Citation Nr: 21032862 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 14-27 852 DATE: May 28, 2021 ORDER Entitlement to a 50 percent rating, but no higher, for a medial meniscectomy of the left knee (left knee disorder) from April 26, 2013, is granted. Entitlement to a total disability rating for individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. From April 26, 2013, the Veteran's left knee disorder is manifested, at its worst, by extension limited to 50 degrees when considering the Veteran's complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups but not ankylosis, flexion limited to at least 45 degrees, or at least slight recurrent subluxation or lateral instability. 2. The Veteran's service-connected disabilities prevent him from obtaining and sustaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating, but no higher, for a left knee disorder have been met at all times from April 26, 2013. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5259-5261. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1966 to May 1969. The Board of Veterans' Appeals (Board) remanded these matters in June 2018 to obtain updated medical records and adjudicate the TDIU claim. The Board is satisfied that there was substantial compliance with the portions of the remand pertaining to the Veteran's increased rating claim and TDIU claim. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999). The Board has reached this conclusion because the Agency of Original Jurisdiction (AOJ) conducted appropriate efforts to develop the record and to provide the Veteran VA examinations as directed in the June 2018 Board remand. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Next, the Board notes that the Veteran alleges that his left knee has not been properly rated since he was first assigned a knee disability rating in 1969. However, the Board cannot address this assertion since the issue on appeal is limited to a claim for an increased rating which has been pending since April 26, 2013. Accordingly, after obtaining clarification from the Veteran as to the bases for this assertion, the AOJ is directed to undertake all needed actions as to this claim. The Increased Rating Claim The Veteran contends that he is entitled to increased disability ratings for his left knee disability throughout the entire period at issue. In this regard, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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 assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran's medial meniscectomy of the left knee was rated 10 percent prior to October 8, 2019, under 38 C.F.R. § 4.71a, Diagnostic Code 5259 for symptomatic removal of the cartilage, to include painful motion, swelling, and stiffness. As of October 8, 2019, the Veteran's left knee disability has been rated 50 percent based on limitation of extension to 50 degrees under 38 C.F.R. § 4.71a, Diagnostic Code 5259-5261. Next, it should be noted that, during the course of this appeal, the schedular rating for evaluating other impairments of the knee has been amended. Specifically, the criteria pertaining to recurrent subluxation or instability of the knee and impairment of the tibia and fibula under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 76, 453 (November 30, 2020). Moreover, where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enhancement of the new rule. VAOPGCPREC 07-03 (November 19, 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of the change. 38 U.S.C. § 5110; Kamas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the amendments did not amend Diagnostic Code 5259. Moreover, and as will be discussed in more detail below, Diagnostic Code 5257 and Diagnostic Code 5262 are not applicable to the current claim. Therefore, because none of the rating criteria for rating this Veteran's left knee disorder changed, the Board finds that it need not Remand the appeal to provide the Veteran with notice of the amendments. See Sabonis, supra. Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating. Under old 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling. And, severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under new 38 C.F.R. § 4.71a, Diagnostic Code 5257, in order to warrant a 20 percent rating for a knee disability, the evidence must show recurrent subluxation or instability and one of the following: sprain, complete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation; patellar instability: a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker and a 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. If extension of the knee is limited to 30 degrees a 40 percent rating is in order. If extension of the knee is limited to 45 degrees a 50 percent rating is in order. Full range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under old 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; with moderate knee or ankle disability warrants a 20 percent rating; with marked knee or ankle disability warrants a 30 percent rating; and with nonunion (loose motion requiring brace) warrants a 40 percent rating. Under new 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of the tibia and fibula medial tibial stress syndrome (MTSS), or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other consecutive treatment in one lower extremity warrants a 20 percent rating; requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities warrants a 30 percent rating, nonunion of, with loose motion, requiring brace, warrants a 40 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Lastly, in Chavis v. McDonough, No. 18-2928 (2021) the Court held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), that Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. In this regard, VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disorder includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97 (July 1, 1997). Initially, in adjudicating below whether the Veteran meets the criteria for higher evaluations for his left knee disability the Board has not overlooked the Court's holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases. Specifically, the Board finds that the October 2019 VA examination provided VA with medical opinion evidence adequate to rate the Veteran's disability when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups because the examiner specifically addressed each of these concerns. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination is not required. See Sabonis, supra. As to a rating in excess of 10 percent for the left knee disability prior to October 8, 2019, under Diagnostic Code 5261, the Board notes that this claim has been pending since April 26, 2013. Moreover, the Court has held that "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014) (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, the Board finds that when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he meets the criteria for at least a 50 percent rating at all times from April 26, 2013, because at its worst the range of motion of the left knee was extension limited to 50 degrees at the October 2019 VA examination (i.e., extension of the knee is limited to 45 degrees or worse). See 38 C.F.R. § 4.71a, Diagnostic Code 5261; Fenderson, supra; Hart, supra. As to a rating in excess of 50 percent for the left knee disability from April 26, 2013, at any time during the appeal under Diagnostic Code 5256 due ankylosis, while the range of motion of the left knee is restricted at the VA examinations, the record on appeal never shows it being ankylosed. In fact, the July 2019 and October 2019 VA examiners specifically opined they are not ankylosed, and these medical opinions are not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Moreover, the Board finds that the Veteran is not competent to diagnosis ankylosis because this is a medical finding. See Davidson, supra. Therefore, the Board finds that when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), the Board finds that a higher rating is not warranted for the Veteran's left knee disorder under Diagnostic Code 5256 at any time during the appeal. See 38 C.F.R. § 4.71a; Hart, supra; Fenderson, supra. As to Diagnostic Code 5260, while it only provides a maximum rating of 30 percent for lost knee flexion, as discussed above, the Veteran is potentially entitled to a separating rating for his left knee disorder due to lost flexion. See VAOPGCPREC 9-2004. However, given the record, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for at least a separate 10 percent rating at any time from April 26, 2013, because flexion of the left and right knee is not limited to 45 degrees or less because it was 70 degrees at the July 2019 VA examination and 100 degrees at the October 2019 VA examination. Moreover, while the Veteran's treatment records document his complaints and treatment for left knee problems, the Board finds that above VA examiners ranges of motion are not contradicted by any other medical evidence of record because treatment records never document less flexion in the left knee. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Hart, supra; Fenderson, supra, Colvin, supra. This does not suggest that the Veteran is having no problems with his left knee, simply that the current knee problem is being addressed by the current disability evaluations of the problem. The question is only the degree of the problem based on the multifaceted criteria cited above for knee problems. As to Diagnostic Code 5257, while the old and new rating criteria only provide a maximum rating of 30 percent for recurrent subluxation or lateral instability of the knee, as discussed above, the Veteran is potentially entitled to a separating rating for any left knee subluxation or lateral. See VAOPGCPREC 23-97. However, the Board notes that the October 2012, July 2019, and October 2019 VA examinations are uniform in finding that the left knee is stable. Moreover, while treatment records document the Veteran's complaints and treatment for left knee problems, nothing in these records contradicts the above VA examiners findings. See Colvin, supra. Therefore, the Board finds that the most probative evidence of record are the VA examiners findings that the Veteran's left knee is stable because they are supported by the other evidence of record. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Accordingly, the Board finds that the criteria for a separate 10 percent ratings for left knee instability are not met at all times from April 26, 2013. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; VAOPGCPREC 23-97; Fenderson, supra; Hart, supra. As to higher ratings under Diagnostic Code 5258 for dislocated semilunar cartilage, Diagnostic Code 5259 for symptomatic removal of the semilunar cartilage, Diagnostic Code 5262 for impairment of the tibia and fibula, and/or Diagnostic Code 5263 for genu recurvatum, the Board notes that the disability rating already assigned the Veteran's service-connected left knee disorder exceeds the maximum rating possible under these code sections at all times from April 26, 2013. See 38 C.F.R. § 4.71a. Therefore, increased ratings under these criteria is also denied. See 38 C.F.R. § 4.71a; Hart, supra; Fenderson, supra. In reaching the above conclusions, the Board has also not overlooked the claims from the Veteran regarding his adverse symptomatology. See Davidson, supra. However, the Board finds the VA examiner's opinions as to the Veteran's adverse symptomatology more probative than any lay claims from the appellant to the contrary even though his symptomatology is observable by a lay person because the examiner has medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim for a rating in excess of 50 percent for the left knee disorder, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. The TDIU Claim The Veteran claims, in substance, that he is entitled to a TDIU because his service-connected disabilities prevent him from working. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran's service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record shows that the Veteran is service-connected for the following disabilities: coronary artery disease with myocardial infarction status post coronary artery bypass graft (60 percent), medial meniscectomy of the left knee (50 percent), arterial hypertension (10 percent), left inguinal hernia repair (0 percent), left knee medial scar (0 percent), chest and abdominal scars (0 percent), left inner forearm scar (0 percent), left medial thigh scar (0 percent), and right lower extremity scar (0 percent). In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher when considering his back disability and radiculopathy as one and he has a combined rating of 70 percent or higher from April 6, 2011. The next question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the Veteran's VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), dated in December 2012, he reported that he had not worked full-time in August 2010 because of his service-connected disabilities. As to his work history, the Veteran reported that from 2007 to 2012 he worked at Pinnacle Airlines and before that he was a postal worker. As to his education, the Veteran reported that he had 2-years of college. As to the Veteran's being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment at Pinnacle Airlines and as a postal worker as well as other possible employment that could make use of his work experience and 2-years of college, the Board finds that the medical records show that the problems caused by his service-connected myocardial infarction status post coronary artery bypass graft, medial meniscectomy of the left knee, arterial hypertension, and left inguinal hernia repair adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and carry out the tasks required by employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected myocardial infarction status post coronary artery bypass graft, medial meniscectomy of the left knee, and arterial hypertension would make it dangerous for the Veteran for him to work in most non-sedentary employments. Id. Similarly, the Board finds that that the problems caused by his myocardial infarction status post coronary artery bypass graft, medial meniscectomy of the left knee, arterial hypertension, and left inguinal hernia repair would make it very difficult to work for a full day in most sedentary employments and carry out the duties required by such employment for the first time. Id. Given the above, the Board finds that the Veteran's service-connected disabilities prevent him from securing or following a "substantially gainful" occupation given his prior vocational history, work experience, and the impact his service-connected myocardial infarction status post coronary artery bypass graft, medial meniscectomy of the left knee, arterial hypertension, and left inguinal hernia repair have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment at Pinnacle Airlines and as a postal worker, because of the problems they would cause in any work environment. Further development of this issue is simply not warranted in light of the history of this case. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. REASONS FOR REMAND Entitlement to service connection for a back disability is remanded. The Veteran contends that his back disability is related to his active duty service or secondary to his service-connected left knee disability. The Veteran underwent a VA examination in July 2019. However, the examiner indicated that there was no mention of back pain in service treatment records, and that the Veteran did not seek treatment for a back disorder until he sought treatment for low back and hip pain in May 2006. However, in a report of medical history in October 1968, it appears as though the Veteran reported recurrent back pain. Furthermore, he filed a claim for service connection for a back disability within one year of separating from service and reported in a July 1969 VA examination that he hurt his back in service. The examiner noted that the Veteran complained of pain in the infrascapular area with radiation to the midline with walking, and an examination of the back showed minimal tenderness in the infrascapular area. Although the examiner concluded that there were no objective findings of organic spine disease, an x-ray of the thoracic spine showed some narrowing of the mid-thoracic spine, and the examiner suggested that cone views of the mid-thoracic spine be obtained. However, it does not appear as though those images were ever obtained. Additionally, the July 2019 examiner provided opinions as to whether the Veteran's back condition was directly related to service or whether it was proximately due to or the result of his service-connected knee disorder. However, the examiner did not opine as to whether the Veteran's back disability was worsened beyond the normal progression of the disease as a result of his service-connected knee disability. As a result, addendum opinions are required to examine the evidence of reports of back pain during and immediately after service and determine whether his back disorder is directly related to active duty service, proximately due to or the result of his service-connected knee disability, or aggravated by his service-connected knee disability. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). In this regard, when providing the requested medical opinions and again adjudicating the claim the VA examiner and the RO must apply the Court's new definition of aggravation which now includes a temporary worsening of a disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). While the appeal is in Remand status any outstanding VA and private treatment records, to include the reports from the x-rays cited to by the July 2019 VA examiner, should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records to include the reports from the x-rays cited to by the July 2019 VA examiner. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA's actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records cannot be found. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 3. In order to comply with the earlier Remand, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the Veteran's claim of service connection for a back disability. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a back disability was caused by the Veteran's military service. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that arthritis of the back manifested in the first post-service year. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability was caused by his service-connected left knee disorder. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability was aggravated by his service-connected left knee disorder. In providing answers to the above question the examiner should consider and discuss the service treatment records to include the October 1968 service treatment records indicating recurrent back pain, as well as the July 1969 VA examination In providing answers to the above question the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should be aware of the facts that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). (Continued on the next page) In answering the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to any inquiry without resort to speculation he or she should so state and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, 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.