Citation Nr: 1305167 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 05-09 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 1, 2008, to include on an extraschedular basis under 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1975 to August 1979 and from August 1983 to December 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in April 2009 and February 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The April 2009 rating decision granted the Veteran's claim for TDIU and assigned an effective date of October 23, 2008. The February 2010 rating decision adjusted the effective date to October 1, 2008. The Veteran is appealing the effective date assigned. This case was previously before the Board in January 2009, January 2011, and April 2012, when it was remanded for further development. The April 2012 Remand was to allow for referral to the Director of Compensation and Pension Services (Director) to consider entitlement to TDIU on an extraschedular basis. The referral was made and the issue considered by the Director in April 2012. As the requested development has been completed, no further action to ensure compliance with any of the prior remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). As noted in the April 2012 Remand, the Veteran's notice of disagreement was timely as to the February 2010 rating action, but was received more than one year from the issuance of the April 2009 decision. However, the Board has found that the April 2009 rating decision never became final because new and material evidence under 38 C.F.R. § 3.156(b) was received within a year of the April 2009 rating decision. Therefore both the April 2009 and February 2010 decisions are on appeal here. In addition, the Board recognizes that the issue before the Board is more properly characterized as a claim for an effective date prior to October 1, 2008 (the presently assigned effective date for TDIU), rather than a date prior to October 23, 2008, as stated in the January 2011 Remand. A January 2011 Board Decision denied entitlement to a disability rating in excess of 20 percent for status post right patellofemoral arthroplasty with partial reconstruction, with residuals. However, for reasons that are unclear, the Appeals Management Center included this issue on the August 2011 supplemental statement of the case (SSOC) and the Veteran's representative included this issue in his October 2011 Written Brief Presentation. This issue was decided and is no longer within the Board's jurisdiction. The April 2012 Remand discussed the inclusion of this issue in the SSOC and provided the Veteran the opportunity to indicate that his representative's October 2011 statements as to the right knee rating should be considered as a new claim. As he has not indicated a desire to raise such a new claim, the Board will not further consider this issue at this time. Finally, the Board notes that the Written Brief Presentation filed by the Veteran's representative in January 2013 listed the issue as entitlement to an effective date earlier then October 23, 2008 for posttraumatic stress disorder (PTSD). As noted above, the correct date at issue is October 1, 2008. In addition, the Veteran is not service-connected for PTSD and has never filed a claim for that disability. As the brief discusses the effective date for TDIU, rather than PTSD, the Board interprets the framing of the issue as an error, rather than evidence of an intention to file a claim for PTSD. FINDING OF FACT Since the date of his knee surgery in June 2003, the Veteran has been unable to obtain and maintain substantially gainful employment as a result of his pain and other symptoms of his service-connected right knee disability. CONCLUSION OF LAW The criteria for TDIU on an extraschedular basis have been met as of June 16, 2003. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay 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)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in December 2008 that provided information as to what evidence was required to substantiate the claim of entitlement to an earlier effective date for TDIU and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was issued in December 2008 and the claim was thereafter readjudicated in August 2011. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has been provided with VA examinations regarding the nature and severity of his right knee disability on multiple occasions, including in April 2003, November 2003, February 2007, October 2008, and May 2009. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's April 2012 remand, the claim was referred to the Director of Compensation and Pension Services (Director) for a determination regarding eligibility for TDIU on an extraschedular basis. The Director reviewed the claim and furnished a determination on the issue in April 2012. Thus VA has complied with the April 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). TDIU Claim VA will grant entitlement to a TDIU when the evidence shows that a Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In this case, the Veteran was awarded TDIU and has appealed the assigned October 1, 2008, effective date. Specifically, he noted that his claim for increased disability rating for his right knee disability, pending since January 2003, included an implied claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009). The record shows that at the time the claim for increase was filed, he was working, but by the April 2003 VA examination he reported that he had to stop work as a landscaper. On June 16, 2003, he had a surgery on his knee. Following the surgery, the Veteran was afforded another VA examination in November 2003, at which time the examiner confirmed that the Veteran would not be able to return to work as a landscaper, and could only perform sedentary work. The record confirms that the Veteran later applied for and started in a VA Vocational Rehabilitation program. An August 2004 record from a VA orthopaedic surgeon to the Vocational Rehabilitation office indicates that the Veteran would need a desk-based job in order to prolong his knee cartilage the longest. In May 2004, a VA orthopaedic resident physician made a note that the Veteran was unable to work due to pain ever since his June 2003 surgery. By May 2005, VA outpatient records confirm that the Veteran was altogether unable to carry any weight on the right leg. Next, in August 2005, one of his VA physicians clearly stated that the rating schedule does not contemplate the Veteran's disability, and confirmed that the Veteran could not handle any manual labor. Again in October 2005, a VA physician noted that the Veteran was unable to work due to pain. Two months later, the Veteran underwent another surgery. In April 2006, a VA physician noted that the Veteran had been unable to work for the prior two years due to the knee disability. On two occasions in 2007 the Veteran's VA treating doctors characterized the Veteran as completely disabled. In October 2008, a VA examiner noted the Veteran's history as unable to work for the prior six years and that he was incapable of work as a landscaper. It was at this point that the RO deemed the Veteran unemployable and awarded the TDIU rating. Thus, the record shows that the Veteran has been repeatedly deemed unemployable by physicians ever since his June 2003 right knee surgery. He was assigned a temporary 100 percent rating following this surgery, after which his combined rating returned to 50 percent, effective October 18, 2005. He was again assigned a temporary 100 percent rating, effective December 20, 2005, after which the combined rating again returned to 50 percent, effective January 1, 2007. Another 100 percent rating was assigned as of August 27, 2007, after which the rating has remained 100 percent, including the assignment of the TDIU under appeal, effective October 1, 2008. Since the June 2003 surgery, the ratings, other than the periodic temporary 100 percent ratings, combine to 50 percent. The Veteran's combined disability rating at the times relevant to this appeal was 50 percent. Thus, he did not satisfy the threshold minimum percentage rating requirements for a TDIU (60 percent for a single disability or a combined rating of 70 percent). Therefore, the Board in April 2012 referred the matter to the Director for consideration as to the Veteran's eligibility for TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). See Fanning v. Brown, 4 Vet. App. 225 (1993). In April 2012, the Director considered the question of whether the Veteran should be awarded TDIU on an extraschedular basis prior to October 1, 2008, due to his right knee disability. After reviewing the medical evidence and the Veteran's claims history and symptomatology, the Director felt that there was no evidence of an exceptional or unusual disability sufficient to bring the disability within the guidelines for extraschedular evaluation. Specifically, the Director noted that at various times on examination the Veteran demonstrated nearly full or full range of motion in the right knee. Despite the opinion of the medical providers that the Veteran could not perform physical employment and would qualify as unemployable under Social Security Administration standards, the Director determined that there was no evidence the Veteran was unable to secure and follow any substantially gainful occupation (emphasis added). For these reasons, the Director felt that extraschedular TDIU should be denied. The Board may now review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination on this matter. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Overall, the Board finds that, while some employment situations may be possible for the Veteran, these employment opportunities are not within the scope of his employment history, education, or his occupational training. The Veteran's representative noted that some of the evidence of record lists the Veteran as a landscape architect, rather than a landscaper, his actual job and one which was much more physically demanding. The Veteran is not eligible to apply for work as a landscape architect based on his associates degree in horticulture and would require significant additional training to access this related field. He has attempted vocational rehabilitation and retraining, but was unable to complete the program. The representative has also noted that the Veteran has had some difficulties with dependence on the medication prescribed for his right knee pain, and the Board recognizes that these circumstances would provide additional challenges in a retraining program or any attempt at sedentary work. While the Director discounted the statements by the Veteran's doctor that he would meet the Social Security Administration guidelines for unemployability, such considerations are not irrelevant on the question of the ability to obtain and maintain substantially gainful employment. Rather, this statement reflects the doctor's opinion that the Veteran is unable to work because of his service-connected right knee disability. In addition, the same doctor felt that the nature of the Veteran's symptoms were not contemplated by the rating criteria because the associated pain syndrome was not included, and the pain syndrome was the primary source of the Veteran's unemployability. The Board notes that under 38 C.F.R. § 4.40 and DeLuca v. Brown, a part that becomes painful on use must be regarded as seriously disabled. See, e.g., 8 Vet. App. 202 (1995). In this instance, the severity of the Veteran's right knee pain since his June 2003 surgery has precluded employment in the fields for which he has the training and experience. The medical record as set forth above clearly supports that conclusion. The Board notes that the Veteran applied for an increased disability rating for his right knee in January 2003 and apparently stopped working in April 2003. However, the medical evidence with regard to the period prior to the Veteran's June 16, 2003, right knee surgery is limited and largely uninformative with regard to his employability. While the Veteran is competent and credible to report on his level of pain during that time period and the impact of his pain on his employment, there is insufficient competent medical evidence to support an award of TDIU prior to the June 2003 knee surgery. However, the medical record is abundantly clear that the Veteran has been unable to work since the knee surgery, and has required additional hospitalizations since that time. Indeed, for the periods of June 16, 2003 through December 1, 2003, December 20, 2005 through December 31, 2006, and August 27, 2007 through September 30, 2008, the Veteran was assigned temporary total (100 percent) disability ratings due to his surgical treatment and recuperation. As such, in light of the above evidence and the medical opinions of record, the evidence is at least in equipoise as to whether the Veteran's service-connected disability has prevented him from securing and following substantially gainful employment consistent with his education and occupational experience since his right knee surgery in 2003. Entitlement to TDIU is, therefore, granted, as of June 16, 2003 for those periods when a temporary total rating or TDIU have not been in effect. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.16(b). ORDER Entitlement to TDIU is, therefore, granted, as of June 16, 2003 for those periods when a temporary total rating or TDIU have not been in effect, that is, for December 1, 2003 through December 20, 2005 and January 1, 2007 through August 26, 2007, subject to the laws and provisions governing the award of monetary benefits. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs