Citation Nr: 1302001 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 06-06 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from March 1976 to June 1976. This matter comes to the Board of Veterans' Appeals (Board) from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which increased the Veteran's service-connected residuals of a right knee injury with chondromalacia, status post meniscectomy from 20 percent to 40 percent, effective March 29, 2004; assigned a temporary 100 percent evaluation, effective March 29, 2005, based on surgical or other treatment necessitating convalescence; and thereafter assigned an evaluation of 20 percent, effective from July 1, 2005. The Veteran appealed the assignment of a 20 percent disability rating from July 1, 2005 for his service-connected right knee disorder to the Board. Thereafter, in February 2006, the RO granted an extension of the temporary 100 percent evaluation for the right knee surgery to October 1, 2005. The RO also granted a separate 10 percent rating for right knee partial meniscectomy in a January 2007 rating decision, effective March 11, 2005. In a May 2010 decision, the Board denied an increased rating higher than 20 percent for residuals of a right knee injury manifested by lateral instability, effective from October 1, 2005, and denied an increased rating in excess of 10 percent for right knee partial meniscectomy, effective from March 11, 2005. However, the Board assigned a separate 10 percent disability rating for degenerative joint disease of the right knee with limited extension, which was assigned an effective date of March 11, 2005 by the RO. The Board also found that the issue of entitlement to a TDIU had been raised on a derivative basis as part of his increased rating claim for the right knee disability, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), and remanded this issue to the RO via the Appeals Management center (AMC), in Washington, DC for further development. Specifically the RO was to send a notice letter to address the issue of unemployability. Thereafter, the RO sent the Veteran the requisite notice letter in May 2010. The case was remanded by the Board in July 2011, however, as the Veteran had asserted that his right knee disability had worsened since it was last evaluated in 2006. The Board determined that since the severity of his right knee disability would affect his employability status, the case should be remanded so that a VA examination could be provided. The RO subsequently scheduled a VA examination in September 2011 to address the issue of whether the Veteran had been rendered unemployable as a result of his right knee disabilities. The case was then returned to the Board. In February 2012, the Board again remanded this claim noting that the Veteran had raised the issue of entitlement to service connection for a right knee below the knee amputation, as secondary to his service-connected right knee disabilities. The Board referred this matter to the RO for adjudication and found that the issue of entitlement to service connection for a below the right knee amputation was inextricably intertwined with the issue of entitlement to a TDIU due to the service-connected right knee disabilities. The RO subsequently adjudicated the issue of service connection for a right knee below the knee amputation and denied this claim in June 2012, based on a medical opinion in March 2012. The RO also provided another medical opinion addressing the issue of entitlement to a TDIU in May 2012. Thus, the RO has substantially complied with the directives of the Board's remands. The case is now ready for appellate review. FINDING OF FACT The Veteran's service-connected right knee disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on unemployability due to service-connected disabilities have not been met and the criteria for referral for consideration of individual unemployability on an extra-schedular basis have not been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). A letter dated in May 2010 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. The claim was subsequently readjudicated in supplemental statements of the case dated from November 2010 to August 2012, thereby curing any timing defects in the notice. Regarding the duty to assist, the RO has obtained the Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) records, and private treatment records. The RO also has provided him with VA examinations addressing all the relevant criteria. As such, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. TDIU Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by non-service- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has three service-connected disabilities involving the right knee, including residuals of a right knee injury with chondromalacia status post meniscectomy, moderate tricompartmental osteoarthritis, rated as 20 percent disabling from October 1, 2005; degenerative joint disease of the right knee associated with residuals of right knee injury, rated as 10 percent disabling from March 11, 2005; and right knee partial meniscectomy rated as 10 percent disabling from March 11, 2005. The combined rating for the right knee disability is 40 percent. As such, the Veteran does not meet the criteria for consideration for entitlement to a TDIU on a schedular basis because the ratings do not satisfy the percentage requirements. Therefore, a TDIU rating is not assignable under 38 C.F.R. § 4.16(a). Nevertheless, the Veteran may be entitled to a TDIU on an extra-schedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effects of his service-connected disability. 38 C.F.R. § 4.16(b). Consequently, the Board must determine whether the Veteran's service-connected disability precludes him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). 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. 361, 363 (1993). This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. In this case, the evidence of record fails to show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected right knee disabilities. The record shows that the Veteran has been unemployed since at least the late 1980s to early 1990s. In 1991 he started receiving SSA disability benefits for back pain. However, medical records associated with the SSA decision also note the Veteran was having problems with his right knee. An April 1992 treatment record notes the Veteran had last worked two and a half years ago on a farm. A January 2001 medical report notes that the Veteran stated that his right knee had been bothering him for many years ever since he had reconstructive surgery in 1978 after a military-related accident. He stated that whenever he walked up and down stairs it began to really bother him with throbbing and swelling. It was noted that he had done manual labor jobs his entire life but had not worked the past seven or eight years secondary to his low back pain. The Veteran has had several right knee surgeries over the years. A May 2006 VA examination report noted that the Veteran first underwent surgery in 1977 following a military accident. Six to eight years after this, he underwent arthroscopy and casting for nine months. He stated that he had had a total of four surgeries and that the most recent occurred in May 2005, which was a partial lateral meniscectomy as debridement performed arthroscopically as well as an arthroscopic irrigation and debridement of a sinus tract. He had previously worked as a fireman but had not worked in greater than 15 years, secondary to his back and right knee. Prior to this an April 2005 VA examination report notes that the Veteran was nonambulatory with very minimal hopscotch type ambulation into the restroom and from chair to chair to bed to dining room in his home. The Veteran subsequently had a right knee below the knee amputation that was performed in 2010. A medical opinion was provided in March 2012 that the right below the knee amputation was unrelated to his service-connected right knee disabilities. Specifically, the examiner noted that the reason the Veteran underwent the below knee amputation was for persistent infection, including osteomyelitis of the right foot and lower leg that was unresponsive to conservative therapy. The examiner could find no medical evidence or basis to support that the Veteran's service-connected residuals of right knee injury with chondromalacia, status post meniscectomy, and moderate tricompartmental degenerative joint disease caused the infection to the Veteran's lower extremity necessitating amputation. Furthermore, there was no evidence that the Veteran's service-connected right knee condition aggravated the infection or caused the infection not to respond to conservative therapy. The Veteran's infection of his right lower leg appeared to be a condition that was independent of his right knee condition for which he is service-connected. The RO denied entitlement to service connection for the right knee below the knee amputation in June 2012, and the Veteran has yet to appeal this decision. Therefore, the right knee below the knee amputation is not a service-connected disability. Medical opinions were provided to address the Veteran's employability status in relationship to his service-connected right knee disabilities in September 2011 and May 2012. The September 2011 VA examination report noted that the Veteran had undergone multiple procedures of the right knee including a meniscectomy and multiple arthroscopies. The Veteran described a persistent right knee pain and some decrease in range of motion. He also reported some swelling, stiffness, popping, and clicking without instability. He was status post right below the knee amputation, secondary to infections including osteomyelitis that did not respond to conservative treatment. He did not report periods of complete incapacity in the past year secondary to the right knee condition specifically. He stated that it had been well over 20 years since he was last employed on any full-time basis. With regards to his service-connected right knee condition, the examiner determined that the right knee condition in and of itself would likely result in some functional impairment to occupational duties that might require bending, lifting, squatting, kneeling, crawling, climbing, or prolonged weight-bearing. The Veteran had multiple other conditions including a right below the knee amputation and chronic ongoing back condition that further complicated his functional abilities. However, given an occupation that had more sedentary occupational duties that did not require the aforementioned activities, the Veteran would not likely be completely precluded from following and maintaining a substantially gainful employment due directly to his service-connected right knee condition. The same examiner provided the same medical opinion in May 2012. In consideration of the evidence of record, the Board finds that the Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. It is not clear from the record the Veteran's level of education, but he has work experience in manual labor type jobs such as farming and as a fireman. The VA examiner who addressed the matter determined that the Veteran was capable of gainful employment. Although certain occupations requiring strenuous physical activity may be precluded, the examiner who provided the opinions in September 2011 and May 2012 found that sedentary employment would be attainable. In conjunction with medical problems including a low back condition and nonservice-connected right below the knee amputation, the Veteran's employability status was further complicated. However, nonservice-connected disabilities are not for consideration in this analysis. The Veteran's right knee disability has caused significant impairment over the years and has required numerous surgeries. However, it has been medically determined that the Veteran's right below the knee amputation is not related to his service-connected right knee disabilities, but rather is a result of infection. Furthermore, it has been medically determined that the Veteran's back disorder was not caused or aggravated by his service-connected right knee disabilities by a VA examiner who provided an opinion in August 2006, with an addendum opinion in October 2006 clarifying that there was no aggravation of the back from the right knee disabilities. It is clear from the record that the Veteran's right knee disability would affect the Veteran's employment, especially considering his history of employment in manual labor type positions. However, to the extent the service-connected right knee disabilities affect the Veteran's employment, the assigned schedular ratings for the disability compensate the Veteran for such impairment. Thus, referral for extra-schedular consideration is not appropriate and a TDIU rating is not warranted. See 38 C.F.R. § 4.16(b). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs