Citation Nr: 1310362 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 05-31 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for chondromalacia patellae of the right knee. 2. Entitlement to a rating in excess of 10 percent for chondromalacia patellae of the left knee. 3. Entitlement to a rating in excess of 30 percent for gastritis. 4. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) prior to October 1, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1990 to June 1994. These matters initially came before the Board of Veterans' Appeals (Board) from September and November 2004 and April 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the September 2004 decision, the RO denied entitlement to ratings in excess of 10 percent for chondromalacia patellae of the knees. In the November 2004 decision, the RO denied entitlement to a rating in excess of 30 percent for gastritis. In the April 2006 decision, the RO denied entitlement to a TDIU. In October 2008, the Board denied the claims for ratings in excess of 10 percent for chondromalacia patellae of the knees and for a rating in excess of 30 percent for gastritis and denied the claim for a TDIU. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In March 2009, the Court set aside the Board's October 2008 decision, in part, and remanded the case for readjudication in compliance with directives specified in a February 2009 Joint Motion filed by counsel for the Veteran and VA. In April 2009 and September 2011, the Board remanded these matters for further development. In a December 2012 decision, a Decision Review Officer (DRO) granted a 100 percent rating for the Veteran's service-connected major depressive disorder, effective October 1, 2012. However, as explained below, the issue of entitlement to a TDIU prior to this date remains before the Board as part of the claims for increased ratings for the service-connected chondromalacia patellae of the knees and gastritis. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of entitlement to increased ratings for chondromalacia patellae of the knees and gastritis and entitlement to a TDIU prior to March 27, 2009 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Since March 27, 2009, the Veteran has been service-connected for the following disabilities: major depressive disorder, rated 50 percent disabling from March 27, 2009 through September 30, 2012 and 100 percent disabling since October 1, 2012; gastritis, rated 30 percent disabling; degenerative arthritis of the left shoulder, rated 20 percent disabling; residuals of a cold injury to the right lower extremity, rated 20 percent disabling; residuals of a cold injury to the left lower extremity, rated 20 percent disabling; chondromalacia patellae of the right knee, rated 10 percent disabling; chondromalacia patellae of the left knee, rated 10 percent disabling; post-concussive headache syndrome, rated 10 percent disabling; folliculitis of the neck and scalp, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and right ear hearing loss, rated noncompensable. His combined disability rating is 90 percent from March 27, 2009 through September 30, 2012 and 100 percent since October 1, 2012. 2. Since March 27, 2009, the Veteran's service-connected major depressive disorder has precluded all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for a TDIU due to a service-connected disability have been met since at least March 27, 2009. 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 FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting the claim for a TDIU for the entire period since March 27, 2009, the claim is substantiated, and there are no further VCAA duties at this time. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis A TDIU is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. If VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period); Locklear v. Shinseki, 24 Vet. App. 311, 318, footnote 2 (2011). In the December 2012 decision, the DRO granted a 100 percent rating for the service-connected major depressive disorder, effective October 1, 2012. Therefore, the question of entitlement to a TDIU is not at issue for the period since that date. However, the Court has held that entitlement to a TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The Veteran's increased rating claim was received in March 2004 and there is evidence that he has been unemployed for a period between that date and October 1, 2012. Further, there is evidence that he was unable to work due to his service-connected major depressive disorder. Given the evidence of current disabilities, the Veteran's claims for the highest ratings possible, and the evidence of unemployability, the record raises a claim for a TDIU under Roberson and Rice for the period prior to October 1, 2012. 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). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Since March 27, 2009, the Veteran has been service-connected for the following disabilities: major depressive disorder, rated 50 percent disabling from March 27, 2009 through September 30, 2012 and 100 percent disabling since October 1, 2012; gastritis, rated 30 percent disabling; degenerative arthritis of the left shoulder, rated 20 percent disabling; residuals of a cold injury to the right lower extremity, rated 20 percent disabling; residuals of a cold injury to the left lower extremity, rated 20 percent disabling; chondromalacia patellae of the right knee, rated 10 percent disabling; chondromalacia patellae of the left knee, rated 10 percent disabling; post-concussive headache syndrome, rated 10 percent disabling; folliculitis of the neck and scalp, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and right ear hearing loss, rated noncompensable. His combined disability rating is 90 percent from March 27, 2009 through September 30, 2012 and 100 percent since October 1, 2012. The Veteran, therefore, meets the percentage requirements for a TDIU for the period since March 27, 2009. 38 C.F.R. § 4.16(a). The remaining question is whether the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. Medical records dated from November 1994 to January 2010, VA examination reports dated in November 1994, July 2004, February 2008, and July 2009, a November 1995 statement from the Veteran's former employer, the Veteran's testimony during a January 1996 DRO hearing, and a statement from the Veteran dated in January 2005 reflect that he has a high school education and that he received some electrical technician training. In the years since service he has been employed as a security officer and as a custodian/maintenance mechanic for the Postal Service. During his employment he was placed on restricted duty and/or missed work on various occasions due to knee and shoulder problems, shortness of breath, and nose bleeds. He was hospitalized and unable to work beginning in November and December 2004 due to injuries from a motor vehicle accident, which included hip and knee injuries. He reported on several occasions that he did not officially retire until November 2007, but that he was unable to work since his hip replacement in November 2004. However, he also reported that he was fired from his job in 2004 and that he was unable to work due to his knee disabilities. He reportedly applied for and was granted Social Security Administration (SSA) disability benefits for an unspecified disability. During a February 2010 VA psychiatric examination, the Veteran reported that he retired as a maintenance mechanic in 2004 due to vertigo, depression, and residuals of his hip surgery. He was diagnosed as having major depressive disorder secondary to his service-connected medical conditions. The nurse practitioner who conducted the examination concluded that the Veteran's service-connected disabilities affected his ability to work, but that there was not total occupational impairment due to his service-connected psychiatric disability. She did not provide any further explanation or reasoning for this opinion. An April 2011 VA examination report includes an opinion that the Veteran's bilateral knee disability should not have significantly interfered with light physical duties and would not interfere with sedentary employment. There was no further explanation or reasoning provided for this opinion. A second April 2011 VA examination report includes an opinion that the Veteran's gastritis would not present functional impairments that would impact physical or sedentary employment. The physician who provided this opinion did not give any further explanation or reasoning for his opinion. In November 2011, the nurse practitioner who conducted an April 2011 VA examination reviewed the Veteran's claims file and opined that neither his service-connected gastritis nor his service-connected folliculitis of the neck and scalp would present functional impairments that would impact physical or sedentary employment. She did not provide any further explanation or reasoning for this opinion. The Veteran reported during an October 2012 VA psychiatric examination that he had stopped working in building maintenance approximately 8 years prior to the examination because he was unable to perform his job due to pain. The nurse practitioner who conducted the examination opined that the Veteran's level of functional impairment due to his service-connected major depressive disorder impaired his ability to maintain gainful employment. This opinion was based on the fact that he experienced symptoms such as a depressed and anxious mood, panic attacks, feelings of worthlessness, poor self-esteem and sleep, and memory deficits. The February 2010 and April and November 2011 opinions are of little, if any, probative value because they are not accompanied by any specific explanations or rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The October 2012 opinion, however, is accompanied by a rationale that was based upon an examination of the Veteran and a review of his medical records and reported history, and is not inconsistent with the evidence of record. Therefore, this opinion is entitled to substantial probative weight. See Id. In sum, the evidence indicates that the Veteran has been unemployed since approximately 2004 and that his service-connected major depressive disorder has impaired his ability to maintain gainful employment. Although he has provided some varying information concerning why his employment ended in 2004, he has reported that his depression contributed to his inability to maintain employment and service connection for major depressive disorder has been in effect since March 27, 2009. In light of the above evidence and the October 2012 medical opinion, the weight of the evidence is in favor of a conclusion that the Veteran's service-connected major depressive disorder has prevented him from securing and following substantially gainful employment consistent with his education and occupational experience. Entitlement to a TDIU is, therefore, granted for the entire period since March 27, 2009. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a). ORDER Entitlement to a TDIU, for the period since March 27, 2009, is granted. REMAND As the Veteran's service-connected residuals of a cold injury to the right and left lower extremities are of common etiology, he has met the percentage requirements for a TDIU for the entire period since March 12, 2004. See 38 C.F.R. § 4.16(a). The Court has held that in the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect a veteran's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Although there are opinions of record concerning the impact of some of the Veteran's service-connected disabilities on his employability prior to March 27, 2009, there is no opinion as to whether all of his service-connected disabilities, in combination, prevented him from securing and following employment for which his education and occupational experience would have otherwise qualified him during this period. Also, the opinions that have been provided are of minimal probative value because they are not accompanied by any specific explanations or rationales. Furthermore, the increased rating issues currently on appeal are inextricably intertwined with the issue of entitlement to a TDIU prior to March 27, 2009. Moreover, VA treatment records, including a January 2010 VA mental health treatment note, reveal that the Veteran was reportedly in receipt of SSA disability benefits for an unspecified disability. The Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to the SSA's disability determination have not yet been associated with the claims file and may be relevant. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. After all efforts have been exhausted to obtain and associate with the claims file any evidence from the SSA, the Veteran's claims file, including this remand and any relevant records contained in the Virtual VA system along with any records obtained pursuant to this remand, shall be referred to a VA physician with appropriate expertise to determine whether the Veteran's service-connected disabilities prevented him from securing and following substantially gainful employment for which his education and occupational experience would have otherwise qualified him prior to March 27, 2009. The opinion provider shall answer the following question: Is it at least as likely as not (50 percent probability or more) that, for any period from March 2004 through September 26, 2009, the Veteran's service-connected disabilities (gastritis, degenerative arthritis of the left shoulder, residuals of cold injury to the right lower extremity, residuals of cold injury to the left lower extremity, chondromalacia patellae of the right knee, chondromalacia patellae of the left knee, post-concussive headache syndrome, and folliculitis of the neck and scalp) would have, in combination and without regard to any non service-connected disabilities, prevented him from securing and following substantially gainful employment for which his education and occupational experience would have otherwise qualified him? The opinion provider must provide reasons for each opinion given. The opinion provider is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the opinion provider rejects the Veteran's reports regarding symptoms, the opinion provider must provide a reason for doing so. If the opinion provider determines that he or she cannot provide an opinion without resorting to speculation, the opinion provider shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) shall ensure that any additional evidentiary development suggested by the opinion provider be undertaken so that a definite opinion can be obtained.) 3. The AOJ shall review the opinion to ensure that it contains the information and opinion requested in this remand (i.e. a single opinion as to the combined impact of all the Veteran's non-psychiatric service-connected disabilities on his employability prior to March 27, 2009) and is otherwise complete. 4. If any benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs