Citation Nr: 1323793 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-24 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extra-schedular basis. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran had active duty service from December 1980 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to TDIU. The Veteran had indicated previously that he wished to have a Board hearing but in July 2010 he withdrew his request for a hearing. This case was remanded in January 2011, December 2011, and September 2012. As indicated in three prior remands, the issue of service connection for a psychiatric disorder (claimed as an affective disorder), to include as secondary to his service-connected bilateral knee disorders, has been raised by the July 2009 appeal form, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board still does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran has not worked since at least 1999; his prior work history includes farming, heavy equipment operation, working in a shipyard, and working in electronics and with computer systems. 2. The Veteran is currently service-connected for combined rating for status post left knee arthroplasty at 30 percent disabling and degenerative joint disease of the right knee at 10 percent disabling for a combined total rating of 40 percent disabling. 3. It is at least as likely as not that the service-connected disabilities preclude the Veteran from maintaining substantially gainful employment. CONCLUSIONS OF LAW Resolving all doubt in the Veteran's favor, the criteria for a TDIU due to service-connected disabilities on an extra-schedular basis are met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.102, 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Because the Board is fully granting the benefit sought, any errors as to notification and assistance are deemed harmless. As a consequence, the Board may proceed with the adjudication of the instant appeal. TDIU Total disability ratings for compensation based upon individual unemployability 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 as a result of two or more 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. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). 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). 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) are to be submitted to the Director of the Compensation Service for extra-schedular consideration. § 4.16(b). The rating board is to 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. Id. Here, the Board finds the claim in equipoise despite a negative response by the Director. It resolves doubt and grants a TDIU on an extra-schedular basis. The Veteran is currently service-connected for status-post left knee arthroplasty (TKA) at 30 percent disabling from April 1, 2013 (prior he had been at a 100 percent temporary total rating for one year after surgery in accordance with regulations) and for degenerative joint disease of the right knee at 10 percent disabling. His combined total rating is 40 percent disabling, which does not meet the schedular standards under 38 C.F.R. § 4.16(a). As a result, the Board has considered an extra-schedular rating for TDIU under § 4.16(b). The Veteran's work history shows prior experience: in farming (see May 1980 report of medical history); as heavy equipment operator (see DD 214 and November 2001 VA record); working in a shipyard; working at an electronics company; and allegedly running his own business (see January 1999 private hospital records). January 1999 private records show he reported 3.5 years of college (other records show he has an associate's degree) and that he graduated from high school. The Veteran contended that his pain medications make him unfit for any type of work, including because he could not drive at all (see August 2008 claim, October 2008 statement and July 2011 statement). Some records indicate he drove regardless (see August 2008 financial status report showing he spent 300 and 180 dollars per month on a car and gas) and the Board finds that assertion not credible. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (consistency and plausibility are considerations for the Board). Other records detailing treatment appear contradictory, showing that although the Veteran was using a full dose of narcotics he was still participating in activities like hunting (see November 2009 and February 2010 VA records). The September 2008 VA examination for his knees stated that his treatment included medications the helped but were sedating. He asserted he needed to be on high doses of pain medications to tolerate his symptoms. Plus, his prior job required a lot of standing and squatting, which aggravated his knees. However, he denied this disability had any impact on his current activities of daily living. As a result of these contentions, a medical opinion was sought. The Veteran was given a general VA medical examination in February 2011. MRIs of knees showed objective deformities of both knees; including meniscal tears and a chronically torn left anterior cruciate ligament. Ranges of motion findings were reduced. Knee diagnoses were described as severe. He now stated knees severely prevented activities of daily living and prevented strenuous physical activities. The examiner stated that based upon a thorough review of the claims file, VAMC records and physical examination, the service-connected bilateral knee disabilities at least as likely as not rendered the Veteran unemployable as an electrical mechanic. He would not be able to perform such duties under narcotic pain medications, he could not pass drug testing, and could not stand for long periods of time to meet job requirements. Another opinion was sought because the last failed to address whether the Veteran might be substantially and gainfully employed at another, more sedentary position. The January 2012 VA examination addendum again stated that the Veteran's bilateral knee condition renders him unable to secure any substantially gainful employment. This was in light of his educational background, employment history and without regard to nonservice-connected disabilities. He would not be able to perform in a physically strenuous career due to his bilateral knee disabilities and associated narcotic medications. Sedentary employment would be compromised by pain management/narcotic use with decreased ability to concentrate and focus due to central nervous system depression. The examiner also provided a list of current medications with the side effects from Uptodate online; side effects included central nervous system depression which was noted to possibly impair physical or mental disabilities. An attempt to clarify this opinion due to the use of the word "compromised" was unsuccessful (see October 2012 addendum). The second addendum opinion again noted the prescribed medications, but did not add that the Veteran received at TKA in February 2012. Records from February and March 2012 note he was still taking narcotics post-surgery. The February 2013 VA Appeals Management Center (AMC) memorandum to the Director of Compensation Service incorrectly stated the current combined evaluation and the Veteran's current service-connected disabilities. The AMC did not use the most recent rating decision (from June 2012) and as a result the summary of disabilities was inadequate. The responding May 2013 memorandum from the Director of Compensation service is also therefore inadequate; it asserted that the VA examiner opinions did not discuss whether the Veteran was capable of performing sedentary work but only stated that such employment was "compromised by pain management narcotic use." The Board finds the Director's review to be conclusory and based on inaccurate information provided by the AMC. The record supports the Veteran's likely continued use of narcotic medication for the future. Records indicate the Veteran has been on and off narcotics for years (see February 1999 VA Substance Abuse Residential Rehabilitation Treatment Program note which states he could only be admitted if he discontinued narcotic pain medications and a March 2005 VA primary care record showing a doctor advised it was probably not good for the Veteran to start using narcotics). July, August and October 2011 VA records detail the struggle to taper off the narcotics prior to surgery in February 2012 while post-surgery records from March 2012 show he re-prescribed the drugs after surgery. Given the facts, the Board finds the claim to be in equipoise and will resolve doubt in favor of the Veteran. The VA examiner's findings on the question of employability regarding pain medications and functioning, while not wholly explanatory in light of other evidence in the file, were supported by medication information. The Board concludes that entitlement to a TDIU on an extra-schedular basis is warranted. ORDER TDIU due to service-connected disabilities on an extra-schedular basis is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs