Citation Nr: 1331652 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-30 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to individual unemployability (TDIU) prior to June 17, 2011. 2. Entitlement to service connection for a right knee injury with degenerative arthritis prior to October 21, 2005. 3. Entitlement to service connection for instability of the right knee prior to October 21, 2005. 4. Entitlement to service connection for moderate impairment of the right leg quadriceps muscle prior to October 21, 2005. 5. Entitlement to service connection for adjustment disorder prior to January 18, 2008. 6. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from June 1962 until February 1964. Enlistment in the United States Army Reserves is also indicated from June 1977 to September 1988. This appeal comes to the Board of Veterans' Appeals (Board) from June 2007; March 21, 2008; and February 3, 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in April 2013; the hearing transcript has been associated with the file and has been reviewed. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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). FINDINGS OF FACT 1. From August 11, 2008 the Veteran's service-connected disabilities have prevented him from holding substantially gainful employment. 2. In an unappealed February 1993 Board decision, the Veteran's claim for service connection for a right knee disability was denied. 3. The Veteran filed a reopened claim for service connection for a right knee disability on October 21, 2005. 4. At his April 2013 Board hearing, prior to the promulgation of a decision in the matter, the Veteran stated that he was withdrawing his appeal in the matters of an earlier effective date for service connection for adjustment disorder and a initial rating higher than 10 percent for degenerative joint disease of the left knee; there are no questions of fact or law in these matters remaining for the Board to consider. CONCLUSIONS OF LAW 1. The criteria for a TDIU have been met beginning August 11, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). 2. The criteria for an effective date prior to October 21, 2005 for the grant of service connection for right knee injury with degenerative arthritis, right knee instability, and moderate impairment of the right leg quadriceps muscle have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012). 3. The criteria for withdrawal of an appeal by the Veteran have been met with respect to the claim for an earlier effective date for service connection for adjustment disorder and an initial rating higher than 10 percent for degenerative joint disease of the left knee; the Board has no further jurisdiction in these matters. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Individual Unemployability In a December 2011 rating decision the RO granted TDIU effective June 17, 2011. The Veteran contends he is entitled to an earlier effective date. Specifically, at his April 2013 Board hearing the Veteran requested an effective date of August 11, 2008, the date on which a private doctor opined that he was totally disabled from employment. VA regulations allow for the assignment of a total disability rating based on individual unemployability when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran meets the schedular criteria for TDIU. The Veteran's combined disability rating prior to his TDIU award was 70% as of January 18, 2008. He is service connected for instability of the right knee associated with residuals of right knee injury with advanced degenerative arthritis (30%), residuals of right knee injury with advanced degenerative arthritis (30%), moderate impairment of quadriceps muscle (10%), left knee condition associated with residuals of right knee injury with advanced degenerative arthritis (10%), and adjustment disorder associated with residuals of right knee injury with advanced degenerative arthritis (10%). 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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor that takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2012); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Veteran has stated that his last full-time job ended in 2001. The evidence shows he worked 20 hours a week from September 2005 to October 2008 in a front desk, clerical position. On a form completed in February 2008, the Veteran's employer indicated that the Veteran was terminated due to a reduction in force. However, the Veteran submitted a list of time missed from work showing 30.45 hours lost in 2008 through August 5, and stated that he was terminated for missing too much work for VA appointments and pain in his knees. In January 2008 a doctor at the private orthopedic practice where the Veteran has had treatment stated that the Veteran's knee disability had gotten worse and, "At the present time he is 100 percent disabled. He has to walk with a support at all times and he needs to have a total knee done on this right side. As far as I am concerned at the present time he has 100 percent impairment of this leg which could be improved with a total knee." On August 11, 2008 another doctor at the private orthopedic practice stated that the Veteran was going to need total knee replacements on both knees. He opined that the Veteran is "100 percent disabled for employment." The Veteran was afforded a VA general medical examination for individual unemployability in December 2008 at which the VA examiner opined that the Veteran is able to perform desk type work. The Veteran underwent a VA mental health examination in January 2009. The examiner recounted that the Veteran's last full-time job was as a security supervisor from which he was terminated. The Veteran reported he was told his tone of voice was not acceptable but he suspected he was terminated with others because their 401k plans were about to fully vest. In August 2009 the Veteran was seen at the VA orthopedic clinic complaining of knee pain. The examining physician opined that the Veteran was "100% disabled." On June 17, 2011, the Veteran was seen at the VA and prescribed morphine after discontinuing Vicodin. In an October 2012 statement the Veteran noted he had been prescribed medicine for constipation while on both drugs due to their side effects. The Veteran underwent another VA examination in June 2011. With regard to the Veteran's employability, the examiner stated: Due to the significant pain from his knees and the necessity for him to take straight morphine sulfate to alleviate the pain, the side effect of which is significant drowsiness in this veteran, as well as severe constipation, it is not reasonable that at this point in time he can do any time of work either sedentary or physical. If in the future he is able to get off morphine and be placed on a suitable alternative or have a procedure, which will alleviate him of his pain such as a total knee arthroplasty perhaps, then this issue would have to be reexamined and he may be able to do a sedentary type position, but in his current state my opinion is as above. The Veteran also was afforded a VA mental health examination in June 2011 at which the examiner opined that the impact of the Veteran's service-connected adjustment disorder on his ability to follow substantially gainful employment "is as likely as not minimal." Giving the Veteran the benefit of the doubt, the Board finds he is entitled to TDIU from August 11, 2008. On that date, one of the Veteran's private orthopedic doctors opined that the Veteran's knees had gotten progressively worse and he was 100 percent disabled for employment. The Board recognizes that in December 2008 a VA examiner opined that the Veteran could perform desk type work, and that the Veteran was in fact employed part-time performing clerical work through October 2008. However, the Veteran's part-time work is not considered substantially gainful employment under VA law. Further, the Veteran has stated that his knee disabilities, including doctor appointments and pain, caused him to miss significant time from even this part-time job. The Veteran was also noted by other treating doctors in 2008 and 2009 to be totally disabled due to his knee conditions. Thus, the Board has considered all of the evidence, including the VA opinions and the opinions of the Veteran's treating physicians and finds that the evidence is at least in equipoise. Therefore the Veteran should be given the benefit of the doubt as to an earlier effective date for his TDIU. As August 11, 2008 is the first date on which a doctor has opined that the Veteran is not employable due to his worsening knee pain, the Board finds that is the proper effective date for his TDIU. Right Knee The Veteran has contended he is entitled to an effective date prior to October 21, 2005 for service connection for right knee injury with degenerative arthritis, right knee instability, and moderate impairment of the right leg quadriceps muscle. Specifically, the Veteran argued at his April 2013 Board hearing that the effective date should be in 1988 when he got out of service and filed his original claim for service connection. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 and are clear: The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In 1988 the Veteran filed for service connection for a right knee disability. The RO denied the claim in June 1989. The Veteran appealed, and in February 1993 the Board denied the claim. The Veteran did not appeal that decision, and it became final. 38 U.S.C.A. § 7104. The Veteran filed to reopen his claim for service connection for a right knee disability in April 2000. The RO denied the claim, finding no new and material evidence to reopen. The Veteran appealed, and in July 2003 the Board denied the claim. The Veteran appealed, and in April 2005 the Court of Appeals for Veterans Claims (CAVC) denied the claim. The Veteran did not appeal that decision and it became final. See 38 U.S.C.A. § 7291. The Veteran filed to reopen his claim for service connection for a right knee disability on October 21, 2005. The Veteran has argued that the February 1993 Board decision denying service connection for a right knee disability was clear and unmistakable error (CUE). In September 2013, the Board denied the Veteran's motion for reconsideration of the Board's February 1993 decision, finding no clear an unmistakable error. In this regard, it is important for the Veteran to understand that the issue of CUE in a prior Board decision is a separate motion and must be filed separately, which the Veteran is free to do at any time. The Veteran's petition for reconsideration on the basis of CUE has been fully addressed, and it not before the undersigned. In this regard, it is also important for the Veteran to understand that the Court has consistently stressed the rigorous nature of the concept of "CUE": "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313 (1992). "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A disagreement with how the Board evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Simply stated, the fact that the veteran is service connected for this disability at this time does not indicate that the prior denials of this claim were undebatably wrong. As the 1993 Board decision denying the Veteran's 1988 original claim for service connection for a right knee disability is final, the proper effective date for the current grant of service connection is the date of the reopened claim. In this case, the Veteran made his reopened claim for service connection for a right knee disability on October 21, 2005. Therefore, October 21, 2005 is the correct effective date for the three separate ratings currently awarded for the Veteran's right knee and leg disability. Based on the forgoing, the Board finds the preponderance of the evidence is against entitlement to an effective date earlier than October 21, 2005 for service connection for a right knee injury with degenerative arthritis, instability of the right knee, and moderate impairment of the right leg quadriceps muscle. Adjustment Disorder and Left Knee Under 38 U.S.C.A. § 7104, the Board has jurisdiction where there is a question of law or fact necessary to a decision by the Secretary of VA under a law that affects the provision of benefits administered by VA. See 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Under 38 U.S.C.A. § 7105(a), an appeal to the Board is initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case (SOC) is furnished to the Veteran. See 38 C.F.R. § 20.200. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by an authorized representative. 38 C.F.R. § 20.204(a)(b). In April 2013, the Veteran indicated at his Board hearing that he wished to withdraw his claims for an earlier effective date for service connection for adjustment disorder and a initial rating higher than 10 percent for degenerative joint disease of the left knee. See Hearing Transcript, p. 3. As the Veteran has withdrawn his appeal on these two issues, there remain no allegations of error of fact or law for appellate consideration (there is nothing for the Board to address in light of the Veteran's statements at hearing). Accordingly, the Board has no further jurisdiction in this matter, and the appeals are dismissed. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran on February 2006, March 2006, and July 2008. In the February 2006 and July 2008 letters, the RO informed the Veteran of what evidence was required to substantiate his claims and of the Veteran's and VA's respective duties for obtaining evidence. In the July 2008 and March 2006 letters the RO also provided notice with regard to how VA assigns disability ratings and effective dates. Thus, the duty to notify has been satisfied. Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the April 2013 Board hearing, the VLJ fully explained the issues on appeal. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars of the United States, and the VLJ and the representative asked questions regarding the Veteran's right knee disability claim and TDIU. In addition, no pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records identified by the Veteran. The Veteran also submitted numerous lay statements. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination regarding unemployability in December 2008 and June 2011. The examiners, medical professionals, listened to the Veteran's assertions and provided the Board with sufficient information to decide the issue on appeal. Therefore, the Board finds that the examinations are adequate and contain sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183 ORDER A total rating based on individual unemployability due to service-connected disabilities is granted as of August 11, 2008, subject to the laws and regulations governing the award of monetary benefits. Service connection for a right knee injury with degenerative arthritis prior to October 21, 2005 is denied. Service connection for instability of the right knee prior to October 21, 2005 is denied. Service connection for moderate impairment of the right leg quadriceps muscle prior to October 21, 2005 is denied. The appeal in the matter of an initial rating in excess of 10 percent for degenerative joint disease of the left knee is dismissed. The appeal in the matter of entitlement to service connection for adjustment disorder prior to January 18, 2008 is dismissed. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs