Citation Nr: 1815477 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-12 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating higher than 30 percent prior to February 24, 2015, and higher than 10 percent as of that date, for residuals of a right knee patellar fracture. 2. Entitlement to a total disability rating based on individual unemployability from September 18, 2012 through February 23, 2015, inclusive, due to service-connected disabilities of the right knee and ankle (TDIU). 3. Entitlement to TDIU on an extraschedular basis prior to September 18, 2012, and after February 23, 2015, due to service-connected disabilities of the right knee and ankle. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 and July 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran and his spouse testified at a hearing before the undersigned in April 2017. A transcript is of record. The issue of entitlement to TDIU prior September 18, 2012, and after February 23, 2015, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran withdrew on the record at the April 2017 Board hearing his appeal of entitlement to a higher rating for his right knee disability. 2. For the period from September 18, 2012 through February 23, 2015, inclusive, the percentage requirements for schedular consideration of entitlement to TDIU based on the Veteran's right knee and ankle disabilities were satisfied. 3. The Veteran's right knee and ankle disabilities prevented him from securing or following a substantially gainful occupation from September 18, 2012 through February 23, 2015. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal are satisfied with respect to entitlement to a higher rating for disability of the right knee. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for TDIU are satisfied from September 28, 2012 through February 23, 2015, inclusive. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Appeal Withdrawal At the April 2017 Board hearing, the Veteran clearly expressed on the record his wish to withdraw his appeal of the ratings assigned his service-connected right knee disability. The criteria for withdrawal of an appeal are satisfied. See 38 C.F.R. § 20.204(b). When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that was appealed. Accordingly, the issue of entitlement to a higher rating for the Veteran's right knee disability is dismissed. See 38 U.S.C.A. § 7105(d). II. TDIU i. Law Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a) (2017); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); see also 38 C.F.R. § 4.19 (2017). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15 (2017). While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must give full consideration to "the effect of combinations of disability" in its determination, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. If the schedular requirements for TDIU are not satisfied, but the veteran is still found to be unable to work due to service-connected disabilities, the case will be submitted to the Director of the Compensation Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16(b). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ii. Analysis For the period from September 18, 2012 through February 23, 2015, inclusive, the percentage requirements for schedular entitlement to TDIU were satisfied. Specifically, during this period, the Veteran's service-connected right ankle disability was rated as 30 percent disabling, and his right knee patellar fracture was assigned separate ratings of 30 percent and 10 percent. See September 2016 Rating Codesheet. The combined evaluation was 60 percent. As the Veteran's right knee and ankle disabilities are considered one disability for TDIU purposes, the criteria for schedular consideration of TDIU were satisfied based on a single disability rated as 60 percent disabling. See 38 C.F.R. § 4.16(a). Because these schedular requirements are not satisfied prior to September 18, 2012, or after February 23, 2015, but the evidence still supports unemployability for the entire period on appeal, entitlement to TDIU on an extra-schedular basis for the periods outside the timeframe addressed in this decision will be referred to the Director, as discussed in the REMAND section below. The balance of the evidence supports a finding that the Veteran's service-connected right knee and ankle disabilities caused unemployability from September 18, 2003 through February 23, 2015. He has not worked since 2006. See May 2007 VA Form 21-8940. He has been diagnosed with severe degenerative arthritis of the patella of the right knee with complete loss of cartilage beneath the patella, and traumatic arthritis of the right ankle following a trimalleolar fracture treated by an open reduction internal fixation (ORIF) surgical procedure. See October 2006 VA magnetic resonance imaging study (MRI); February 2015 VA Examination Reports. The Veteran reports significant chronic pain due to his right knee and ankle disabilities, for which he takes prescription narcotics including oxycodone (Percocet) and morphine (MS Contin). See March 2011 VA Treatment Record; February 2012 VA Treatment Record. The VA examiners have concluded that the Veteran's right knee and ankle disabilities cause unemployability. In the February 2011 VA examination report, the examiner found that the Veteran's right knee and ankle disabilities prevented him from working in his past jobs as a truck driver and welder and pipefitter, as well as any job requiring prolonged standing. Moreover, the narcotics he used to control pain disabled him from most jobs. The examiner concluded that the Veteran's right knee and ankle disabilities rendered him unemployable. In the July 2012 VA examination report, the examiner stated that the Veteran's right knee and ankle disabilities prevented physical work due to severe pain, and also sedentary work as it aggravated the ankle and knee pain. Moreover, the medications the Veteran took to treat his chronic pain impaired his concentration and attention. The examiner concluded that the Veteran was unemployable for both physical and sedentary work. Finally, in the February 2015 VA examination reports, the examiner concluded that the Veteran's right knee and ankle disabilities adversely affected his ability to perform occupational tasks requiring prolonged or repetitive weightbearing activity, balance, climbing, or walking on uneven irregular terrain. Moreover, sitting was difficult due to minimal knee flexion. The examiner further noted that the Veteran's pain medication caused central nervous system ("CNS") depression, which was incompatible with most occupational settings. The examiner stated with regard to the ankle that balance and propulsion were significantly disrupted, and that there was very minimal range of motion. With regard to the knee, the examiner stated that there was significant weakness and diminished ability for propulsion. The lack of range of motion also disrupted balance. The evidence shows that the Veteran has chronic pain and significant functional limitations caused by his right knee and ankle disabilities, both of which have a history of severe injury and pathology. The VA treatment records show that the Veteran is prescribed narcotic pain medication due to these disabilities. Three different VA examiners have found that the Veteran's right knee and ankle disabilities prevent him from working in most occupational settings, and two examiners concluded that the Veteran was unemployable. There are no medical opinions to the contrary during the time period under review. Accordingly, because the evidence is at least in equipoise on this matter, the Board finds that the Veteran's right knee and ankle disabilities prevent him from obtaining or maintaining substantially gainful activity. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, TDIU is granted from September 18, 2012 through February 23, 2015, the period during which the schedular requirements for TDIU were satisfied. See 38 C.F.R. § 4.16(a); see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER The issue of entitlement to a rating higher than 30 percent prior to February 24, 2015, and higher than 10 percent as of that date, for residuals of a right knee patellar fracture, is dismissed. A TDIU from September 18, 2012 through February 23, 2015, inclusive, is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND This case is remanded for referral to the Director of Compensation for extraschedular consideration of TDIU due to the Veteran's knee and ankle disabilities for the period prior to September 18, 2012 and after February 23, 2015. See 38 C.F.R. § 4.16(b). As discussed above, the evidence supports unemployability for the entire period under review, but the schedular requirements were not satisfied outside the timeframe for which TDIU has been granted. Accordingly, the case is REMANDED for the following action: Refer the case to the Director of Compensation for extraschedular consideration of TDIU for the period prior to September 18, 2012 and after February 23, 2015, in accordance with 38 C.F.R. § 4.16(b). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs