Citation Nr: 1757795 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 09-29 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as due to service-connected lumbar disc strain and/or a left leg disability. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. E. Jones, Counsel INTRODUCTION The Veteran served on active duty from June 2000 to October 2000 and from January 2003 to June 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2009 and July 2009 rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran provided testimony at December 2009 and November 2010 hearings before a Decision Review Officer (DRO). Transcripts of the hearings are of record. FINDINGS OF FACT 1. A right knee disorder was not manifest in service, is not attributable to service and is not caused or aggravated by a service-connected disability. 2. The Veteran's service-connected disabilities have not precluded him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder, to include as secondary to service-connected disability, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for a total disability rating based on individual unemployability by reason of service-connected disability have not been met at any time during the appeal period. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A (2012), and implemented at 38 C.F.R. § 3.159 (2017), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). No such arguments have been raised. In light of the foregoing, nothing more is required. The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. The Veteran's service treatment records (STRs) and his VA treatment records have been associated with the record. The Veteran has been provided VA medical examinations, the results of which are sufficient to accurately adjudicate these claims. The Veteran has provided testimony at two hearings before a DRO. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Laws and Regulations Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service incurrence of arthritis may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of the Veteran's discharge from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In this case, there is no presumed service connection for arthritis because the Veteran has not been shown to have arthritis of the knee. Service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). III. Right Knee The Veteran's claim for service connection for a right knee disorder was received by VA on April 15, 2009. The Veteran asserted that he developed a right knee disorder because he was not able to walk properly due to his service-connected low back disability. At his November 2010 hearing the Veteran reported that he had trouble with his right knee during service, but that he never sought treatment for his right knee during service. The Veteran's STRs reveal no complaints or treatment related to the right knee. On VA examination in December 2010, the Veteran reported that his right knee first began to bother him following an accident in service where a coworker dropped his side of a heavy steel beam they were carrying. He said that this caused him to be suddenly pulled toward the right side and that this caused him considerable back pain and right knee pain. Examination revealed mild peripatellar tenderness. There was no objective evidence of painful motion, edema, effusion, instability or weakness of the right knee. The VA examiner opined that there was no current evidence to support a chronic right knee condition stemming from service or related to the Veteran's low back strain. The Veteran was afforded another VA examination of the right knee in February 2013. The diagnosis was patellar tendonitis. X-rays of the right knee were negative for arthritis. The Veteran reported that he came to VA to seek treatment for the right knee in about 2008. The Veteran attributed his right knee disability to his service-connected low back disability. The VA examiner acknowledged the Veteran's description of right knee pain in service. She then noted that there was no report of, or objective medical evidence of, any chronic right knee condition during service or within a year of separation from service. She pointed out that the Veteran did not claim a right knee condition on his claim for VA benefits in 2006, on his 2003 post deployment health assessment, on any of his STRs, or in his 2008 VA examination which addressed his low back. The VA examiner stated that the initial documented report of right knee pain occurred in December 2008, five years after discharge and she opined that the right knee condition was unlikely to be related to service. The VA examiner reviewed the Veteran's details with a VA orthopedist and opined that it is less likely than not that the Veteran's subjectively reported right knee pain/patellar tendonitis is related to or aggravated by the altered gait from his service-connected low back disability. On VA examination in May 2017, the diagnosis was knee strain. The Veteran reported that his right knee did not really bother him and he stated that he was able to run/jog for two miles, three times a week. He said that if he overdid it at the gym he will on occasion get right knee pain. He would treat it with rest and ice for a few days and then it resolved. The examiner noted that there was no evidence of any mechanical abnormalities/gait abnormalities that would cause a transient strain. The VA physician opined that the Veteran did not have a chronic right knee condition stemming from service or related to his service-connected low back strain. She further opined that it was less likely than not that the Veteran's right knee complaints were permanently worsened or aggravated by his service-connected disc strain and/or left leg weakness. The Board has considered the Veteran's assertions that he has a right knee disability that is caused or aggravated by his service-connected back and left leg disabilities, or due to an injury during service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues here, whether the Veteran has a current right knee disability that is a result of service or is secondary to service-connected disability, such falls outside the realm of common knowledge of a lay person as this is beyond the capability of a lay person to observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Even if the Veteran were competent to provide an etiological opinion, the Veteran's statements are still outweighed by the more probative medical evidence and VA medical opinions. To the extent that the Veteran has alleged the presence of a chronic knee disorder during active duty and thereafter, the Board finds these allegations are undercut by the contemporaneous medical evidence in the service treatment records which are silent as to complaints of, diagnosis of or treatment for a right knee disorder and by the Veteran's own self-reported medical history he provided during active duty. Here the more probative evidence in the form of the contemporaneous medical records clearly shows that the Veteran had no right knee complaints during service or for a number of years after discharge from service. Furthermore, the Board places greater probative weight on the findings of the health care professionals who opined that the Veteran does not have a current right knee disability due to service and that he does not have a current right knee disability that is caused or aggravated by a service-connected low back or left leg disability. There are no medical opinions to the contrary. The preponderance of the probative evidence weighs against the claim. Consequently, service connection for a right knee disorder, to include as due to service-connected lumbar strain and service-connected left leg disability, is not warranted. IV. TDIU In an October 2011 letter the Veteran asserted that he had had difficulty with past jobs due to his service-connected disabilities. He reported that he had had to leave those jobs and take other jobs that were for less pay. The Board stated in its December 2015 decision that an inferred claim for a TDIU had been raised by the record in connection with the Veteran's increased rating claims pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). A total rating based on unemployability may be granted if a veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). 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 determining whether unemployability exists, consideration may be given to a 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. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is presently service-connected for major depressive disorder rated at 70 percent disabling, for lumbar disc strain rated at 20 percent disabling, for erectile dysfunction rated at zero percent disabling, and for left lower extremity weakness rated at zero percent disabling. The combined rating for the Veteran's service-connected disabilities is 80 percent. The Veteran's service-connected disabilities satisfy the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). At the Veteran's February 2014 VA psychiatric examination the Veteran said that, although he was working as a security officer, he had been trying to get a job in his field, and he had been rejected due to his history of depression and his back injury. The Veteran submitted several written documents, including from August 2013 and September 2014, showing that his conditional offer of employment for a Federal agency was revoked due to his history of anxiety and depression, as well as chronic back discomfort. Although the Veteran has not been working in his chosen field, the evidence of record indicates that the Veteran has been continuously working. The record contains a September 2016 letter from a VA nurse practitioner that states that the Veteran was able to carry 85 pounds and that he was able to sit for prolonged periods of time without discomfort or increased risk of medical problems. A May 2017 VA record notes that the Veteran had been working in New York City fulltime for six years. There is no indication in the record that the Veteran's employment is not substantially gainfully employment. None of the medical evidence indicates that the Veteran is unemployable due to his service-connected disabilities. The evidence simply does not show that the Veteran is has been unable to maintain substantially gainful employment due to his service-connected disabilities at any time during the appeal period. Therefore the preponderance of the evidence is against the Veteran's claim and a TDIU is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right knee disorder, to include as due to service-connected disability, is denied. Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability is denied. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs