Citation Nr: 1121306 Decision Date: 06/01/11 Archive Date: 06/09/11 DOCKET NO. 06-05 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disability. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from October 1984 to October 1989. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which increased the rating for the appellant's service-connected anterior cruciate ligament tear of the left knee to 30 percent. The appellant appealed the RO's determination, arguing that a higher rating was warranted. In an October 2008 decision, the Board denied a rating in excess of 30 percent for the appellant's service-connected anterior cruciate ligament tear of the left knee. The Board also granted a separate 10 percent disability rating for arthritis of the appellant's left knee. See VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997); see also VA O.G.C. Prec. Op. No. 9-98 (Aug. 14, 1998), published at 63 Fed. Reg. 56,704 (1998) (holding that compensating a claimant for separate functional impairment under Diagnostic Code 5257 (for instability) and Diagnostic Code 5003 (for arthritis and limitation of motion or arthritis and painful motion) does not constitute pyramiding). Finally, in the October 2008 decision, the Board remanded the issue of entitlement to an increased rating for the appellant's left knee disability on an extraschedular basis. Following the completion of additional action by the RO, in a March 2010 decision, the Board denied an extraschedular rating for the appellant's service-connected left knee anterior cruciate ligament tear and arthritis. See 38 C.F.R. § 3.321 (2010). Additionally, the Board remanded the issue of entitlement to a total rating based on individual unemployability due to service-connected disability to the RO for additional evidentiary development and due process considerations. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for a total rating based on individual unemployability due to service-connected disability, either expressly raised by the claimant or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating). A review of the record shows that the RO has complied with all remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The appellant has not argued otherwise. In April 2011, the RO forwarded to the Board a February 2011 letter from the appellant in which he reiterated his contentions regarding his entitlement to increased VA compensation. Under 38 C.F.R. § 20.1304 (2010), if the Board receives pertinent evidence that was not initially considered by the RO, the evidence must be referred for review unless the claimant waives this procedural requirement. 38 C.F.R. § 20.1304(c) (2010). Although no waiver was received in this case, the arguments contained in the appellant's February 2011 letter are cumulative of those previously considered by the RO. Thus, this additional argument not pertinent and a remand for the RO to reconsider these duplicative arguments is unnecessary. Id. FINDING OF FACT The appellant's service-connected disabilities are not shown to render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for the assignment of a total rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. In April 2008, June 2008, November 2008, and April 2010 letters, VA notified the appellant of the information and evidence needed to substantiate and complete his claim, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2010). Since the issuance of these letters, the RO has reconsidered the appellant's claim, most recently in the January 2011 Supplemental Statement of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The appellant's service treatment records are on file, as are all available post-service clinical records specifically identified by the appellant. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2010). The appellant was also afforded several VA medical examinations in connection with his claim. 38 C.F.R. § 3.159(c) (4) (2010). The most recent medical examination was conducted in November 2010 for the express purpose of determining whether his service-connected disabilities rendered him unemployable. The Board finds that the examination report received is adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records as well as an examination of the appellant. The examination report contains the necessary findings upon which to base a decision in this case. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that the examination is adequate and VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2010). In reaching this determination, the Board has considered the appellant's April 2011 letter in which he indicated that he was not satisfied with the November 2010 VA medical examination, including on the basis that an MRI examination was not conducted and the examiner characterized his symptoms as less severe than the appellant believed them to be. He has requested for a second opinion from another VA physician. The Board has carefully reviewed the examination report and finds no indication that it is inadequate or the examiner's findings are inaccurate. It is well settled that in the absence of clear evidence to the contrary, public officers, specifically including VA medical examiners, have properly discharged their official duties. Rizzo v. Shinseki, 580 F.3d 1288 (Fed.Cir.2009). It is within the discretion of VA medical professionals to determine whether imaging studies are necessary in order to provide the requested opinion. The appellant has provided no probative evidence to support his lay assertion that imaging studies were necessary or his allegations that the examination was otherwise inadequate or inaccurate. Sickels v. Shinseki, No. 2010-7149 (Fed. Cir. May 6, 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Rather, the appellant appears to be seeking a medical opinion in support of his position that he is unable to work due to his service-connected disability. As has been discussed above, however, VA has obtained a clear medical opinion in this case. Indeed, there is no conflicting medical opinion. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. Background The record on appeal shows that in 1983, prior to his period of active duty, the appellant underwent surgical repair of the left anterior cruciate ligament with augmentation. In-service treatment records show that he reinjured his left knee in 1985 and again in 1987. In connection with his complaints of instability and giving way, in February 1988, the appellant underwent a partial meniscectomy and anterior cruciate ligament reconstruction. In December 1989, the appellant submitted an application for VA compensation benefits, seeking service connection for a left knee disability. In a November 1989 rating decision, the RO granted service connection for postoperative residuals of a left knee injury and assigned an initial 10 percent disability rating effective October 16, 1989, pursuant to Diagnostic Code 5259. In March 2005, the appellant submitted a claim for an increased rating for his service-connected left knee disability. He contended that he experienced a considerable amount of trouble with his left knee which stopped him from performing some job tasks. He argued that a 50 percent disability rating was therefore warranted. In connection with his claim, the appellant was afforded a VA medical examination in May 2005. He complained of left knee instability, swelling, and aching in cold weather. He reported that he wore a left knee brace and could not work without it. He indicated that he had lost no time from work as a result of his left knee disability. Physical examination did not reveal any signs of abnormal weight bearing and the appellant's gait was within normal limits. The appellant did not require an assistive device for ambulation. The left knee joint's general appearance was within normal limits. There was moderate instability, crepitus, and normal range of motion with pain at 140 degrees. Joint function was additionally limited by weakness, lack of endurance, incoordination and pain. The diagnosis was chronic anterior cruciate tear, left knee. In a July 2005 rating decision, the RO increased the rating for the appellant's left knee disability to 30 percent effective March 21, 2005, pursuant to Diagnostic Code 5257. As set forth above, the appellant appealed the RO's determination, arguing that a higher rating was warranted. In his August 2005 notice of disagreement, the appellant claimed that because "[m]y knee stops me from performing my job and daily physical activities to my fullest potential," he was entitled to a 100 percent disability rating. In his February 2006 substantive appeal, the appellant reported that his current job required him to stand about 71/2 hours per day. He claimed that his knee would get weak after a couple of hours and shift if he did anything active without a brace. He indicated that this resulted in him having "a hard time doing my job well." In connection with his appeal, the appellant again underwent VA medical examination in August 2006. He reported that he walked three blocks three times per week and rode a bicycle two miles three times a week, which took 30 minutes. He had been employed as a welder but claimed that he had recently lost his job because he was unable to stand on his knee for long periods of time and was losing three days a month from work as a result of his knee. He claimed that his knee was aggravated by standing three hours, by walking one block, by going downstairs and by lifting more than 75 pounds in weight. It was not affected by driving. The appellant did not limp and indicated that his knee would give way on him two times a week but would not cause him to fall. He reported that he had worn an elastic sleeve brace for the previous year, which he said decreased his instability. Physical examination of the left knee showed moderate crepitus, weakness, and instability as well as pain on motion. The appellant's gait was normal. On repetitive use range of motion was additionally limited by 10 degrees because of fatigue. There was lack of endurance and incoordination in terms of falling. The major components were the pain and incoordination. The diagnostic impression was degenerative joint disease of the left knee status post ACL repair with moderate instability and subjective progression. In a November 2006 addendum to the August 2006 examination, the VA examiner noted that the appellant's left knee motion was 0 to 125 degrees without pain. He noted that examination of the knee showed no painful motion, no weakness, no excess fatigability and no incoordination. There was no additional limitation with repetitive movement and no additional limitation with flare-up. In an October 2007 statement submitted in connection with a claim for apportionment on behalf of his children, the appellant reported that his only source of income was his VA disability compensation. He reported that he was on parole which made it "realy [sic] hard for me to get a job because of background checks." He also claimed that he was unable to walk due to his left knee disability and had nothing to his name but for a motorcycle. In an October 2008 decision, the Board denied a schedular rating in excess of 30 percent for the appellant's chronic anterior cruciate tear, left knee. The Board granted a separate 10 percent schedular rating for arthritis of the left knee with painful motion. The Board remanded the issue of entitlement to an extraschedular rating. In connection with the Board's remand instructions, in a November 2008 letter, the RO asked the appellant to provide additional information regarding his employment situation and the effects of his knee disability upon his employment. The appellant failed to respond. The RO thereafter obtained VA clinical records noting that the treatment facility had been unable to contact the appellant after March 2007. The records obtained are entirely negative for complaints or findings pertaining to the left knee. The case was thereafter referred to the Director of the Compensation and Pension Service for consideration of an extraschedular rating. In a November 2009 letter, the Director concluded that the appellant's left knee disability was not manifested by such an exceptional or unusual disability picture with such related factors as marked interference with employment as to render impractical the application of the regular schedular standards. Thus, entitlement to an extraschedular evaluation for the appellant's left knee disability was not warranted. In a March 2010 decision, the Board denied an extraschedular rating for the appellant's service-connected left knee anterior cruciate ligament tear and arthritis is denied. The Board remanded the issue of entitlement to a total rating based on individual unemployability due to service-connected disability. In connection with the Board's remand instructions, in an April 2010 letter, the RO again asked the appellant to provide additional information regarding his employment situation. In May 2010, the appellant submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, on which he reported that he had worked as a welder from August 2004 to June 2007. He reported no other employment background. With respect to educational background, the appellant reported that he had completed high school, but had pursued no other educational or vocational training. He indicated that he had applied for three jobs in various fields in the last six months, but had not been hired. He indicated that "[i]t is difficult for me to obtain employment because of disability and the fact that I have [two felony I convictions] on my record. It is impossible in this economy." In an attached statement, the appellant contended that his knee "renders me from doing any kind of employment in the fields that I worked." He reported that he had worked as a welder prior to 2007 but felt that he was no longer able to perform that type of work as a result of his left knee disability. In support of his claim, the appellant submitted a May 2010 VA clinical record noting that he was seen requesting a disability evaluation. He reported that his chief complaint was his left knee. He reported that his left knee pain was a 6 on a pain scale of 1 to 10. He claimed that his pain increased with activities such as exercise. He obtained relief from his pain by taking medication. On examination, the appellant was able to do a squat with no pain. The assessment was knee pain. The examiner recommended that the appellant try physical therapy, which he had not tried since service. It does not appear that the appellant followed up on the recommendation of the examiner. In November 2010, the appellant was afforded a VA medical examination at which his complaints included knee pain, swelling and giving way. He claimed that he had used a brace in the past but now used a cane. He was unemployed. The appellant reported that he had worked as a welder but that "been off" for the past three years due to knee problems. His activities of daily living were unaffected. On examination, the appellant's left knee exhibited full range of motion and mild stability. There was no additional limitation following repetitive use, other than increased pain without further loss of motion. There were no flare-ups and no incoordination, fatigue, weakness or lack of endurance on his joint function. The diagnosis was degenerative joint disease with instability, status post ACL reconstruction. After examining the appellant and reviewing his claims folder, the examiner indicated that although the appellant should avoid manual labor, there was no contraindication to sedentary employment. Applicable Law VA's Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified in the Rating Schedule are adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Nonetheless, a total disability rating may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a) (2010). Where these percentage requirements are not met, entitlement to a total rating based on individual unemployability on an extraschedular basis may be considered when the claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b) (2010); see also Thun v. Peake, 22 Vet. App. 111, 117 (2008); Kellar v. Brown, 6 Vet. App. 157, 162 (1994). 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 (2010). 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 or intercurrent disability. 38 C.F.R. §§ 3.341, 4.19 (2010). 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 (2010). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 3 61, 363 (1993). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Analysis The appellant seeks a total rating based on individual unemployability. He argues that he is unable to work in his chosen profession due to his service-connected left knee disability. As set forth above, service connection is currently in effect for chronic anterior cruciate ligament tear of the left knee, rated as 30 percent disabling; and arthritis of the left knee with painful motion, rated as 10 percent disabling. The appellant's combined disability rating is 40 percent. Because the appellant does not have a single service-connected disability rated at 60 percent or more, nor is his combined disability rating 70 percent or more, he does not meet the threshold requirements for consideration of a total rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). In cases such as this, where these percentage requirements are not met, entitlement on an extraschedular basis may be considered. Essentially, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010). The record in this case shows that the appellant has a high school education and three years of work experience as a welder. He reports that he has applied for at least three jobs, but was not hired. He contends that it is difficult or impossible for him to obtain employment because of his left knee disability, his criminal record, and the economy. The record on appeal shows that although his service-connected left knee disability is clearly productive of some industrial impairment, there is no indication that such disability, in and of itself, renders him unable to secure or follow a substantially gainful occupation. In fact, in November 2010, a VA examiner concluded after examining the appellant and reviewing his claims folder, that although the appellant should avoid manual labor, there was no contraindication to sedentary employment. There is no other probative evidence which contradicts the conclusion of the examiner. The Board has considered the appellant's statements to the effect that he has had difficulty finding employment. Though cognizant of the current difficult economic climate, the Board notes that the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the appellant is capable of performing the physical and mental acts required by employment. In this case, the medical evidence indicates that he is capable of sedentary employment and there is no indication of any special factors surrounding his service-connected disabilities. In summary, the Board finds that the most probative evidence of record indicates that the appellant's service-connected left knee disability, in and of itself, does not compromise him to such an extent that he is unable to follow substantially gainful employment. Although the Board has considered the appellant's statements concerning the impact of his service-connected disability, his self-assessment is outweighed by the objective medical evidence of record, particularly in light of the appellant's concession that his criminal history is a contributing factor in his inability to obtain employment. For the reasons stated, the Board has concluded that the appellant's claim for a total rating based on individual unemployability due to service-connected disabilities does not warrant referral to the Director of the VA Compensation and Pension Service for extra-schedular consideration. As the preponderance of the evidence is against the claim, it is accordingly denied. ORDER A total rating based on individual unemployability due to service-connected disability is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs