Citation Nr: 1318764 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 11-17 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include a total knee replacement. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1953 to July 1956. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp 2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a right knee disorder and entitlement to a TDIU. Before the Board can adjudicate these claims on the merits, additional development is required. I. VA Examination - Right Knee The Veteran alleges that his current right knee problems are directly related to his military service. He points out that he was on the "All Army Boxing Team" for several years in the mid 1950s. He constantly hit the canvas with his knees. He also experienced much wear and tear on his knees during field exercises and training. He asserts that he was having knee issues, but that he did not seek treatment out of fear that he would be sent home. In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims (Court) made clear that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. VA treatment records in September 2009 reflect complaints in both knees, but worse on the right. A provisional diagnosis of bilateral degenerative joint disease (DJD) of the knees was made. Osteoarthritis of the knee was ultimately diagnosed, and the Veteran was scheduled for a total right knee replacement which was accomplished in September 2009. Follow-up records show that the Veteran was doing well and continued with physical therapy. Virtual treatment records dated into 2012 show that the Veteran continues to be seen for bilateral knee complaints on occasion. As these records show post service diagnosis of osteoarthritis with right knee total replacement, clearly there is competent evidence of current disability, which satisfies the first McLendon element. Additionally, as reported by the Veteran, he incurred injuries to the knees as a boxer during service. His knee problems were also exacerbated by his field exercises. Both events appear to be consistent with his military service. 38 U.S.C.A. § 1154(b). Moreover, with respect to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); Bostain v. West, 11 Vet. App. 124, 127 (1998). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). As the evidence reasonably establishes that the Veteran experienced inservice trauma to the knee, the second McLendon element is also satisfied. The third element of McLendon is satisfied in the Veteran's lay assertion of experiencing chronic knee pain since service. The 50 year gap between service and the first documented treatment for knee problems may be construed as negative evidence. However, for purposes of analyzing the Veteran's claim under McLendon, his lay assertions as to continuity of symptomatology are sufficient. As to the sufficiency of the evidence to render a decision, the Board highlights there is no medical opinion addressing the Veteran's right knee disorder. There is insufficient competent medical evidence on file for VA to make a decision on the claim. The remaining McLendon element has been met, which triggers VA's duty to obtain an examination. II. VA Treatment Records The record reflects the Veteran currently receives treatment for his physical ailments, to include his service-connected right knee at the VA Community facility in Pago Pago, American Samoa. He was also treated recently in Honolulu, Hawaii. On remand, updated treatment records from that facility should be obtained. III. TDIU A veteran is considered totally disabled if his service-connected disability is, or combination of service-connected disabilities are, rated at 100 percent. 38 C.F.R. § 3.340(a)(2) . Even if the Veteran is less than 100 percent disabled, he still will be considered totally disabled if he satisfies two requirements. 38 C.F.R. § 4.16(a) . First, the veteran must meet a minimum percent rating. If he has one service-connected disability, it must be rated at 60 percent or more. If he has two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. While the Veteran has at least a 40 percent disability rating for one of several disabilities, he still does not have an overall combined rating of 70 percent or more. 38 C.F.R. § 4.16(a) . Accordingly, his combined rating for his service-connected disabilities does not meet the minimum schedular criteria for a TDIU at present. See 38 C.F.R. § 4.16(a) . At present, the Veteran currently service connected for hearing loss (40 percent disabling) and tinnitus (10 percent disabling). His combined disability rating is 50 percent. While the Veteran has at least a 40 percent disability rating for one of several disabilities, he still does not have an overall combined rating of 70 percent or more nor do his hearing-related disabilities combine for a 60 percent rating. 38 C.F.R. § 4.16(a) . Accordingly, his combined rating for his service-connected disabilities does not meet the minimum schedular criteria for a TDIU at present. See 38 C.F.R. § 4.16(a) . As the service-connected disabilities in this case do not meet the schedular requirements for a TDIU, VA must also consider whether the Veteran may be entitled to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) . This regulation provides that veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the criteria in 38 C.F.R. § 4.16(a), may receive extraschedular consideration. Specifically, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). The Board reiterates that in order to be considered for a TDIU on an extraschedular basis, the matter must first be referred to the Director of the Compensation and Pension Service. Id. The record includes an October 2010 VA examination report wherein it is noted that the Veteran should be able to obtain and maintain employment once he was fitted with hearing aids. Subsequent thereto the Veteran argued that his hearing loss disability had increased in severity, and that it had a deleterious on his ability to work. He was then afforded a VA examination in January that did in fact document a worsening of his hearing loss disability, which resulted in the rating assigned for his hearing loss to be increased from 30 to 40 percent. The examiner added that the hearing loss caused the Veteran to lip read, caused him to repeatedly ask people to repeat what they said, and resulted in him feeling socially isolated. No comment was made with regard to his employability. Put another way, as there has been a definite shift in his hearing acuity with some degree of functional impairment, it remains unclear as to whether any present unemployment or would be due solely to the Veteran's service-connected disabilities - hearing loss and tinnitus. An opinion/examination is necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain the Veteran's VA treatment records from the Pago Pago, American Samoa, facility, the VA in Honolulu, Hawaii, as well as any other VA treatment records that have not been added to the record. Also obtain any private treatment records that have not been added to the file, if applicable. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159 (e) (2012). 2. Schedule the Veteran for an examination to determine the nature and etiology of his current right knee condition, to include a total right knee replacement. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to provide opinions on the following question: Is it at least as likely as not (50 percent or greater) that osteoarthritis of the right knee, resulting in a total knee replacement, is related to any incident of military service, including as a result of his activities as a boxer or due to his field exercises. For purposes of this remand, the examiner should accept as true the Veteran's statements regarding that he hit his knee constantly on the canvas during service as a boxer. A report of the examination should be prepared and associated with the Veteran's VA claims folder. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After the foregoing has been completed, the RO/AMC should schedule the Veteran for an appropriate VA employability examination to determine whether he is unable to secure and follow substantially gainful employment by reason of his service-connected disabilities. The claims file must be made available to the examiner for review in conjunction with the examination prior to examination. The examiner must elicit from the Veteran and the record for clinical purposes a full work and educational history. Based on a review of the case and the claims file, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities alone (singularly or in the aggregate) preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. All opinions provided must include an explanation of the bases for the opinion. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. If the examiner finds the Veteran to be unemployable due to his service connected disabilities, the RO/AMC should send the case to the Director, Compensation and Pension Service, for extraschedular consideration. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).