Citation Nr: 22017772 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 15-35 452A DATE: March 26, 2022 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU), effective July 23, 2018, is granted. REMANDED For the period beginning August 16, 2018, entitlement to a disability rating in excess of 20 percent for service-connected right knee degenerative joint disease (DJD) with limitation of extension is remanded. For the period prior to June 3, 2020, entitlement to a disability rating in excess of 10 percent for service-connected right knee DJD with limitation of flexion is remanded. For the period prior to October 30, 2018, entitlement to a disability rating in excess of 10 percent for service-connected left knee DJD is remanded. For the period prior to October 30, 2018, entitlement to a disability rating in excess of 10 percent for left knee instability associated with DJD is remanded. For the period prior to July 23, 2018, entitlement to a TDIU, to include on an extra-schedular basis, is remanded. Entitlement to a TDIU due solely to a service-connected knee disability is remanded. FINDING OF FACT For the period beginning July 23, 2018, the most probative evidence of record persuasively supports a finding that the Veteran has been unable to secure and follow substantially gainful employment, consistent with his education and occupational backgrounds, due to combined service-connected disabilities. CONCLUSION OF LAW For the period beginning July 23, 2018, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16. INTRODUCTION The Veteran served honorably on active duty in the United States Air Force during the Gulf War Era, from May 1997 to July 2006. These matters come before the Board of Veterans' Appeals (Board) from merged appeals stemming from a July 2014 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. When the Veteran's claims for increased ratings for right knee disabilities came before the Board previously in March 2021, the claims were denied, and he was granted a TDIU effective October 1, 2018. The Veteran subsequently appealed these matters to the United States Court of Appeals for Veterans Claims (Court) and, pursuant to a Joint Motion for Partial Remand (JMPR), the Court entered its December 2021 Order remanding them for action consistent with the terms of the JMPR. Additionally, the claims for disability ratings in excess of 60 percent for a total left knee replacement from December 1, 2019, and in excess of 10 percent for right knee instability prior to June 3, 2020, were dismissed. Finally, the Board observes the Veteran's claims for increased ratings for service-connected left knee disabilities and a TDIU due solely to a service-connected knee disability were remanded by the Board in January 2022 based upon a JMPR and the Court's Order entered September 2021. The additional development has been conducted and the matters return to the Board for further appellate review. While further delay is regrettable, for the reasons set forth below, the Board finds remand is again necessary including to obtain substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION TDIU 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 (i.e., a TDIU rating). 38 C.F.R. § 4.16. A TDIU rating 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. The phrase "unable to secure and follow a substantially gainful occupation" has two components: one economic and one non-economic. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply 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. Id.; see 38 C.F.R. § 4.16(a). As for the non-economic component, "the ultimate inquiry is instead on the [Veteran's] ability to secure or follow that type of employment." See Ray, 31 Vet. App. at 73. In determining whether a TDIU rating is warranted, consideration may be given to a Veteran's history, education, skill, and training, but not his age or to any impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. Additionally, a determination is required regarding whether the Veteran has the physical ability, both exertional and non-exertional, to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation(s) at issue. See Ray, 31 Vet. App. at 73. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. A determination is also required as to whether the Veteran has the mental ability to perform the activities required by the occupation(s) at issue. Id. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with co-workers, and demonstrate reliability and productivity. Id. 38 C.F.R. § 4.16(a) addresses schedular TDIU, which applies where a Veteran has a single disability rated at 60 percent or more, or two or more disabilities rated collectively at 70 percent or more where one of them is rated at least 40 percent or more. Id., at 63. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Further, the Board must determine whether the evidence persuasively favors the claim or if there is an approximate balance of positive and negative evidence (i.e., relative equipoise) regarding any issue material to the determination of a matter, with the Veteran prevailing in either event, or whether the evidence persuasively weighs against the claim in which case it must be denied. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); see also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to a TDIU effective July 23, 2018, is granted. The Board's March 2021 decision determined the issue of entitlement to a TDIU was reasonably raised by the record as part of the Veteran's increased rating claims and granted him a TDIU effective October 1, 2018. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, according to the JMPR, the Board did not provide any clarifying statement as to its consideration of entitlement to a TDIU for the period prior to October 1, 2018, to include what the relevant period on appeal is for that specific timeframe. As an initial matter, the Veteran first met the schedular criteria for a TDIU effective July 23, 2018, with a combined rating of 70 percent. 38 C.F.R. § 4.16(a). At that time, his service-connected disabilities included: unspecified mood disorder rated 50 percent; right knee DJD with instability rated 10 percent; left knee DJD with instability rated 10 percent; lumbar spine degenerative disc disease (DDD) rated 10 percent; left knee DJD rated 10 percent; right knee DJD with limitation of flexion rated 10 percent; and non-compensable ratings for pseudofolliculitis barbae and multiple surgical scars. The Veteran was subsequently granted a separate evaluation for right knee DJD with limitation of extension rated 20 percent effective August 16, 2018, and, as a result, his combined rating increased to 80 percent. Thus, the Veteran did not meet the schedular rating requirements for a TDIU prior to July 23, 2018. Id. In February 2017, the Veteran's treating orthopedic surgeon noted the Veteran has "significant issues with his [right] knee" following "seven surgical procedures," and continues to have "pain and giving out." Further, the surgeon reported the Veteran "needs a total knee replacement," and that he "is able to work now at a job which allows him to sit occasionally but this may not always be the case." According to VA treatment records dated February 2018 and April 2018, the Veteran transferred to a lesser paying sedentary job due to his chronic knee pain. These treatment records also indicate the Veteran's "job is understanding of time he needs for appointments." In July 2018, after undergoing nerve blocks in both knees, the Veteran presented walking with a cane, with uneven gait, and braces on both legs, and reported not being able to work due to sleep disturbance. Also, the Veteran's employer was reportedly requesting "more paperwork to justify him being off work," and the Veteran was not "optimistic that he will return to his current job." The Veteran underwent a VA examination in August 2018 at which time the examiner noted he "has not been working because his doctor has taken him off work." According to the VA examiner, the Veteran "has been off for about 3.5 months" and will start knee replacements in October 2018, which "will be a lengthy process." In August 2018, the Veteran submitted a Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) indicating he was employed full time from August 2013 to present. However, according to the Veteran, he began using accumulated sick leave and paid time off on May 8, 2018, and last worked full time as a correctional contract monitor as of that date when physicians "deemed it necessary for me to not return to work." A Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192) received from the Veteran's last employer dated September 2018 indicates he was out on leave (FMLA) and last worked May 4, 2018. The Veteran submitted another VA Form 21-8940 in January 2020 and reported last working full time on May 4, 2018, and indicated his employment ended October 1, 2018. Based upon the foregoing, the Board finds the probative evidence of record establishes the Veteran went on leave as of May 4, 2018, and he did not return to work at any time prior to October 1, 2018. The Board finds that, as of July 23, 2018, when the Veteran first met the schedular criteria for a TDIU he possessed significant physical (i.e., exertional) limitations due to his service-connected disabilities, including limited sitting, standing, and walking requiring frequent rest, as well as chronic pain and limited climbing, squatting, lifting, bending, and activities requiring repetitive use of the right (dominant) shoulder such as pushing, pulling, holding, and squeezing. Further, the Veteran possessed significant mental (i.e., non-exertional) occupational and social limitations due to his service-connected mental disability, including panic attacks, impaired memory, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a work like setting. According to the evidence of record, the Veteran has a bachelor's degree in business administration and past work experience as a correctional contract monitor and in accounting/business, compliance/monitoring, and records and reports. Based upon the foregoing, the Board finds the most probative evidence of record persuasively supports a finding that, given the Veteran's educational and occupational backgrounds, his combination of service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation at any exertional or skill level beginning July 23, 2018, when he first met the schedular criteria for a TDIU and satisfied both the economic and non-economic components under Ray. 31 Vet. App. at 73. As a result, the Veteran's entitlement to a schedular TDIU, beginning July 23, 2018, is granted. REASONS FOR REMAND For the period beginning August 16, 2018, entitlement to a disability rating in excess of 20 percent for service-connected right knee DJD with limitation of extension is remanded. For the period prior to June 3, 2020, entitlement to a disability rating in excess of 10 percent for service-connected right knee DJD with limitation of flexion is remanded. The Veteran has undergone four VA examinations regarding his increased rating claims for service-connected right knee disabilities, specifically, July 2014, October 2016, August 2018, and October 2018. According to the JMPR, the July 2014 and August 2018 VA examination reports were inadequate for adjudication purposes due to failure to properly address additional functional loss, if any, due to reported flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Moreover, while the October 2016 VA examination report also indicates the Veteran experiences flare-ups, the report only addresses the frequency and duration of such flare-ups for the preceding six months and is devoid of any description of symptoms of functional loss during such flare-ups (e.g., pain, fatigue, weakness, lack of endurance). See Dalton v. Peake, 21 Vet. App. 23 (2007) (noting that a medical opinion which does not consider the Veteran's reports of symptoms and history, even if recorded in the course of the examination, is inadequate). Instead, without explanation the VA examiner summarily concludes that pain, weakness, fatigability, or incoordination do not significantly limit the Veteran's functional ability during flare-ups. See Miller v. West, 11 Vet. App. 18, 22 (2007) (a bare conclusion, even one reached by a healthcare professional, is not probative without a factual predicate in the record). Further, the October 2018 VA examination report also indicates the Veteran experiences flare-ups which, contrary to the October 2016 examination report, do significantly limit his functional ability due to pain, fatigue, weakness, loss of motion, and lack of endurance. However, the examiner states it "[w]ould be speculative" to describe the Veteran's functional loss in terms of range of motion (ROM) since he was "not acutely flared" and the "history given by [him] not specific enough." The Board finds the VA examiner's rationale for his inability to offer an estimate of any additional functional loss during flare-ups, which must be derived from information procured from all relevant sources, is inadequate. See Sharp, 29 Vet. App. at 33. Based upon the foregoing, the Board finds the October 2016 and October 2018 VA examination reports are also inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, remand is required to afford the Veteran another VA examination and to procure an adequate examination report. Finally, according to the JMPR the Board improperly declined to adjudicate the Veteran's entitlement to a separate rating under 38 C.F.R. § 4.71A, Diagnostic Codes (DCs) 5258 and 5259. The Court has held that evaluation of a knee disability under DC 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of the meniscal disability of the same knee under DC 5258 or 5259, and vice versa. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (entitlement to a separate evaluation in a given case depends upon whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC). On remand, the VA examiner will be requested to make all findings necessary under all potentially applicable DCs. For the period prior to October 30, 2018, entitlement to a disability rating in excess of 10 percent for service-connected left knee DJD is remanded. For the period prior to October 30, 2018, entitlement to a disability rating in excess of 10 percent for left knee instability associated with DJD is remanded. The Board remanded these issues in January 2022 for additional development necessary to comply with the terms of the September 2021 JMPR and Court Order. Specifically, the Board directed that a retrospective medical opinion be procured addressing the nature and severity of the Veteran's left knee DJD and instability prior to October 30, 2018. As forth below, the Board finds the VA examiner's January 2022 retrospective opinion inadequate for adjudication purposes and, consequently, there has not been substantial compliance with the prior remand directives such that remand is again required. See Barr, 21 Vet. App. 303; Stegall, 11 Vet. App. 268. Based upon a review of the Veteran's claims file, the VA examiner states he has "no basis to determine whether or not the Veteran would have experienced pain in non-weight bearing positions or in passive range of motion (ROM) measurements or evaluate additional loss of function following repetitive use or during flares." According to the VA examiner, "[i]n order to make these determinations there would need to be medical evidence prior to the specified date in 2018 which provided examination findings during periods of flare-up or repetitive use," or that provides "an account of symptoms and specific situations to include non-weight bearing positions or passive ROM positions which is not currently present." However, the VA examiner's retrospective opinion is devoid of discussion regarding the Veteran's self-reports regarding symptoms and functional loss, or any lay evidence whatsoever. As such, the Board finds the VA examiner's rationale for his inability to offer a retrospective opinion regarding symptomology or estimating any additional functional loss while non-weight-bearing, on passive ROM, after repetitive use, or during flare-ups, which must be derived from information procured from all relevant sources, is inadequate. See Sharp, 29 Vet. App. at 33; Dalton v. Peake, 21 Vet. App. 23 (2007) (noting that a medical opinion which does not consider the Veteran's reports of symptoms and history, even if recorded in the course of the examination, is inadequate). Entitlement to a TDIU prior to July 23, 2018, to include on an extra-schedular basis, is remanded. Entitlement to a TDIU due solely to a service-connected knee disability is remanded. The Board finds the Veteran's claims for a TDIU due to multiple service-connected disabilities prior to July 23, 2018, and a TDIU due solely to service-connected knee disability is inextricably intertwined with the increased rating claims being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that, two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, adjudication of these claims will be deferred until further development of the inextricably intertwined issues is completed. Id. Notwithstanding the foregoing, as discussed above the Veteran first met the schedular rating criteria for a TDIU effective July 23, 2018, with a combined service-connected rating of 70 percent, including a single disability rated at 50 percent. 38 C.F.R. § 4.16(a). Prior to July 23, 2018, the Veteran's combined service-connected rating was 60 percent effective May 27, 2014. When the schedular rating requirements for a TDIU are not met, entitlement to benefits on an extra-schedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. § 4.16(b). However, the Board does not have the authority to assign an extra-schedular TDIU in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extra-schedular basis to the Director of Compensation Service. As previously noted, the evidence of record indicates the Veteran stopped working on May 4, 2018, due to service-connected disabilities. Although the Board is hereby granting the Veteran a TDIU due to multiple service-connected disabilities effective July 23, 2018 (when he first met the schedular rating criteria), the Board finds there is plausible evidence to refer the Veteran's claim for a TDIU to the Director of Compensation Service for extra-schedular consideration in the first instance for the period beginning May 5, 2018, through July 22, 2018. Finally, according to the September 2021 JMPR, the Board must address the issue of the Veteran's entitlement to a TDIU due solely to a knee disability. The Board finds this issue is also inextricably intertwined with the increased rating claims being remanded herein. See Harris, 1 Vet. App. at 183. As a result, on remand the RO must specifically consider whether the Veteran has been precluded from securing and following a substantially gainful occupation due solely to his left or right knee disabilities. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an in-person VA orthopedic examination with a physician WHO HAS NOT PREVIOUSLY OFFERED AN OPINION IN THIS MATTER and possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran's service-connected right knee DJD with limitation of extension from August 16, 2018, and retrospective opinions regarding the nature and severity of his service-connected right knee DJD with limitation of flexion prior to June 3, 2020, and left knee DJD instability prior to October 30, 2018. The RO MUST specifically consider whether separate evaluations are warranted under DCs 5258 or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). The examiner MUST obtain a full history from the Veteran. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology and functional limitations. All pertinent symptomology, including when initially manifested and any progression, MUST be elicited from the Veteran and reported in detail. Any indicated studies MUST be performed. Based upon a review of all pertinent documents in the Veteran's claims file including medical treatment and examination records, lay statements, and the examination results, the examiner MUST offer an opinion based upon an accurate medical history, with clear conclusions and supporting data and a reasoned medical explanation connecting the two, providing a full description of the Veteran's service-connected right knee DJD with limitation of extension from August 16, 2018, AND limitation of flexion prior to June 3, 2020, AND left knee DJD and instability prior to October 30, 2018, including any occupational restrictions and all signs and symptoms necessary for evaluating his disabilities under the rating criteria. If the examination is not being conducted during a flare-up or after repeated use over time, the examiner MUST elicit sufficient information from the Veteran regarding the nature, severity, frequency, duration, and precipitating and alleviating factors of such flare-ups necessary to estimate any additional functional loss (measured in terms of ROM) during a flare-up and after repeated use over time. The examiner MUST describe any pain, weakened movement, excess fatigability, instability of station, and incoordination for the above-referenced time periods. In offering the above opinions the examiner MUST consider, discuss, and reconcile as necessary all pertinent lay and medical treatment and examination evidence of record including, but not limited to, the: (a.) December 2016 MRI report indicating a complex tear of the posterior horn medial meniscus with associated symptoms of catching, locking, and falling; (b.) October 2016 and October 2018 VA examination reports confirming right knee joint effusion; (c.) August 2018 VA Form 21-8940 stating "as of 8 May 2018 Dr. Ford and Dr. Beard at Campbell Clinic deemed it necessary for me to not return to work, at least until the outcome of the total knee replacement surgeries that I need to have"; and (d.) August 2018 VA examination report noting the Veteran's "left and right knee [DJD] interfere with his ability to walk or stand for long periods of time without frequent rest, he is unable to lift heavy items or do repeated bending or squatting." A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record, MUST be provided. If it is not possible to provide the above-requested opinion(s) without resorting to mere speculation, the examiner MUST explain whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner (i.e., does not possess the necessary expertise or training). 2. Thereafter, adjudicate the Veteran's entitlement to a TDIU prior to July 23, 2018, and to a TDIU due solely to a service-connected knee disability at any time during the period on appeal. If the Veteran's total combined disability rating still does not meet the minimum rating criteria for a schedular TDIU prior to July 23, 2018, refer the issue of entitlement to a TDIU on an extra-schedular basis to the Director of Compensation Service pursuant to 38 C.F.R. § 4.16(b) for the period beginning May 5, 2018, through July 22, 2018. Michael L. Marcum Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.