Citation Nr: 1805369 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 10-45 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 20 percent prior to April 29, 2015, and in excess of 40 percent thereafter for degenerative disc disease of the lumbar spine. 2. Entitlement to an initial disability evaluation in excess of 10 for degenerative joint disease of the left knee. 3. Entitlement to an initial compensable disability rating for left knee extension prior to and from July 18, 2011. 4. Entitlement to an initial disability evaluation in excess of 10 percent prior to April 29, 2015, and in excess of 20 percent thereafter for left knee instability. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel INTRODUCTION The Veteran had active military service from April 1966 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. As a matter of clarification, during the course of adjudicating the claim for an initial higher rating for left knee degenerative joint disease, the RO in a February 2012 rating decision, also granted service connection for instability of the left knee and extension of the left knee. The RO assigned separate 10 and 0 percent rating to the disorders, respectively and assigned an effective date of July 18, 2011, the date of a VA examination that showed instability and limitation of extension. As the evaluation of the Veteran's left knee disability was on appeal at the time, the Board has taken jurisdiction over such issues and included the evaluations for this symptomatology as part and parcel of the issue on appeal from the August 2010 rating decision that initially granted service connection for left knee degenerative joint disease. See, e.g., Brokowski v. Shinseki, 23 Vet.App. 79 (2009) (claimant's identification of the benefit sought does not require any technical precision) citing Ingram v. Nicholson, 21 Vet.App. 232 (2007) (the pro se claimant may allege symptoms and further allege that they are causing him disability); see also Robinson v. Nicholson, 21 Vet.App. 545 (2008)(the Board is required to consider all issues raised either by the claimant or the evidence of record); VAOPGCPREC 9-98 and VAOPGCPREC 23-97 (providing in substance that that separate ratings may be assigned for knee instability under Diagnostic Code 5257 and limitation of motion (Diagnostic Codes 5003, 5010, 5260, 5261). Although the prior Board remand directed the RO to consider whether earlier effective dates for instability and limitation of extension were in order in this case as part and parcel of the initial higher evaluation for degenerative joint disease, the Board finds such matters more in the nature of staged ratings and has recharacterized the issues as such. In April 2013, the Board assumed jurisdiction over the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), and remanded the claims for additional development. The issues of entitlement to initial higher ratings left knee disabilities to include degenerative joint disease, instability, and limitation of extension, and entitlement to an initial higher rating for degenerative disc disease of the lumbar spine are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT From May 28, 2010, the Veteran's service-connected disabilities preclude his gainful employment. CONCLUSION OF LAW From May 28, 2010, the criteria for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.341 (a), 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist With respect to the Veteran's claim 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. TDIU The Veteran asserts that his service-connected disabilities cause him to be too disabled to work. As discussed below the Board finds that the Veteran is entitled to a TDIU from May 28, 2010 until December 27, 2011. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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. It is provided that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service- connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. The claim for a TDIU stems from the Veteran's initial service connection claims for a left knee disability and a lumbar spine disability received in May 2010 which resulted in grants of service connection for those disabilities and an appeal of the assigned initial ratings. Therefore, the Board has considered whether the Veteran is entitled to a TDIU from that date. The Board notes that the Veteran's total combined disability rating for all service-connected disabilities as of December 27, 2011 was 100 percent; therefore a TDIU since that time is moot. He has not alleged that he is unemployable due solely to one service-connected disability, nor does the medical evidence suggest such. To the extent he has implied he is unemployable due to the combined effect of his disabilities, such claim is moot in light of the combined 100 percent rating from December 27, 2011. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Accordingly, no further action is required for that period on appeal. However, the Board must determine whether the Veteran is entitled to a TDIU from May 28, 2010 and thus, prior to December 27, 2011. Prior to December 27, 2011, service connection had been established for posttraumatic stress disorder (PTSD) (70 percent from August 2011); right leg amputation (40 percent); lumbar spine disability (20 percent); variously characterized left knee disabilities (two 10 percent ratings); scars on right thigh and heel (10 percent). The Board finds that the Veteran met the schedular requirement of a combined disability rating of 70 percent with at least one disability ratable at 40 percent on May 28, 2010. Service connection has been established and additional disability ratings have been established effective from a later date as noted above; however those disabilities and assigned disability ratings are not under consideration at this time for reasons explained above. Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16 (a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Therefore, the Board must determine whether the Veteran is unemployable due to his service-connected disabilities. The Veteran reported that he last worked in July 1986. The Veteran has a high school education level. The Veteran's Social Security Administration (SSA) records indicate that Veteran became too disabled to work due to a severe psychiatric disorder and an amputation of the right leg below the knee in July 1987. The most probative evidence to the Veteran's claim is an April 2012 examination as the examiner provided opinions as to the impact of the Veteran's service connected disabilities and his capacity for work although medical evidence dated prior to this time shows essentially similar clinical findings. See, e.g, August 2010 VA examination. The 2012 examiner opined on the Veteran's service connected degenerative arthritis, posttraumatic stress disorder, loss of the lower leg, superficial scars, arthritis of the left and right knee, and the limitation of extension and instability of the left knee. The examiner opined that the Veteran's low back degenerative disc disease would have severe impact on his ability to perform physical employment due to loss of sensation, pain, limited mobility, instability, decrease in range. The examiner further noted that the Veteran's lower back disability would have a moderate to severe impact on his ability to perform sedentary employment. The examiner opined that the Veteran's right leg amputation and left knee conditions would have a severe impact on his ability to perform physical employment. Finally, the examiner stated that the Veteran's left knee disabilities and his right leg amputation would have a moderate to severe impact on his ability to perform sedentary employment. The Board finds that the evidence supports the Veteran's contention that his service-connected disabilities preclude him from securing employment. A VA examiner had opined that he had a severe impediment from performing physical labor, and a moderate to severe impediment from performing sedentary labor. PTSD is only for consideration for a portion of the period prior to December 27, 2011 (effective date of the 100 percent combined rating) as the effective date of service connection is August 2011; however, even prior to that date, the Board finds that the record indicates that the Veteran was not capable of substantially gainful employment due to his service-connected disabilities. Therefore, affording the Veteran all benefit of the doubt, the Board finds he is unable to secure and follow substantially gainful occupation due to his service-connected disabilities. Accordingly, TDIU is granted from May 28, 2010 until December 27, 2011. ORDER Entitlement to a TDIU is granted from May 28, 2010 until December 27, 2011, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Board sincerely regrets the additional delay that will result from this remand, but it is necessary that there is a complete record upon which to decide the claims for increased ratings, so the Veteran is afforded every possible consideration. The Veteran last had examinations for his left knee and lumbar spine disabilities in April 2015 during the appeal period. However, light of the decision of the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016), the Board finds that the examination is inadequate. In Correia, the Court found that under 38 C.F.R. § 4.59, a VA examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing (as appropriate), and, if possible, with rating of motion measurements of the opposite undamaged joint. The Board does note that the Veteran's right knee joint is damaged and the lower back does not have an opposite joint; thus the examiner need not test the opposite joint. But the Veteran has not been afforded a VA examination that includes such testing in both active and passive motion in weight and nonweight bearing. Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that in addressing the nature of any flare-ups examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up. In light of the foregoing and the fact that the last VA examination do not fully satisfy the requirements of Correia, Sharp and 38 C.F.R. § 4.59, the Veteran should be afforded a new VA examination before a decision can be rendered on his claim. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA compensation examination to reassess the severity of the Veteran's lumbar disability. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner for the pertinent history. All necessary diagnostic testing and evaluation should be performed. a) The examiner should be requested to specifically report the range of motion (active, passive, weightbearing and nonweightbearing) of the Veteran's thoracolumbar spine in degrees. All findings and diagnoses should be reported in detail. b) If the Veteran demonstrates limitation of motion of the thoracolumbar spine, the examiner should specifically comment on the extent, if any, to which pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran, results in functional loss, including additional limitation of motion. The examiner should carefully elicit all of the Veteran's subjective complaints concerning the thoracolumbar spine and offer an opinion as to whether there is adequate objective pathology present to support the Veteran's subjective complaints. To the extent possible, the examiner should assess the extent of any pain and describe the extent of any incoordination, weakened movement, and premature or excess fatigability on use. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated based on the Veteran's reports. c) The examiner should also indicate whether there is ankylosis of the spine, either favorable or unfavorable. d) The examiner should provide a clear rationale for all opinions and a discussion of the facts and medical principles involved. 2). Schedule a VA compensation examination to reassess the severity of the Veteran's left knee disabilities. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner for the pertinent history. All necessary diagnostic testing and evaluation should be performed. a) The examiner should be requested to specifically report the range of motion (active, passive, weightbearing and nonweightbearing) of the Veteran's left knee in degrees. All findings and diagnoses should be reported in detail. b) If the Veteran demonstrates limitation of motion of the left knee, the examiner should specifically comment on the extent, if any, to which pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran, results in functional loss, including additional limitation of motion. The examiner should carefully elicit all of the Veteran's subjective complaints concerning the left knee and offer an opinion as to whether there is adequate objective pathology present to support the Veteran's subjective complaints. To the extent possible, the examiner should assess the extent of any pain and describe the extent of any incoordination, weakened movement, and premature or excess fatigability on use. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated based on the Veteran's reports. c) The examiner should measure and opine as to the severity of the Veteran's left knee instability. d) The examiner should provide a clear rationale for all opinions and a discussion of the facts and medical principles involved. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) 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. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs