Citation Nr: 1752458 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-24 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date prior to September 29, 2014 for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1992 to March 2001. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). Although the Veteran did not file a formal request for TDIU until January 2013, that request was raised during the pendency of a claim seeking a higher rating for service-connected low back and bilateral knee disabilities. Thus, the TDIU request must be considered part and parcel of those claims, which were on appeal from an April 2009 rating decision. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). An April 2016 United States Court of Appeals for Veterans Claims (Court) order granting a Joint Motion for Partial Remand (JMPR) confirms this finding by vacating a July 2015 Board decision that found the TDIU matter was not then in appellate status. In June 2016, the Board remanded the TDIU request for further development. In August 2016, the RO granted TDIU effective July 23, 2016. An April 2017 Board decision later granted an earlier effective date of September 29, 2014, and remanded the matter of whether an earlier effective date than that was warranted, to include on an extraschedular basis. This matter was previously addressed by other Veterans Law Judges (VLJs) and is now before the undersigned. FINDINGS OF FACT 1. As the Veteran's request for TDIU is part and parcel of an earlier appeal seeking increased ratings for low back and knee disabilities, the date of claim for purposes of this analysis is January 6, 2009, the date VA received those increased rating claims. 2. The evidence reasonably shows that, considering his occupational and educational history, the Veteran's service-connected back and knee disabilities, alone, caused functional impairment that precluded him from obtaining or following substantially gainful employment since September 12, 2012. CONCLUSION OF LAW An effective date of September 12, 2012 is warranted for the award of TDIU. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as this decision grants an earlier effective date for TDIU, there is no reason to belabor the impact of the VCAA on the matter; any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis The statutory and regulatory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a). In cases involving a claim for higher compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred (i.e., the date entitlement arose), if the claim is received within one year from that date; otherwise, the effective date is the date the claim is received. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). A TDIU request is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU request. Hurd v. West, 13 Vet. App. 449 (2000). Here, the Veteran's TDIU request was, as noted above, raised during the pendency of claims seeking higher ratings for knee and low back disabilities. Thus, it must be considered part and parcel of those claims. Consequently, the date of claim in this analysis is January 6, 2009, the date VA first received those increased ratings claims, as documented in a report of contact that same day. What remains to be determined is the date the Veteran's entitlement to TDIU arose based on the evidence of record. Such a determination is substantive, and therefore warrants a study of the applicable law and regulations. TDIU may be awarded on a schedular basis where the schedular rating is less than total and the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Schedular TDIU requires that the Veteran either have one disability ratable at 60 percent or more, pr two or more disabilities with 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). Prior to September 29, 2014, the Veteran was service-connected for low back disability (rated 10 percent from March 25, 2001 and 20 percent from January 6, 2009); right knee patellofemoral syndrome (PFS) (rated 10 percent from March 15, 2001); left knee PFS (rated 10 percent from March 15, 2001); left knee instability (rated 10 percent from July 19, 2012); right knee instability (rated 10 percent from January 4, 2013); left lower extremity sciatic radiculopathy (rated 10 percent from July 24, 2014); and left lower extremity femoral radiculopathy (rated 10 percent from July 24, 2014). He had combined ratings of 30 percent from March 15, 2001, 40 percent from January 6, 2009, 50 percent from January 4, 2013, and 60 percent from July 24, 2014. Thus, the Veteran does not meet the threshold schedular criteria for TDIU under 38 C.F.R. § 4.16(a) during this period. However, even where a Veteran fails to meet the schedular criteria above, entitlement to TDIU may be shown on an extraschedular basis when the evidence nonetheless shows the Veteran's service-connected disabilities render him unable to obtain or follow substantially gainful employment. 38 C.F.R. § 4.16(b). In such cases, the matter is meant to be first referred to the Director of VA's Compensation Service for extraschedular consideration before adjudicating it in full. Thus, the question in this case is whether, irrespective of his disability ratings at the time, his service-connected disabilities nonetheless precluded substantially gainful employment. The crux of this determination is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). On May 2001 VA examination, the Veteran reported bilateral knee and low back pain since service. He said he had been working for Intel as a field service engineer postservice, and primarily worked while standing. However, he was able to sit and stand as needed with some degree of driving. Nonetheless, he endorsed discomfort while driving and occasional numbness in his legs, particularly when he crossed his knees. He also reported continuing low back pain and spasms, though he denied any radicular pain, paresthesias, or other numbness or weakness. On examination, the examiner noted lumbar flexion to 80 degrees, extension to 35 degrees, bilateral lateral flexion to 40 degrees, and bilateral rotation to 35 degrees. All movements were within normal range, except for some discomfort during flexion. The examiner noted minimal pain during flexion without any sign of weakness or incoordination. There was no swelling, redness, or warmth in either knee joint, and range of motion tests found bilateral knee flexion to 130 degrees with full extension. There was no crepitation or restriction during movement. The examiner found no noticeable during flexion and extension and Drawer and McMurray testing was normal bilaterally. There was some discomfort and joint paint at the tibial tubercle and over the patella, but there was no localized tenderness or weakness noted. Motor strength was normal in both upper and lower extremities but deep tendon reflexes were reduced (2/4). Sensation was intact. A statement that same month reports extreme difficulty lifting more than ten pounds and his knees went numb when driving long distances. He also said he could not sit cross-legged (without his knees going numb), and that he could not bend without experiencing severe knee pain. In September 2001, the Veteran said walking upstairs caused pain and that he could not pick up his children without feeling pain. He also reported an audible grinding in his knee joints that causes discomfort. He said he could not sit or stand for extended periods because his knees begin to throb and ache. He also said that it is painful to stand up from a sitting position after prolonged periods of time, including when driving long distances. Crossing his knees reportedly caused them to go numb within minutes. The following month, the Veteran again reported that he had severe pain after prolonged standing or sitting and while bending his knees. He also reported severe grinding noises when bending his knees, and noted that crossing his legs or applying any lateral stress on the knee joint caused severe shooting pain. He said he could no longer cross his legs for any reason. In addition, he said he had knee pain upon any abrupt lateral transitions. A July 2002 record shows the Veteran completed a form in conjunction with seeking vocational rehabilitation counseling in which he reported a history of work as a field service engineer and a manufacturing associate postservice. However, he said that his back and knee disabilities were making it very hard to continue to perform his job as a manufacturing associate because it had strenuous physical requirements. He indicated that without a degree, he could not advance. On June 2005 VA examination, the Veteran denied any radiation of back pain but said he had daily, constant, aching pain rated 4 to 6 (out of ten) in severity. He reported flare-ups three to four times a year, lasting about a week at a time. He also said he occasionally experiences bilateral posterior thigh numbness. He said he could walk one to two miles and could fall, but did not use any assistive devices. He said he worked as a pharmaceutical manufacturing associate and experienced pain pushing bins of chemicals and hooking up lines to machines close to the floor. He could only drive about an hour and bending to bathe or dress caused pain. On examination, he had normal posture and gait with very mild thoracolumbar scoliosis. Range of motion tests found lumbar flexion to 80 degrees, extension backwards to 45 degrees, bilateral lateral flexion to 30 degrees, right lateral rotation to 50 degrees, and left lateral rotation to 45 degrees. There was pain at the extremes of these movements. After repetitive testing, flexion was further limited to 75 degrees, extension to 35 degrees, and right and left lateral rotation to 40 degrees. There was no objective evidence of painful motion, spasm, or weakness, but the Veteran did have tenderness over the left sacroiliac region (though not over the lumbar spine). There were no postural, fixed, or muscular abnormalities. Neurological examinations found normal sensation, motor strength, and reflexes in the lower extremities. Anal reflex was normal. In February 2009, the Veteran said that walking had become a challenge and that he was "ok" only if he remained perfectly upright. However, leaning slightly to either side would cause shooting pain radiating from his low back. He also said his back felt like it was constantly clenching. He had difficulty sitting upright when waking in the mornings and had to wait a few minutes afterwards before walking fully upright. He also said that sneezing while sitting caused low back spasms and shooting pain. He complained of sore knees that continued to grate "like bone on bone" when rising from the couch. He said he could not stand independently without holding onto something for support. Placing his feet on an ottoman or other similar furniture caused discomfort. He said he always had to have his knees slightly flexed and could barely lift his own weight from a crouching position due to a combination of knee and pain symptoms. He also said he could not pick up his youngest child and hold him. In addition, he said his job performance had suffered considerably because he could not do the same amount or types of work he used to. This had led to being passed over for four promotions. He indicated his job was physically demanding and that, although he had applied for desk jobs, his low performance was making advancement difficult. Notably, regardless of whether his job was physical or sedentary, he indicated that it was nonetheless difficult to sit or stand for any amount of time. He found sitting caused his low back to tighten and brought on shooting pain after a prolonged period. On February 2009 VA knees examination, the Veteran complained of constant aching in the knees and difficulty kneeling or squatting. He also had pain with prolonged sitting or standing under the knee cap. He reported bilateral knee pain at the time of examination, attributed to driving two hours for his appointment. He said he did not lift anything heavy because it added to his knee pain. He denied deformity, giving way, instability, stiffness, weakness, incoordination, decreased joint speed, dislocation or subluxation, locking episodes, symptoms of inflammation, or flare-ups. He said he could stand for three to eight hours with only short rest periods and walk one to three miles. He worked 12-hour shifts at the time. On examination, gait was normal and there was no evidence of abnormal weightbearing or bone loss. There was also no recurrent dislocation. However, the examiner noted bilateral crepitus. Grinding, instability, patellar abnormality, meniscus abnormality, tendon abnormality, clicking, snapping, or masses behind the knee were not found. Range of motion tests found bilateral flexion to 140 degrees and bilateral extension to 0 degrees. There was no objective evidence of pain following repetitive motion or on initial testing, nor was there any additional limitation. The Veteran worked as a supervisor in pharmaceutical manufacturing full-time. He denied losing any time from work during the prior 12 months. He said he had to push 500-liter bins of chemical that were on wheels as part of his job. The examiner felt the Veteran's bilateral knee disability had no significant effects on his usual occupation or daily activities. On February 2009 VA back examination, the Veteran complained of constant, daily low back pain and stiffness, particularly in the morning. He also reported flare-ups of pain and spasms. He described his low back pain as mild and non-radiating. Flare-ups were said to be severe and occurring every five to six months, lasting for three to seven days. They were brought on by bending or sneezing and alleviated by rest or relaxing muscles. He said he was unable to bend his back "half of what is normal" and had difficulty getting to the toilet during flare-ups. He denied any incapacitating episodes of spine disease and said he could walk about one to three miles. On examination, posture, head position, symmetry, and gait were normal. There was no evidence of abnormalities (other than pain with motion), including ankylosis. Motor strength was normal throughout. Reflexes and sensation were also normal. Range of motion testing found flexion to 85 degrees, extension to 30 degrees, lateral flexion to 30 degrees on both sides, and lateral rotation to 30 degrees on both sides. There was objective evidence of pain on active motion. Repetitive testing yielded no change. The examiner noted the Veteran had experienced increased absenteeism as a result of his low back disability and felt it caused significant effects on his usual occupation due to pain. Specifically, the examiner noted the Veteran had missed two weeks of work in the last year due to low back pain. In March 2009, the Veteran reiterated his prior claims about his knee and back disabilities, and that he had tried to get a better job for his condition. However, he indicated he could not get promoted because his work performance had been slipping, and more sedentary jobs required degrees that he did not have. He said he could not practically or financially afford to pursue a degree while working full-time, as he worked 12-hour days. He felt this rendered him unemployable and untrainable because he could not quit his job to get a degree for a more sedentary position due to family obligations, and also couldn't perform his current job well enough to be promoted. In August 2009, the Veteran said he has excruciating and sometimes debilitating pain on a daily basis. He indicated that he is unable to stand up from a kneeling or squatting position without severe grinding or grating and sharp, stabbing pain in his kneecaps. He said he couldn't lift anything more than his own body weight and needed to steady himself when standing by grabbing onto something. He was unable to run due to immense pain and swelling. This meant he could not exercise either, and was out of shape. He then indicated that he could stand comfortably for 20 or 30 minutes before his pain increased, and sitting was not much better. He also said that returning to a full upright position after bending over caused guarding and spasms in his low back. He said attempting to move while lying in bed, or to sit up, was impossible. In December 2012, the Veteran said his mobility had decreased significantly. He said walking caused pain with every step due to his knees being unable to absorb any shock. In addition, he could no longer walk up a flight of stairs without experiencing pain with every step. He also reported his legs had begun locking while walking to the point that he could no longer move. He also endorsed debilitating pain until the leg unlocked. He said his knee also swelled and was extremely tender to the touch on the inside of his knee after it unlocked. Moreover, supporting additional weight for any period longer than a minute caused fatigue and weakness in addition to pain. He said that he had worked as a mechanic for a pharmaceutical company, and this was causing problems for his ability to deal with the physical requirements of his job. Every day, he said it was harder to get out of bed in the morning. His back only compounded his knee problems. He said he had a perpetual lean to the left and could not stand up straight. This threw his center off, and thus prevented him from lifting anything without devastating consequences. He said he always woke with back pain and that his back felt "fused" solid. He said he was in pain every waking moment. He said he had been out of work since September 2012 because he could not perform any duties at work and had been at 60 percent of his normal pay. A January 2013 formal claim for TDIU indicates the Veteran had been working at a biotechnology company as maintenance mechanic, but stopped working full time in September 2012 because of his service-connected disabilities. He also noted that his pay had been severely discounted since he stopped working full time. He reported two years in college and training in the military working on a nuclear pipeline. A May 2013 letter indicates the Veteran was officially terminated on May 6, 2013 because of his continued inability to return to work and perform the essential functions of his job. An August 2013 formal claim for TDIU indicates the Veteran stopped working full-time in September 2012, and became too disabled to work in August 2012. He indicated that he was terminated in May 2013 from his prior job as a maintenance engineer for a pharmaceutical laboratory. He indicated he had only a high school education. An accompanying statement indicates he left after an injury at work that involved a strike to his neck and caused a bulged disc in his neck. He said that his work involved very tight spaces, lifting heavy weights, climbing in and out of tanks, and climbing onto ceilings, and this had taken its toll on his knees and back. He said the injury described above occurred on August 24, 2012, and that his last official day of full-time work had been September 12, 2012. He said he had been unable to return to work since then because of his knee and back disabilities, which prohibited him from utilizing his experience in manual mechanical work. He indicated that alternative jobs to utilize the kind of skills and experience he had required a college degree, and that he did not have one. He said he had been accepted into the vocational rehabilitation program and was looking to complete a four-year bachelor's degree in Environmental Engineering. On July 2014 VA back examination, the Veteran complained of back spasms and an inability to standing for prolonged periods. He said that 15 minutes of standing caused lateral deviation to the left side. He also said his pain was easily 8 out of 10 in severity when spasms occur, and that spasms had placed him on bedrest for up to two weeks. He indicated he could not lift any additional weight, to include sit-ups. He endorsed flare-ups about three times a year that were exacerbated by activity. Range of motion testing found flexion to 85 degrees (with pain at 50), extension to 14 degrees (with pain at the end), lateral flexion to 20 degrees bilaterally (with pain at the end), and lateral rotation to 15 degrees bilaterally (with pain at the end). After repetitive testing, flexion was further limited to 75 degrees, extension to 10 degrees, and right lateral rotation to 10 degrees. The examiner noted functional loss due to less movement than normal and painful movement. Motor examinations were normal and reflexes and sensation were intact. There was neurological involvement found of the left femoral and sciatic nerves. There was no ankylosis. The examiner noted the Veteran said his back disability prevented him from standing or sitting for prolonged periods, or lifting heavy objects. He could no longer perform yardwork or engage in physical recreation. On July 2014 VA knees examination, the Veteran complained of chronic knee pain (rated 6 or 7 out of 10). He said he had pain going up the stairs and that his kneecaps were very sensitive to touch. Walking also caused the pain to radiate from his kneecap to the thighs. While kneeling or standing up, he could not lift himself up without assistance. Such efforts would increase his pain to 10/10 in severity. He also said his left knee locks on average twice a month, and state that he must massage his leg muscles to relieve this. The Veteran also reported grinding and popping with upward motion, and using a knee brace to help stabilize his knee. Flare-ups were reported once a month in the left knee, exacerbated by activity. Range of motion showed flexion was limited to 95 degrees bilaterally, with no objective evidence of pain. After repetitive use testing, flexion was further limited to 85 degrees in the right knee and 90 in the left. Extension was full throughout testing. The examiner found the Veteran had functional losses due to less movement than normal and painful movement on both sides. There was also pain on palpation. However, motor strength was normal bilaterally and there was no evidence of instability, subluxation, or dislocation. The examiner noted the Veteran said his knee disability prevented him from turning wrenches, valves, or walking up and down stairs. He also said it prevented him from standing for prolonged periods, kneeling, or rising. He also could not run. Based on this, the examiner felt the knee disability did impact the Veteran's ability to work. In August 2012, the Veteran indicated that his knee and back disability caused constant pain and impairment that severely limits his ability to maintain employment because he cannot stand for extended periods of time. In addition, he said that he could not sit for extended periods of time, and therefore was unable to work a desk job. Moreover, he had no college degree, and felt this also precluded him from gainful employment that is not manual or physical labor. At the time, he said he was in the process of working towards a Bachelor's degree. That same month, the Veteran's wife submitted a statement indicating that he has constant knee and back pain. She said he is unable to do many things around the house that he previously enjoyed or looked forward to. She noted that he had collapsed several times because his knees would lock up without warning. A June 2017 response to the extraschedular referral to the Director of VA's Compensation Service, pursuant to an April 2017 Board remand, opined that the Veteran was not shown to be unable to secure or follow substantially gainful employment due to service-connected disabilities prior to September 29, 2014 because "it is not demonstrated that the Veteran was precluded from performing sedentary employment." Thus, a grant of extraschedular TDIU was not recommended. After reviewing the evidence, the Board finds the Veteran has presented competent, consistent, and credible lay statements and reports during clinical evaluations attesting to his long history of severe functional impairment from service-connected knee and back disabilities that interfered with his ability to work. Nearly all the evidence of record for the period on appeal indicates the Veteran has both impairments that precluded physical work (e.g., difficulty walking, kneeling, climbing stairs, squatting, standing for prolonged periods, etc.) and sedentary work (e.g., difficulty sitting for prolonged periods, numbness in the legs, radiating pain when sneezing, difficulty standing up from a seated position, etc.). Notably, the first allegations that his low back and knee disabilities affected his ability to perform physical work and that he was unable to obtain more sedentary employment due both to such deteriorating performance and his lack of educational credentials were received in February 2009-well before the September 29, 2014 effective date currently assigned. However, the evidence shows that he continued to work full-time, albeit apparently at much personal and physiological inconvenience, until September 12, 2012, and was not officially terminated until May 6, 2013. Critically, such findings are entirely consistent with concessions that have already been made in the prior April 2017 Board decision and remand. Specifically, in granting an effective date of September 29, 2014 for TDIU, the Board conceded that, "given his occupational and educational history, the most probative evidence demonstrates that his service connected bilateral knee and low back disabilities, alone, render him unemployable" and that "[i]t is clear that he has not been able to maintain physically demanding employment, while his back pain has likewise made it difficult if not impossible to sustain employment in a sedentary occupation." Notably, the decision appears to have assigned a September 29, 2014 effective date based primarily on the date the Veteran met the criteria for schedular TDIU, but the decision also concedes that the Veteran had "credibly asserted that his service-connected disabilities, particularly his knee and low back disabilities, have made it virtually impossible for him to maintain employment since 2012." In addition, the remand portion (which addressed the matter currently on appeal) appears, in large part, to have been ordered pursuant to the referral requirements in 38 C.F.R. § 4.16(b). Considering the above, and particularly the congruence of the Board's current findings with those of the prior Board decision, the Board finds the evidence reasonably shows the Veteran's service-connected low back and knee disabilities rendered him unable to obtain or follow substantially gainful occupation as of September 12, 2012-the date he ceased working full-time. In so finding, the Board notes that, crucially, there is simply no probative opinion evidence that indicates otherwise. The only opinion that does is the June 2017 Compensation Service Director's opinion, which fails to reconcile its finding that sedentary employment was not precluded with the Veteran's own competent and credible reports to the contrary, described above. It also fails to consider the significance of the Veteran's educational history (or lack thereof) during the period on appeal. There are several allegations that he was trapped between a physical job he could not perform, sedentary positions for which he was underqualified, and his family obligations. Taken in context of the other evidence of record, these statements are credible evidence of serious practical barriers to continued gainful employment. They are all the more striking given he apparently worked through severe pain for several years after he first felt his work was suffering-which the Board finds particularly probative insofar as the veracity of the Veteran's appellate intent is concerned. Thus, the Director's June 2017 opinion appears to be based on an incomplete review of the evidence and is not probative in this regard. In light of the above, the Board finds the evidence is at least in relative equipoise as to whether the Veteran's entitlement to TDIU arose on September 12, 2012, after the underlying increased rating claims were received (on January 6, 2009), but prior to the current effective date September 29, 2014. Resolving all remaining reasonable doubt in the Veteran's favor, the Board finds the appeal seeking an effective date prior to September 29, 2014 must be granted. ORDER An earlier effective date of September 12, 2012 is granted for the award of TDIU. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs