Citation Nr: 20007967 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 13-17 974 DATE: January 30, 2020 ORDER From May 25, 2010, an initial rating of 20 percent, subject to application of the amputation rule, for a left knee semilunar cartilage condition is granted. From May 25, 2010, a separate 10 percent rating, subject to application of the amputation rule, for left knee limitation of extension is granted. From May 25, 2010, a separate 30 percent rating, subject to application of the amputation rule, for left knee instability is granted. From January 31, 2011, a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. From May 25, 2010, the Veteran’s left knee semilunar cartilage condition has more closely approximated dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint. 2. From May 25, 2010, the Veteran’s left knee left knee degenerative joint disease has more closely approximated extension limited to 10 degrees. 3. From May 25, 2010, the Veteran’s left knee disability has been productive of instability that more closely approximated severe instability. 4. The Veteran’s residuals of a left leg shrapnel wound with healed fracture of the tibia and fibula, with shortening of the leg, retained foreign body, permanent drop foot, peroneal nerve palsy, and osteomyelitis; left lower extremity scar; left knee semilunar cartilage condition; left knee instability; and left knee degenerative joint disease are all disabilities at or below the level of the knee. 5. From January 31, 2011, but not earlier, the Veteran’s employment has been protected and marginal; his service-connected disabilities have precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. From May 25, 2010, the criteria for an initial rating of 20 percent, but no higher, for a left knee semilunar cartilage condition are met, subject to application of the amputation rule. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code (DC) 5258. 2. From May 25, 2010, the criteria for a separate 10 percent rating for left knee limitation of extension are met, subject to application of the amputation rule. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.68, 4.71a, DC 5261. 3. From May 25, 2010, the criteria for a separate 30 percent rating for left knee instability are met, subject to application of the amputation rule. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.68, 4.71a, DC 5257. 4. From May 25, 2010, the criteria for a combined 60 percent rating are met for left leg shrapnel wound with healed fracture of the tibia and fibula, with shortening of the leg, retained foreign body, permanent drop foot, peroneal nerve palsy, and osteomyelitis; left lower extremity scar; left knee semilunar cartilage condition; left knee instability; and left knee degenerative joint disease. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.68, 4.71a, DC 5162, 5257, 5258, 5261, 5312-5262, 4.118, DC 7801. 5. From January 31, 2011, but no earlier, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1981 to September 1986. He is decorated with the Purple Heart and Combat Action Ribbon related to a wound sustained in combat. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Through his attorney, the Veteran withdrew his hearing request in June 2016. In December 2016 and March 2018, the Board remanded this matter for additional development. In August 2019, the RO issued a Supplemental Statement of the Case (SSOC) and granted a 20 percent rating for left knee degenerative joint disease effective October 12, 2011. In October 2019, Veteran filed a request for higher level review of that decision. However, he did not opt in to the modernized appeal process and thus his legacy appeal remains before the Board. See November 2019 Correspondence. The issue of entitlement to a TDIU is part and parcel of the increased rating claim on appeal, notwithstanding that the Veteran did not submit an application for a TDIU until June 2016. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. From May 25, 2010, an initial rating of 20 percent, subject to application of the amputation rule, for a left knee semilunar cartilage condition is granted. 2. From May 25, 2010, a separate 10 percent rating, subject to application of the amputation rule, for left knee limitation of extension is granted. 3. From May 25, 2010, a separate 30 percent rating, subject to application of the amputation rule, for left knee instability is granted. Through his attorney the Veteran asserts that he is entitled to separate ratings of 10, 20, and 30 for his left knee disability, subject to application of the amputation rule. See June 2016 Attorney Brief at 3. The Board agrees. Initially, the Board notes that there has not been strict compliance with the March 2018 remand directives. In this regard, while the Veteran submitted the requested information regarding his work situation, see April 2018 Third Party Correspondence, the April 2019 examiner did not discuss the effect of the Veteran’s flare-ups as he noted that none were reported. See April 2019 Knees Examination Report. Further remand is unnecessary, however, as the Board can reach a decision on the present record that fully grants the benefit sought on appeal and thus there is no prejudice to the Veteran. In this regard, and as discussed below, the Veteran’s combined knee ratings are now subject to the amputation rule, and thus any additional limitation of motion could not result in a higher disability evaluation. Moreover, the Board finds that a TDIU is warranted to the earliest date recommended by the Veteran’s vocational expert. Effective September 17, 1986, the Veteran is in receipt of special monthly compensation based on loss of use of a foot and a 40 percent rating for “residuals, shrapnel wound left leg with healed fracture tibia, fibula, shortening of leg, retained foreign body with permanent drop foot, peroneal nerve palsy, and osteomyelitis” (shrapnel wound residuals) under DC “5312-5262.” As the Veteran has been in receipt of this rating for more than 20 years, it is protected from change absent circumstances not present in this case. See 38 C.F.R. § 3.951. The Veteran’s shrapnel wound residuals encompasses several distinct disabilities that could potentially warrant separate compensable ratings, the Board does not have jurisdiction to consider the award an increased rating for shrapnel wound residuals, as the Veteran’s attorney withdrew this claim. See June 2016 Attorney Brief. Nevertheless, the manner in which these disabilities are currently rated as one entity has an effect on this appeal. In this regard, the October 2017 Peripheral Nerves examiner noted that the Veteran had complete paralysis of the of the common peroneal nerve, which warrants a 40 percent rating under DC 8521 independent of any musculoskeletal disability. See 38 C.F.R. § 4.124a. Thus, separate ratings for the Veteran’s musculoskeletal disabilities may be awarded without impermissible pyramiding. See 38 C.F.R. § 4.14. Accordingly, the Board will consider the Veteran’s left knee disability without reference to the separate 40 percent rating for his shrapnel wound residuals. The Veteran is presently in receipt of an initial 10 percent rating for left knee limitation of extension under DC 5261 prior to October 12, 2011, and thereafter is in receipt of a 20 percent rating under DC 5258. The period on appeal is from May 25, 2010, the effective date of service connection for a left knee disability. Under DC 5258, a 20 percent rating is warranted for dislocated semilunar cartilage (meniscus) with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5261, a noncompensable rating is warranted for knee extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees and higher ratings are warranted for additional limitation of extension. Under DC 5257, a 10 percent rating is warranted for recurrent subluxation or instability of the knee that is slight. A 20 percent rating is warranted for moderate subluxation or instability and a 30 percent rating is warranted for severe subluxation or instability. The Board finds that the Veteran’s current 20 percent rating under DC 5258 is warranted from May 25, 2010, the effective date of service connection. In this regard, in May 2014 Dr. D.A.L. noted that the Veteran’s left knee semilunar cartilage condition was productive of frequent joint locking, joint pain, and joint effusion, and that it had been present for the past few years. See May 2014 Dr. D.A.L. Examination Report. DC 5258 is appropriate for rating the Veteran’s unlisted semilunar cartilage condition, as the Veteran has each of the specific symptoms listed in that DC and as the same anatomical area is involved. In this regard, while not all of these symptoms were observed at the November 2010 VA examination, the Veteran credibly reported severe flare-ups at that examination and the examiner did not opine as to whether these symptoms would be present during a flare-up. Thus, the Board will resolve any reasonable doubt as to the date of onset of these symptoms in the Veteran’s favor. Moreover, a separate 10 percent rating for limitation of extension is warranted throughout the appeal. In this regard, the Veteran has multiple left knee diagnoses, including degenerative joint disease and a semilunar cartilage condition, and the November 2010 examiner noted that while the Veteran had a full range of extension, he experienced painful extension at 10 degrees. See November 2010 VA Examination Report. Here, the evidence does not suggest that the Veteran’s left knee disability has improved throughout the appeal, and the requested opinion regarding the effect of the Veteran’s severe flare-ups has not been secured. The Board finds that application of the reasonable doubt doctrine warrants the award of a separate 10 percent rating under DC 5261 throughout the appeal. Additionally, a separate 30 percent rating under DC 5257 for severe instability is warranted throughout the appeal. In this regard, joint stability testing throughout the appeal has revealed objective anterior and lateral instability, and the Veteran requires the use of a brace and cane. See October 2017 Knees Examination Report (lateral instability and constant use of a brace); April 2019 Knees Examination Report (lateral and anterior instability and regular use of a brace and cane to help balance and alleviate pain). As the November 2010 examiner noted the Veteran’s report of left knee instability and giving way and his report of weekly severe flare-ups precipitated by increased standing, the Board finds that this separate 30 percent rating is warranted throughout the appeal. See November 2010 VA Examination Report. The Board acknowledges that the Veteran is now in receipt of three separate ratings for his left knee disability, separate and apart from his rating for shrapnel wound residuals. However, this does not constitute impermissible pyramiding. As discussed above, the Veteran’s knee ratings do not result in overlapping compensation with his rating for shrapnel wound residuals. Moreover, each of the Veteran’s knee ratings compensates separate symptoms: painful motion due to degenerative joint disease (DC 5261), frequent episodes of joint pain, joint locking, and joint effusion due to a semilunar cartilage condition (DC 5258), and severe instability (DC 5257). See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (evaluation of a knee disability under DCs 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259, and vice versa, so long as manifestations of disability for which a separate evaluation is being sought have not already been compensated by an assigned evaluation under a different DC). The Board acknowledges that the Veteran’s rating under 5258 contemplates pain, among other symptoms, and a rating under DC 5261 is premised on painful motion. While the requested opinion as to flare-ups may have shown overlapping symptomatology, it was not secured, and the Board finds that the remaining reasonable doubt on this question should be resolved in favor of the Veteran. However, the amputation rule prohibits a combined rating in excess of 60 percent for all disabilities at and below the level of the knee, as the rating schedule prescribes a 60 percent rating for amputation above the knee. See 38 C.F.R. §§ 4.68, 4.71a, DC 5162 (amputation at middle or lower third of thigh). Thus, from May 25, 2010, a combined 60 percent rating, but no higher, is warranted for the Veteran’s left lower extremity shrapnel wound residuals, left lower extremity scar, left knee semilunar cartilage condition, left knee instability; and left knee degenerative joint disease, as each of these disabilities is concededly at or below the level of the knee. See June 2016 Appellate Brief at 3. 4. From January 31, 2011, but no earlier, a TDIU is granted. Through his attorney, the Veteran asserts that he is entitled to a TDIU, as his employment as a medical technician at a VA hospital constitutes protected employment. The Veteran is service-connected for posttraumatic stress disorder (PTSD), a low back disability, and a left lower extremity disability including left leg shrapnel wound residuals, a left lower extremity scar, and left knee limitation of extension, instability, and an unlisted semilunar cartilage condition. He has a combined 90 percent disability evaluation throughout the appeal, and the Board has already determined that he meets the schedular criteria for a TDIU. See March 2018 Board Remand at 3. The remaining question for the Board is whether the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. In this regard, VA regulations provide that marginal employment shall not be considered substantially gainful employment, and that marginal employment may be held to exist, on a facts-found basis, when a veteran is engaged in protected employment. See 38 C.F.R. § 4.16(a). Although the Veteran submitted his application for a TDIU in June 2016, see June 2016 VA Form 21-8940, the issue of entitlement to a TDIU part and parcel of his increased rating claim on appeal. The Veteran has four years of college and has worked as a laboratory technician at a VA medical center. He formerly worked at a private medical center in the same capacity. See June 2061 VA Form 21-8940; December 2019 VA Form 21-4138. In April 2018, the Veteran submitted the additional information requested in the March 2018 Board remand regarding the circumstances of his employment. See April 2018 Third Party Correspondence. Specifically, the Veteran submitted a vocational employability assessment by S.G., MA, CRC. The vocational expert noted that the Veteran was unable to work as a manual laborer due to his physical limitations and obtained a four-year degree in the 1990s working as a medical laboratory technician. She stated that the Veteran always had problems performing this work due to his physical disabilities, which resulted in high pain levels and a need to frequently change positions and take unscheduled time off. In 2004, he began having difficulty working with his co-workers after he began to experience increased anxiety and agoraphobia that was productive of increased absenteeism and increased breaks to maintain concentration and mood stability, as well as increased pain levels. Starting in 2009, he was employed as a medical laboratory technician on the night shift at a hospital, where he tried to self-accommodate with additional breaks while working alone, but this resulted in reduced productivity that resulted in complaints by co-workers and supervisors. See April 2018 Third Party Correspondence at 10-11. Indeed, in November 2009, the Veteran’s wife reported that the Veteran was working on an as-needed basis. See November 2009 VA Form 21-4138. The Veteran began working as a laboratory technician for a VA medical center on January 31, 2011. See VA Form 21-8940. His supervisor complained about his reduced productivity and anxiety and the Veteran temporarily served as a union steward, but in 2012 returned to working as a technician due to his difficulty interacting with others. The Veteran’s supervisor stated that when the Veteran is unable to completely fulfill his job description, he is accommodated with restriction from having to move and afforded unscheduled leave, and that his productivity is 30 to 40 percent lower than expectations and the productivity of his co-workers, and that he had missed 125-150 hours of work in the past three months (as of June 2016) and was unable to attend staff meetings due to his PTSD symptoms. The examiner opined that in view of the excessive accommodations that the Veteran required and his substantially lower productivity rate, the Veteran’s accommodations exceeded what would be tolerated in a competitive labor market. She concluded that the Veteran was employed in a protected work environment. See April 2018 Third Party Correspondence at 11-12. She noted that when the Veteran left his private sector job, he was told that he would not be eligible for rehire. See id. at 11. In March and April 2019, a series of medical opinions were obtained from VA-contracted examiners based on review of the Veteran’s file. The behavioral health examiner noted that the Veteran’s anxiety caused him to leave his prior employment and interfered with coworkers and other interpersonal aspects of his work, which was a major part of his job. See March 2019 Medical Opinion. With regard to his physical limitations, examiners noted that he could do sedentary work, but only with modification of the work environment and frequent breaks. See April 2019 Medical Opinion. The Veteran submitted a supplemental private vocational opinion in January 2020. See January 2020 Private TDIU Opinion. That opinion concluded that he been unable to secure and follow substantially gainful employment since at least October 2009 to the present. The Veteran also submitted a statement describing his work environment at the VA. See December 2019 VA Form 21-4138. The Board takes notice that the VA has a policy of prioritizing the hiring of disabled veterans and thus employment with the VA does not necessarily reflect an ability to maintain employment outside of a protected environment. While the Board emphasizes that it expects that most disabled veterans who are working for the VA are able to secure and follow a substantially gainful occupation in the competitive market, the facts of this case demonstrate that in this exceptional instance, the Veteran most likely could not. Indeed, the Board observes that if the issue of entitlement to increased ratings for all service-connected disabilities arising from the Veteran’s shrapnel wound residuals were now before it, the issue of entitlement to a TDIU might be rendered moot by the Board’s grant of a total schedular combined disability evaluation. However, that question is not before the Board, and thus it will limit discussion to the issue of entitlement to a TDIU. Here, it is at least as likely as not that since January 2011, the Veteran has been employed in a protected work environment and would otherwise be unable to secure or follow a substantially gainful occupation. His most recent competitive occupation informed him that he was not eligible for rehire. His current occupation is protected employment and his employer is willing to tolerate substandard productivity resulting from his severe service-connected disabilities in furtherance of policy goals that are inapposite to the competitive market. Indeed, the Veteran credibly described how despite the reasonable accommodations that he is afforded, he is substantially less productive than his co-workers and he is able to maintain his employment with the VA because he is a combat-disabled veteran. See December 2019 VA Form 21-4138. This is the type of truly exceptional circumstance that supports the determination that otherwise gainful employment is protected and justifies the award of a TDIU to an employed veteran. The Board acknowledges that in the August 2019 SSOC, the RO found that the Veteran was afforded reasonable accommodations. The Board observes that there is no binding precedent on whether a veteran afforded reasonable accommodations, but no more, is engaged in protected employment. Cf. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (explaining that VA should consider the amount of a veteran’s income and any reasonable accommodations in defining “protected employment”) (Lance, J., concurring). However, the determination of whether an accommodation is reasonable or whether employment is protected is a factual question, and the Veteran credibly reported a substantial decrease in his productivity compared to his co-workers as a result of his accommodations. See December 2019 VA Form 21-4138. The Board finds that the Veteran’s present accommodations are above and beyond what would be considered reasonable, as the evidence shows that he was in imminent danger of termination in the private sector and he continues to exhibit substantially decreased productivity that was unacceptable in the private sector. Thus, as the Veteran has been engaged in protected employment from January 31, 2011, see April 2018 Third Party Correspondence at 12, a TDIU is warranted from that date. Entitlement to a TDIU is not warranted prior to January 2011. The Board acknowledges that in a January 2020 opinion, a different private vocational specialist argued that the Veteran has been unable to secure or maintain substantially gainful employment since at least October 2009. See January 2020 Private TDIU Opinion. However, the evidence shows that the Veteran worked as a medical technician and technologist in the private sector for many years through 2011. See January 2020 Private TDIU Opinion at 4-5. While the January 2020 vocational expert noted that the Veteran was given “unreasonable accommodations” in the private sector, this statement arises from her failure to accurately understand the history of the Veteran’s employment and disability, as the examiner confused the Veteran’s report of the conditions of his current employment and his former employment. Specifically, the Veteran stated that he has maintained his current employment due to the accommodations that is he afforded, but that he was in danger of losing his former employment due to an inability to keep up with the work because he was not provided these accommodations. See December 2019 VA Form 21-4138 at 1; January 2020 Private TDIU Opinion at 5. In this regard, the record shows up until 2011 the Veteran was working on the night shift in the private sector, where it was less busy, yet his co-workers complained that he was not doing his share of the work. See April 2018 Third Party Correspondence at 11. Moreover, he credibly reported that he was in imminent danger of being fired when he quit, and he was told that he was ineligible for re-hire. Id. This does not demonstrate that the Veteran was given more than reasonable accommodations at his prior employment; to the contrary, it shows that the Veteran was exposed to competitive pressure due to his limitations from service-connected disability that threatened his employment. Thus, his private sector employment up to 2011 was not protected, and he was still employed in an unprotected environment and was able to secure and maintain substantially gainful employment, at least until he put in his notice in January 2011 and quit to work for the VA. To the extent that the January 2020 expert is supporting the conclusion that the Veteran was unable to secure and maintain substantially gainful employment prior to January 2011 because he was at risk for termination, the Board finds this unpersuasive. The Veteran was demonstrably able to secure substantially gainful employment in a competitive environment, at least until January 2011. The most probative evidence as to whether the Veteran could secure and maintain substantially gainful employment prior to January 2011 is the fact that he demonstrably secured and maintained such employment. The Board acknowledges that recent caselaw explicitly notes that there is a noneconomic component and an economic component to substantially gainful employment, and that a veteran’s income must not exceed the poverty threshold. See Ray v. Wilkie, 31 Vet. App. 58, 71 (2019). However, this definition of substantially gainful employment was expressly noted to arise in the context of a case involving an extraschedular TDIU under 38 C.F.R. § 4.16(b). In contrast, the present case involves a schedular TDIU under 38 C.F.R. § 4.16(a), and that section includes the specific language noting that marginal employment may be held to exist on a facts-found basis where a veteran is engaged in protected employment. Thus, the holding in Ray does not require a different result. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.