Citation Nr: 1630084 Decision Date: 07/27/16 Archive Date: 08/04/16 DOCKET NO. 14-06 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a schedular rating in excess of 10 percent for limitation of flexion due to right knee degenerative joint disease (DJD). 2. Entitlement to a compensable schedular rating for limitation of extension due to right knee DJD. 3. Entitlement to an extraschedular rating for a service-connected right knee disability. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The Veteran had active military service from August 1952 to August 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, in May 2013. In June 2015, the Veteran testified during a videoconference hearing before the undersigned. These matters were previously before the Board in September 2015, at which time the Board denied the Veteran's claims for increased ratings for limitation of flexion and extension of the right knee, granted a separate schedular rating for lateral instability of the right knee, and remanded the matters of the Veteran's entitlement to an extraschedular rating for his right knee disability, entitlement to a TDIU, and entitlement to service connection for a left shoulder disability. Thereafter, the RO granted service connection for fracture of the greater tuberosity and surgical neck of left humerus in an April 2016 rating decision. Accordingly, the Board finds that there is no present case or controversy with regard to the matter of the Veteran's entitlement to service connection for a left shoulder disability, as this benefit has been granted. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Veteran appealed the September 2015 decision to the United States Court of Appeals for Veterans Claims (Court) with regard to the Board's denial of his claims for increased ratings for limitation of flexion and limitation of extension of the right knee due to DJD. Pursuant to a June 2016 Joint Motion for Partial Remand (JMR), the Court remanded the Board's September 2015 decision for action consistent with the terms of the JMR. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The following issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ): (1) entitlement to a schedular rating in excess of 10 percent for limitation of flexion due to right knee DJD; (2) entitlement to a compensable schedular rating for limitation of extension due to right knee DJD; and (3) entitlement to an extraschedular rating for a service-connected right knee disability. FINDING OF FACT The evidence does not show that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper notice of VA's and the Veteran's responsibilities was provided in February 2013, prior to VA's initial unfavorable decision on the Veteran's claim for an increased rating for his right knee disability. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally, with regard to VA's duty to assist, VA has associated with the claims file the Veteran's VA treatment records and statements. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that no further notice or assistance to the Veteran is required for a fair adjudication of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Entitlement to a TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with the veteran's education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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. 38 C.F.R. § 4.16(a). 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 by reason of service-connected disability or disabilities, and consideration is given to the veteran's background including employment and educational history. 38 C.F.R. § 4.16(b). 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 age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). The evidentiary standard for TDIU opinions is not whether the average person would be precluded from substantially gainful employment, but whether the specific Veteran would be so precluded as a result of service-connected disabilities. Unlike the regular disability rating schedule, however, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). For purposes of this section, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the poverty threshold. Id. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. At present, the Veteran's service-connected disabilities are a left shoulder disability (20 percent since May 19, 2014); lateral instability due to right knee DJD (10 percent throughout the period on appeal); limitation of flexion due to right knee DJD (10 percent throughout the period on appeal); and limited extension of the right knee due to right knee DJD (noncompensable throughout the period on appeal). The Veteran's combined schedular rating was 20 percent for the period on appeal prior to May 19, 2014, and is currently 40 percent for the period on appeal from May 19, 2014. As the record shows that the percentage requirements of section 4.16(a) are not met, the Board will consider whether the Veteran is entitled to an extraschedular TDIU under section 4.16(b). Here, during a May 2013 VA examination, the Veteran reported that he was self-employed at his own insurance adjustment company, but had "less business because he cannot climb ladders, etc." The examining physician indicated that the Veteran's knee and/or lower leg conditions impact his ability to work. Similarly, a March 2014 examination report documents the Veteran's report that he can no longer perform the physical aspects of his job, such as climbing ladders, going on roofs, and crawling in tight spaces, due to his knee condition. He reported that his employees perform these job functions while he does the site surveillance paperwork. In July 2014 and August 2014, the Veteran submitted applications for a TDIU (on VA Form 21-8940) in which he reported that his left shoulder disability affected his full-time employment in May 2014, and that he became too disabled to work and last worked full time in May 2014. In those applications, he indicated that he has a master's degree in business studies. Thereafter, in a statement dated in January 2015, the Veteran reported that he was unable to work since he sustained a left shoulder injury, which VA treatment records indicate occurred in May 2014. Notably, a June 2014 occupational therapy outpatient consult note documents the Veteran's report that he was only semi-retired as a self-employed insurance adjuster. In January 2015, a VA examiner opined that it is less likely that the Veteran is able to perform any physical employment due to his chronic right knee pain. However, the examiner also noted that it is as likely as not that the Veteran is capable of performing a sedentary job. During his June 2015 Board hearing, the Veteran reported that he is able to do "probably 25 percent" of what he used to do due to his knee and shoulder disabilities, he does not have any employees to help him with physical aspects of his business and has to pay for help, and he is capable of doing "a little bit of desk work." During an April 2016 examination, the Veteran reported that due to his left shoulder disability, he is unable to lift his left arm above the 90-degree plane, carry loads, or climb ladders. Based on those physical limitations, the examining clinician endorsed that the Veteran's left shoulder disability impacts his ability to perform occupational tasks, but it was noted that the Veteran is able to perform sedentary work tasks. In June 2016, the Acting Director of the Compensation Service issued an Advisory Opinion regarding the Veteran's entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) in which it was concluded that "[t]he evidence of record does not support the notion that the Veteran is unemployable under any circumstances." In coming to that conclusion, the Acting Director noted that the Veteran's knee disability precludes physical, but not sedentary, employment. Overall, the competent evidence of record indicates that the Veteran's left shoulder and right knee disabilities have had an impact on his ability to work. However, notwithstanding this finding, the Board finds that the evidence fails to show that the functional impact of the Veteran's service-connected disabilities rises to the level of precluding him from obtaining or maintaining employment. Further, the Board finds it highly probative that multiple VA examiners have reported the Veteran is capable of performing sedentary work. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) ("the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted"). In considering this finding in combination with the Veteran's master's degree in business studies, the Board finds that the Veteran is capable of obtaining and maintaining sedentary employment. In sum, the evidence fails to show that the Veteran's service-connected disabilities, separately or in the aggregate, have precluded him from obtaining and maintaining substantially gainful employment during the period on appeal. In coming to this conclusion, the Board considered whether any potential employment arrangement would be marginal, but finds that there is no indication that the Veteran's present condition would preclude him from earning an annual income that exceeds the poverty threshold, or preclude him from obtaining and maintaining employment outside a protected environment. Thus, the Board finds that the appeal must be denied. There is no doubt to be resolved in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is denied. REMAND In the June 2016 JMR, it was noted that the January 2015 VA medical examination that the Board cited in its September 2015 decision may not have accounted for functional loss due to pain with regard to the Veteran's right knee disability. As review of the record reveals that the examiner who evaluated the Veteran in January 2015 failed to adequately account for any degree of functional loss experienced due to pain and express any such functional loss in terms of the degree of loss in the Veteran's ranges of motion, the Board finds that VA must provide an examination that specifically addresses whether and at what point during his range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. In addition, as the claim for an extraschedular rating for a service-connected right knee disability is inextricably intertwined with the claims for increased ratings for limitation of flexion and extension due to right knee DJD, the claim for an extraschedular rating must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). 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. Associate with the claims file outstanding records of the Veteran's VA treatment. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After associating any records obtained by way of the above development, schedule the Veteran for a VA joints examination to determine the current severity of his service-connected right knee disability. The claims file, and any newly associated evidence, must be made available to and reviewed by the examiner and the examiner should annotate the report as to whether the claims file was reviewed. All pertinent symptomatology and findings should be reported in detail. Any necessary diagnostic tests and studies should be conducted and the examiner is asked to comment on any relevant VA or private treatment records in his or her report. As to all information requested below, the examiner should fully explain any opinion stated. The examiner should determine the range of motion of the Veteran's right and left knees, in degrees. Range of motion testing must include both passive and active motion, as well as in weight-bearing and nonweight-bearing conditions. It should be indicated whether and at what point during the Veteran's range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. After completing any additional development deemed necessary, readjudicate the issues on appeal. If the benefits requested on appeal are not granted in full, issue the Veteran a Supplemental Statement of the Case. After providing an opportunity to respond thereto, the case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome 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). 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). _________________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs