Citation Nr: 1805162 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 05-18 009A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and E. B. ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from February 1972 to May 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case was previously remanded by the Board in October 2011 and April 2015. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. The October 2011 Board decision determined that the issue of entitlement to a TDIU was raised pursuant to Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In August 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran has a left knee disability etiologically related to an in-service injury, event or disease or proximately due to, or chronically aggravated by his service-connected disabilities. 2. The evidence of record reflects that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155, 5103A, 5107 (2012); 38 C.F.R. § 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Analysis - Left Knee Disability The Veteran contends that he has a left knee disability that is directly related to his active service or secondary to his service-connected right knee disability. Specifically, the Veteran contends that he is forced to compensate for his service-connected right knee disability which caused his left knee disability. See August 2011 Board Hearing transcript. To establish service connection for a disability on a direct-incurrence basis, the Veteran 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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. The evidence of record shows that the Veteran was diagnosed with mild left knee arthritis in May 2010. See May 2010 VA examination. Therefore, there is evidence of a current disability. As to an in-service event, a review of the Veteran's service treatment records reveals that the Veteran injured his right knee during service. An April 1972 service treatment record reflects that the Veteran injured his right knee during a fall. However, the service treatment records do not reflect any complaints for a left knee injury. An April 1972 report of medical history shows the Veteran had a normal clinical evaluation of the left knee. The report specifically notes that the Veteran injured his right knee; however, there is no indication that the Veteran injured his left knee. Additionally, during the August 2011 Board hearing the Veteran only testified that his left knee disability is secondary to his service-connected right knee disability. The Veteran did not testify that his left knee disability is directly related to his active service. In summary, the service treatment records do not reflect in-service complaints of a left knee injury or pain. The Veteran was provided a VA examination in November 1998. The Veteran complained of right knee pain; the VA examiner noted that the Veteran had no complaints related to his left knee. The earliest evidence of record of a left knee injury is a June 2005 correspondence stating he has left leg pain due to his service-connected right knee disability. The correspondence was received 33 years after the Veteran separated from active service. Therefore, there is evidence of a current left knee disability, but there is no evidence of an in-service injury, illness or disease to which the current left knee disability may be medically attributed. Rather, the evidence suggests that the Veteran suffered a right knee injury in April 1972. While the Veteran is competent to report a left knee injury in service, the Board does not find him to be credible in this regard. The service medical records are absent for complaint of a left knee injury or abnormality while demonstrating complaint of a right knee injury. Additionally, the absence of demonstration of a left knee complaint until decades after service is for consideration and weighs against the claim. As to service connection on a presumptive direct-incurrence basis under the provisions of 38 C.F.R. §§ 3.307 (a) (3) and 3.309 (a), as noted above, the record shows that the Veteran has been diagnosed with arthritis in his left knee. However, the diagnosis was made many years after the Veteran's separation from service. The record does not show that the Veteran was diagnosed with arthritis during service or within one year of separation from active service. Accordingly, the Board finds that service connection is also not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.307 (a) (3) and 3.309 (a). The Board also considered whether the Veteran's current left knee disability is secondary to his service-connected right knee disability. A disability which is proximately due to, or chronically aggravated by, a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). With respect to whether Veteran's left knee disability is proximately due to, or chronically aggravated by his service-connected right knee disability, the only competent medical opinion of record is the December 2015 VA examination. The VA examiner reviewed the Veteran's record and noted his diagnosis of degenerative joint disease of the left knee. The VA examiner opined that the Veteran's left knee disability was not caused by his service-connected right knee disability. The VA examiner also opined that the Veteran's left knee disability is not aggravated by his service-connected right knee disability. As rationale, the VA examiner stated that the Veteran's left knee disability is due to age related changes, and not his service-connected right knee disability. The only evidence indicating an association between the current left knee disability and his service-connected right knee disability are the Veteran's own assertions. At the August 2011 Board hearing, the Veteran stated that he has a limp due to his service-connected right knee disability which caused his current left knee disability. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, the origin or cause of degenerative joint disease is not a simple question that can be determined based on personal observation by a lay person. It is not shown that the Veteran is qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of degenerative joint disease. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Hence, the Veteran's lay testimony is not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran's current left knee degenerative joint disease was caused or aggravated by his service-connected right knee disability does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. As such, the lay statements provided by the Veteran are not competent evidence as to whether the Veteran's current left knee disability is caused or aggravated by his service-connected right knee disability. Moreover, such a finding is not supported by the record. Specifically, the December 2015 VA examiner opined that the Veteran's left knee disability is due to age related changes not his service-connected right knee disability. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a left knee disability, to include as secondary to service-connected disability. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a TDIU A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. In determining whether a TDIU is warranted, consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The issue of entitlement to a TDIU was raised during the pendency of and as part and parcel to the claim for entitlement to a higher rating for the service-connected right knee disability. Therefore, the relevant period is from October 9, 2002, one year prior to receipt of the claim, to the present. See 38 C.F.R. § 3.400 (o) (2). During the relevant period, the Veteran's service-connected lumbosacral strain with degenerative joint and disc disease was rated as 40 percent disabling from October 8, 2003. His service-connected right knee degenerative joint disease was rated as 10 percent disabling from September 1, 1984. His radiculopathy of the right lower extremity was rated as 10 percent disabling from July 13, 2004. His radiculopathy of the left lower extremity was rated as 10 percent disabling from July 13, 2004. His left hip degenerative joint disease was rated as 10 percent disabling from April 16, 2010. His right hip degenerative joint disease was rated as 10 percent disabling from April 16, 2016. His service-connected spondylolisthesis was rated as noncompensable prior to October 8, 2003. His service-connected scar, right knee was rated as noncompensable from May 18, 2017. His combined rating was 50 percent disabling prior to July 13, 2004; 60 percent disabling from July 13, 2004, through April 15, 2004, 2010; and 70 percent disabling from April 16, 2010. The Veteran did not meet the schedular percentage requirements for a TDIU prior to July 13, 2004. Specifically, prior to July 13, 2004, he was service-connected for lumbosacral strain, rated as 40 percent disabling and a right knee disability rated as 10 percent disabling, for a combined 50 percent rating. Additionally, the Veteran did not meet the schedular percentage requirement for a TDIU from July 13, 2004 through April 15, 2010. Specifically, prior to April 16, 2010, he was service-connected for lumbosacral strain, rated as 40 percent disabling; a right knee disability, rated as 10 percent disabling; radiculopathy of the right lower extremity, rated as 10 percent disabling; and radiculopathy of the left lower extremity, rated as 10 percent disabling, for a combined 60 percent rating. Nevertheless, the Board will consider whether the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to April 16, 2010, such that consideration of entitlement to a TDIU on an extra-schedular basis is warranted under 38 C.F.R. § 4.16 (b). The Veteran did meet the schedular percentage requirements for a TDIU beginning April 16, 2010. From April 16, 2010, the Veteran's service-connected lumbosacral strain was rated as 40 percent disabling and he had sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. See 38 C.F.R. § 4.16 (a). The Veteran indicated on a VA Form 21-8940 received in January 2016 that he has a high school education with three years of college, that he last worked in 1990, and that he stopped working due to his service-connected back and right leg disabilities. On a VA Form 21-8940 received May 2017, the Veteran stated that he last worked as a painter in 1990 and again stated that he stopped working due to his service-connected disabilities. The record contains various statements from the Veteran as to the functional limitations caused by his service-connected disabilities. In a correspondence received June 2005, the Veteran stated that he has constant pain in his right leg and back. He further stated that he finds it very difficult to sleep, stand or walk. In addition he stated that his service-connected conditions make it difficult to perform daily tasks such as driving or being a passenger in a car. At an October 2006 VA examination the Veteran stated that his service-connected right knee gives out approximately once a week that causes him to fall. He further stated that walking one block causes excruciating pain in his back and right knee. The Veteran stated that his knee pain is a nine out of ten and with flares is nine and a half out of ten. Regarding his back pain the Veteran reported that he is unable to sit or stand for longer than one hour. He rated his back pain as an eight out of ten. At an October 2008 VA examination the Veteran stated that his walking distance is limited to 20 to 30 yards due to complaints of back pain and leg pain. He further stated that sitting time is not limited and standing time is not significantly limited. The Veteran stated his daily knee discomfort is a seven out of ten that worsens going up and down steps. The Veteran was provided a VA examination in May 2010. The Veteran stated that he can walk a block for about 20 minutes before his back or knee pain makes it troublesome. He further stated that he is occasionally unsteady with a history of falls. As to his right knee, the Veteran stated he is in almost constant pain of a seven out of ten. The Veteran further stated that his service-connected back disability causes constant pain of seven to eight out of ten. Any walking more than a block, standing more than 20 minutes and climbing up and down stairs aggravates his back pain. The Veteran was provided a VA back, hip and knee examination in March 2012. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran stated that he can sit for approximately 20 minutes before needing to stretch and he can stand for approximately 20 minutes before needing to sit down. He further stated he can drive for approximately 50 miles before needing to stop his car. Additionally, the Veteran stated that a few times a month he is totally incapacitated, which lasts a few days. Upon examination, the VA examiner stated that the Veteran should be able to perform sedentary work and mild ambulatory work without any difficulty. Relating to the Veteran's service-connected bilateral hip disability the VA examiner opined that the condition would not impact his ability to work since the Veteran had normal function during initial assessment and repetitive use. Relating to his service-connected right knee disability, the VA examiner opined that the condition would not impact the Veteran's ability to work since he had normal functioning on physical examination and repetitive testing. The VA examiner further stated the Veteran is able to perform sedentary and mild ambulatory work. The Veteran was provided a VA knee and lower leg conditions examination in December 2015. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran stated he has constant chronic right knee pain that worsens with activity. He additionally stated that he has flare-ups with cold weather and prolonged standing and walking. The VA examiner opined that the Veteran's right knee disability would impact his ability to perform any type of occupational task. The VA examiner stated that the Veteran would be precluded from physical and sedentary employment due to worsening of symptoms with sitting, standing and walking. The Veteran was provided a VA peripheral nerves condition examination in December 2015. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted that the Veteran has severe constant pain, paresthesias and or dysesthesias and numbness in his bilateral lower extremities. The VA examiner opined that the Veteran's service-connected peripheral nerve condition would impact his ability to work. As rationale, the VA examiner stated that the Veteran would be precluded from physical and sedentary employment due to worsening of symptoms with sitting, standing, and walking. The Veteran was also provided a VA back conditions examination in December 2015. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran stated he has difficulty with prolonged sitting, standing or walking. Upon examination the Veteran's forward flexion was to 55 degrees. The VA examiner also noted that the Veteran has severe bilateral radiculopathy. The VA examiner opined that the Veteran's service-connected back disability has an impact on his ability to work. As rationale, the VA examiner stated that the Veteran would be precluded from physical and sedentary employment due to worsening of symptoms with sitting, standing, and walking. The Veteran was also provided a VA hip and thigh disability examination in December 2015. The Veteran reported constant bilateral hip pain with flare-ups during cold weather, prolonged standing and prolonged sitting. The VA examiner opined that the Veteran's service-connected bilateral hip disability has an impact on his ability to work. As rationale, the VA examiner stated that the Veteran would be precluded from physical and sedentary employment due to worsening of symptoms with sitting, standing, and walking. The Veteran was provided a VA back examination in June 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported flare-ups of his back condition with increased activity which decreases his ability to perform activities requiring bending and twisting. Upon examination, the VA examiner noted severe bilateral radiculopathy. The VA examiner opined the Veteran's service-connected back disability would impact his ability to work. As rationale, the VA examiner opined that the Veteran would have significant difficulty in performing a physically demanding job. Additionally, sedentary employment would be affected since the Veteran could not stand or sit for his entire work day and would need to have the opportunity for sit to stand transitions. The VA examiner further stated that the Veteran would not be able to work in a position that required extensive walking. In light of the competent medical and lay statements as to the Veteran's abilities summarized above, the Board finds that the Veteran's service-connected disabilities limit him to a very limited range of sedentary work. He has difficulty twisting, bending, walking, standing or driving due to his service-connected back, knee, bilateral hip and bilateral lower extremity nerve disabilities. Accordingly, the Veteran would be unable complete the core duties of sedentary work such as clerical work, inspection work, or assembly work, or to complete a full work schedule on an ongoing basis due to his service-connected physical disabilities. In short, the Board concludes that, in view of the Veteran's service-connected disabilities, education, and work history, the Veteran is capable of only marginal employment consisting of part time work or limited sedentary work performed in a sheltered environment. Such work cannot be considered substantially gainful employment. See 38 C.F.R. § 4.15 (a). The Board concludes that the probative evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. As such, the evidence is at least at equipoise as to whether the Veteran is entitled to a TDIU. Therefore, affording the benefit of the doubt to the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. The Board notes that the AOJ will set an effective date for the award of a TDIU. This preserves the Veteran's right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F. 3d. 1339 (Fed. Cir. 2003). ORDER Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities is denied. Entitlement to a TDIU is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs