Citation Nr: 1336802 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-29 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 30 percent for hypothyroidism. 3. Entitlement to a rating in excess of 30 percent for right knee total replacement with history of arthritis, for the period from October 1, 2008. 4. Entitlement to a rating in excess of 30 percent for left knee total replacement, for the period from September 1, 2009. 5. Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to June 1976, and from February 1979 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. In April 2011, the Veteran testified before the undersigned Veterans Law Judge during a video conference Board hearing. A transcript of the hearing has been associated with the claims file. The Board notes that appeals for higher ratings for scars associated with the Veteran's knee disorders were not perfected, so are not listed above on the title page. The Veteran specifically omitted mention of these issues on his July 2010 VA Form 9, Substantive Appeal, and during his April 2011 Board hearing. The Board also notes that the Veteran was granted a temporary total evaluation of 100 percent and a schedular 100 percent rating for both his right knee replacement (from August 15, 2007 to September 30, 2008) and for his left knee replacement (from July 9, 2008 to August 31, 2009). A 30 percent disability rating was then established for the right knee from October 1, 2008, and for the left knee from September 1, 2009. Therefore, the Veteran's claims for a higher rating for either knee do not encompass, and will not disturb, the time periods covered by 100 percent ratings. Therefore, the issues on the title page have been recharacterized to reflect this development. See 38 C.F.R. § 4.30; § 4.71a, Diagnostic Code 5055 (rating knee replacement with prosthesis) (2012). The issues of higher ratings for PTSD, for hypothyroidism, and for total knee replacements of both the right and left knee are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant, if further action is required on his part. FINDINGS OF FACT 1. The Veteran is service-connected for PTSD with a 50 percent disability rating; for hypothyroidism with a 30 percent disability rating; for total knee replacement, right knee, with history of arthritis, with a 30 percent disability rating; for total knee replacement, left knee, with a 30 percent disability rating; for scar, left knee, status post arthroplasty associated with left knee condition, with a 10 percent disability rating; and scar, right knee, status post arthroplasty associated with total knee replacement, right knee, with history of arthritis, with a 10 percent disability rating. 2. The Veteran's overall combined disability rating with two or more service-connected disabilities is 90 percent, effective September 1, 2009, with at least one disability rated at 40 percent or more and the combined rating at 70 percent or more. Therefore, the Veteran meets the schedular criteria for a TDIU. 3. The evidence is at least in equipoise regarding whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation during the entire appeal period. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), of any information and any medical or lay 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 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service connection claim, to include veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Considering the determination reached in this decision the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for resolution of the TDIU claim without detriment to the due process rights of the Veteran. TDIU - Laws and Regulations Total disability means that there is present an impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A veteran is determined to be unable to engage in a substantially gainful occupation when jobs are not realistically within his physical and mental capabilities. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Two different means exist to determine whether a veteran is totally disabled. The Schedule for Rating Disabilities provides for a finding of total disability to be made on an objective basis. A veteran is considered totally disabled if his service-connected disability is, or combination of service-connected disabilities are, rated at 100 percent. 38 C.F.R. § 3.340(a)(2). Even if the veteran is less than 100 percent disabled, he still will be considered totally disabled if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent rating. If he has one service-connected disability, it must be rated at 60 percent or more. If he has two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran seeks a TDIU due to his service-connected disabilities. He contends that he should be granted a TDIU because he has met the schedular rating with a combined 90 percent disability rating and because evidence in the file, including decisions of the Social Security Administration and VA's Vocational Rehabilitation and Employment (VR&E) service, indicate he is too disabled to work. In this case, the Veteran is currently service-connected for six disorders: for PTSD with a 50 percent disability rating; for hypothyroidism with a 30 percent disability rating; for total knee replacement, right knee, with history of arthritis with a 30 percent disability rating; for total knee replacement, left knee, with a 30 percent disability rating; for scar, left knee, status post arthroplasty associated with left knee condition with a 10 percent disability rating; and scar, right knee, status post arthroplasty associated with total knee replacement, right knee, with history of arthritis with a 10 percent disability rating. His combined evaluation for compensation is 90 percent. Thus, as the Veteran has several service-connected disabilities and one disability is rated at more than 40 percent, with a combined rating in excess of 70 percent, he clearly meets the minimum percent rating requirement of 38 C.F.R. § 4.16(a). Consequently, the schedular standards for consideration of a TDIU under 38 C.F.R. § 4.16(a) are met. The remaining question before the Board, therefore, is whether the Veteran is unemployable by reason of his service-connected disabilities alone, taking into consideration his educational and occupational background. The fact that a veteran is unemployed is not enough. The question is whether his service-connected disorders without regard to his nonservice-connected disorders or lack of work skills or advancing age made him incapable of performing the acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The record reflects that the Veteran is currently 63 years old. He completed high school with a general equivalency degree (GED). He previously worked in law enforcement as a police officer until 1990 when he was fired, although the Veteran argues this dismissal was for political reasons. During his VA examinations in 2009 and his April 2011 Board hearing, the Veteran noted that he was no longer working. Records from the Social Security Administration (SSA) associated with the claims file indicate that the Veteran is in receipt of SSA disability benefits, effective March 2006. A January 2010 physical residual functional capacity assessment noted that the Veteran had bilateral knee replacements with continued pain and that he walked with a cane. It was further noted that he had to move his knees every 10 minutes to keep them from locking up on him. Limited range of motion had been noted by an orthopedic evaluation. The reviewing physician noted that the Veteran would not be able to consistently stand or ambulate for six hours on a daily basis. A January 2010 SSA mental residual functional capacity assessment also noted that the Veteran would have difficulty attending to and performing simple, unskilled work for reasonable periods of time without special supervision due to his PTSD and depression. The SSA psychologist found that the Veteran would have difficulty adjusting to the work environment, adapting to requests for change, maintaining regular attendance, and working in the presence of others. Another report noted that the Veteran's psychiatrist thought that he was unsuited for work. In spite of treatment, significant symptoms were noted such that consistent performance of even unskilled work was thought highly unlikely. In a March 2009 signed statement, the Veteran stated that he had hoped to be able to return to work after both knees were replaced, but that no longer looked possible. He stated that he could not stand for long, or walk or sit for any length of time. He also could not bend or lift anything more than 20 pounds. He said that he had to drop out of truck driving school because of his knees, which click at every bend. He also said that he had looked into a retraining program for other work, but could not find anything that would allow him with his disability. In his July 2009 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), the Veteran indicated that he last worked full-time in January 2007 when he was a self-employed satellite installer. On the form he also claimed that his service-connected knee replacements had prevented him from following or securing a substantial gainful occupation. While he failed to indicate on this form whether he had completed high school, a resume in his VR&E service folder indicated that he had received a GED. In addition to his service-connected disabilities, the record shows that the Veteran has several non-service connected conditions, to include: hypertension, an abdominal aortic aneurysm, sleep apnea, depression, low back pain, impotence, calculus of the ureter, colonic polyps, and dysphagia. The Veteran underwent a VA PTSD review examination in August 2009. He told the VA examiner that he had filed a claim for unemployability due to his prosthetic knees. He reported that he had to stop working three or four years before due to problems with his knees. He also reported anger problems and a history of some difficulty getting along with others on the job. Moreover, he also told the examiner that he had worked as a police officer until 1990, but was arrested for third-degree burglary reportedly committed on the job. The Veteran said that he was fired, but that the arrest had been political as he was having some problems with people in higher positions of authority. Subsequently, he worked 15 years in construction and then for four to five years in satellite TV installation until he stopped because of his knees. The Veteran told the examiner that he could not work for anyone else because of his record and that he had difficulty getting along with others in the work place. In that report and in the October 2009 addendum, the VA examiner concluded that the Veteran demonstrated moderate to severe impairment in occupational and social functioning. According to his September 2009 VA examination of the knees, the Veteran had worked until 2003 in construction. He then tried vocational rehabilitation at a technical college, but left there in 2006 after deciding he had no aptitude for computer science. He worked as a satellite installer from 2004 to 2008, but was not able to climb, crawl, or do the work. The Veteran reported that he could not tolerate the knee pain and pain from the scars and could not take pain medicine due to driving requirements. In a September 2009 memorandum, D.J.S., a VA rehabilitation counselor, indicated that the Veteran had been engaged in counseling, planning and/or training for entry level employment, but had been found to be medically and mentally not feasible for training and employment via a variety of assessments and professional reviews by the division. It was noted that the Veteran's physical difficulties and limitations, coupled with his age and past legal problems, contributed to this determination of infeasibility. It was further noted that the Veteran had decided to discontinue VR&E training services and had successfully completed an Independent Living program to address physical barriers that limited his ability to function independently. The Board notes that the Veteran's VR&E folder has been associated with his claims folder and contains documentation of the information found in the September 2009 Vocational Rehabilitation memorandum. For example, there is documentation that the Veteran never completed any of the degrees he studied at a technical college, including computer repair, management and real estate sales. A May 2009 assessment of independent living and assistive technology noted that physical restrictions due to knee replacement problems and accompanying pain management issues severely restricted the Veteran's day-to-day activities. It was also noted that his limited mobility and reluctance to consider using other mobility aids, such as a wheelchair or scooter, significantly limited his options. According to a September 2009 VA orthopedic clinic record, a VA orthopedic surgeon agreed with the VR&E finding that the Veteran was unemployable. The surgeon also expressed his view that the Veteran should pursue SSA disability benefits. The treatment record noted unremitting knee pain. In his July 2010 signed statement, the Veteran's service representative argued that the Veteran met the criteria for a TDIU in that he was unemployable due to his service-connected disabilities. The representative said this determination was supported by the vocational rehabilitation counselor, who noted that the Veteran was not medically or mentally feasible for training or employment. He also quoted the VA physician who agreed with VA's vocational rehabilitation service that the Veteran was unemployable. The representative concluded that while the Veteran might be able to obtain marginal employment, such did not meet the criteria for obtaining or maintaining substantial gainful employment. During his April 2011 Board hearing, the Veteran testified that he last worked more than five years before as an independent satellite installer. He said that he was self-employed in the construction business before that, but had to switch to satellite installation because his knees were giving out. However, work as a satellite installer "got to where I couldn't even crawl underneath the houses and go into attics. I had to give that up." See hearing transcript at p. 11. The Veteran also testified to previous work as a police officer post-service and more recently trying to attend college through VA's Vocational Rehabilitation and Employment service, but said that now he could not sit or walk for any length of time. Id. at pp. 12-13. His representative conceded that the Veteran might find some form of marginal employment and that one service-connected disability itself might not preclude gainful employment, but that considering all of his service-connected disabilities as a whole as well as medication restrictions and pain and his inability to sit for long the criteria for a TDIU are met. Id. at 17-18. In light of the evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran is not capable of securing and following a substantially gainful occupation as a result of his service-connected disabilities. There is no evidence that the Veteran's nonservice-connected disorders noted in his VA treatment records affect his ability to obtain and maintain employment or render him unemployable. However, the evidence of record suggests that the Veteran's service-connected disabilities, coupled with consideration of his limited educational background and limited work experience, preclude him from securing and following substantially gainful employment. The medical and lay evidence suggests that the combination of his service-connected disabilities - especially his PTSD and the residuals of his knee replacement surgery on each knee - operate as an occupational impairment. The medical and lay evidence above suggests that the Veteran's PTSD, particularly his lack of anger management, operates as an occupational impairment as do his difficulties with mobility and ambulation due to his service-connected knee disorders. Though the claims file does not contain the opinion of a VA examiner to the effect that one of the Veteran's service-connected disabilities, or all in combination, preclude his gainful employment, the Board, resolving all reasonable doubt in the Veteran's favor, will find that it is at least as likely as not that the Veteran's service-connected disabilities, considered together as a whole, preclude the Veteran from obtaining and maintaining substantially gainful employment. See Geib v. Shinseki, No. 2012-7164, 2013 WL 5788671, at*3 (Fed. Cir. Oct. 29, 2013) (noting that the ultimate determination of a TDIU is on VA and not a medical examiner and that VA's duty to assist a claimant does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities). While the decisions of SSA and Vocational Rehabilitation and Employment are not binding in this matter, their findings that the Veteran was not capable of gainful employment were based on examination, fact-finding, and analysis. In this case, given the Veteran's combination of service-connected disabilities, especially his disabled bilateral knees and his PTSD, he would likely have difficulty working again in law enforcement, or home repair, or satellite TV dish installation. Moreover, there is no indication from the record that he has any previous work experience or training outside of these trades. It thus appears that the Veteran has no specific skills to re-enter the work force at a job that would not involve some type of manual labor and supervision and implicate his knee and PTSD disabilities. In addition to his service-connected disabilities, the Veteran also suffers from the other diseases noted above. But even apart from these nonservice-related disorders, the lay and medical evidence of record indicates that he would most likely be unable to secure or maintain substantially gainful employment due alone to his service-connected disabilities. In other words, even if his nonservice-connected disorders were not present, he still would be unable to obtain or maintain substantially gainful employment because of the severity of his PTSD and knee disabilities considered together. As the Veteran has many disabilities, both service-connected and not, there can be no doubt that further inquiry could be undertaken with a view towards development of this TDIU claim. However, under the "benefit-of- the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). The Board is of the opinion that, at a minimum, this matter is at the point of equipoise. On the one hand, his VA orthopedic surgeon agreed with VA's Vocational Rehabilitation and Employment service that the Veteran was unemployable and SSA findings related to his service-connected knees and PTSD are in agreement. On the other hand, no VA examiner has found that any one of the Veteran's six service-connected disabilities, alone or in combination, would render him unable to secure or follow a substantially gainful occupation, although the August 2009 and October 2009 VA examiner opined that the Veteran's current PTSD symptoms reflected moderate to severe occupational and social impairment. While there is evidence reflecting that the Veteran has nonservice-connected disabilities that may contribute to his unemployability, overall the evidence strongly suggests that the Veteran's service-connected disabilities, alone and in combination with one another, are significant enough in their own right to preclude him from obtaining substantially gainful employment. Therefore, based on its review of the relevant evidence, and giving the benefit of the doubt to the Veteran, the Board finds that it is as likely as not that the Veteran is precluded from work due to his service-connected disorders. As such, a TDIU is warranted. ORDER Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is granted during the entire appeal period, subject to the laws and regulations governing the award of benefits. REMAND Unfortunately, a remand is required for the higher rating claims on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). During his April 2011 Board hearing, the Veteran testified that his PTSD, his hypothyroidism, and his bilateral knee disorders were more severe than when evaluated in 2009 VA examinations. See hearing transcript at pp. 3-6 (PTSD); pp. 6-7 (hypothyroidism); and pp. 8-10 (knees). For example, he testified regarding his PTSD that he now exhibited recent suicidal thoughts, homicidal ideation, including road rage, and increased marital problems. These issues were not mentioned in his August 2009 VA mental examination and the October 2009 addendum. In addition, he testified regarding his hypothyroidism that he thought he had muscle weakness and had gained 30 pounds within the previous year. This regulatory criteria for a higher, or 60 percent, disability rating was not mentioned in the September 2009 VA examination for hypothyroidism. The Veteran also testified that his left knee locked frequently and that he could not straighten his leg. The September 2009 VA knee examination indicated no locking of the knees. Moreover, the September 2009 VA examinations of hypothyroidism and the bilateral knee disorders were conducted without the VA examiner having access to the claims file. The Board finds that it is appropriate that the Veteran's most recent symptoms for these disabilities be evaluated as his most recent VA examinations of PTSD, hypothyroidism, and the bilateral knees were in 2009, now more than four years ago. On remand, a new examination should be obtained to determine the current severity of the Veteran's disabilities on appeal. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous evaluation where necessary to reach a decision on the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Because the current level of the Veteran's disabilities are unclear, the Board believes that another examination is necessary to evaluate his PTSD, his hypothyroidism, and his right and left knee replacement disorders. Thus, another VA examination is necessary to ascertain the current level of the Veteran's disabilities on appeal. Where further evidence, or clarification of the evidence, is needed for proper appellate decision-making, a remand to the RO is required. 38 C.F.R. § 19.9(a)(1) (2012). In addition, a check of the Virtual VA computer system does not register any recent medical records. The Board's review of the claims file shows no VA treatment records dated after June 2010. Therefore, on remand the RO/AMC must associate with the claims file, or in the Veteran's Virtual VA eFolder, all VA medical records from June 2010 to the present. VA has a duty to obtain all relevant VA and governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and ask them to specify all private and VA medical care providers who have treated him for his PTSD, hypothyroidism, and right and left knee disabilities. After the Veteran has signed any necessary releases, attempt to obtain and associate with the claims file, or the Veteran's Virtual VA eFolder, any records identified by the Veteran that are not already associated with the claims file, in particular any records of evaluation or treatment from the VA Medical Center in Columbia, South Carolina, or from the Dorn Veterans' Hospital, for the period from June 2010. VA hospital and treatment records should be requested whether or not the Veteran responds to the request for information. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Following completion of the above, schedule the Veteran for appropriate VA examinations to determine the current nature and severity of his service-connected PTSD, hypothyroidism, and right and left knee disabilities. The examiners must review the claims file and must note that review in their reports. All indicated studies should be conducted, and all findings reported in detail. A rationale for all opinions expressed should be provided. The VA examination of the bilateral knees must also include observations as to any functional loss, such as pain on movement, swelling, deformity, instability, interference with sitting, standing and weight-bearing, weakened movement, excess fatigability, and incoordination. 3. After all development has been completed, the RO/AMC shall adjudicate the Veteran's remaining claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case and allowed appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs