obtain a supplemental medical opinion on the nature and etiology of the Veteran's bilateral knee condition. Further in-person examination of the Veteran is left to the discretion of the clinician providing the opinion. If the clinician deems a new examination is necessary for providing an opinion, then such an examination should be scheduled. The examiner should be provided with access to the claims file, including copies of this remand and the August 2020 CAVC order. 2. After reviewing the claims file, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral knee condition had its onset during period of active service, or related to an in-service injury, event, or disease, including the claimed in-service fall from a height of eight feet, in which the Veteran hit his both knees on a vehicle. In providing the above opinions, the examiner is advised to address the Veteran's contentions regarding post service knee pain, in-service knee impairment treatment and medical articles contain in the documents associated with the claims file, with entries dated: (i) 08/30/1976, titled "STR Medical," page number 38 of 88, which includes an undated in-service notation of knee impairment with slight swelling with no dislocation; (ii) 05/08/2015, titled "C&P Exam," which includes the Veteran reports on post-service mild knee pain; (iii) 08/31/2020, titled "CAVC Decision," page numbers 72-74 that include the part of orders on issue of entitlement to service connection for bilateral knee disability; (iv) 09/09/2016, two documents titled "Medical Treatment Record Non-Government Facility" and one document titled "Medical Treatment Government Facility," all three documents are medical articles on musculoskeletal disorders submitted by the Veteran. A complete rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the issue of entitlement to service connection for bilateral knee condition and TDIU. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, Associate 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.