Citation Nr: 21041391 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-19 463A DATE: July 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDING OF FACT The Veteran's service connected disabilities, have rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was a member of the Army National Guard, with several periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA) between August 1982 and April 2004. In September 2019, the Veteran testified before the undersigned Veterans' Law Judge, at a videoconference hearing. A transcript of that hearing is of record. This matter was previously before the Board in February 2020, where the Board remanded the issues for further development including scheduling the Veteran for VA examinations. The matter has returned to the Board for an appellate review. The Board acknowledges that the Veteran through his representative submitted additional evidence after the August 2020 Supplemental Statement of the Case (SSOC) was issued. However, under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, the additional evidence that the Veteran submitted after this SSOC is subject to initial review by the Board because the Veteran did not request in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C. § 7105(e)(1) (2019). The Board also notes that some additional medical evidence was associated with the claims file after the SSOC. However, as this evidence provides no original information regarding the claims on appeal that has not already been provided in other medical evidence of record, the Board may proceed to adjudicate the claims as done below. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran claims entitlement to a TDIU, alleging that his service connected disabilities preclude him from securing or following a substantially gainful employment. See May 2012 VA 21-8940 [Veterans Application for Increased Compensation Based on Unemployability]. Total disability is considered to exist when there is any impairment, 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). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more. If there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). In the present case, the Veteran's service connected disabilities are: major depressive disorder, rated as 50 percent; left foot peroneal tendonitis arthroscopy rated at 30 percent; right shoulder rotator cuff tear rated at 20 percent; cervical spine arthritis rated at 10 percent; left ankle scar rated at 10 percent; and right knee patellar chondromalacia secondary to left foot rated at10 percent. The Board notes that the Veteran has multiple service connected disabilities with at least one disability rated at 50 percent with a combined rating of 80 percent since December 30, 2010. The Veteran meets the percentage requirements for a schedular award of a TDIU criteria under 38 C.F.R. § 4.16(a). Therefore, a TDIU is warranted if the evidence shows that the Veteran has been unable to secure and follow a substantially gainful employment as a result of his service-connected disabilities, considering his specific educational and employment background, but without regard to age, non-service connected disabilities or previous unemployability status. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (a), 4.19. After a full review of the record, the Board finds that this is the case here. Therefore, entitlement to a TDIU is granted. Educationally, the Veteran's highest level of education is high school GED. He does not have any further education or training. He has previously worked as a truck driver and a corrections officer (guard), and the evidence suggest that he last worked in June/July 2005. See May 2012 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In an April 2014 VA examination, the examiner noted that the Veteran's service-connected cervical spine (neck) and shoulder conditions precluded his ability to perform manual labor. His service-connected scars were noted as not impacting his ability to work. See April 2014 C&P Examinations. In an August 2016 Shoulder and Arm Conditions examination, the examiner stated that the Veteran's condition impacted his occupational task as he should not "engage in overhead work". See August 2016 C&P examination. In an October 2016 Mental Health Conditions examination, the Veteran's symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in maintaining work and social relationships, and difficulty adapting to stressful circumstances including work or a worklike setting. The examiner indicated that the Veteran's depression caused occupational and social impairment with deficiencies in most areas. See October 2016 C&P examination. In March 2021, a private professional rehabilitation counselor provided a vocational assessment of the Veteran. The rehabilitation counselor opined that the Veteran cannot return to any past relevant work or any other jobs in the national economy based solely on his service-connected impairments. The counselor stated that because of the Veteran's service-connected neck, knee, shoulder, and ankle disabilities, he (counselor) would place the Veteran's level of functioning physically at the sedentary level of work, if not less than sedentary. The counselor continued that this residual functional capacity alone would preclude all competitive work; and that the Veteran's ongoing symptoms of major depressive disorder also places him at a less than sedentary residual functional capacity. The counselor concluded that the Veteran does not have any training or education beyond a GED; and that the Veteran does not possess any transferable skills for sedentary jobs as he has not performed any sedentary work in his previous jobs. See March 2021 Vocational Assessment from PRO and Associates. Ultimately, the question of unemployability is a legal determination. See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). Here, considering the Veteran's occupational and educational background along with the above-mentioned evidence the preponderance of the evidence reveals that the Veteran would not be able to maintain any type of employment that is consistent with his educational background and work experience. In Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Board finds the Veteran's physical and mental limitations of the Veteran's service-connected disabilities solely, are of sufficient severity to produce unemployability. Further, the Veteran's lay statements regarding the frequency and severity of his service-connected disabilities, would result in substantial time off task, which would not be tolerated by any employer, even at an unskilled level. Indeed, the evidence suggests that his service-connected left ankle, left shoulder, cervical spine, and right knee disabilities prevents any employment that requires physical labor. Moreover, the symptoms of his major depressive disorder would significantly diminish his functional capacity in the performance of the activities required by his occupation. In other words, considering the Veteran's work experiences as truck driver and guard, and the fact that he has limited education without subsequent training in any other field, it would be reasonable to conclude that he would not be able to maintain gainful occupation in any other field, given his physical and psychiatric disabilities. In sum, the Board resolves reasonable doubt in the Veteran's favor and concludes his service-connected disabilities preclude him from securing or following substantially gainful employment. Therefore, entitlement to a TDIU is granted. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right ankle disability is remanded. The Veteran asserts that he has left knee and right ankle disabilities that are secondary to his service-connected left ankle disability. This matter was remanded by the Board in February 2020 to provide the Veteran with VA examinations determining the nature and etiology the claimed left knee and right ankle conditions. The Board Remand specifically instructed the examiner to address whether it was at least as likely as not, that the fall injuries described in medical records submitted by the Veteran's representative in September 2019, caused or aggravated any diagnosed disability of the Veteran's right ankle and left knee. The Veteran was afforded VA ankle and knee examinations in August 2020. Regarding the Veteran's claimed left knee and right ankle disabilities, the examiner opined that the claimed conditions were less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service connected left ankle disability. The examiner provided the following rationale: "There is no clear evidence from review of orthopedic literature (Wheeless' Textbook of Orthopedics) to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. This level of severity is not supported based on record review, history, or exam. It is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it. Therefore, the right ankle and left knee is less likely than not related to the falls that aggravated the right ankle and left knee. (Oxford's Textbook on Orthopedics and Trauma)." The examiner continued that "the evidence that the veteran gave is all subjective and the conditions he is stating should not be as server (sic) as he states. He received treatment for his foot and should be better if you look at the medical articles on peroneal tendonitis, which would not cause another joint to give out. This left knee was normal ROM, no crepitus or swelling noted on day of exam. his gait was normal no arthritis is seen on the left knee which is normal. His right ankle was, has (sic) full ROM to the ankle no swelling or crepitus on exam. On x-ray of 8/17/2020 showed mild tibiotalar and subtalar arthritis, and prior lateral ligament repair which was from the fall that there is no evidence that was caused by his left ankle. Both ankle has the MILD tibiotalar and subtalar arthritis which would say that the fractures and the surgery did not do. He was a truck driver for years and his climbing in and out of the truck would cause his joint to hurt." See August 2020 C&P examination. The Board finds the August 2020 VA examinations inadequate. The examiner was specifically instructed to address both causation and aggravation for the Veteran's secondary service connection claims. Although the examiner opined against any causal relationship between the service-connected left ankle disability and the claimed left knee and right ankle disabilities, the examiner did not adequately address whether the left ankle aggravated the left knee and right ankle conditions. A medical opinion as to secondary service connection is inadequate for the Board's decision as to aggravation if the issue of aggravation is not sufficiently addressed by the examiner. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An examiner's determination that the disease or injury at issue is not "related to" the service-connected condition is not sufficient to address the aggravation issue. Id. Thus, this medical opinion is inadequate, because it only addresses the causation prong of secondary service connection. Furthermore, concerning the left knee disability, the examiner remarked that there is a lack of diagnosis for the left knee, because the Veteran had full range of motion, no swelling, crepitus, or objective was pain noted on examination that day. The Board finds that the August 2020 VA examiner, however, did not address the validity of the prior findings of a left knee pain shown during this appeal. See CAPRI/ Medical treatment Records. Importantly, service connection may be granted for a disability shown and resolved during the appeal period. See McClain, 21 Vet. App. at 321 (holding that the "current disability" requirement is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim" and reversing the Board's denial of service connection where disability resolved itself during pendency of appeal). Further, the Board notes that pain alone, if it causes functional impairment, can be a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board additionally notes that in February 2021, the Veteran through his attorney contended that the nurse practitioner who conducted the August 2020 examinations is not qualified to perform and render medical opinion regarding orthopedic injuries. See February 2021 Third Party Correspondence. Accordingly, given the inadequacies of the August 2020 VA examinations and the Veteran's contentions, this matter must be remanded to obtain new VA medical examinations by an appropriately qualified examiner (other than the one who provided the inadequate opinions in August 2020) to address all outstanding questions of the service connection claims. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). The matters are REMANDED for the following action: 1. Obtain updated VA and non-VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to assess the current nature and etiology of his claimed left knee disability. The claims file and a copy of this Remand should be available to and reviewed by the examiner. Thereafter, the examiner should respond to the following: (a.) Indicate all diagnoses of left knee disability. The examiner is reminded that pain alone can constitute a disability if it causes a functional impairment of earning capacity. If the Veteran's left knee pain does not reach this threshold, and thus should not be considered a disability, the examiner should so clarify. (b.) For any left knee disability diagnosed, is it at least as likely as not (50 percent or greater probability) that the disability was CAUSED by the service-connected left ankle and/or right knee disability? (c.) For any left knee disability diagnosed, is it at least as likely as not (50 percent or greater probability) that the disability was AGGRAVATED by the service-connected left ankle and/or right knee disability? A complete rationale should be provided for all opinions offered. 3. Schedule the Veteran for a VA examination to assess the current nature and etiology of his right ankle disability. The claims file and a copy of this Remand should be available to and reviewed by the examiner. Thereafter, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the right ankle disability was CAUSED by his service-connected left ankle and/or right knee disability? (b.) Is it at least as likely as not (50 percent or greater probability) that the right ankle disability was AGGRAVATED by his service-connected left ankle and/or right knee disability? A complete rationale should be provided for all opinions offered. By aggravation, the Board means a permanent increase in the severity of the disability that is beyond natural progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. The examiner is advised that the Veteran is competent to report injuries and symptoms, and his reports must be considered and discussed in formulating the requested opinions. If his reports are discounted, the examiner should provide an explanation for doing so. The Veteran's statements may not be discounted solely based on the lack of confirmation in the medical records. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought remain denied, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.