Citation Nr: 1338826 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 04-33 386 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from July 1979 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2004, October 2008, and July 2010 RO rating decisions. The January 2004 RO decision, in pertinent part, denied an increase in a 10 percent rating for a right knee disability (right knee sprain). In a May 2008 decision, the Board denied the Veteran's claim for entitlement to an increase in a 10 percent rating for a right knee disability. The October 2008 RO decision determined that new and material evidence had not been received to reopen a claim for entitlement to service connection for a left knee disability (listed as a left leg condition previously claimed as left knee strain), to include as secondary to a service-connected right knee disability. The Veteran appealed the Board's May 2008 decision that denied his claim for entitlement to an increase in a 10 percent rating for a right knee disability to the United States Court of Appeals for Veterans Claims (Court). In December 2008, the parties (the Veteran and the VA Secretary) filed a joint motion which requested that the Board's decision be vacated and remanded. A December 2008 Court Order granted the motion. In September 2009, the Board remanded the issue of entitlement to an increase rating in excess of 10 percent for a right knee disability for further development. The July 2010 RO decision denied the Veteran's claim for a TDIU rating. In January 2012, the Board remanded the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, as well as the issues of entitlement to an increase rating in excess of 10 percent for a right knee disability and entitlement to a TDIU rating, to schedule the Veteran for a Travel Board hearing. In March 2012, the Veteran withdrew his request for a Travel Board hearing. In an August 2012 decision, the Board denied the Veteran's claim for entitlement to an increase rating in excess of 10 percent for a right knee disability. Therefore, that issue is no longer on appeal. The Board also reopened and remanded the issue of entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability, and remanded the issue of entitlement to a TDIU rating, for further development. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board remanded this case in August 2012, partly to schedule the Veteran for a VA examination to determine the nature, extent, onset, and etiology of any left knee disability. The Board requested that, following a review of all pertinent records associated with the claims file, the examiner was to indicate whether it was at least as likely as not (a 50 percent probability or greater) that any diagnosed left knee disabilities were related to the Veteran's period of active service from July 1979 to August 1983. The examiner was also requested to opine whether it was at least as likely as not that any diagnosed left knee disabilities were caused by or aggravated by the Veteran's service-connected right knee disability. In the August 2012 remand, the Board specifically indicated that the examiner should acknowledge and discuss the Veteran's lay statements regarding his history of a left knee disability. Pursuant to the August 2012 remand, the Veteran was afforded a VA orthopedic examination in April 2013. The examiner noted that the Veteran's claims file was reviewed. The examiner reported that the Veteran stated that in 2003 or 2004, he stood up from a squatting position and felt a pop in his left knee and an abrupt onset of left knee pain. The examiner indicated that the Veteran was seen at an emergency room at Mother Francis Hospital and that he was treated for a ligamental sprain of the left knee. It was noted that the Veteran had no history of prior left knee pain or injuries, and that he denied a history of left knee problems during active military service. The examiner indicated that the Veteran believed that he would bear more weight on his left knee due to his service-connected right knee disability. The examiner reported that the Veteran currently had generalized pain in both knees, with increased pain, bilaterally, with prolonged standing, squatting, climbing stairs, or walking for over a block. It was noted that the Veteran also reported that he had increased pain with driving for over thirty minutes and that he had popping of both knees with extension. The examiner stated that the Veteran further reported that he had intermittent swelling of both knees, as well as a history of falls related to his knees. The diagnoses were chronic left knee strain and chronic right knee strain. The examiner indicated that it was less likely as not that the Veteran's current left knee condition was caused by, or the result of, his military service. The examiner stated that he found no service treatment records referring to a left knee condition in the Veteran's claims file. The examiner reported that the Veteran's service treatment records appeared to be intact and that the Veteran was seen for various conditions throughout his period of service. It was noted that the Veteran had no memory of any significant left knee injuries while on active service and that an Army Reserve examination in December 1984 showed no problems with either knee. The examiner stated that the Veteran's history did not support a service-connected left knee condition. The examiner also commented that it was less likely as not that the Veteran's left knee condition was caused by, aggravated by, or the result of, his service-connected right knee condition. The examiner stated that he knew of no medical authority or peer reviewed medical literature which supported the contention that chronic left knee strain could be caused by, or aggravated by, a similar right knee condition. The examiner reported that the Veteran's gait was biometrically normal and that such indicated that he did not bear more weight on the left knee as a result of the service-connected right knee disability. The examiner stated that the Veteran had a significant injury to his left knee in 2003 at the time of the onset of his left knee pain. The examiner indicated that the Veteran had no history of any left knee conditions prior to that injury. The examiner maintained that it was more likely as not that the current left knee condition was the result of the 2003 left knee injury, which was documented in follow-up notes at a VA facility in 2004. The Board observes that the VA examiner indicated that the Veteran suffered a significant injury to his left knee in 2003 at the time of onset of his left knee pain, and that he had no history of any left knee conditions prior to that injury. However, the Board notes that there are references to possible left knee problems prior to 2003. For example, an August 1990 report from L. Ram, D.C., noted that the Veteran was involved in a motor vehicle accident in July 1990. Dr. Ram indicated that the Veteran reported complaints including knee pain. The diagnoses included myositis, myofascitis, and myospasms. Dr. Ram did not specifically indicate whether the Veteran complained of right or left knee pain at that time. In a December 1999 statement, the Veteran specifically stated that his knees would swell and hurt. Further, a November 1999 report from the University of Texas Health Center at Tyler, Texas, noted that the Veteran was seen for complaints including leg pain. The Veteran reported that he had left knee swelling for one week. He also stated that he had a history of an old injury in 1982 (apparently in his right knee). The Veteran reported that he was able to walk with pain in his right knee. The assessment, at that time, included knee pain. In a prior February 2013 addendum to a February 2013 VA thoracolumbar spine conditions examination report, an examiner indicated that there was nothing in the Veteran's service treatment records about a left knee condition while he was in the military, so his left knee condition was less likely as not related to his military service. The examiner stated that the Veteran's left knee condition was also not aggravated by his right knee abrasion which he had in August 1982. The examiner stated that there was a lack of evidence in the Veteran's service treatment records and the Veteran did have an on the job injury to the left knee, but that it was not related to his military service. The Board observes that the VA examiner did not provide a rationale for the opinion that the Veteran's service-connected right knee disability did not aggravate his left knee disability. Additionally, the examiner appeared to solely refer to a right knee abrasion in August 1982, rather than to the Veteran's current service-connected right knee disability. Further, the February 2013 VA thoracolumbar spine conditions examination report did not refer to any diagnosed left knee disabilities. A remand by the Board confers upon a Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the April 2013 VA orthopedic examination report, as well as the February 2013 addendum to a February 2013 VA thoracolumbar spine conditions examination report, did not fulfill the August 2012 remand instructions, the Board has no choice but to again remand this claim for a compliant opinion. As to the Veteran's claim for a TDIU rating, he essentially claims that his established service-connected disabilities prevent gainful employment. He is currently service-connected for a low back disability (rated 40 percent) and for a right knee disability (rated 10 percent). The combined disability rating is 50 percent. Therefore, the minimum percentage requirements for a TDIU rating set forth in 38 C.F.R. § 4.16 (a) (2011) are not met. The case was previously remanded by the Board in August 2012, partly to obtain an opinion from a VA examiner, after a review of the claims file, as to whether the Veteran's service-connected disabilities alone preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. Pursuant to the August 2012 remand, the Veteran was afforded a VA thoracolumbar spine conditions examination in February 2013. There was a notation that the Veteran's claims file was reviewed. The Veteran complained that because of his low back disability, he had discomfort and stiffness with frequent bending, lifting, and carrying. He denied that he had numbness, tingling, radiation, or bowel or bladder incontinence. The Veteran indicated that he last worked for Federal Express as a package and mail handler in 2008, and that he stopped working because of a left knee injury. He indicated that his back pain was aggravated by working at Federal Express, but he denied that it caused him to stop working. The diagnosis was degenerative disc disease of the thoracolumbar spine. The examiner commented that the Veteran's lumbar degenerative joint disease would limit him from jobs requiring frequent and repetitive lifting, carrying, and bending. The examiner stated that there would be no limitations to most sedentary work. The Veteran was also afforded a VA orthopedic examination in April 2013. There was a notation that the Veteran's claims file was reviewed. The Veteran reported that he had worked primarily as a mechanic, with his last two jobs involving working as a warehouseman. The diagnoses were chronic left knee strain and chronic right knee strain. The examiner reported that the Veteran was unable to stand or walk for prolonged periods, and that he was also unable to repetitively squat or kneel. The examiner commented that the Veteran was able to engage in sedentary employment such as a customer service representative. It was noted that the Veteran's primary training was in mechanics and warehouse work, and that he was unable to engage in those occupations at the present time due to his right knee condition. The Board observes that even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, as in this case, a TDIU rating may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran "was ineligible for 4.16(b)-TDIU consideration." ld. In this case, the RO did not submit the Veteran's claim for entitlement to a TDIU rating to the Director of Compensation and Pension for extraschedular consideration. As such, this matter must be remanded so that, if not rendered moot, the RO can do so. The Board observes that although the Veteran was afforded a VA thoracolumbar spine conditions examination in February 2013, and a VA orthopedic examination in April 2013, the respective examiners did not address the cumulative effect of all of the Veteran's service-connected disabilities (his low back disability and right knee disability) on his unemployability. Therefore, in light of the evidence of record, Board finds that the Veteran should be afforded another VA examination, with an opinion from an examiner, after a review of the entire claims file, as to whether all of the Veteran's service-connected disabilities, either alone or in the aggregate, without consideration of any of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation, as well as suggestions from the examiner as to type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities given his current skill set and educational background. See Colayong v. West, 12 Vet. App. 524, 538 (1999); see also Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 3.159 (2013). Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for his service-connected disabilities since April 2013. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 2. Make arrangements for the claims file to be forwarded to the examiner who conducted the April 2013 VA orthopedic examination report for review. The report should indicate that such has been accomplished. The examiner must diagnose all current left knee disabilities. The examiner must provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not (at least a 50% probability) that any currently diagnosed left knee disabilities are etiologically related to the Veteran's period of service from July 1979 to August 1983. The examiner must acknowledge the Veteran's lay statements of his history of a left knee disability. The examiner should also comment on the Veteran's report of swelling and pain in his knees in November 1999, and refer to any treatment for left knee problems prior to 2003. The examiner must also opine as to whether the Veteran's service-connected right knee disability caused or aggravated any diagnosed left knee disabilities, and if so, the extent to which they are aggravated. If the examiner determines that any service-connected disability aggravates any diagnosed left knee disability, the examiner should describe the baseline level of severity of the left knee that would be expected without the aggravation or before the onset of aggravation due to the service-connected disability. The report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). In the event that the prior examiner is not available, the claims folder must be reviewed by another examiner to provide the requested opinions. 3. Have the Veteran undergo the appropriate VA examination to ascertain the current severity of his service-connected disabilities and to obtain a medical opinion as to whether the service-connected disabilities alone render him unemployable. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examiner must describe current impairment from each of the service-connected disabilities, and must specifically provide an opinion as to whether the Veteran's service-connected disabilities, either alone or in the aggregate, without consideration of any of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. If the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner must suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Thereafter, if the schedular requirements set forth in 38 C.F.R. § 4.16(a) are not met, refer his TDIU rating claim to Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of an extra-schedular evaluation. 5. Then readjudicate the appeal. If the claims remain denied, issue a supplemental statement of the case to the Veteran and his attorney and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters 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). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).