Citation Nr: 1612040 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 09-36 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to May 18, 2010, and in excess of 30 percent thereafter, for degenerative arthritis, right knee, status post anterior cruciate ligament. 2. Entitlement to an initial rating in excess of 10 percent for instability associated with degenerative arthritis, right knee, status post anterior cruciate ligament. 3. Entitlement to a rating in excess of 10 percent for asthma. 4. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) prior to May 18, 2010. 5. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) beginning May 18, 2010. REPRESENTATION Veteran represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1990 to April 1993. The Veteran has asserted that his active duty extended to April 1994 and that his service personnel records reflecting a discharge of April 1993 are incorrect. These matters come to the Board of Veterans' Appeals (Board) on appeal from March 2007 and April 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, and Philadelphia, Pennsylvania. In July 2013, the Veteran testified at a Board hearing before the undersigned Veterans' Law Judge. A transcript of that hearing is of record. These matters were before the Board in December 2013, when they were remanded for additional development. Nevertheless, the Board finds that additional development is warranted. The issues of entitlement to increased ratings for degenerative arthritis, right knee, instability associated with degenerative arthritis, right knee, and asthma, as well as entitlement to a TDIU prior to May 18, 2010 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence of record demonstrates that beginning May 18, 2010, the Veteran met the schedular requirement for TDIU and his service-connected disabilities, considered in combination, precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Beginning May 18, 2010, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Given the favorable disposition herein, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); 57 Fed. Reg. 49, 747 (1992). TDIU The Veteran contends that his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16 (2015), if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation due to service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history. See 38 C.F.R. § 4.16(b) (2015). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). The Veteran is currently service-connected for degenerative arthritis, status post ACL reconstruction, right knee, 10 percent disabling, effective August 22, 2006, and 30 percent disabling, effective May 18, 2010; recurrent subluxation or lateral instability status post right knee ACL reconstruction, 10 percent disabling, effective August 22, 2006; lumbar strain, 20 percent disabling, effective January 20, 2009; sciatica, right lower extremity 10 percent disabling, effective January 20, 2009, and 20 percent disabling, effective June 28, 2012; sciatica, left lower extremity, 10 percent disabling, effective January 20, 2009, and 20 percent disabling, effective June 28, 2012; exercise induced asthma, 10 percent disabling, effective February 2, 1995; left knee patellofemoral pain syndrome, 10 percent disabling, effective January 20, 2009; left knee instability, 10 percent disabling effective June 28, 2012; and status post gallbladder removal, noncompensable from February 2, 1995. Prior to May 18, 2010, the Veteran did not meet the schedular requirements under 38 C.F.R. § 4.16(b) (2015). Specifically, while the Veteran's orthopedic disabilities are considered one disability for TDIU purposes and therefore meet the criteria for one disability ratable at 40 percent or more, he did not have a combined rating of at least 70 percent. Since May 18, 2010, the Veteran had one disability ratable at 40 percent or more and a combined evaluation equivalent or in excess to 70 percent. As such, the Board finds that the minimum schedular criteria for TDIU are met, effective May 18, 2010. 38 C.F.R. § 4.16(a) (2015). The question therefore becomes whether the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. To this effect, the Board notes that the record contains conflicting medical evidence. Initially, the Board notes that Social Security Administration (SSA) records indicate that the Veteran has been deemed disabled for SSA purposes due to his discogenic and degenerative disorders of the back and an affective mood disorder since May 10, 2004. A May 2010 VA examination noted that the Veteran reported that he was fired because he could no longer perform his job because he could not lift or climb. The examiner noted that due to the Veteran's bilateral knee, low back, and bilateral sciatica disabilities, he was unable to stand for more than a few minutes or walk more than a few yards. At his July 2012 VA examination, the Veteran reported that he last worked in 2003 in the oil field but that he stopped working due to back pain and sciatica. He noted that he lost control of his left leg due to pain and nearly fell from the oil rig. He stated that he quit shortly thereafter. The examiner noted that prior records indicated that the Veteran was fired because he was unable to do his job. The examiner then addressed what, if any, occupational impairment was attributable to each of the Veteran's service-connected disabilities. The examiner noted that the Veteran's bilateral knee disabilities would result in difficulty secondary to knee pain with prolonged standing, walking, repetitive bending, keeling, and lifting / carrying. The examiner opined that the Veteran's bilateral knee disabilities, lumbar stain, and bilateral lower extremity sciatica with be productive of difficulties with prolonged standing, walking, repetitive bending, twisting, and kneeling, and lifting / carrying. The examiner noted that the Veteran's exercise-induced asthma would result in shortness of breath and increased cough with exertion, while the Veteran's residuals of cholecystectomy would not impact the Veteran's occupational functioning. A July 2013 private vocational evaluation from Vass Vocational Services indicated that the Veteran had an 11th grade education and that his prior employment, with the exception of a short two-month stint as a telemarketer, all involved heavy or very heavy lifting and required significant strength. The examiner opined that the Veteran had no transferable skills from his prior employment, that he had never worked as a supervisor, and that while the Veteran had basis computer skills, he had no clerical or supervisory skills. The examiner noted that to his credit, the Veteran had attempted to engage in sedentary employment but was physically unable to continue employment because he had to change position on a frequent basis. Specifically, every 20-30 minutes he had to stand and walk around, which resulted in him being off task and away from the work station an excessive amount of time. The examiner opined that the Veteran was vocationally restricted due to back and lower extremity pain, specifically, the Veteran's pain caused problems with paying attention, concentrating, and focusing on tasks, and that the majority of the Veteran's day was spent trying to prevent additional pain by restricting his activities. After reviewing the record, the examiner opined that the Veteran's vocational limitations included the inability to lift weight in excess of five pounds, the necessity to change positions every 20-30 minutes, the inability to walk more than 20-30 yards before resting, the necessity for a cane, and an inability to focus due to pain. The examiner noted that the Veteran had attempted to perform sedentary work but failed physically. The examiner stated that, given the Veteran's vocational profile, specifically, less than a high school education with no general equivalency degree, vocational certifications, or supervisory or clerical experience, it was extremely unlikely that he would be hired by any employer for any position, let alone be able to work full time. The examiner opined that the Veteran's constant pain in his lower extremities, as well as his back, rendered him unemployable In a June 2014 VA examination report, the examiner opined that due to his bilateral knee disabilities, lumbar strain, bilateral lower extremity sciatica, and exercise induced asthma, the Veteran would have difficulty secondary to pain with standing, walking, repetitive bending, lifting / carrying, twisting, and ascending and descending stairs, shortness of breath, and increased cough with exertion. The examiner opined that while the Veteran's service-connected conditions would prevent most physical employment, they would have little impact on sedentary employment, other than some difficulty with the prolonged sitting involved with sedentary employment. After reviewing the evidence of record, the Board finds that it is at least as likely as not that the Veteran's service-connected disabilities render him unable to gain or maintain substantially gainful employment. While not binding, the Board finds it probative that SSA has determined that the Veteran is entitled to disability benefits for his service-connected back disability. Additionally, the Board affords the private vocational evaluation significant probative weight. To this effect, the report by Vass Vocational Services was consistent with the May 2010, July 2012, and June 2014 VA examination reports, in finding that the Veteran would have significant difficulty with physical activities, such as standing, walking, repetitive bending, keeling, and lifting / carrying. Additionally, unlike the June 2014 VA examination, the Vass Vocational Services evaluation addressed the Veteran's prior educational and occupational experience, the Veteran's lay statements regarding his limitations sitting, and his unsuccessful attempt to maintain sedentary employment. Therefore, based on the probative medical evidence, the Board finds that TDIU is warranted. ORDER Entitlement to TDIU is granted effective May 18, 2010 subject to the controlling regulations applicable to the payment of monetary benefits. REMAND With regard to the remaining claims, the Board finds that there are outstanding private and VA records. An August 2015 report of contact noted that the Veteran would be submitting private medical evidence in support of a pending claim. Subsequently, private treatment records were not received or otherwise obtained. As any outstanding private treatment records are likely relevant to the pending appeals, on remand reasonable efforts must be made to obtain any such records. Additionally, the record contains a November 2004 application for vocational rehabilitation; to date, the Veteran's vocational rehabilitation records have not been associated with the claims file. The Board notes that vocational rehabilitation records are generally stored separately from VA treatment records. As these records may be relevant to the Veteran's claims, they should be obtained. With regard to the claim for entitlement to a TDIU prior to May 18, 2010, presently, the Veteran does not meet the schedular requirements under 38 C.F.R. § 4.16(b) (2015). Nevertheless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2015). Where a veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a) (2015), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the Director, Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Based upon the evidence of record, the Board concludes that the facts of this case meet the criteria for submission of the Veteran's claim to the Director, Compensation Service, for consideration of entitlement to a TDIU prior to May 18, 2010 on an extraschedular basis. Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of all VA treatment records for the Veteran dated from April 2014 to present. All efforts to obtain these records must be documented in the claims file. 2. Obtain the Veteran's vocational rehabilitation file and associate it with the claims file. If the RO is unable to obtain these records, the Veteran must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 3. Request that the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for any updated private treatment records related to his service-connected disabilities, to include outstanding treatment records from his private doctor. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 4. After the above is completed, refer the claim for entitlement to a TDIU prior to May 18, 2010 to the Director of Compensation for consideration of an extra-schedular TDIU under 38 C.F.R. § 4.16(b) (2015). 5. After conducting any other development warranted including providing contemporaneous VA respiratory and knee examinations if warranted based on the evidence obtained during remand, readjudicate the issues on appeal. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate period to respond. Then return case to the Board, as warranted. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs