Citation Nr: 1321341 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 06-21 448A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to an increased rating for osteoarthritis of the left knee, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for chondromalacia patella of the left knee, currently evaluated as 10 percent disabling. 3. Entitlement to an effective date for an award and evaluation of laxity of the medial collateral ligament of the right knee, prior to June 17, 2008. 4. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from October 1977 to April 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). By rating action dated December 2005, the RO denied the Veteran's claim for an increased rating for osteoarthritis of the left knee and chondromalacia patella of the left knee. Based on the receipt of additional evidence, the RO assigned a 20 percent evaluation for osteoarthritis of the left knee, effective December 22, 2009, and a 30 percent evaluation, effective July 8, 2011. The Veteran has also appealed a February 2010 rating action that granted service connection for laxity of the medial collateral ligament of the right knee, and assigned a 20 percent evaluation for it, effective June 17, 2008. Finally, the Veteran filed a timely appeal to a July 2012 rating decision that denied TDIU. In March 2013, additional medical evidence was received from the Veteran with a waiver of RO review. Certain items of this evidence pertain to bilateral carpal tunnel syndrome and low back disability. These issues are not before the Board, and these matters are hereby referred to the RO for clarification from the Veteran and any necessary action. FINDINGS OF FACT 1. During the hearing in March 2013, prior to the promulgation of a decision in the appeal, the appellant stated that she wished to withdraw her appeal on the issue of entitlement to an increased rating for osteoarthritis of the left knee. 2. During the hearing in March 2013, prior to the promulgation of a decision in the appeal, the appellant stated that she wished to withdraw her appeal on the issue of entitlement to an increased rating for chondromalacia patella of the left knee. 3. A claim for an increased rating for a right knee disability was implicitly included in a January 13, 2006, notice of disagreement to a December 2005 rating decision which adjudicated only a left knee claim; subsequent VA examination demonstrated that there was laxity of the right medical collateral ligament. 4. The Veteran has been granted service connection for asthma, bronchitis, evaluated as 60 percent disabling; osteoarthritis of the left knee, evaluated as 30 percent disabling; rhinitis, evaluated as 30 percent disabling; laxity of the medial collateral ligament of the right knee, evaluated as 20 percent disabling; chondromalacia patella of the right knee, evaluated as 10 percent disabling; and for chondromalacia patella of the left knee, evaluated as 10 percent disabling. The combined schedular evaluation is 90 percent. 5. The Veteran completed four years of college and has work experience as a clerk, in medical administration and as a substance abuse counselor. She last worked full time in June 2006. 6. The Veteran is unable to obtain or maintain substantially gainful employment due to her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to an increased rating for osteoarthritis of the left knee have been met. 38 U.S.C.A. § 7105(b)(2)(d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to an increased rating for chondromalacia patella of the left knee have been met. 38 U.S.C.A. § 7105(b)(2)(d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. The criteria for an effective date of January 13, 2006, have been met for an award and evaluation of laxity of the medial collateral ligament of the right knee. 38 C.F.R. § 3.400(o) (2012). 4. A TDIU is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. C.F.R. § 20.204. In the present case, the appellant, during the hearing before the undersigned in March 2013, indicated that it was her intent to withdraw the appeals for entitlement to increased ratings for osteoarthritis of the left knee and chondromalacia patella of the left knee. Thus, there remain no allegations of errors of fact or law for appellate consideration on those issues. Accordingly, the Board does not have jurisdiction to review the issues of entitlement to an increased rating for osteoarthritis of the left knee and an increased rating for chondromalacia patella of the left knee. II. Adjudicated claims Notice and assistance VA has duties 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Appropriate notice regarding the claim for TDIU was provided in April 2012. The appeal as to the effective date of the grant of service connection and the assignment of a 20 percent evaluation for laxity of the right knee, prior to June 17, 2008 arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include VA medical records, VA examination reports, and the testimony of the Veteran before the undersigned. VA clinical examinations have been obtained. 38 C.F.R. § 3.159(c) (4). The Board finds that the VA clinical examinations obtained in this case are more than adequate, as they are predicated on a full reading of the medical records in the Veteran's claims file. As appropriate, clinical findings pertinent to the service-connected disabilities were obtained. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Effective date A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155. Except as otherwise provided, the effective date of an evaluation and award of service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2). Except as otherwise provided, the effective date of an award of an increase shall be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). By rating action dated February 2004, the RO denied the Veteran's claim for an increased rating for chondromalacia patella of the right knee. She did not file an appeal of this determination. In a rating decision dated December 2005, the RO confirmed and continued the 10 percent evaluations that were in effect for osteoarthritis of the left knee and chondromalacia patella of the left knee. The Veteran was notified of this determination in a January 2006 letter. By letter dated later in January 2006, the Veteran indicated she was appealing the December 2005 rating action. In her statement, she asserted she had undergone surgeries on both knees, and that she had received steroid injections. A memorandum from the Veteran's representative accompanying her letter specifically stated the Veteran was submitting a notice of disagreement with the December 2005 rating decision. There was no mention of any claim involving the right knee. In her substantive appeal with respect to the claim for an increased rating for her service-connected left knee disabilities, the Veteran stated she had requested in March 2003 to have both knees evaluated. She again referred to having right knee surgery. VA outpatient treatment records dated from 2004 to 2008 contain findings concerning the right knee. In March 2000, the Veteran asserted her knees were painful again, and interfering with sleep. It was noted both knees had enlarged medial-lateral ligaments. She received a steroid injection in her right knee in April 2008, and was seen later that month for right knee pain. An examination revealed the right knee was normal on inspection. There was no erythema or warmth. In a statement received on June 17, 2008, the Veteran's representative noted that "[i]t appears the veteran has claims for bilateral knee conditions not just the left. This is reflected in statements made by the veteran on the NOD and VA Form 9. Please develop and schedule examinations for disabilities of both lower extremities." By rating action dated February 2010, the RO granted service connection for laxity of the medial collateral ligament of the right knee, and assigned a 20 percent evaluation for it, effective June 17, 2008. The Veteran asserts an earlier effective date is warranted for the assignment of a separate award of service connection for laxity of the right knee. She argues that while the RO was adjudicating a claim for an increased rating for her service-connected left knee disability, she repeatedly made references to problems she was having with her service-connected right knee. She maintains the RO should have construed such statements to be a separate claim involving her right knee. The Veteran has asserted she filed a claim for an increased rating for a right knee disability in 2003. The Board concedes this is true. The Board notes that in a Statement in Support of Claim received in January 2003, the Veteran indicated she wanted to reopen claims for both knees. As noted above, the claim for an increased rating for a right knee disability was adjudicated by the RO in February 2004. The Veteran did not file a timely notice of disagreement with this determination, nor was new and material evidence received within one year. Therefore, the February 2004 rating decision became final. 38 U.S.C.A. § 7105(c). A subsequent rating decision was issued in December 2005 addressing only the left knee conditions. The Board acknowledges that a January 13, 2006, notice of disagreement to the December 2005 rating decision did include references to surgery on her right knee. Similarly, her substantive appeal also referenced right knee problems. The Board notes that service connection had previously been established for chondromalacia patella, degenerative joint disease of the right knee. Then, by rating decision February 2010, the RO granted a separate 20 percent rating for laxity of the medial collateral ligament of the right knee associated with the chondromalacia patella, right knee, degenerative joint disease. Viewing the January 13, 2006, notice of disagreement to the December 2005 rating decision dealing with the left knee in a liberal manner, it is arguable that the references to the right knee in that January 13, 2006, communication implicitly raised a new claim for an increased rating for the right knee. It therefore can be said that the grant of a separate rating for laxity of the right knee medial collateral ligament in February 2010 flowed from the implicit claim received on January 13, 2006. Accordingly, an effective date of January 13, 2006, is warranted. However, for reasons discussed earlier (to include the finality of the February 2004 rating decision), there is no basis for an even earlier effective date under the facts of this case. B. TDIU VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his or her educational level and occupational experience, by reason of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more; or if there are two or more service-connected 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. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(1). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disability(ies) alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the 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 requirements set forth in 38 C.F.R. § 4.16(a). 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). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a 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 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities, nor advancing age, may be considered. Service connection is in effect for asthma, bronchitis, evaluated as 60 percent disabling; osteoarthritis of the left knee, evaluated as 30 percent disabling; rhinitis, evaluated as 30 percent disabling; laxity of the medial collateral ligament of the right knee, evaluated as 20 percent disabling; chondromalacia patella of the right knee, evaluated as 10 percent disabling; and for chondromalacia patella of the left knee, evaluated as 10 percent disabling. The combined schedular evaluation is 90 percent. The record shows the Veteran completed four years of college and had additional training in human services. She has work experience in medical administration, as a clerk, and substance abuse counselor. She reportedly last worked on a full-time basis in June 2006. The Veteran was afforded a VA examination for rhinitis and asthma in May 2012. She reported she was on medication. She asserted she had experienced more than seven non-incapacitating episodes of sinusitis and more than three incapacitating episodes of sinusitis that had required bed rest and treatment by a physician in the previous year. An examination demonstrated a greater than 50 percent obstruction of the nasal passages on both sides due to rhinitis, but a complete obstruction was not present. There were nasal polyps. Permanent hypertrophy of the nasal turbinates was not present. The examiner stated the Veteran's condition impacted her ability to work because she could not sleep at night because of it, and the extent and frequency of her headaches kept her from functioning. VA vocational rehabilitation records reflect the Veteran was seen in October 2011. She was pursuing a degree in information technology engineering. She acknowledged she was looking at the job market and reported no medical issues that would interfere with her training. The Veteran was also afforded a VA examination for her bilateral knee disabilities in May 2012. The diagnoses were osteoarthritis of the knees and bilateral chondromalacia patella. An examination of the right knee revealed that range of motion was from 5 to 90 degrees with pain. Range of motion of the left knee was from 20 to 90 degrees with pain. The Veteran was not able to perform repetitive use testing due to pain. It was noted she had less movement than normal, weakened movement, pain on movement, swelling and instability bilaterally. Muscle strength testing was 4/5 bilaterally. The examiner was unable to perform joint stability tests since the Veteran had braces on each knee and was in pain. It was also indicated the Veteran would almost certainly benefit from bilateral knee replacements. The examiner added the Veteran's bilateral knee conditions affected her ability to work. It was noted the Veteran could walk only 30 feet at a time, and could only walk 100 feet total during an eight hour day. She would only be able to sit for 10 minutes and stand for 15 minutes at one time. She could sit and stand for 40 minutes during an eight hour day. Finally, it was reported the Veteran was not able to dress herself due to a lack of flexibility. The Board acknowledges the Veteran was apparently taking courses leading to a degree in information technology in 2011. The VA examinations in May 2012 demonstrated that her service-connected disabilities impacted her ability to work. The rhinitis and asthma were affecting her ability to sleep and also resulted in headaches, which affected her ability to function. In addition, her bilateral knee disabilities rendered her unable to sit or stand for any more than brief periods. In light of the physical limitations imposed by her bilateral knee disabilities, asthma and rhinitis, with resolution of reasonable doubt, the Board finds the Veteran is unable to work due to the severity of her service-connected disabilities. ORDER The appeal as to the issue of an increased rating for osteoarthritis of the left knee is dismissed. The appeal as to the issue of an increased rating for chondromalacia patella of the left knee is dismissed. An effective date of January 13, 2006, is warranted for an award and evaluation for laxity of the medial collateral ligament of the right knee. A TDIU is warranted, subject to the governing law and regulations pertaining to the payment of monetary benefits. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs