Citation Nr: 1326967	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  11-09 256	)	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 20 percent for left knee rheumatoid arthritis with synovitis.

2.  Entitlement to total disability rating based upon individual unemployability due to service connected disabilities.



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Russell P. Veldenz,  Counsel


INTRODUCTION


The Veteran had active military service from December 1955 to February 1958, with subsequent service in the Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida.

In March 2013, the Board remanded the Veteran's claim for a higher rating than 20 percent for his left knee disability.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board recognizes that the Veteran's representative addressed a plethora of other issues in his February 2013 Written Brief Presentation.  However, the Board emphasizes that the claim on appeal was initially characterized by the Veteran in August 2008 as a request for "an increase in all of my service connected conditioned [sic] due to an increase in severity."  At that time, the Veteran was only service connected for left knee rheumatoid arthritis with synovitis, and that is the only issue currently developed for appellate consideration.

In addition, in a statement by the Veteran received in April 2013, the Veteran filed a claim for service connection for a right leg disability, to include as due to rheumatoid arthritis, and service connection for a right hip disability, to include as due to rheumatoid arthritis.  

The issues of service connection for gastroesophageal reflux disease (GERD), diabetes, hypertension, a bilateral hand disability, a bilateral ankle disability, a right knee disability, a right leg disability, a right hip disability, all to include as due to rheumatoid arthritis; entitlement to effective dates earlier than October 19, 2009, for entitlement to service connection for degenerative joint disease (DJD) of the cervical spine, DJD of the right shoulder, DJD of the left shoulder, and lateral epicondylitis of the left elbow; entitlement to increased ratings for DJD of the cervical spine, DJD of the right shoulder, DJD of the left shoulder, and lateral epicondylitis of the left elbow; and whether there was clear and unmistakable error (CUE) in a November 2002 rating decision have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

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).

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

Throughout the rating period on appeal, the Veteran's left knee rheumatoid arthritis with synovitis has been manifested by complaints of left knee pain, weakness, and stiffness; objectively there was no evidence of fatigue, weakness, lack of endurance, incoordination, effusion, or instability, and the Veteran had limitation of range of motion of no worse than 0 degrees extension and flexion to no less than 90 degrees with pain at the end of flexion of the left knee.


CONCLUSION OF LAW

The criteria for a rating higher than 20 percent for left knee rheumatoid arthritis with synovitis have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5257, 5260, 5261 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims.  

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). 

In a claim for increase, the VCAA notice requirements are 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.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).  

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided pre- adjudication VCAA notice by letter, dated in October 2008 regarding the Veteran's claim for an increased rating for his left knee disability.  The notice included the type of evidence needed to substantiate the claim for increase, namely, evidence that the symptoms had increased.  

The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf.  The notice included the provisions for the effective date of a claim and for the degree of disability assignable.

As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment).  Further VCAA notice is not required.

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim.  The RO has obtained service treatment records, VA records, records from private medical caregivers, and afforded the Veteran VA examinations in October 2008 and May 2013.  

The report of the VA examinations included a review of the Veteran's medical history, including his service treatment records and post-service medical records, an interview and an examination of the Veteran, as well as sufficient findings to rate the disability.  Therefore, the Board concludes that the VA examination is adequate.  38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

The Board recognizes that the Veteran's service representative has argued that VA has not obtained treatment records from the Veteran's National Guard service.  The Board, however, finds that these records are not necessary to decide his claim currently on appeal.  While history is for consideration, an increased rating may not be assigned earlier than the effective date of the receipt of the claim for an increased rating for the left knee disability, or when it is factually ascertainable that an increase in the disability occurred if the claim is received within one year from such a date.  38 C.F.R. § 3.400 (o).  The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In this instance, the Veteran reported to VA in February 1998 that he retired from the National Guard.  He filed his current claim for an increased rating for his left kee disability in August 2008.  

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. 

Rating Principles

The Veteran seeks an increased evaluation for his service-connected left knee rheumatoid arthritis with synovitis, currently rated as 20 percent disabling.

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4. 

The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).

The Veteran's disability, rheumatoid arthritis of the left knee with synovitis, is rated under Diagnostic Code 5002.

When rating rheumatoid arthritis as an active process, Diagnostic Code 5002 provides that a 20 percent rating is assigned for one or two exacerbations a year in a well-established diagnosis.  A 40 percent rating is assigned for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year.  A 60 percent rating is assigned for less than the criteria for 100 percent, but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods.  Finally, a 100 percent rating is assigned for constitutional manifestations associated with active joint involvement that is totally incapacitating.

When rating rheumatoid arthritis under the criteria for chronic residuals, Diagnostic Code 5002 provides that the residuals, such as limitation of motion or ankylosis, favorable or unfavorable, are to be rated under the appropriate diagnostic codes for the specific joints involved.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.

As are many disabilities of the knee, rheumatoid arthritis with chronic residuals may be rated on limitation of motion of the affected parts in the same manner as arthritis.  Limitation of leg flexion is rated under Diagnostic Code 5260, limitation of leg extension is rated under Diagnostic Code 5261, and subluxation or instability of the knee is rated under Diagnostic Code 5257. 38 C.F.R. § 4.71a. 

Separate ratings may be assigned for compensable limitation of flexion and compensable limitation of extension of the knee.  VAOPGCPREC 9-04 (September 17, 2004).  A separate rating may also be assigned for instability of the knee under Diagnostic Code 5257. 

Under Diagnostic Code 5260, limitation of leg flexion is rated as noncompensable when flexion is limited to 60 degrees and 10 percent when flexion is limited to 45 degrees.  Leg flexion limited to 30 degrees is rated 20 percent, and flexion limited to 15 degrees is rated 30 percent, the maximum schedular rating. 

Under Diagnostic Code 5261, limitation of leg extension is rated noncompensable or zero percent when extension is limited to 5 degrees.  Extension limited to 10 degrees is rated at 10 percent.  Extension limited to 15 degrees is rated 20 percent.  Extension limited to 20 degrees is rated at 30 percent.  Extension limited to 30 degrees is rated at 40 percent, and extension limited to 45 degrees receives the maximum schedular rating of 50 percent. 

Normal knee motion is from zero degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II. 

Under Diagnostic Code 5257, subluxation or instability of the knee is rated 10 percent for slight recurrent subluxation or lateral instability.  Moderate recurrent subluxation or lateral instability is rated 20 percent.  Severe recurrent subluxation or lateral instability is rated at the maximum schedular rating of 30 percent.  Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.

A disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995).

With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45; see DeLuca, 8 Vet. App at 206 -07.

Also with arthritis or periarticular pathology, painful motion is a factor to be considered.  38 C.F.R. § 4.59.

Facts and Analysis

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim.

The Veteran was provided a VA examination in October 2008.  At that time, he stated his left knee symptoms were intermittent and there were periods of remission.  He complained of pain, stiffness, and weakness in the left knee.  There were no complaints of dislocation, subluxation, locking, or effusion.  The Veteran described a "severe" flare-up occurring every three to four months lasting from one to four weeks.  The flare-up resulted in limited range of motion of the left knee.  The report noted the Veteran also complained of weakness, weight loss, and a feeling by the Veteran as if he was going to catch the flu.  The VA examiner described the near flu symptom as myalgia.  Myalgia is muscle pain.  Zevalkink v. Brown, 6 Vet. App. 483, 494 (1994).  Physical examination established left knee range of motion from zero degrees to 90 degrees with pain at 90 degrees and no additional loss of motion on repetitive use.  There is no objective evidence of instability, meniscus or patellar abnormality.   The examiner concluded the disability resulted in pain and decreased strength.  It had a mild effect on activities of daily living except that it had a moderate effect on the Veteran's ability to exercise or engage in sports.  

In March 2010, the Veteran underwent a VA examination that focused on his cervical spine and other joints such as the right knee, as opposed to the service connected left knee.  There was no evidence of constitutional symptoms of arthritis, inflammatory arthritis, or incapacitating episodes.  The examination indicated the Veteran was a retired vocational counselor who retired because he was eligible by age or duration of the work.  The Veteran has been retired since 1994.  The diagnosis included mild arthritis of the right knee, but no diagnosis, findings, or symptoms were offered for the left knee.  

In November 2010, X-rays of both knees demonstrated mild bilateral degenerative joint disease.

The Veteran underwent a VA examination of the left knee in May 2013.  He complained of increasing pain and stiffness.  At that time, he stated his left knee continued to get worse.  Walking or standing for more than 3 to 5 minutes increases his pain substantially. He denied swelling or surgery to the knee.  The Veteran stated walking too long or using any type of stairs caused more pain than usual.  The Veteran did not use any assistive device.

The left knee had flexion to 120 degrees and extension to zero degrees.  There was objective evidence of painful motion beginning at 90 degrees.  There was no objective evidence of pain upon extension.  Repetitive motion did not result in any additional loss of motion.  The examiner described the functional loss as less movement than normal, pain upon movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing.  There was tenderness to palpation of the medial joint line of the left knee.  Muscle strength was normal in the left knee, and all tests for instability (Lachman, posterior drawer, and valgus/varus stress) were negative.  There was no evidence of history of recurrent patellar subluxation or dislocation.  The Veteran did not have any prior history of surgery or for a meniscal condition such as locking or effusion.  The examiner did record the left knee was warmer than the right without sign of infection, and there was left knee crepitus during the range of motion.

The diagnosis was arthritis of the bilateral knees (left greater than right).  The Veteran is able to walk unaided at a slow pace for limited distances.  He still drives and remains independent.  The examiner concluded the Veteran is best suited for sedentary or near sedentary type job tasks, but that the Veteran's service-connected left knee condition did not cause him to be unemployable. 

The Board notes that the Veteran has sought treatment at VA, and notes such as in April 2009, and in June 2011 record a history of rheumatoid arthritis and current complaints by the Veteran of pain in both knees as well as other joints,.  After complaining of pain in the knees, neck, and back in March 2012, the Veteran requested physical therapy from VA.  In the record before the Board, there are no other records of diagnosis, treatment or evaluation of the left knee by either VA or private medical providers during the rating period under review.  

After careful review of the evidence, the Board has determined that a rating in excess of than 20 percent for rheumatoid arthritis of the left knee is not warranted.  There is no evidence of symptom combinations productive of impaired health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year.  The Veteran reported weight loss and what was characterized as myalgia in the October 2008, but the examiner did not indicate these impaired the health of the Veteran.  The Veteran also described flare-ups that resulted in limited motion of the knee and were not incapacitating.  In addition, no treatment record or VA examination since that examination has resulted in similar or more severe findings.  Stated another way, the Board finds that the record does not establish the Veteran has rheumatoid arthritis as an active process.  

As noted, for chronic residuals, Diagnostic Code 5002 allows rheumatoid arthritis of an affected joint to be rated based upon limitation of motion or instability.  The Veteran has demonstrated some limitation of flexion, but flexion to 90 degrees even with pain does not more nearly approximate or equate to flexion limited to 15 degrees.  Therefore, the criterion for a 30 percent rating for limitation of flexion under Diagnostic Code 5260 has not been met, considering functional loss due to pain, stiffness, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38 C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion.

While the Veteran did experience pain, the reported pain does not rise to the level of functional loss comparable to flexion limited to 15 degrees, the criterion the next higher rating of 30 percent under Diagnostic Code 5260.  See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). To this extent, the Board places greater weight on the objective findings of the VA examination than the Veteran's subjective complaints of pain.

As for extension, again, at both VA examinations, the Veteran's extension was 0 degrees, and extension to 0 degrees does not more nearly approximate or equate to extension limited to 10 degrees.  The criterion for a separate 10 percent rating for limitation of extension under Diagnostic Code 5261 has not been met.

All of the clinical tests and examinations indicated a stable left knee. There was no instability or abnormal movement. No assistive devices have been noted.   In the absence of evidence of slight recurrent subluxation or lateral instability of the knee, the criterion for a separate, 10 percent rating under Diagnostic Code 5257 for the left knee were not met. 

The Board acknowledges the Veteran's statements how his service connected left knee disability has affected him, including limiting or preventing activities such as softball, bowling, or volunteer work.  The Board finds, however, that these limitations represent a disability picture that more closely approximates the 20 percent disability rating and that the limitations that he describes do not present a disability picture that more nearly approximates the criteria for a 30 percent rating. 

In addition, the Board also acknowledges that the Veteran has complaints besides pain of symptoms such as stiffness in the left knee.  However, the Board finds that the clinical examination records are more probative, as the findings by medical professionals are more probative than the lay statements.  To the extent the Veteran has disagreed with the findings recorded by the VA examiner, in rendering a decision, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

While the Veteran is competent to describe symptoms such as pain, or where it has affected him occupationally or in the quality of his life, the functional impairment resulting can be measured by physical examination and by testing of the ligaments and range of motion, which has been done on two occasions during the course of the appeal period.  As previously explained the objective findings do not support a higher rating than already assigned including staged ratings.  In weighing the Veteran's subjective complaints against the findings of VA examinations, which have been consistent over the nearly five years of the appeal, the Board places greater probative value on the reports of VA examinations.

The Board has considered the application of other diagnostic codes, but does not find any raised by the record except for painful motion under Diagnostic Code 5260, limitation of flexion. The Veteran has a range of motion and there is no clinical evidence of ankylosis, thus a rating under Diagnostic Code 5256 for ankylosis is not warranted.  Diagnostic Code 5258 is not applicable because there was no evidence of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion.  Diagnostic Code 5259 is not applicable because there is no evidence of removal of cartilage and Diagnostic Code 5263 is not applicable because there is no evidence of genu recurvatum.  The Board also acknowledges that there is a Diagnostic Code for synovitis, Diagnostic Code 5020, but that is also rated on limitation of motion of the affected part.  38 C.F.R. § 4.71a.  

In sum, there has been no demonstration of an active rheumatoid arthritis of the left knee, and as there has been demonstration of flexion to 90 degrees, extension to 0 degrees, and no objective evidence of instability of the left knee, the Board has determined that the Veteran's rheumatoid arthritis of the left knee with synovitis should be rated at 20 percent, based upon the Veteran's complaints of pain, and the VA clinical objective findings, with consideration of DeLuca factors.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Extraschedular Evaluation

Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating.  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. 

If the criteria reasonably describe a disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service- connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). In this case there are no exceptional or unusual factors with regard to the Veteran's disability. In this regard, the Board notes that the Veteran has not had frequent periods of hospitalization nor has he reported marked interference with employment.  The VA examiner in January 2013 specifically noted the left knee disability did not prevent employment.  The assigned disability rating based on functional impairment contemplates occupational impairment.  38 C.F.R. § 4.1 (2012)

As seen in the analysis above, the Board has considered the Veteran's disability, and finds that the rating schedule adequately provides for ratings based on his symptoms and impairments.  The Veteran also does not offer any explanation or argument to explain how the assigned rating is inadequate to describe the rheumatoid arthritis of the left knee, its symptoms, and its effect. The evidence before the Board also does not establish any functional impairment due to his left knee rheumatoid arthritis with synovitis that would not be covered or contemplated by the current rating so as to warrant referral for consideration of an extraschedular rating.

In short, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted.  As the rating schedule is adequate to rate the Veteran's disability,  referral for extraschedular consideration is not warranted.

Total Disability Rating for Compensation Based on Individual Unemployability

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  As noted above, this issue is addressed below in the REMAND portion of this decision.


ORDER

Entitlement to a rating in excess of 20 percent for left knee rheumatoid arthritis with synovitis is denied.


REMAND

A claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disability or disabilities has been raised by the Veteran, and is part of his claim for a higher rating for left knee rheumatoid arthritis with synovitis.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (a request for a total disability rating for compensation based on individual unemployability raised by the Veteran is not a separate claim for benefits, but part of the claim for increase).  The Veteran has presented evidence on the overall effect of rheumatoid arthritis and has argued that functional loss of multiple joints should be considered.  

The Board notes the RO denied a claim for a total disability based upon individual unemployability in a rating decision dated November 30, 2010.  Although the Veteran did not perfect an appeal of that decision, under Rice, the matter of entitlement to a TDIU is nevertheless before the Board as part of the appeal for a higher rating for the service-connected left knee disability.  As such, the Board will consider entitlement to a TDIU for the rating period from August 2007, one year prior to receipt of the increased rating claim.  38 C.F.R. § 3.400 (2012).

While the record reflects that the Veteran retired because he was eligible due to age or duration of employment, the Board does not find that such is dispositive of the issue.  Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, due solely to impairment resulting from his service-connected disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  If more than one disability results from a common etiology or a single accident, the disabilities will, for purposes of TDIU considerations, be considered as one disability.  38 C.F.R. § 4.16 (a).

The Board notes that besides the 20 percent award for the left knee disability, the Veteran is also service connected for degenerative joint disease of the cervical spine, currently evaluated at 20 percent, lateral epicondylitis of the left elbow, currently evaluated at 10 percent, degenerative joint disease of the acromioclavicular joint of the left shoulder, currently rated at 10 percent, and degenerative joint disease of the acromioclavicular joint of the right shoulder, currently rated at 10 percent.  However, all disabilities are service connected based upon a common etiology, rheumatoid arthritis.  The Veteran's total combined rating is 60 percent, and, as all disabilities are based upon rheumatoid arthritis as a common etiology, the Veteran's service connected disabilities meets the percentage requirements for TDIU under 38 C.F.R. § 4.16(a).

The Board notes that the VA examiner in May 2013 provided an opinion as to whether the Veteran's left knee disability alone prevented him from obtaining and maintaining employment.  It does not appear that the VA examiner determined whether all of the service-connected disabilities, not just the left knee disability, prevent him from employment.  The issue is whether the Veteran's service-connected disabilities, not just the service-connected left knee disability, preclude him from engaging in substantially gainful employment.  Therefore, the Board has determined that the Veteran should be afforded a VA examination regarding the effect of all currently service-connected disabilities on employment.  

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.  Issue a VCAA notice letter to the Veteran's current address of record for the issue of entitlement to a total disability rating due to service-connected disabilities based on individual unemployability (TDIU).  

Provide the Veteran a VA Form 21-8940, VETERAN'S APPLICATION FOR INCREASED COMPENSATION BASED ON UNEMPLOYABILITY, for completion.

Request that the Veteran provide information on his employment status since August 2007, to include the average weekly hours worked, and annual wages.  If he is currently employed, he should be asked to state why such employment should not be considered substantially gainful employment.  If he is currently not employed, the Veteran should be asked to provide an authorization from his prior employer concerning the reason the employment relationship ended. 

All efforts to obtain records must be documented.  If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 

2.  Thereafter, the Veteran should be provided a VA examination by a vocational specialist to ascertain whether he was unable to secure or follow a substantially gainful occupation due to the combined effects of all of his service-connected disabilities at any time since August 2007.  The claims file should be made available to the examiner in conjunction with the examination.  All necessary testing should be conducted.  A complete rationale for all opinions should be provided.

The examiner is asked to assess the Veteran's ability to secure or follow a substantially gainful occupation solely on the basis of his service-connected disabilities and 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, considered in combination, prevent him from securing or following a substantially gainful occupation, consistent with his education and occupational experience at any time since August 2007.  

When offering the opinion, the examiner is instructed to ignore the effects of age or any non-service connected disabilities.

Marginal employment shall not be considered substantially gainful employment.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16(a).

3.  After the foregoing development is completed, adjudicate the claim of entitlement to a TDIU at any time since August 2007.  If the decision remains adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case, afford the appropriate period to respond, and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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).




______________________________________________
U. R. Powell
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs