Citation Nr: 1007474 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-22 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, his spouse and his son ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1974 and from February 1975 to June 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the St. Petersburg, Florida Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Veterans' Law Judge in November 2009. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran is service-connected for status post total left knee replacement, rated as 60 percent disabling, adjustment disorder with depressed mood associated with degenerative joint disease of the right knee, rated as 30 percent disabling, degenerative joint disease of the right knee associated with status post left knee replacement, rated as 10 percent disabling, right hip sprain associated with status post total left knee replacement, rated as noncompensable (0 percent disabling); for a combined rating of 80 percent, effective March 1, 2008. 2. Affording the Veteran the benefit of the doubt, his service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Resolving the doubt in the Veteran's favor, the criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2009). The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the Appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision. Pertinent Laws and Regulations 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 (2009). 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 (2009). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2009). 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 as a result of service- connected disability, provided that he 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. The existence or degree of nonservice- connected disabilities will be disregarded if the above- stated percentage requirements are met and the evaluator determines that the service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. §§ 3.340, 4.16(a) (2009). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. If the veteran's service-connected disabilities meet the percentage requirements of 38 C.F.R. § 4.16(a), and the evidence of record indicates that he is unable to maintain substantially gainful employment due to his service-connected disabilities, his claim for a TDIU cannot be denied in the absence of medical evidence showing that he is capable of substantially gainful employment. See Friscia v. Brown, 7 Vet. App. 294 (1994). Analysis In this case, the Veteran is currently service-connected for status post total left knee replacement, rated as 60 percent disabling, adjustment disorder with depressed mood associated with degenerative joint disease of the right knee, rated as 30 percent disabling, degenerative joint disease of the right knee associated with status post left knee replacement, rated as 10 percent disabling, right hip sprain associated with status post total left knee replacement, rated as noncompensable (0 percent disabling); for a combined rating of 80 percent, effective March 1, 2008. Therefore, the percentage standards of 4.16(a) have been met as at least one disability is rated at 40 percent or higher and the combined rating is not 70 percent or higher. See 38 C.F.R. § 4.16(a). In statements and testimony presented throughout the duration of the appeal, the Veteran has maintained that his service- connected disabilities preclude him from obtaining substantially gainful employment. During a November 2009 Travel Board hearing, the Veteran testified that his educational background consisted of a high school graduation, one year of college and a year in a customer service program from "pTEC." The Veteran testified that he worked at Eckerd's in a call center, analyzing computer and machine problems in the stores for eight and a half to nine years and that he left in 2003 due to both his service-connected disabilities and the fact that the company had been sold. He also reported that he had not been able to find any employment in that line of work since he left in 2003. The Veteran testified that he was granted Social Security disability for his service-connected disabilities as well as some non service-connected disabilities. He reported that his service-connected disabilities have increased in severity, as his depression symptoms have increased including isolation from his family and his favoring the left knee has caused additional problems to his right leg and problems with ambulation. The Veteran stated that his VA physician reported that he was unable to work because of his knees and he was still receiving treatment for his knees at the VA. His wife also testified during the November 2009 Travel Board hearing that he was unable to clean the house or do chores such as washing dishes because he cannot stand on his legs for a long period of time. She also reported that the Veteran was in pain and was depressed all the time. In his TDIU claims, dated May 2004, January 2006 and March 2007 as well as in the June 2004 and March 2006 VA forms 21- 4192 regarding employment history, the Veteran reported that he last worked from approximately February 1997 or February 1998 to approximately September 2003 or December 2003 as a Senior Coordinator at Eckerd Corporation, he was terminated for health reasons and his disabilities, including the left knee, right knee, neck and lower back, prevented him from following any substantially gainful employment. The Board notes that VA-form 21-4192, dated June 2004, was also signed by the Veteran's employer. VA outpatient treatment reports from March 2001 to May 2008 reflect that the Veteran was treated on several occasions for his service-connected left knee, right knee, right hip and depression. During this period it was noted that the Veteran used a walker and knee braces and was on medication (NSAIDs) for chronic knee pain. A March 2001 VA outpatient treatment report reflects that the Veteran underwent surgery on the left knee for a failed patellar component status post previous total knee arthroplasty in 1996 with an anticipated period of convalescence from six to nine months. In an April 2003 VA examination for the right knee, the Veteran was noted to be walking with new braces on both knees as well as a walker and he reported having lost three months in the last 12 months due to his knee condition. An April 2004 VA outpatient treatment report reflects that the Veteran complained of pain and reported that he could not do any work, squat, walk or kneel. In a September 2004 VA examination for the right knee, the Veteran reported that flare-ups occurred about four to five times a week, lasting about four to five hours. During a flare-up, he reported that he must elevate the knee, ice or heat it with medication and required assistance getting to the bathroom. The examiner estimated that the Veteran was 90 percent more incapacitated during a flare-up. The examiner also noted that the Veteran was using bilateral knee braces and a walker and had reportedly also used crutches four about four hour a day for four to six days a week. The Veteran reported that he last worked in September 2003 as a dispatcher type person for Eckerd Drug and that, even though he had a desk job, he would have to get out of his chair periodically and his knee gave way every time he did that. He stated that he eventually had to stop working due to the amount of pain he was having. The Veteran also reported that he could not perform any prolonged walking, sitting, kneeling or squatting, he could not participate in lifting, sports or exercise which required the use of his legs, he could not even walk a block, he could not use stairs or ladders and he had to avoid cold places. A December 2004 VA outpatient treatment report reflects that the Veteran walked with a walker due to his knees giving out and he complained of and was treated for lower extremity weakness. In an March 2005 VA examination of the left and right knee, the examiner noted that the Veteran's functional impairment was great. The examiner also noted the Veteran had an ability to walk 100 feet at maximum. The Veteran was noted to require the assistance of a walker. He reported that he had been employed as a senior coordinator at Eckerd Drugs for seven years, however, because his job required him to get up and down several times, he had to quit in March 2004. The Veteran reported having severe pain in the left knee with flare-ups which occurred once a week, when he is forced to walk or with severe weather change, such as the cold. Flare- ups were relieved with lying down, bed rest and medication. The examiner also noted the Veteran used large braces on the knees for stability. The Veteran reported that his daily activities were limited because of his limitation of walking. He required help with toileting, did not take any baths and used a shower with a special chair. In an October 2005 VA examination for mental disorder, the Veteran reported that his wife helped him get into and out of the bathtub when he showered due to limited mobility. He also stated that his income consisted of his service- connected disability and he had a Social Security disability claim on appeal. The Veteran reportedly remained at home and avoided socialization and physical activities due to his pain and physical limitations. He reported that he lost his job working at Eckerd in September 2003 when the company closed and that during his last year there, he was missing a couple of days of work each week due to pain. The Veteran stated he had not worked since September 2003. VA outpatient treatment reports reflect that the Veteran was hospitalized in January 2007 for a left knee infection and underwent surgery with an anticipated period of convalescence of three months. These records also reflect that he was hospitalized for a left knee infection again in May 2007. In an August 2007 VA examination of the joints, it was noted that the Veteran was hospitalized in May 2007 for a left knee infection and underwent surgery on the left knee in January 2007 and March 2001, following his total knee replacement in March 1996. Corrective devices for the left knee included the used of a brace, the daily use of a cane and the Veteran reported using a wheelchair if he had to go a long distance. He reported that treatment included medication, Hydrocodone, about six times a day, a TENs machine, a heating pad and ice. The Veteran reported he worked as a computer programmer and retired approximately two years ago. The examiner found that there was no effect of his left knee condition on his usual occupation except that he would need to avoid the following: sitting for longer than 10 to 15 minutes at a time, lifting over five pounds, kneeling or squatting as these could not be done and walking over one block. In an August 2007 statement, the Veteran's treating physician at the VA opined that the Veteran had a permanent disability with his left knee and that he was unemployable as he could not walk more than a block without pain. A January 2008 VA outpatient treatment report reflects that the Veteran underwent surgery on the left knee for the replacement of painful hardware, at which time he continued to ambulate with a walker, used thigh high hose an was referred for physical therapy for the next four weeks following surgery. VA outpatient treatment reports from May 2008 reflect that the Veteran complained of left hip pain which became worse with walking and was relieved with rest and Motrin. Based on a review of the evidence, and resolving the doubt in the Veteran's favor, the Board finds that the evidence supports the Veteran's claim for TDIU. In this regard, the Board finds that the evidence of record reflects that the Veteran has not worked since September 2003, at which time he reported he could no longer work due to his left knee problems, the company had closed and during his last year working at Eckerd, he missed a couple of days of work each week due to pain. The Board notes that in the June 2004 VA form 21-4192 the Veteran's employer confirmed that the Veteran was terminated for health reasons. In addition, the objective medical evidence of record reflects that, following his total knee replacement in March 1996, the Veteran has trouble walking more than a block or standing for prolonged periods without the aid of several assistive devices due to his left and right knee conditions and that he continued to have serious problems with the left knee, including enduring several surgeries on the left knee and hospitalizations for infections of the left knee in March 2001, January 2007, May 2007 and January 2008. While the Board notes that the August 2007 VA examiner found that there was no effect of the Veteran's left knee condition on his usual occupation, he also noted several exceptions including the avoidance of sitting for longer than 10 to 15 minutes at a time, lifting over five pounds, kneeling or squatting as he was unable to do so and walking over one block. Moreover, the Veteran's treating physician at the VA, who had also performed surgery on the Veteran's left knee, specifically opined that the Veteran had a permanent disability with his left knee and that he was unemployable as he could not walk more than a block without pain. Finally, the Board finds that the testimony of the Veteran and his wife attested to his educational limitations of a high school graduation with one year of college and a year in a customer service program, his Social Security disability award for both service-connected and non service-connected disabilities, the severity of his service-connected conditions, his inability to perform many daily activities without assistance and his inability to obtain gainful unemployment as he is limited in his daily activities. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the evidence of record collectively shows that the Veteran is unemployable due to his service-connected disabilities, mainly his left knee condition. Therefore, as the Board finds the evidence in relative equipoise and after resolving all reasonable doubt in favor of the Veteran, entitlement to TDIU, is warranted. 38 C.F.R. § 3.102 (2009). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A TDIU is granted, subject to the regulations applicable to the payment of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs