Citation Nr: 1112116 Decision Date: 03/25/11 Archive Date: 04/06/11 DOCKET NO. 03-06 053 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right elbow disability, claimed as secondary to service-connected right shoulder impingement and right total knee replacement. 2. Entitlement to a total rating based on individual unemployability due to the severity of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from October 1967 to November 1969. He served in the Republic of Korea from February 1968 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2002, November 2005, and August 2006 decisions of the VARO in Waco, Texas. The case was remanded in pertinent part in May 2008 for further development. The requested actions have been accomplished to the extent possible and the case has been returned to the Board for further review. FINDINGS OF FACT 1. The Veteran's right elbow disability is reasonably related to his service connected disabilities. 2. The Veteran is reasonably unemployable because of the severity of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a right elbow disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2010). 2. The criteria for a TDIU have been reasonably met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.41, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist. The Veterans Claim Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103 and 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist claimants in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.59(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) Any information and any medical or lay evidence that is necessary to substantiate the claim; (2) what portion of the information and evidence the VA will obtain; and (3) what portion of the information and evidence the claimant is to provide. The Board finds that the requirements of the VCAA have been met throughout the course of the appeal. The Veteran has been sent appropriate letters in 2005, 2006, 2007, 2008, and 2010. He has therefore been provided with notice of the information and evidence needed to substantiate his claim. He has also been told what evidence VA would be responsible for obtaining and what evidence VA would assist him in obtaining. He was also advised of the evidence necessary to establish a disability rating or an effective date once service connection is granted. With regard to the duty to assist the claimant, under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. VA has obtained service treatment records, VA records, and private medical records. The case was remanded by the Board in 2008 to assist the Veteran in obtaining evidence necessary to substantiate his claim. The Veteran was accorded an examination with regard to the right elbow disability in July 2009. The Board finds the Veteran has an ample opportunity to participate effectively in the processing of his claim with regard to a right elbow disability by VA. Additional evidence was received following the Supplemental Statement of the Case in November 2010. Given the favorable disposition of the claims, the Board finds that all notification and development action with regard to this issue have been accomplished. Pertinent Law and Regulations with Regard to Service Connection. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability first diagnosed after discharge when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for a Veteran who served 90 days or more of active service during a period of war or after December 31, 1946, certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disorder, the following must be shown: (1) The existence of a present disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Pursuant to 38 C.F.R. § 3.310(a), a "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected." See Evans v. West, 12 Vet. App. 22, 29 (1998) (noting requirements for establishing service connection on a secondary basis). In order to establish a secondary service connection claim, the claimant must show: (1) The existence of a current secondary disability; (2) the existence of a service-connected disability; and (3) evidence that the service-connected disability proximately caused the secondary disability. 38 C.F.R. § 3.310(a). A claimant may also establish secondary service connection by demonstrating that his current (secondary) disability became aggravated or worsened by the already service-connected disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (when aggravation of a Veteran's nonservice-connected [secondary] condition is proximately due to the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability as seen prior to the aggravation); Libertine v. Brown, 9 Vet. App. 521, 522 (1996). (Additional disability resulting from the aggravation of a nonservice-connected [secondary] condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a)). If the claimant succeeds in establishing service connection for a secondary condition, "the secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310(a). The Board notes that 38 C.F.R. § 3.310 was amended on September 7, 2006, (effective October 10, 2006). The amendment is to provide prospectively as it is more restrictive; it is not for application in the present claim since the appellant filed his claim prior to the amendment of 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding the merits of initial material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Factual Background and Analysis. The Veteran essentially maintains that as a result of his multiple right knee surgeries, he has had various muscle spasms to the right lower extremity and he cited numerous falls. As a result of those falls, he contends, he injured not only his right shoulder, but also his low back. As a result, service connection has been granted for right shoulder impingement syndrome, as well as degenerative joint disease of the lumbar spine. The right shoulder disability was found to be the result of the aforementioned falls precipitated by the service-connected right knee disability, while the low back disability was determined to be the result of an altered gait caused by the same right knee disability. More recently the Veteran has complained of a right elbow disorder which he contends is the result of the right knee induced falls responsible for the right shoulder and low back disabilities. It is not shown and it is not contended otherwise that the Veteran has a right elbow disability directly related to his active service. There is no documentation on the presence of a right elbow disability for years following service discharge. At the time of a VA outpatient visit in November 2005, the Veteran complained of muscle spasms and pain in the right knee, and also referred to pain involving the right elbow. It was indicated that for the past two months he had noticed increased arthritic pain in the right elbow, as well as bursitis in the same elbow. X-ray studies of the right elbow in January 2006 showed evidence of soft tissue swelling over the olecranon, with a sharp exostosis-like projection for the olecranon representing calcification and the tendons attachment. Also noted was some narrowing of the radiohumeral junction from degenerative change, with a probable 4-millimeter fragment bone in the area, presumably the result of an old avulsion. The Veteran was accorded a VA examination in July 2009 for the purpose of obtaining an opinion as to whether any current right elbow disability was related to service or aggravated by the military. The examiner was also to give an opinion as to whether the service-connected right knee disability and right shoulder disability were related to the development of a right elbow disability. The claims file was reviewed by the examiner. It was noted there were no records of right elbow disability in the service treatment records and no injury involving the right elbow in service. Clinical examination of the right elbow was unremarkable except a notation of pain on motion. The examiner referred to X-ray studies showing degenerative changes. The examiner stated that his "right elbow condition is less likely than not related to or due to the result of and aggravated by a service-connected right shoulder and/or right knee disabilities." Received at the Board in December was a statement from the veteran's wife in which she referred to the impact of the Veteran's various illnesses on his ability to function. Also received was a December statement from David J. Nerenberg, M.D., in which he reported having seen the Veteran for more than one year. He stated that because of the Veteran's chronic right shoulder disability he had developed additional problems in the right elbow due to overuse syndrome by compensating for the right shoulder limitations. In weighing the Veteran's statements, the treatment records, his wife's statement, and the recent medical evidence, the Board concludes that the evidence is at least in equipoise and therefore warrants a grant of service connection for a right elbow disability. The July 2009 VA medical opinion reflects that there is no medical evidence supporting a relationship between the Veteran's current right elbow disability and his service-connected right shoulder and right knee disabilities. However, the Veteran's principal treating physician has expressed a contrary view, attributing right elbow disability to overuse syndrome. This places the evidence at least in equipoise. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of the service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with educational attainment and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on unemployability. If there are two or more such disabilities, there shall be at least one disability 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). In a pertinent precedent opinion, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of the individual circumstances, but without regard to age, are not able to secure and follow a substantially gainful occupation as a result of service-connected disability shall be rated totally disabled, without regard to whether an average person will be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (OGCPREC 75-91). The Board further observes that being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places a 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 the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See VanHoose v. Brown, 4 Vet. App. 361, 363 (1993). It also the policy of VA, however, 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. 38 C.F.R. § 4.16(b). In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated, in essence, that the unemployability question, that is, the ability or inability to engage in substantially gainful activity, had to be looked at in a practical manner, and that the thrust was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved. In evaluating unemployability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.19. Here, the Veteran's service-connected disabilities include right total knee replacement, rated as 30 percent disabling from October 1, 2004; diabetes mellitus with erectile dysfunction, rated as 20 percent disabling from May 8, 2001; right shoulder impingement, rated as 20 percent disabling from January 31, 2005; and degenerative joint disease of the lumbar spine, rated as 10 percent disabling from January 31, 2005. A combined disability rating of 60 percent has been in effect since January 31, 2005. The schedular requirements for TDIU are not met. The record shows the claims file was referred to the Director of VA's Compensation and Pension Service for review of awarding an extraschedular evaluation for the Veteran's service-connected disabilities. However, the Board notes that the October 2010 review by the Director of VA's Compensation and Pension Service relied on the incorrect standard for review, that being 38 C.F.R. § 3.321(b)(1), instead of 38 C.F.R. § 4.16. After evaluating the record, and particularly after resolving all reasonable doubt in the Veteran's behalf, the Board finds that he is indeed unemployable, and that is reasonably due to the impact of his service-connected disabilities. A social and industrial survey was accomplished by VA in July 2009. The Veteran stated the problems with his knee bothered him all his life. He believed the "damage to his body finally resulted in his inability to travel to Houston when his workplace was moved. He was then medically retired." The social worker expressed an opinion as to the impact of the service-connected disabilities on the Veteran's ability to obtain and maintain some form of gainful employment. However, the Veteran was accorded a rating examination by VA in July 2009. At that time, the examiner stated the Veteran's right knee disability "would hinder him from doing any type of manual activity along with sedentary work because of sitting long periods of time would aggravate his right knee." As to the right shoulder disability, the examiner opined "this would hinder him from doing manual-type work but not sedentary work." With regard to the Veteran's low back disorder, the examiner stated "this would hinder him from doing any manual type work and sedentary work because he could not sit for long periods of time because of chronic low back pain." While the examiner did not express an opinion as to the sum total of the service-connected disabilities on the Veteran's ability to maintain gainful employment, it is reasonable to conclude from the aforementioned comments that the impact of the service-connected disabilities make it at least as likely as not that they render the Veteran unemployable. Given the Veteran's current age in the sixties and his previous work experience, it would be unlikely that he would be able to find gainful employment doing even sedentary work, since he would likely miss periods of work because of problems with his right knee, right shoulder, and back. The Board is aware that the Veteran has several nonservice-connected disabilities, but none of these is rated as compensably disabling. In sum, given the Veteran's employment history, the Board is satisfied that his service-connected disabilities of diabetes mellitus, right knee disability, right shoulder disability, and low back disability, without consideration of the nonservice-connected disabilities or age, render him unable to obtain or maintain substantially gainful employment. Accordingly, the Board finds entitlement to TDIU is in order. ORDER Service connection for a right elbow disability is granted. Entitlement to a TDIU is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs