Citation Nr: 1546931 Decision Date: 11/05/15 Archive Date: 11/13/15 DOCKET NO. 05-38 897A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to an effective date earlier than September 27, 2011 for the award of service connection for osteoarthritis of the right knee. 3. Entitlement to an initial disability rating in excess of 40 percent for loss of use of the left foot. 4. Entitlement to special monthly compensation (SMC) at the "L 1/2" rate. ((The issues of whether there was clear and unmistakable error (CUE) in a March 19, 2009 Board decision that awarded special monthly compensation (SMC) pursuant to 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a)(2), and whether there was CUE in a May 23, 1995 Board decision that awarded a 20 percent evaluation for osteochondritis dissecans of the left knee are addressed in a separate decision.) REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to April 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In March 2006, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO. A transcript of that hearing is included in the electronic claims file. In January 2009, the Veteran testified before the undersigned during a hearing in Washington, D.C. A transcript of that hearing is also included in the electronic claims file. In March 2009, the Board denied entitlement to a TDIU and awarded entitlement to SMC for loss of use of the left foot. The Veteran filed a Motion for Reconsideration of the Board's denial of a TDIU, and also appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In February 2010, the Board denied the Motion for Reconsideration. In August 2010, the Court vacated the March 2009 Board decision to the extent that a TDIU was denied, and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). In January 2011 and November 2011, the claim for a TDIU was remanded for development consistent with the Joint Motion. The claims of entitlement to an effective date earlier than September 27, 2011 for the award of service connection for osteoarthritis of the right knee, entitlement to an initial disability rating in excess of 40 percent for loss of use of the left foot, and entitlement to SMC at the "L 1/2" rate have been added to the appeal pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). As indicated on the title page, the Veteran has another matter before the Board. Because the Board exercises original jurisdiction where reversal or revision of a previous Board decision due to CUE is requested, and also because the matters involve different representatives, separate decisions are required. See BVA Directive 8430, paragraph 14. As a matter of clarification, a review of the record reveals statements of the case (SOCs) issued in March 2004, March 2006, and April 2007, all of which were either not perfected or withdrawn from appeal. Thus, these matters are not on appeal and will not be addressed by the Board. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future review of this appellant's case must consider the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The development ordered by the Board in November 2011 on the claim for a TDIU has not been completed, and the case must be remanded to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The Board directed that the claim be referred to the Director, Compensation Service, for consideration of an extraschedular evaluation under 38 C.F.R. § 4.16(b) as the percentage requirements for a TDIU under 4.16(a) have not been met for the entire appeal period. The referral was not accomplished. Currently, the Veteran is in receipt of a combined rating of 40 percent from June 26, 2002, 60 percent from October 26, 2005, and 70 percent from September 27, 2011. Considering that his left foot and left knee disabilities affect one lower extremity, and also arise from common etiology, the percentage requirements for a TDIU under 4.16(a) have been met from October 26, 2005. However, the Veteran's claim was filed prior to that date. The Board can neither deny the claim given the RO's failure to refer it for extraschedular consideration, nor grant the claim as the Board does not have original jurisdiction to assign an extraschedular rating. VAOPGCPREC 6-96 (August 16, 1996); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Moreover, adjudication of the claim for a TDIU must be deferred as development of the claims being remanded pursuant to Manlincon, 12 Vet. App. at 238 may alter the Veteran's combined rating and the date by which the schedular criteria of 38 C.F.R. § 4.16(a) are met. See Harris v. Derwinski, 1 Vet. App. 180 (1991). In addition, a VA examination must be requested, accounting for all of the Veteran's newly service-connected disabilities, in order to obtain a combined-effects opinion. With regard to the claim for entitlement to an effective date earlier than September 27, 2011 for the award of service connection for osteoarthritis of the right knee, in September 2015, the Veteran submitted a timely notice of disagreement (NOD) in response to a September 2014 rating decision that awarded service connection and established the effective date. VBMS Entries September 25, 2014 & September 25, 2015. With regard to the claim for entitlement to an initial disability rating in excess of 40 percent for loss of use of the left foot, in November 2013, the Veteran submitted a timely notice of disagreement (NOD) in response to a June 2013 rating decision that awarded service connection and assigned the initial rating. VBMS Entries November 4, 2013, June 19, 2013, & July 23, 2014. With regard to the claim for entitlement to SMC at the "L 1/2" rate, in November 2014, the Veteran submitted a timely notice of disagreement (NOD) in response to an October 2014 rating decision that denied the claim. VBMS Entries October 22, 2014 & November 1, 2014. As the Agency of Jurisdiction (AOJ) did not issue statements of the case (SOC) on these claims, they must be remanded to the AOJ for this development. 38 C.F.R. §19.9(c) (2015); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). 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). Expedited handling is requested.) 1. Issue the Veteran a SOC on the issues of: (1) entitlement to an effective date earlier than September 27, 2011 for the award of service connection for osteoarthritis of the right knee, (2) entitlement to an initial disability rating in excess of 40 percent for loss of use of the left foot, and (3) entitlement to SMC at the "L 1/2" rate. The Veteran must be advised that for the Board to have jurisdiction in this matter, he must file a timely substantive appeal responding to the SOC. Should the Veteran submit a timely substantive appeal, the matter must be returned to the Board for appellate review. 2. The RO must first determine if any further factual development is required as to the current severity of the Veteran's service-connected disabilities. Then, schedule the Veteran with an examination to determine the effect of his service-connected disabilities on his ability to obtain and maintain substantially gainful employment. The examiner should expressly describe what types of employment activities are limited because of his service-connected disabilities. The examiner should also describe what type(s) of employment, if any, is feasible given the functional impairment of the Veteran's disabilities. The examiner must provide an opinion as to whether the Veteran's service-connected disabilities, either separately or in combination, render him unable to obtain and retain substantially gainful employment consistent with his education and occupational experience. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. The examiner must be advised that at present, the Veteran's service-connected disabilities consist of loss of use of the left foot (40 percent disabling), osteochondritis dissecans of the left knee (30 percent disabling), degenerative joint disease of the left knee (10 percent disabling), and osteoarthritis of the right knee (10 percent disabling). If the examiner is unable to render the requested opinion without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided. The claims folder must be made available to the examiner for review of pertinent documents therein, and the examination report must reflect that such a review was conducted. The examiner's attention is drawn to the following: * March 2000 VA Vocational Rehabilitation counseling narrative summary, in which the Vocational Rehabilitation counselor noted the Veteran's knee disability limited his ability to stand or walk for prolonged periods, lift, or squat. He determined the Veteran had "an impairment to employability" and was entitled to a VA Vocational Rehabilitation program. He stated, "The [V]eteran's [service-connected disability] materially contributes to this impairment of employability. The [V]eteran would be impaired attempting to perform physically demanding jobs. Obtaining new skills in business administration would benefit the [V]eteran in obtaining meaningful employment." * June 2004 VA treatment record indicating the Veteran was "not suitable for gainful employment due to [a] severe left knee injury in 1982." * September 2004 VA general medical examination, in which the examiner opined that the Veteran's nonservice-connected back pain and his service-connected left knee pain could cause limitations in his ability to do particular kinds of work; however, there were "types of work that he may be able to do despite his chronic back pain and chronic left knee pain." * January 2005 statement of a VA Vocational Rehabilitation Employment Specialist, indicating that the Veteran had impaired employability based upon his unspecified handicaps and functional limitations, educational deficiencies, and need to establish new job market skills. * April 2005 VA Vocational Rehabilitation narrative summary, in which the counseling psychologist determined the Veteran's service-connected left knee disabilities impaired his employability, and he had a serious employment handicap. The psychologist opined that the Veteran's service-connected knee disabilities prevented the Veteran from "preparing for, obtaining, and/or maintaining employment compatible with his pattern of interests, aptitudes, and abilities." She noted the service-connected knee disabilities caused the following limitations: "difficulty climbing more than two flights of stairs; difficulty stooping, squatting, kneeling, crouching, and crawling; difficulty standing for more than 15 [to] 20 minutes; difficulty walking for more than two blocks; difficulty driving for more than one hour; and difficulty working in extreme cold or in wet conditions." * August 2005 email response of a VA physician stating, "I do not see any contraindication for [the Veteran] working inspite [sic] of his arthritic pains. He has no radicular symptoms and had been able to taper down his narcotic to less than 2 per day and actually he requested [a] narcotic taper down to 1 per day [when necessary] since he had been exercising." * November 2005 VA general medical examination report in which the examiner opined, "The [V]eteran obviously is unable to do any kind of strenuous or very physical work because of the left knee. However, it seemed to me that he should be able to do sedentary work..." * March 2006 RO hearing testimony in which the Veteran testified he had been self-employed full-time until he stopped due to his knee locking up and swelling. The Veteran asserted he had stopped working in October 1995--years prior to a July 2000 injury which caused his nonservice-connected neck and back disabilities; therefore, he was unable to work based solely on his service-connected knee disabilities. * May 2006 VA medical opinion in which the Veteran's internal medicine physician noted that his service-connected left knee disabilities caused "excess fatigue"; "difficulties standing, sitting, bearing weight"; and difficulty "executing skilled movements with his left lower extremity." * April 2007 VA medical opinion in which the Veteran's internal medicine physician opined that the Veteran's service-connected left knee had no remaining effective function, "other than that which will equally well be served by an amputation stump at the site of election, with the use of a suitable prosthetic appliance." * July 2007 VA medical opinion in which the Veteran's internal medicine physician noted the Veteran's service-connected left knee disabilities caused "leg fatigue"; "difficulties standing, sitting, bearing weight"; and difficulty "executing skilled movements with his left lower extremity." * December 2008 treatment note in which the Veteran's VA internal medicine physician reported that he was unable to secure substantial gainful employment since October 1995 due to his service-connected left knee disabilities. * January 2009 Board hearing testimony in which the Veteran testified that although he had a Bachelor's degree in Business Management, he could not function in that capacity of employment. He related that a VA Vocational Rehabilitation counselor deemed him unsuitable for their programs due to his knee disabilities, despite his degree, because he could not be retrained for employment. The Veteran testified he had difficulty concentrating because of his knee pain, and he took "a lot" of pain killers to alleviate it. He was on a monthly contract for Percocet from VA, and he reported that the Percocet "scramble[d]" his brain and turned his mind to "mush," which rendered him unable to function in a management capacity. * May 2009 VA medical opinion in which the Veteran's VA internal medicine physician stated that he was "not suitable for substantial, gainful employment due to his left knee injuries, causing, (sic) swelling, recurring locking, pain, instability, stiffness, and limitation of motion. [The Veteran] has also been prescribed [P]ercocet/[O]xycodone, a controlled substance, for his knee injuries, a drug which causes drowsiness, vomiting, anorexia, and headaches, all of which affect his ability to maintain gainful employment as well." * April 2011 VA joints examination report in which a VA physician opined that the Veteran "would be capable of sedentary employ[ment] provided he is given the proper ergonomic modifications. Because of his use of Percocet, he should not handle any hazardous materials. Regarding physical employment, he would have difficulty performing positions that require more than minimal walking and standing. He would be limited to lifting only extremely light items that could be lifted with one hand as he uses a cane." * May 2011 VA medical opinion in which the Veteran's VA internal medicine physician opined that the Veteran's left knee problems affected his daily living, including his ability to obtain substantially gainful employment, to include sedentary work. He noted the Veteran was prescribed Percocet which caused dizziness, drowsiness, and mood swings, and affected his employment abilities. * July 2011 independent medical evaluation by Dr. G., an Occupational and Internal Medicine physician, who opined that the Veteran's nonservice-connected back injury was not a significant factor in his ability to find and sustain gainful employment. He stated that the Veteran was "clearly disqualified for work duties other than sedentary work." However, he stated that the sedentary work would require various accommodations, including accommodations for mental health issues, and that he was unaware of any "real-world employer that has the flexibility or willingness to provide such sweeping accommodations," "even for a potential employee with a batchelor's (sic) degree." He then opined that the Veteran was "completely disabled and unable to sustain any gainful employment." * June 2012 VA examination report indicating that sedentary work was possible given the Veteran's bilateral knee disabilities, however, the combination of his physical disabilities, medication effects, and (non-service connected) mental health issues would "leave him employable by only the most considerate of employers. Thus, this examiner would support a determination of this Veteran being deemed not employable at this time." * November 2013 VA examination report in which the examiner found that the Veteran's knee conditions impact his ability to work. The examiner noted the Veteran's reports that he cannot work, but also noted that he is "a full time student at Fayetteville Tech, studying Business Administration. Veteran is taking 12 credit hours a semester and passing all his classes. He will be finishing soon." * November 2013 VA examination report in which the examiner opined that the Veteran's service-connected left foot/ankle disability did not impact his ability to work. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 3. Refer the issue of entitlement to a TDIU on an extraschedular basis to the Director, Compensation Service, for consideration of an extraschedular evaluation under 38 C.F.R. § 4.16(b) for the portion of the appeal period in which the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) are not met (currently, the percentage requirements are not met prior to October 26, 2005). 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to a TDIU must be readjudicated - including, if warranted, any adjustments in the Veteran's service-connected ratings. If the percentage requirements for a TDIU under 4.16(a) are not met for the entire appeal period (currently, the percentage requirements are not met prior to October 26, 2005), the RO/AMC must consider the claim on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) as applicable. If the claim is denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, this case must be returned to the Board for further appellate review. 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). 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 2014). _________________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).