Citation Nr: 20021807 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-04 380 DATE: March 27, 2020 ORDER Entitlement to a 60 percent evaluation, but no higher, for service-connected left total knee replacement, is granted. Entitlement to a 60 percent evaluation, but no higher, for service-connected right total knee replacement, is granted. Entitlement to service connection for a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected bilateral knee disabilities, is remanded. FINDINGS OF FACT 1. The Veteran’s total left knee replacement was manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity. 2. The Veteran’s total right knee replacement was manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity. 3. The Veteran’s combined disability rating is 90 percent with one disability rated at least 40 percent, and his service-connected disabilities prevent him from following or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 60 percent evaluation, but no higher, for service- connected left total knee replacement, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5055 (2019). 2. The criteria for entitlement to a 60 percent evaluation, but no higher, for service- connected right total knee replacement, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5055 (2019). 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.340, 3.341(a), 4.16(a), 4.25 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Army from August 1967 to August 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Seattle, Washington. In December 2019 the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). The issue of entitlement to service connection for a psychiatric disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Duties to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2019). In light of the Board’s favorable decision, however, any deficiencies in VA’s duties to notify and assist the Veteran with his claim decided herein are moot. Increased Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2019). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2019). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. In October 2015, the Veteran filed a claim for increased evaluations of both total knee replacements. In the February 2016 notice of disagreement (NOD), the Veteran stated he had chronic residuals consisting of severe painful motion or weakness. An April 2015 VA treatment record showed bilateral knee pain 8/10 with left knee pain greater than right knee pain. The Veteran indicated his knee pain was worse when using the stairs. The Veteran’s VA primary care physician took x-rays and stated there was no evidence of hardware failure. A September 2015 VA mental health treatment record showed, continued chronic knee pain and instability. A September 2015 private mental health treatment record noted significant weakness and pain, and limited balance and mobility. In an October 2015 statement the Veteran endorsed problems dressing, bathing, walking, sitting, and standing, due to knee pain, limited range of motion, and weakness. The Veteran stated his knees hurt constantly and he regularly uses a cane, or walker. The Veteran noted that in the bathroom he must use the wall or handrails. The Veteran noted sitting is difficult because it is hard for him to get up and down. The Veteran received a VA examination in December 2015. The examiner noted they did not review the claims file. The Veteran described pain that limits his standing and climbing up and down stairs. The examiner noted bilateral abnormal range of motion, pain with weight bearing, pain that causes functional loss because of limited range or motion, and objective evidence of mild tenderness with palpitation. The examiner noted objective evidence of pain in the right knee. Additional factors contributing to the Veteran’s bilateral disability included less movement than normal, swelling, disturbance of locomotion, and interference with standing. Additional factors contributing to the Veteran’s right knee disability included interference with sitting. The examiner determined the Veteran’s bilateral total knee replacements were manifested by intermediate degrees of residual weakness, pain, or limitation of motion. The examiner noted the Veteran regularly uses a cane and walker. A January 2016 VA treatment record indicated no changes to the Veteran’s knee disabilities. An April 2016 VA treatment record showed the Veteran was given crutches for abnormalities of gait and mobility. During a May 2016 VA primary care treatment, the Veteran indicated he needed a railing on his front porch. During the December 2019 Board hearing, the Veteran stated his knees have worsened since the replacements in 2008 and 2010. The Veteran stated he can only walk a half a block, he constantly shifts positions to alleviate the pain, and his right knee locks and buckles. The Veteran stated he falls four to five times per month. The Veteran explained that both knees are painful, he has swelling, weakness, and both knees wobble. The Board finds that the evidence of record supports a finding of chronic residuals of severe painful motion or weakness in the affected extremity for the entire period on appeal. The Board affords significant probative weight to the Veteran’s statements regarding his bilateral knee symptoms. The Veteran’s statements have been consistent with his VA treatment and private treatment records. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran’s VA treatment records showed bilateral knee pain and instability. The December 2015 VA examination had objective findings of pain, limited movement, tenderness, swelling, and interference with sitting and standing. The Board affords low probative weight to the examiners determination that the Veteran’s residuals were intermediate as the examiner did not review the Veteran’s claim’s file which contained evidence of chronic residuals. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion). Additionally, the examiner did not adequately consider the Veteran’s functional limitation. In his October 2015 statement, the Veteran goes into great detail regarding his difficulty in performing daily tasks. Moreover, the examiner’s findings of intermediate residuals are inconsistent with the rest of the exam. The examiner noted regular use of a cane and a walker, and disturbances with sitting, moving, and standing. Resolving all reasonable doubt in favor of the Veteran, the Board finds that two 60 percent evaluations are for assignment. However, a higher and maximum evaluation of 100 percent under DC 5055 is not warranted, as this evaluation is only available for one year following implantation of the prosthesis. 38 C.F.R. § 4.71a, DC 5055. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such 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. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). First, the Veteran has met the schedular requirements for assignment of a TDIU. Service connection is in effect for the following disabilities: 1) left total knee replacement with scar, currently at 60 percent; 2) right total knee replacement, currently at 60 percent; and 3) noncompensable right knee scar. For the time period on appeal, the Veteran’s combined disability evaluation is 90 percent. Thus, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated at least 40 percent disabling, and his combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16(a). Second, the Veteran has been unemployed throughout the appeal period. The Veteran’s October 2015 application for TDIU showed he stopped working in September 2010. The Veteran stated his bilateral knee disability prevents him from securing or following substantially gainful employment. The Veteran reported three years of college education. The Veteran noted he lost 80 hours due to illness and he received disability retirement benefits. In October 2015, the Veteran submitted a May 2015 employment information from his previous employer. The human resources representative noted the Veteran lost 360 hours due to disability and confirmed employment ended in September 2010. The Veteran’s previous employer noted retirement payment. Lastly, the Board finds that the most probative evidence of record establishes the Veteran is unable to follow or maintain substantially gainful employment due to his service-connected disabilities. The Veteran received a knee VA examination in December 2015. The examiner determined the Veteran’s bilateral knee disabilities impact his ability to perform occupational task. The examiner explained the Veteran has limitation with prolonged standing, walking, squatting, kneeling, and climbing up and down stairs. The Board notes the examiner did not mention sitting. However, in the examination the examiner determined the Veteran’s right knee disability causes an interference with sitting. During the December 2019 Board hearing the Veteran stated while he was working, he had trouble with sitting. The Board finds the Veteran’s statement credible as it is supported by the record. During a November 2009 VA examination, the examiner determined the effect of the Veteran’s condition on his usual occupation is significant because he has trouble sitting at his desk for long periods of time, and he has to take frequent breaks to stretch his legs. In sum, the most probative evidence of record indicates the Veteran would be unable to maintain substantially gainful employment. First, the Veteran’s knee disabilities limit his ability to do work standing or physically demanding. Second, his knee disabilities prevent sedentary work. Lastly, the Veteran’s previous employer noted substantial time lost due to disability. The Veteran’s limitations would prevent physical work or sedentary work. The combination of these limitations causes unemployability. The Board places significant probative weight on the December 2015 VA examination. Additionally, the Board places significant probative weight on the Veteran’s statements as his statements have been consistent and are supported by the medical evidence of record. Accordingly, the record demonstrates that entitlement to a TDIU is warranted. REASONS FOR REMAND Service Connection Remand is required for an adequate VA examination and opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran received a VA examination in December 2015. The examiner diagnosed bipolar disorder and opined that it was less likely than not caused by or the result of the Veteran’s service-connected knee disabilities. The examiner stated the Veteran’s medical records indicated a history of treatment for bipolar disorder. The examiner determined there was no known medical link of a knee condition causing bipolar disorder. The examiner opined that depression, which is a part of the Veteran’s bipolar disorder, is likely exacerbated by his knee condition. The examiner stated, “to provide a percentage would be the result of mere speculation without resorting to mere speculation.” First, the examiner determined there was aggravation but did not provide a rationale for the aggravation opinion. The examiner only noted they could not determine a percentage of aggravation. Second, the examiner failed to adequately address the record. An August 2015 VA mental health treatment provider opined the Veteran did not have bipolar disorder but benefited from the medication. Additionally, the VA treatment provider noted the Veteran spent his mental energy on his chronic medical issues. A July 2009 private treatment record indicated the Veteran was upset about upcoming knee surgery and was getting very depressed. The examiner did not address these records in the opinion provided. The Veteran submitted a September 2015 private treatment opinion. The private provider diagnosed major depressive disorder, social anxiety disorder, and generalized anxiety disorder. The private provider opined that the Veteran’s psychiatric conditions have become severely exacerbated by pain, limited mobility, and isolation created by physical injuries. The private provider did not determine the extent to which the Veteran’s psychiatric disorders have been aggravated. Because the record includes some indication that the Veteran’s psychiatric disorder was caused by the Veteran’s bilateral knee disabilities, remand is required for an adequate examination and opinion. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, for each diagnosed psychiatric disorder, the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the psychiatric disorder is caused or aggravated by the service-connected bilateral knee disabilities. Second, if the examiner determines aggravation is present, the examiner must report the baseline level of severity of the psychiatric disorder prior to the onset of aggravation. The examiner must address the following: 1) the Veteran’s contention that bilateral knee disability has caused depression; 2) an April 2008 private treatment record; 3) an August 2015 VA mental health treatment; and 4) a September 2015 private mental health treatment. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2019). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, 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.