Citation Nr: 1605044 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 10-40 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lumber spine disorder, to include as due to service-connected right knee disorder. 2. Entitlement to service connection for bilateral sciatica, to include as due to service-connected right knee disorder. 3. Entitlement to an increased rating for diabetes mellitus. 4. Entitlement to increased staged ratings for right knee disorder. 5. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2009 (diabetes mellitus, right knee) and May 2010 (low back and sciatica) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2009, the Veteran submitted a timely notice of disagreement (NOD) with his increased ratings for diabetes mellitus and right knee disability and his claim for TDIU. In June 2010, the Veteran's representative submitted a timely NOD for his low back and sciatica claims. An August 2010 Statement of the Case (SOC) addressed the issues of increased evaluations for diabetes mellitus and right knee disability, TDIU and service connection for low back disability and sciatica. A September 2010 substantive appeal noted that the Veteran wanted to appeal the issues of TDIU and service connection for low back disability and sciatica. Although the Veteran specifically did not list his claims for increased ratings for diabetes mellitus and right knee disability, the issues were addressed in a June 2015 Supplemental SOC. Notably, an August 2010 rating decision increased the Veteran's diabetes mellitus rating from 20 percent to 40 percent, and a May 2012 rating decision provided a temporary total evaluation and an increased 30 percent rating for the Veteran's right knee disability. The Veteran appeared and testified at a Board hearing in September before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the virtual record. The issue(s) of entitlement to service connection for a low back disorder and bilateral sciatica are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. At the September 2015 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested that a withdrawal of the appeals regarding his diabetes mellitus and right knee disabilities. The hearing request for withdrawal was supported by a written September 2015 statement. 2. The Veteran's service connected disabilities: diabetic nephropathy (60 percent from September 21, 2015), diabetes mellitus (20 percent from October 6, 2008 and 40 percent from October 6, 2008), right knee disability (10 percent from September 12, 2007, 100 percent from April 30, 2012, and 30 percent from July 1, 2013), bilateral lower peripheral neuropathy (two 20 percent evaluations from September 21 2007). The Veteran had a combined 70 percent rating from October 6, 2008, 100 percent from April 2012, 80 percent from July 1, 2013, and 90 percent from September 21, 2015. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran's service connected disabilities alone preclude him from engaging in substantially gainful employment that is consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of increased staged ratings for diabetes mellitus have been met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002 & Supp. 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for withdrawal of the appeal of staged ratings for a right knee disability have been met. 38 U.S.C.A. § 7105(b) (2), (d) (5); 38 C.F.R. § 20.204. 3. The criteria for a TDIU have been met from September 29, 2009. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Appeals Withdrawal An appellant or an appellant's accredited representative may withdraw an appeal in writing or on the record at a hearing on appeal at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. When an appellant does so, the withdrawal effectively creates a situation where there no longer exists any allegation of error of fact or law. Consequently, in such an instance, the Board does not have jurisdiction to review the appeal, and the appropriate action by the Board is dismissal of the appeal. 38 U.S.C.A. §§ 7104, 7105(d). In the present case, the Veteran has withdrawn the appeal as to the issues of entitlement to staged increased ratings for his right knee disability and his diabetes mellitus during his September 2015 Board hearing. Notably, during the hearing the Veteran's representative incorrectly addressed the right knee issue on appeal as one for an "earlier effective date." The incorrect wording was explained as withdrawing a claim for an earlier effective date for the 30 percent rating, instead of describing it as an increased staged rating. However, the understanding that the Veteran was content with his right knee ratings was understood and shows that there were no allegations of error regarding the issue. The Board also notes that the Veteran specifically did not submit a substantive appeal regarding these issues, although they were continued on appeal by the AOJ. As such, there remain no allegations of errors of fact or law for appellate consideration with regards to these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and they are dismissed. This withdrawal is permissible under the Board's rules of practice. See 38 C.F.R. § 20.204. Given the appellant's clear intent to withdraw his appeals, further action by the Board in these matters would not be appropriate. 38 U.S.C.A. § 7105. Duties to Notify and Assist As this decision represents a complete grant of the benefit sought on appeal with regard to the issue of TDIU, any deficiency in VA's compliance with the duty to notify and assist requirements is non prejudicial and any further discussion of VA's duties is not necessary. 38 C.F.R. § 20.1102 (2015). TDIU The Veteran contends that his service-connected disabilities prevent him from engaging in substantially gainful employment and that therefore he is entitled to a total disability rating. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age. 38 C.F.R. §§ 3.341(a), 4.16(a). If unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. Here, the Veteran meets the schedular criteria for TDIU from October 6, 2008. As of October 6, 2008, the Veteran has had a total rating of at least 70 percent . His combined 60 percent from September 12, 2007 does not meet the schedular criteria for TDIU as the Veteran's combined ratings for disabilities from a common etiology (diabetes and peripheral neuropathy) result in a combined 50 percent rating. For the period beginning on October 6, 2008, the Board has jurisdiction to grant a TDIU under 38 C.F.R. § 4.16(a). The Veteran filed an informal claim for TDIU on October 6, 2008. He submitted a formal claim for TDIU on January 20, 2009. The formal claim noted that the Veteran was still employed by Home Depot and that he was working 40 hours a week. He also noted he had completed four years of college. In an accompanying statement, the Veteran noted he was not able to work full time anymore due to his disabilities, including his neuropathy, diabetes, retinopathy, hypertension and hyperlipidemia. In May 2009, Veteran provided a statement that he is physically unable to continue full time employment at Home Depot. He reported he was working 13 hours a week and relying on Social Security retirement benefits, and applied for SSA disability benefits. He stated his vision was deteriorating and the pain in his right knee was debilitating. He reported his neuropathy prevented him from standing for any period of time. He also reported pain from bone spurs and bulging discs in his low back. A May 2009 private medical note included the Veteran's right knee pain worsens by walking and interferes with daily activity. Without use of a cane, he was able to walk for 100 feet. With use of a cane, the Veteran was able to walk 125 feet and stand for 25 minutes. He was limited to sitting for 60 minutes. He was noted to be "currently employed as a department supervisor at Home Depot." And he had a college degree in "business management." He had difficulty standing from a sitting position secondary to his right knee pain, and walked with a limp. It appeared his knee was "buckling sideways in a valgus position" when he walked around the examination room. He was noted to have chronic lumbar pain and sprain with degenerative joint disease. A November 2009 VA podiatry noted included statements from the Veteran that worked in the Garden Department of Home Depot on concrete floors and was unable to fulfill his job duties, including climbing ladders and operating machinery. He reported his diabetic neuropathy made him feel very unsteady on his feet and he was worried about injury. An undated progress note included that the Veteran worked at Home Depot for 13 years, "the last few months of which was part time because he was physically unable to safely perform his job requirements. The levels of pain increased and he was forced to leave Home Depot due to diabetic neuropathy in both feet, intense pain in his right knee and pain in his low back brought about from many years of favoring his right knee. He became very unsteady on his feet and his neuropathy deteriorated from numbness to pain in the area of his toes. The fear of falling from ladders and lift equipment hastened his decision to leave." In a December 2009 notice of disagreement, the Veteran stated that he had pain and instability in his right knee. He reported he was in receipt of SSA disability benefits, and that SSA used his VA treatment for all his service-connected disabilities. He stated his last day of employment was September 22, 2009, due to the severity of his service connected disabilities. In a January 2010 statement, the Veteran's prior employer, Home Depot, noted that the Veteran was terminated on September 29, 2009. A second letter, also addressed in January 2010, noted the Veteran's termination date as September 30, 2009. During the May 2013 VA joint examination, the Veteran reported he had a BA in business. He was employed in sales and management for around 30 years. In 2009, the Veteran was employed at home depot but had to "cut back on what he could offer them due to the right knee pain and right and left foot neuropathy. Started receiving SSA disability in 2009." A February 2014 occupational therapy initial evaluation noted the Veteran had diabetic autonomic neuropathy, and was seeking treatment for adaptive equipment. Able to participate in ADLs using adaptive equipment for safety but he requires some assistance from his wife. He reported not being active and spending most of his day watching TV. His gait was unsteady with impaired standing balance. He was found to be at his functional baseline for self-care activities, but additional adaptive equipment would improve his safety and independence. Adaptive equipment and strength exercises were recommended. In November 2014, the Veteran was hospitalized at Fawcett Memorial Hospital following alteration of mental status. Blood sugar was around 445. He was having some mild memory deficit with short-term memory problems. "Increasingly confused at home." He was assessed with diabetic ketoacidosis and hypokalemia. During his September 2015 Board hearing, the Veteran's representative noted that the Veteran was unable to continue with his employment due to his diabetic neuropathy and pain. He argued that the Veteran was working limited hours at Home Depot prior to his termination. The hearing did not include a date when limited hours began. Additionally, the other evidence of record did not include a date for the beginning of less than full time hours at Home Depot. The record contains multiple statements from the Veteran that his right knee and peripheral neuropathy limited his ability to work and eventually caused him to stop his employment at Home Depot. The record shows that the Veteran has a college degree in business, and there one examination noted he worked in "sales" for 30 years. The record does not contain any details regarding his employment in sales except for his employment with Home Depot from 1997 to 2009. This employment was involved physical labor. Ongoing medical records show that the Veteran's peripheral neuropathy, retinopathy, diabetes mellitus and right knee disability impact his ability to further pursue physical employment. As the information of record indicates that the Veteran has singularly been employed in an industry requiring walking, standing and reliably using machinery, and that his disabilities now limit these activities, the Board will resolve reasonable doubt in the Veteran's favor, and finds that his disabilities render him unemployable. As noted above, the Veteran's employer provided a termination date of September 29, 2009 (at the earliest). Although the Veteran and his representative have noted that the Veteran was marginally employed (working less than 40 hours a week) prior to September 29, 2009, neither provided a date as to when the marginal employment began. As this information is missing from the record, the Board will provide TDIU from the reliable (earlier) termination date of record. On his October 2008 TDIU informal claim and his January 2009 formal claim the Veteran indicated he was working, and in fact, working full time (January 2009 formal claim). As such, entitlement to TDIU is granted from September 29, 2009. The Veteran had a combined 70 percent schedular rating at that time, so the Board can provide TDIU in the first instance. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). Here, the Board is granting TDIU based on the cumulative effects of the Veteran's service connected disabilities of diabetes mellitus, right knee disorder and peripheral neuropathy. As the TDIU is not based on one disability, additional benefit through special monthly compensation under 38 U.S.C.A. § 1114(s) is not warranted (other than during the period from April 30, 2012 to June 30, 2013, for which the Veteran is already in receipt). ORDER The appeal as to the issue of increased ratings for diabetes mellitus is dismissed. The appeal as to the issue of increased ratings for right knee disability is dismissed. Entitlement to TDIU is granted from September 29, 2009. REMAND During his September 2015 Board hearing, the Veteran stated that when he worked at Home Depot, part of his job was to lift and move heavy things: lawnmowers, grills, etc. He stated that he "used his back mostly" to move the heavy objects. "I employed all of the safety methods of bending the knees, etc. But I still had to lift them and as a result, my back, I hurt my back, my lower back." He indicated that after he hurt his back, he had to leave Home Depot. He stated he had his knee operated on after he left Home Depot, and the pain "got worse and worse." He would use a cane when his gait was bad. He reported that "even after my back started to feel a little better, my gait was still bad. I had a lot of problems walking and the pain shifted to my knee, my back, my lower back, and my other knee as well." His wife mentioned an "injury," but did not continue. When asked by his representative if his back pain began after the total knee replacement, the Veteran said yes. His knee replacement was done in May 2012. The VLJ asked if he was having back problems prior to May 2012, and the Veteran stated "I've always had a little bit of back problems, but it was the Home Depot, the heavy lifting, that really did it for me." He stated that his back pain worsened with the knee replacement in 2012. As such, the Veteran is seeking entitlement to service connection for a low back disability and sciatica as secondary to his right knee disability, to include as aggravated by his right knee disability. Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Further, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to codify the Court's holding in Allen, which relates to secondary service connection on the basis of aggravation of a nonservice-connected disorder by a service-connected disability. See 38 C.F.R. § 3.310(b). The amendment essentially requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Here, as the Veteran's claim was filed in December 2009, the amended regulation applies. In December 2007, the Veteran had x-rays of his lumbar spine completed, and a note attached indicated "low back pain." The x-rays showed mild to moderate ostial arthritic change, the apophyseal joint at L5-S1 on the left is poorly visualized due to bone production, lumbosacral line is otherwise essentially normal. This is one of the few records prior to March 2008, and the note associated with the low back pain complaint is not contained in the record. Given the claim for a back disability is related to aggravation, on remand these earlier records should be obtained. A March 20, 2008 VA treatment record noted that the Veteran "hurt back lifting cement. Now not to lift greater than 25 lbs. Workman's compensation doctor started Darvocet and Flexeril and keep patient off heavy weights." SSA records include a Worker's Compensation decision that noted the Veteran had been released to return to work on March 27, 2008, but with restrictions on the type of work he could complete (not lift more than 30 lbs.). The injury was noted to not be pre-existing. As of June 2008, he was considered to have no functional limitations and to have achieved maximum medical improvement. A March 2008 MRI showed a mild degree of central spinal stenosis at L4-5 and degenerative disc disease of the lumbar spine. He was diagnosed with lumbosacral strain. An April 2009 lumbar x-ray revealed mild scoliosis of the lumbar spine with moderate to severe degenerative changes along the lower thoracic spine and at T12-L1 and L1-2. Mild facet joint degenerative changes noted particularly at L4-5 and L5-S1 minimal anterior subluxation of L4-5 with flexion A July 2009 VA podiatry noted included: "it is my opinion that the patient's progressive lower back pain is related to the knee pain as he relates the knee exacerbates the back pain proportionally." A February 2010 record noted that "lifts" placed in the Veteran's right shoe improved his back pain. A July 2010 VA note indicated the Veteran would be scheduled for a total knee replacement, after receiving medical clearance for it. The VA doctor described the benefits of the procedure. The Veteran "inquired about improved back pain following knee surgery. [the VA doctor said he could not] guarantee that will improve; however, his gait mechanics may improve and may lessen his back pain." A May 2010 VA spine examination included a negative nexus opinion between the Veteran's low back disability and his right knee disability because there was medical documentation of very minimal degenerative lumbar disc changes on MRI, and documentation of a lumbar injury in 2008 during his employment at Home Depot. A direct service connection nexus was not provided. The negative secondary service connection opinion did not address aggravation of the low back disability by his right knee disability. An August 2010 private treatment record from Dr. S.D.C. noted that "due to his abnormal gait, [the Veteran] has been having problems and difficulties with his lower back pain which has bene nonresolving." In the "impression" section, Dr. S.D.C. noted that "his back pain is being exacerbated by his end-stage arthritis involving his right knee and his abnormal gait." A February 2011 chest x-ray revealed degenerative changes in the spine. A June 2012 VA treatment record includes that "left knee pain from osteoarthritis, likely exacerbated from biomechanical change in his gait after his right TKA:" In July 2012, Dr. S.D.C. noted the Veteran had a history of diffuse degenerative joint disease, and was status post right total knee replacement due to end-stage arthritis. He "failed conservative management due to longstanding unstable gait. He has had problems and difficulties of worsening left knee pain, in addition to his lower back pain complaints, which we suspect to be on the basis of his initial right knee problems." The impression included "ongoing back pain complaints. Suspect in all likelihood problems and difficulties with the left knee along with the back are related to longstanding problems of the right knee and abnormal gait." In May 2012, while hospitalized following his right total knee replacement, the Veteran requested multiple back massages, and was noted to have a "large tissue mass in his lower right back." At that point, the Veteran was on 50 percent weight-bearing for his right leg. Here, the record includes statements from the Veteran and medical care providers that the Veteran's altered gait, particularly after his right total knee replacement, aggravated or "worsened" his low back disability. As an aggravation determination includes comparing the spine disability prior to the aggravation, another VA spine examination and opinion are required. The Veteran's claim for bilateral sciatica is inextricably intertwined with his claim for a low back disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are " inextricably intertwined " when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: 1. Obtain any VA treatment records from prior to March 2008. 2. Schedule the Veteran for a VA spine examination. Following a review of the electronic records, the examiner should address the following: (a) Is it at least as likely as not (50/50 probability or greater) that the Veteran's current low back disability is due to his military service? (b) Is it at least as likely as not (50/50 probability or greater) that the Veteran's current low back disability is due to, or aggravated by, his service-connected right knee disability? If the examiner finds that his low back was aggravated by his right knee, then the examiner must address the evidence relating to the Veteran's baseline low back disability prior to aggravation. The examiner should note the positive medical statements addressing a worsening of the Veteran's low back pain secondary to his gait. The examiner should also note the Veteran's complaint that his low back disability particularly worsened after his right total knee replacement. (c) Is it at least as likely as not (50/50 probability or greater) that the Veteran has bilateral sciatica as a result of his military service? (d) Is it at least as likely as not (50/50 probability or greater) that the Veteran's bilateral sciatica is due to, or aggravated by, his service-connected right knee disability? All opinions should include an explanation/rationale. 3. After the above is complete, readjudicate the Veteran's claims. If the claims remain denied, issue a supplemental statement of the case (SSOC) addressing the issue. The Veteran and his representative should be given 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 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs