Citation Nr: 22014863 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 19-03 916 DATE: March 15, 2022 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from March 11, 2014 to September 23, 2015, is granted. FINDING OF FACT From March 11, 2014 to September 23, 2015, the evidence of record is at least in relative equipoise that the Veteran's service-connected disabilities rendered him unable to obtain and maintain gainful employment. CONCLUSION OF LAW The criteria for a TDIU from March 11, 2014 to September 23, 2015 have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1980 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge at a virtual hearing in October 2021. A copy of the hearing transcript is of record. 1. TDIU prior to September 23, 2015 The Veteran contends that he is unemployable due to his service-connected disabilities. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). The Board notes that the RO granted TDIU, effective September 23, 2015, which was the date of the Veteran's submitted VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability. However, as the issue of TDIU was raised by the record during the pendency of the Veteran's appeal, it is part and parcel of the Veteran's increased rating claims, and therefore, the issue of TDIU from March 11, 2014 (date of Veteran's increased rating claims on appeal) to September 23, 2015 remains on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for a TDIU is part of a rating issue when unemployability is expressly raised by a veteran or reasonably raised by the record). For the period under consideration, the Veteran was service-connected for prostate cancer at 60 percent; hemorrhoids at 10 percent; right knee instability at 10 percent; left knee arthritis at 10 percent; right knee meniscal tear residuals at 10 percent; erectile dysfunction at 0 percent; and left knee scar at 0 percent. The Veteran had a combined 80 percent rating and met the requirements under 38 C.F.R. § 4.16 (a). The Veteran's occupational history includes working on a printing press and as a lathe operator. He has a high school education. He reported at his October 2021 Board hearing that he last worked in 2000. A November 2014 VA knee examination shows that the Veteran's ability to perform physical labor was severely limited by knee pain. He indicated that he was supposed to undergo surgery for his knees and that he had to undergo injections in both knees. Flare-ups caused intense pain, and he had limited range of motion. Functional impairment due to the knees was found to include instability of station, disturbance of locomotion, interference with sitting, and interference with standing. The Veteran had frequent episodes of locking, pain, and effusion in his right knee due to the meniscal tear and had constant use of a brace and cane for his knee pain. The Veteran underwent an October 2015 VA prostate examination, and while this examination is dated just outside the period under consideration, the Board finds that the objective findings are representative of the Veteran's level of severity for his prostate cancer residuals prior to September 23, 2015. Examination revealed that the Veteran had voiding dysfunction that caused urine leakage which required absorbent material that had to be changed more than 4 times a day. The Veteran also had daytime voiding interval of less than 1 hour as well as nighttime awakening to void 5 or more times. Moreover, he had obstructed voiding, which included symptoms of marked hesitancy, markedly slow stream, markedly weak stream, and markedly decreased force of stream. The examiner indicated that the Veteran's prostate cancer residuals negatively impacted his ability to work, as he would have to frequent the restroom during the day every hour and would require frequent changing of his absorbent material. Upon review of the evidence of record, the Board finds that the Veteran's service-connected right and left knee disabilities and prostate cancer residuals would limit the occupational work the Veteran could perform from March 11, 2014 to September 23, 2015. The Veteran's knee disabilities would make it difficult for him to obtain gainful employment in his past occupations, as his ability to perform physical labor would be greatly hampered by the functional limitations of his knees. Moreover, the Veteran would also have problems in most employment settings, as his voiding dysfunctions would require him to have to use the restroom every hour and frequently change his absorbent material. Accordingly, the Board concludes that the majority evidence of record shows the Veteran was rendered unable to obtain and maintain gainful employment due to his service-connected disabilities from March 11, 2014 to September 23, 2015, and a grant of TDIU is warranted. The benefit of the doubt has been applied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability of the left foot due to VA medical treatment is remanded. Entitlement to an initial evaluation in excess of 10 percent for residuals of right knee meniscal tear with osteoarthritis is remanded. Entitlement to an initial evaluation in excess of 10 percent for right knee instability is remanded. Entitlement to an initial compensable evaluation for right knee limitation of extension is remanded. Entitlement to an initial evaluation in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to an initial compensable evaluation for left knee limitation of extension is remanded. Entitlement to an initial compensable evaluation for left knee scar, associated with left knee osteoarthritis, is remanded. REASONS FOR REMAND Unfortunately, a remand is required for the remaining issues. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 1. Entitlement to compensation under 38 U.S.C. § 1151 for additional disability of the left foot due to VA medical treatment is remanded. The Veteran claims that he incurred additional disability affecting his left foot as the result of VA treatment at the Columbia, South Carolina VA Medical Center (VAMC). In this regard, he maintains that, following an April 2016 surgery to treat an infection on his left foot, VA medical personnel failed to provide him adequate follow-up care, resulting in further infection and, eventually, requiring amputation of the affected toe in February 2017. See, e.g., February 2017 Statement in Support of Claim (VA Form 21-4138); October 2021 Board Hearing Transcript. Specifically, the Veteran attributes the slow healing of his left foot wound and the continued infection to the decision of his treating physician to treat his left foot wound with Medihoney rather than a continued course of antibiotics. See October 2021 Board Hearing Transcript (testifying that he requested that his VA treating physician give him antibiotics to treat the blister on his left foot, but the physician refused and instead insisted that he continue to apply Medihoney; and further stating that it was not until he saw an infectious disease specialist that he was given antibiotics, but by then it was too late, and his toe had to be amputated). The Agency of Original Jurisdiction (AOJ) obtained a medical opinion in June 2017 to address whether the Veteran incurred any additional disability of the left foot proximately due to either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. See 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). Based on a review of the Veteran's treatment records, the June 2017 VA examiner determined that the care provided by VA in treating the Veteran's left foot infection was "good and appropriate," specifically finding that there was no additional disability of the left foot incurred "as a result of any carelessness, negligence, lack of skill or similar incidence of fault on the part of the attending VA personnel[, or] . . . that resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider." See June 2017 VA Medical Opinion Disability Benefits Questionnaire (DBQ). Additionally, the VA examiner found that there was "no failure on the part of the VA [to provide] a timely diagnosis or properly treat the claimed problem." Id. However, despite these findings, the VA examiner failed to address the Veteran's primary contention, namely that the use of Medihoney for wound care following the April 2016 surgery, without continued antibiotic treatment, allowed the left foot infection to become more severe, eventually necessitating amputation. Instead, the examiner merely stated that the Veteran received "appropriate antibiotic treatment . . . and wound care" and did not further describe the nature or course of antibiotics, when antibiotics were started or stopped, or what type of wound care the Veteran received. See id. As such, in the absence of any medical opinion that addresses the specific treatment provided to the Veteran after his April 2016 surgery, the Board cannot make an informed decision on the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"); 38 C.F.R. § 4.2 (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). See also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not permitted to base decisions on its own unsubstantiated medical conclusions). Accordingly, remand for a new medical opinion is required. See Barr v. Nicholson, 21 Vet. App. 303 (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); Stefl, 21 Vet. App. 120. 2. Entitlement to an initial evaluation in excess of 10 percent for residuals of right knee meniscal tear with osteoarthritis is remanded. 3. Entitlement to an initial evaluation in excess of 10 percent for right knee instability is remanded. 4. Entitlement to an initial compensable evaluation for right knee limitation of extension is remanded. 5. Entitlement to an initial evaluation in excess of 10 percent for left knee osteoarthritis is remanded. 6. Entitlement to an initial compensable evaluation for left knee limitation of extension is remanded. 7. Entitlement to an initial compensable evaluation for left knee scar, associated with left knee osteoarthritis, is remanded. The Veteran was last provided a VA examination for his service-connected right and left knee pathologies in February 2017, and his most recent VA examination for his left knee scar occurred in August 2016. At the October 2021 Board hearing, the Veteran testified that his knee conditions had increased in severity and have continued to progress in years since the February 2017 VA examination. See October 2021 Board Hearing Transcript (testifying that he has experienced worsening bilateral knee symptoms, including pain, instability, swelling, and flare ups of increased symptoms, since his knees were last evaluated). Additionally, the Veteran reported experiencing worsening left knee scar symptoms. See id. (noting that his left knee scar was "very painful"); see also August 2016 VA Scars/Disfigurement DBQ and Addendum Opinion (reflecting that the Veteran "had no complaints regarding the scar at his left knee"). Accordingly, considering that more than five years have passed since the Veteran was last provided VA examinations for his service-connected left and right knee conditions and left knee scar, and given the evidence suggesting that these conditions have increased in severity in the intervening years, VA's duty to assist requires that the Veteran be provided contemporaneous examinations to fully and fairly evaluate his service-connected conditions. See 38 C.F.R. § 3.327 (a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). See also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability... the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating). The matters are REMANDED for the following action: 1. Make arrangements to obtain all outstanding VA treatment records and associate them with the claims file. 2. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, arrange for the Veteran's claims file to be reviewed by an examiner to determine whether the Veteran has additional disability of the left foot due to VA care, to include as the result of follow-up treatment and wound care provided at the VA treatment at the Columbia, South Carolina VAMC between April 2016 and February 2017. If the examiner determines it is necessary, schedule the Veteran for a VA medical examination in connection with this claim. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file, including a complete copy of this remand, must be provided for the examiner's review of the relevant history, including especially the treatment in question as well as the consent form, and the examiner must indicate he/she did in fact review the file. The examiner must specifically address the following: (i) Whether the Veteran has additional disability of the left knee that is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? In so doing, the examiner should describe the Veteran's course of treatment following his April 2016 left foot surgery until the February 2017 left transmetatarsal amputation, to include the nature and course of antibiotic treatment, when antibiotics were started and stopped, and the type of wound care the Veteran received. The examiner must also address the Veteran's assertion that the use of Medihoney for wound care following the April 2016 surgery, without continued antibiotic treatment, allowed the left foot infection to become more severe, eventually necessitating amputation. (ii) If additional disability resulted, whether it was a reasonably foreseeable result of the VA's treatment (primary health care provider explains the reasonably foreseeable risks associated VA treatment or services furnished the Veteran)? It is most essential the examiner provide explanatory rationale for the opinion, with specific reference to the evidence of record where appropriate, including VA treatment records. If an opinion cannot be provided, the examiner should so state and explain why this is so. In addition, the examiner should state whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge, there are multiple possible etiologies, with none more prevalent than another, or whatever may be the case. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and current level of severity of his service-connected right and left knee disabilities. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner should report all manifestations related to service-connected disabilities. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose. The examiner should provide additional diagnoses or make a change to a diagnosis where medically justified, with an explanation of the justification for any such change. See 38 C.F.R. § 4.13 (reflecting that the aim of the reconciliation of the various diagnoses and etiological theories of record is to identify and maintain, or continue, the diagnosis or etiology upon which service connection for the disability was initially granted). Additionally, the examiner must also specifically state whether the Veteran has any symptoms due solely to any other service-connected or nonservice-connected conditions. Following a review of the entire record, to include the Veteran's lay statements regarding his current symptoms, to include his assertions regarding experiencing repeated swelling (effusions), instability, locking, and giving way, the examiner should identify and describe in detail all orthopedic and neurological manifestations of the Veteran's service-connected left and right knee disabilities, reporting all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should discuss all findings in terms of the Schedule of Ratings for the Knee and Leg, specifically Diagnostic Codes 5257-5261, to include the new amended rating criteria for Diagnostic Code 5257. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria, including both the new (post-February 2021) and old (pre-February 2021) criteria under DC 5257. In particular, the examiner must: (i) Test and document the range of motion (ROM) for each joint in question in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after-repetitive-use basis. For each ROM, the examining clinician is asked to explicitly identify the degree in which pain is first evidenced by the Veteran's visible behavior. If unable to conduct the required testing or if the determination is made that the required testing is not necessary in this case, the examiner must provide a thorough explanation. (ii) Attempt to elicit information regarding the severity, frequency, and duration of any reported flare-ups, and the degree of functional loss during any such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how any such determination was made. If it is not possible to provide a specific ROM measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. (iii) Identify the nature and severity of all current manifestations of the Veteran's service-connected left and right knee conditions. The examiner should describe the extent of any weakened movement, excess fatigability, and incoordination found to be present in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (iv) Identify any symptoms and functional impairments due to his service-connected left and right knee disabilities, to the extent possible, and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. (v) Perform knee joint stability testing. If any instability of the left and/or right knees is identified, the examiner should describe (a) whether the knee instability is mild, moderate, or severe (pre-February 2021 criteria); and (b) whether the Veteran's left and/or right knee condition causes persistent instability and whether it represents an unrepaired or failed repair of complete ligament tear; a sprain, incomplete ligament tear, or repaired complete ligament tear; or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair (post-February 2021 criteria); and (c) whether, as a result of the identified condition(s), the Veteran requires (and/or has been given a prescription by a medical provider for) any assistive devices (e.g., cane(s), crutch(es), walker) or bracing for ambulation. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must provide a rationale for this conclusion, with specific consideration to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner(s) must include a discussion of any specific facts that cannot be determined and must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and current level of severity of his service-connected left knee scar. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner should report all manifestations related to service-connected disabilities. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose. The examiner should provide additional diagnoses or make a change to a diagnosis where medically justified, with an explanation of the justification for any such change. See 38 C.F.R. § 4.13 (reflecting that the aim of the reconciliation of the various diagnoses and etiological theories of record is to identify and maintain, or continue, the diagnosis or etiology upon which service connection for the disability was initially granted). To the extent possible, the examiner should identify any symptoms and functional impairments due to his service-connected left knee scar and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. In particular, the examiner must: (i) Discuss any symptoms caused by the Veteran's scar of the left knee and address whether they are distinguishable from any symptoms caused by any other disability of the left knee; (ii) Address the Veteran's testimony that his scar is painful and that it causes limitation of function of the left knee and limitation of movement. (iii) Attempt to elicit information regarding the severity, frequency, and duration of any reported flare-ups, and the degree of functional loss during any such flare-ups. If it is not possible to provide an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must provide a rationale for this conclusion. 5. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.