Citation Nr: 1304262 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 04-30 995 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) caused by service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to October 1992. This case was previously before the Board of Veterans' Appeals (Board) in March 2008 and March 2012, at which time, the Veteran was seeking increased ratings for various service-connected left knee disorders. During a January 2011 VA examination, the examiner raised the issue of entitlement to a TDIU. Following development of the record, the VA Appeals Management Center (AMC) in Washington, D.C. denied that claim. Thereafter, that issue was returned to the Board for further appellate action. In May 2011, the Veteran had a hearing at the RO before the Veterans Law Judge whose signature appears at the end of this decision. FINDINGS OF FACT 1. The Veteran has a combined rating of 70 percent due to the following service-connected disabilities: status post revision of a total left knee replacement, evaluated as 30 percent disabling; status post total right knee replacement, evaluated as 30 percent disabling; hypertension, evaluated as 20 percent disabling; right hallux valgus deformity, status post osteotomy and bunionectomy, evaluated as noncompensable; and the residuals of umbilical hernia repair, evaluated as noncompensable. 2. The Veteran has an 11th grade education and work experience as an automobile mechanic, a production worker in the poultry business, and a Ship's Serviceman in the Navy. 3. The Veteran's service-connected disorders do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.16, 4.18 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to a TDIU. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In February 2011, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the following relevant evidence: records reflecting his VA treatment from July 2000 through March 2012; statements from former employers, dated in June and July 2002; records reflecting his treatment at or through the University of Florida from September 2006 through September 2007; records reflecting his treatment by or through U. M. C., M.D., from September 2006 through May 2010; records reflecting his December 2006 treatment at Shands Jacksonville; records reflecting his treatment by or through S. L. L., M.D., from August 2008 through June 2011; and the transcript of the hearing before the undersigned Veterans Law Judge. In September 2004, June 2006, September 2009, October 2010, January 2011, and May 2012, VA examined the Veteran to determine the nature and extent of impairment attributable to his various service-connected disabilities. The VA examination reports show that generally, the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Indeed, after the AMC issued the last Supplemental Statement of the Case in August 2012, the Veteran stated that he did not have any additional evidence in support of his appeal. Rather, he requested that his case be sent to the Board, immediately, for processing. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal During the Veteran's May 2011 hearing, the Veteran testified that due to his service-connected disabilities, he was no longer able to work. He stated that his knees were painful and that they swelled, snapped, and popped. He reported that they were unstable and that he had difficulty negotiating stairs. He also stated that at various times he required the use of a knee brace, two canes, and/or a wheelchair. In addition, he testified that several times a years he was followed by VA, primarily for his knee disorders. The Veteran's wife testified that the Veteran could no longer work on cars like he used to and that he, primarily, stayed home and did a little around the house. She stated that that was frustrating for him. In conclusion, the Veteran maintained that a TDIU was warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. The Applicable Law and Regulations When the Veteran's schedular rating is less than total, a total rating may nonetheless be assigned provided that when there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more. In addition, the disabled person must be unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities of both lower extremities will be considered as one disability. 38 C.F.R. § 4.16(a)(1). Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. VA adjudication manual, M-21-1MR, Part IV, sub. ii, Ch. 2, Sec. F, 24(d). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Any consideration as to whether the Veteran is unemployable is a subjective one, that is, one that is based upon the Veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); VAOPGCPREC 75-91. Advancing age and nonservice-connected disability may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 C.F.R. § 3.341(a), 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A veteran may be considered as unemployable upon termination of employment which was provided on account of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment. With amputations, sequelae of fractures and other residuals of traumatism shown to be of static character, a showing of continuous unemployability from date of incurrence, or the date the condition reached the stabilized level, is a general requirement in order to establish the fact that present unemployability is the result of the disability. However, consideration is to be given to the circumstances of employment in individual claims, and, if the employment was only occasional, intermittent, tryout or unsuccessful, or eventually terminated on account of the disability, present unemployability may be attributed to the static disability. Where unemployability for pension previously has been established on the basis of combined service-connected and nonservice-connected disabilities and the service-connected disability or disabilities have increased in severity, 38 C.F.R. § 4.16 is for consideration. 38 C.F.R. § 4.18. The Factual Background The Veteran has a combined disability rating of 70 percent due to the following service-connected disorders: status post revision of a total left knee replacement, evaluated as 30 percent disabling; status post total right knee replacement, evaluated as 30 percent disabling; hypertension, evaluated as 20 percent disabling; right hallux valgus deformity, status post osteotomy and bunionectomy, evaluated as noncompensable; and the residuals of umbilical hernia repair, evaluated as noncompensable. For the purpose of establishing one 40 percent disability in combination, the bilateral knee disabilities will be considered as one disability. A review of the evidence of record, including VA Form 21-526, received by the RO in August 2002, shows that the Veteran has an 11th grade education. He has work experience as a Ship's Serviceman in the Navy, as well as post-service work experience as an automobile mechanic and a production worker in the poultry business. The Ship's Serviceman provides direct personal services by operating and managing retail and service activities to include: ship stores, vending and cash collection machines, shipboard barbershop, and laundry operations. Managers perform administrative and automated stock control functions for all activities operated. Manual of Navy Enlisted Manpower and Personnel Classifications and Occupational Standards (NAVPERS 18068F), Chapter 69. The report of the Veteran's June 2006 VA examination, shows that he was last employed in the early 2000's as an automobile mechanic. The evidence shows that in December 2006, the Veteran underwent a total left knee replacement at the Shands Jacksonville. In October 2008, he underwent a revision of his total right knee replacement at St. Vincent's Medical Center. Records from S. L. L., M.D., show that the Veteran underwent a total right knee replacement in January 2010 with a revision in June 2010. In February, March, and May 2010, his blood pressure readings were 130/80, 138/74, and 146/84, respectively. In August 2010, when flexing his right knee, the Veteran continued to have a mild amount of pain in both the medial and lateral joint lines. His range of right knee motion included zero degrees of extension and more than 120 degrees of flexion. The following month, it was noted that he was working out and that his pain had decreased. During his October 2010 VA examination, it was noted that the Veteran was taking medication daily to control his blood pressure. On examination, he was 70 inches tall and 329 pounds. His blood pressure was 200/112, 200/109, and 199/107. There was no evidence of hypertensive heart disease, and on X-ray, his heart size was normal. The diagnosis was hypertension, poorly controlled. The examiner opined that the Veteran's hypertension would have no affect on his usual occupation and resulting work problems or on his daily activities. In January 2011, the Veteran was examined by VA to determine the nature and extent of his service-connected left knee disability. It was noted that he had injured his left knee playing football in the Navy in the early 1980's and that he went on to have multiple arthroscopic procedures. He eventually developed degenerative joint disease in the knee and underwent a total left knee replacement in 2006. That replacement reportedly failed, and he underwent revision in 2008. He stated that since the revision, his symptoms had improved. The Veteran stated that he had a moderate degree of soreness and occasional severe pain and that he was unable to negotiate stairs. He reported occasional giving way, weakness, easy fatigability, and low endurance, as well as flare-ups with weather changes and stepping off curbs. He stated that the flare-ups were manifested by increased pain and swelling. His treatment included aspirin with minimal relief. He did not wear a knee brace but had reportedly applied for one to VA. He occasionally used a cane during flare-ups. The Veteran stated that he had retired due to his left knee disorder and that it affected his ability to perform daily activities, such as household work and chores. In this regard, he noted that he occasionally needed help around the house. On examination, the Veteran walked with a slightly antalgic, waddling gait. He did not use any assistive devices. There was tenderness to palpation at the medial and lateral joint lines of the left knee but no ankylosis, effusion, or gross deformity of the left knee. The Veteran was able to flex the knee from zero to 90 degrees, with pain occurring at 90 degrees. Repetitive range of motion testing of the left knee revealed no additional limitations due to painful motion, fatigue, weakness, or incoordination. The range of motion values were unchanged from baseline testing. On further examination, the Veteran demonstrated full quadriceps and hamstring strength. The medial collateral and lateral collateral ligaments were intact and the anterior and posterior cruciate ligaments were substituted for by the total knee replacement. There was no knee instability in any direction. Following the examination, the diagnosis was residuals, revision left total knee arthroplasty. The examiner noted that a more precise diagnosis could not be rendered, as there was no objective data to support a more definitive diagnosis. The examiner noted that the Veteran did have some functional limitation due to the residuals of his left knee arthroplasty and that he had constant soreness in the left knee and occasional pain. The Veteran stated that he was unable to work due to his service-connected bilateral knee conditions. The VA examiner opined that the Veteran would be unable to do an strenuous activities due to his functional impairment. In fact, he doubted that the Veteran would be able to maintain any meaningful employment due to his service-connected revision of a total left knee arthroplasty. In May 2012, the Veteran was reexamined by VA to determine whether his service-connected disorders, either alone or collectively, precluded his ability to work. In addition to his service-connected disorders, it was noted that the Veteran had diabetes mellitus, type II and morbid obesity which were not service-connected. On examination, it was noted that in 1975, the Veteran had undergone umbilical hernia repair from which he sustained no residual disability. The surgical scar was no painful or unstable and did not cover an area greater than 39 square centimeters (6 square inches). There were no pertinent physical findings, complications, conditions, and signs and/or symptoms and no significant diagnostic test findings or results. The examiner found the at the Veteran's residuals of hernia surgery did not impact his ability to work. On examination of his feet, the Veteran reported that they hurt all the time. It was noted that in 1978, the Veteran had undergone a bilateral bunionectomy. There was no evidence of any surgical scars, and it was noted that such disorder had resolved without erythema, edema, or pain on palpation. There was evidence of flexible pes planus, tinea pedis, and onychomycosis, but no hallux valgus. The Veteran denied the use of inserts and stated that his feet hurt from his knees. The examiner stated that the Veteran's service-connected hallux valgus had resolved and should not preclude sedentary or physical employment. In evaluating the Veteran's hypertension, the VA examiner noted that the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2012). The VA examiner found that the Veteran was taking continuous medication for hypertension and that he had a history of a diastolic reading of 100 or more. The Veteran reported that while employed as a production worker in the poultry business from 1993 to 2000, his blood pressure had been elevated. A review of the Veteran's history showed that in July 2000, he had been sent home from work due to an elevated blood pressure reading. Thereafter, he was following for hypertension. In May 2003, his blood pressure had been well-controlled on medication. The Veteran reported that he had been coaching football and baseball and standing for a prolonged period of time. He stated that he had given up coaching and had reportedly been advised to stop due to the ongoing dispute with appeals management. During the VA examination, the Veteran's blood pressure readings were 150/90, 140/80 and 140/80. Following the evaluation of the Veteran's hypertension, the VA examiner opined that the Veteran's hypertension would not preclude physical or sedentary employment. In so saying, the examiner noted that the Veteran's hypertension was reasonably well-controlled. The VA examiner stated that he could even achieve better control, if he lost weight and continued to exercise. In May 2012, VA also examined the Veteran's knees. The history of his bilateral knee arthroscopies and total knee replacements was noted. The Veteran reportedly used a cane for ambulation, regularly, but it was noted that he did not demonstrate an antalgic gait or weight shifting. The surgical scars on each knee were not painful or unstable and did not cover an area greater than 39 square cm. The Veteran denied flare-ups that impacted the function of either knee. He demonstrated left knee flexion from zero to 130 degrees without pain and right knee flexion from zero to 120 degrees with pain at 120 degrees. It was variously stated that he was/was not able to perform repetitive testing and that repetitive testing produced no additional limitation of motion, pain, fatigue, weakness, or incoordination. There was no pain to palpation of either knee. Strength was normal at 5/5 for knee flexion and extension, bilaterally. There was no knee instability in any direction and no evidence or history of recurrent patellar subluxation or dislocation, tibial or fibular impairment or meniscal condition in either knee. Following the VA examination of the Veteran's knees, the examiner opined that the Veteran's service-connected condition should not preclude low impact physical or sedentary employment. The examiner reported that the Veteran's service-connected bilateral total knee replacements had improved his pain and function. The examiner noted that to a certain extent, the Veteran's difficulty in normal mobility emanated from his self-inflicted problem of morbid obesity. In addition, the examiner found that the Veteran's history of activity showed that he had been functional without severe limitations. Analysis As noted above, the Veteran has a combined disability rating of 70 percent, including service-connected disorders of each knee, evaluated as one disability in excess of 40 percent disabling. As such, he meets the percentage criteria for a total rating under 38 C.F.R. § 4.16(a). The salient question, then, is whether he is unemployable due to his service-connected disabilities. Although the Veteran only has an 11th grade education, his lengthy Navy career provided him with valuable work experience as a Ship's Serviceman (SH). The Ship's Serviceman is akin to a retail service manager and includes substantial administrative duties, i.e. low impact physical duties or more sedentary duties. In this regard, the Board notes that the Veteran has recently performed duties as a football coach, a position which involves extensive time on one's feet. Although the VA January 2011 VA examiner doubted that the Veteran could perform any meaningful employment due to his service-connected knee disorders, a VA examination in May 2012 showed otherwise. After reviewing the record, the Board places greater weight on the results of the May 2012 VA examination. The January 2011 examination only examined the Veteran's left knee, and the examiner did not provide any rationale for his conclusion. Conversely, the May 2012 VA examination was much broader in scope. The examiner evaluated each of the Veteran's service-connected disorders and did provide a rationale for his conclusion that the Veteran's service-connected disabilities would not preclude his ability to obtain or retain employment. In this regard, the May 2012 examination was, generally, consistent with the preponderance of the evidence of record and showed few objective manifestations of the Veteran's bilateral knee disorders. Moreover, it showed that the Veteran's hypertension was generally well-controlled by medication. Although the report of an October 2010 VA examination had shown that the Veteran's hypertension had been poorly controlled, the records prior to and after that examination tend to show otherwise. Indeed, such records are consistent with the findings on the May 2012 examination. Finally, the Board notes that the Veteran's service-connected hallux valgus and residuals of hernia repair are, essentially, quiescent and have been resolved. For these reasons, the Board finds the report of the May 2012 examination to be more full and complete than the other recent examinations of the Veteran, including that performed in January 2011. In sum, the Board finds that the preponderance of the evidence is against a finding that the Veteran meets or more nearly approximates the unemployability criteria for a TDIU. Therefore, a TDIU is not warranted, and the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to a TDIU is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs