Citation Nr: 20022541 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 17-24 928 DATE: April 1, 2020 ORDER The request to reopen the previously denied claim of entitlement to service connection for left knee degenerative joint (DJD) disease is granted. The request to reopen the previously denied claim of entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine, status-post lumbar laminectomy is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. REMANDED Service connection for left knee DJD is remanded. Service connection for an acquired psychiatric disorder, to include depression, is remanded. FINDINGS OF FACT 1. In an October 2010 rating decision, the agency of original jurisdiction (AOJ) denied service connection for left knee DJD and lumbar spine DDD disabilities; the Veteran did not initiate an appeal of that decision within one year of notification. 2. Evidence received since the October 2010 denial relates to unestablished facts necessary to substantiate the claim of service connection for left knee DJD and raises a reasonable possibility of substantiating the claim. 3. Evidence received since the October 2010 denial is cumulative or redundant of evidence previously of record and does not relate to unestablished facts necessary to substantiate the claim of service connection for DDD of the lumbar spine. 4. The Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The October 2010 rating decision that denied entitlement to service connection for left knee DJD and lumbar spine DDD disabilities is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.1103 (2018). 2. The criteria for reopening the previously denied claim of entitlement to service connection for left knee DJD have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). 3. The criteria for reopening the previously denied claim of entitlement to service connection for DDD of the lumbar spine, status-post lumbar laminectomy, have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). 4. The criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to December 1970. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA in September 2018. However, the Veterans Benefits Administration (VBA) determined that the appeal did not qualify for processing under RAMP. Accordingly, the Board will undertake appellate review of the case in the legacy review system. Reopening Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.1100 (2018). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2017). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2017). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2018). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156 (b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Historically, in a January 1971 rating decision, the regional office (RO) denied service connection for left knee internal derangement. In an August 1999 rating decision, the regional office (RO) denied service connection for left knee DJD and lumbar spine DDD on the basis of no nexus to service, to include service-connected right knee disability. The Veteran was notified of the denials as well as his procedural and appellate rights, but did not appeal nor was new and material evidence received during the applicable appeal period. In a December 2002 statement, the Veteran filed a claim to reopen his previously denied claims of service connection for left knee and lumbar spine disabilities. In a March 2003 rating decision, the RO confirmed and continued the prior denials. The Veteran was notified of the denial in a letter dated the same month, as well as his procedural and appellate rights, but did not appeal nor was new and material evidence received during the applicable appeal period. In a June 2010 application, the Veteran again filed a claim to reopen his previously denied claims of service connection for left knee and lumbar spine disabilities. In an October 2010 rating decision, the RO denied the request to reopen the previously denied claim for service connection for a left knee disability; and confirmed and continued the prior denial of service connection for a lumbar spine disability. The Veteran was notified of the denial in a letter dated the same month, as well as his procedural and appellate rights, but did not appeal nor was new and material evidence received during the applicable appeal period. Thus, January 1971, August 1999, March 2003, and October 2010 rating decisions are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). New and material evidence is therefore required to reopen the claims. See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. In March 2012, the Veteran filed an application to reopen the previously denied claims of service connection for left knee and lumbar spine disabilities. In a September 2013 rating decision, the RO denied the request to reopen the claims because the evidence submitted was not new and material. He submitted a notice of disagreement (NOD) in June 2014 and a statement of the case (SOC) was issued in April 2017. He perfected his appeal in a May 2017 VA Form 9. 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for left knee DJD The Board finds that evidence associated with the claims file after the October 2010 rating decision relates to unestablished facts necessary to substantiate the previously denied claim of entitlement to service connection for left knee DJD - a nexus to service. In August 2013 a VA examiner provided a medical opinion on the etiology of the Veteran’s current left knee disability. Given the bases for the prior denial, this is new and material evidence warranting reopening of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156, Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Under these circumstances, the Board finds that new and material evidence has been presented and the previously denied claim of service connection for left knee DJD is reopened. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for DDD of the lumbar spine, status-post lumbar laminectomy Evidence received since the October 2010 rating decision consists of medical records and correspondence from the Veteran. However, there is no evidence of a nexus to service. VA treatment records continued to document treatment for low back pain. June 2014 magnetic resonance imaging (MRI) tests showed chronic defects, disc and arthritis problems, and moderate severe foraminal stenosis. July 2016 x-rays showed moderate degenerative changes, slightly worsened since the prior examination. At the February 2010 Board hearing, the Veteran continued to allege that his lumbar spine disability is secondary to his service-connected right knee disability. He reported a history of 1982 back surgery and ongoing massage, physical therapy, and chiropractic treatment. He reported associated symptoms of pain and sleep disturbance. The Board finds that all of this evidence is “new” as it has not been previously considered. However, after review, the Board determines that none of it is “material” to an unestablished fact necessary to support the Veteran’s claim for service connection for lumbar DDD - a nexus to service. That is, the evidence received since the October 2010 determination does not provide competent and probative evidence to support the Veteran’s contention that his lumbar spine disability is secondary to his service-connected right knee disability. The newly added records merely continue to show a current diagnosis and treatment for this condition. Notably, the Veteran has been notified of the evidence required to substantiate his claim and has not submitted or identified any evidence. Thus, the additional evidence is not new and material. The Board concludes, therefore, that new and material evidence to reopen the claim for service connection for DDD of the lumbar spine have not been received. As such, the requirements for reopening the claim are not met. 3. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities The Veteran contends that he is unable to maintain employment due to his service-connected disabilities. A “schedular” TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16 (a) (2018). The Veteran’s service-connected disabilities are: right knee internal derangement, rated 30 percent disabling; left hip strain, rated 10 percent disabling; and right hip strain, rated 10 percent disabling. He has also been granted service connection for right thigh limitation of flexion, left hip limitation of flexion, left hip impairment, and right thigh impairment, all rated as noncompensable (0 percent disabling). His combined evaluation is 50 percent from March 19, 2012. As he does not have a single disability rated at least 60 percent or a combined rating of at least 70 percent, he does not meet the percentage requirements of 4.16 (a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16. 38 C.F.R. § 4.16 (b). The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Id. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). In determining the severity of impairment, 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). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. 38 C.F.R. § 4.16 (a). Marginal employment generally shall be deemed to exist when a veteran’s earned annual 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. Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. The Veteran filed an application for total unemployability in March 2012. In a February 2020 application for TDIU, the Veteran attributed his inability to work to his service-connected right knee disability. He reported that he stopped working as a card dealer in March 2009. He reported that he is currently unemployed and receives VA and Social Security income. He marked “no” that he did not leave his last employment due this his disability, and “no” that he has not tried to obtain employment since becoming too disabled to work. An August 2013 VA mental disorders examination documents the Veteran’s report that he stopped working as a blackjack dealer in March 2009 due to “a bad economy and back and knee injury ([fell] down stairs) resulting in chronic pain conditions.” He reported completion of high school and a few years of international business college. On September 2013 examination, the examiner opined that the Veteran’s service-connected hip, thigh, and right knee conditions impact his ability to work. He reported not lifting, walking up to100 feet, walking half a mile in an 8-hour day, sitting and standing up to 20 minutes at a time, and frequent sitting and standing position changes during an 8-hour day. The examiner noted that it is highly like that the Veteran’s lumbar spine and knee condition affect his gait which could cause hip pain. To date, the Veteran has not been granted service connection for lumbar spine or left knee disabilities. At the February 2020 Board hearing, the Veteran testified that he has prior work experience as a card dealer at a casino and as a mailman. He reported that he stopped working in 2009 as a card dealer because “they just fired me, plain and simple.” When the undersigned requested that he elaborate, he reported that he did not miss any days of work despite taking medication and having difficulty with prolonged standing. As for working as a mailman, he reported a work history of 15 years that ended due to sexual harassment allegations. He attributed his termination to his service-connected disabilities because he claims that the use of leg braces prevented him from working outside as a mailman, thus, he was transferred to work inside as a law clerk with women that did not like him. He stated that the postmaster and other coworkers conspired against him. After a thorough review of the evidentiary record, the Board finds that the functional limitations imposed by the Veteran’s service-connected right knee, hip, and thigh disabilities do not render him unable to secure and follow a substantially gainful occupation. Although the August 2013 VA examiner found that the Veteran’s symptoms cause some physical limitations, it does not appear that he is unable to perform work where he would not be on his feet for a good portion of his tasks, for example work in which he could sit or alternate positions. Such work is not uncommon and the evidence does not show that the Veteran would be limited to work where he was on his feet a considerable amount of the time. Notably, the Veteran has provided conflicting statements regarding his inability to work. He has attributed his employment ending to reasons unrelated to his service-connected disabilities. As for his casino position, he testified that “they fired me, plain and simple.” As for the mailman position, he attributed termination to sexual harassment allegations. In his application for TDIU, he alleged the inability to work due to his service-connected right knee disability, but marked “no” that he did not leave his last job as a card dealer due to his disability. However, the Court has held that the Board is the entity that determines whether a TDIU is warranted, not the experts. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014) (explaining that “applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner”). The Board’s decision rests on all of the relevant and probative evidence. As such, the evidence weighs against finding that his service-connected disabilities caused unemployability. Entitlement to TDIU is thus not established. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, referral of the TDIU claim to the Director of Compensation Service for extra-schedular consideration is not warranted because the preponderance of evidence is against a finding that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. REASONS FOR REMAND 1. Entitlement to service connection for left knee DJD is remanded. The Veteran claims that his left knee DJD is secondary to his service-connected right knee disability. The Veteran was afforded a VA examination in August 2013. A diagnosis of left knee arthritis and total knee replacement with scar was noted. The examiner opined that the Veteran’s left knee condition is not related to his service-connected right knee condition, but did not provide an opinion on aggravation. The Board finds the August 2013 VA opinion inadequate to resolve the claims left knee claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA has provided a VA examination or obtained a medical opinion, it is required to provide or obtain one that is adequate for the purpose sought). Although the examiner provided a medical opinion on etiology, a medical opinion on aggravation was not provided. An opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). Therefore, a new opinion is necessary. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression is remanded. At the January 2010 Board hearing, the Veteran reported participation in a substance abuse residential recovery treatment program (SARP) for his depression disability. He testified that SARP is a private halfway residence located in Marion, Indiana funded in part by VA. The representative requested that development be conducted to obtain these records. As such, the claim is remanded to obtain these private treatment records. The matters are REMANDED for the following action: 1. Send a letter to the Veteran requesting that he identify all records of ongoing private treatment and provide releases authorizing VA to obtain all records of private treatment, including treatment from the substance abuse residential recovery treatment program (SARP) in Marion, Indiana. Obtain records of relevant treatment from the providers the Veteran identifies. If any records cannot be obtained after attempting to do so, inform the Veteran of this fact, tell him what efforts were made to obtain the records, and advise him of any additional development that will be undertaken. 2. Obtain a VA opinion on the nature and etiology of the Veteran’s left knee DJD. If a new physical examination is deemed necessary, one should be scheduled. The claims file and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that left knee DJD is (a) caused by or (b) has been aggravated by the Veteran’s service-connected right knee disability, and, if so, how. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the left knee disability prior to aggravation by service-connected right knee disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on next page)   3. Readjudicate the claims that are the subject of this remand. If any benefit on appeal remains denied, issue a supplemental SOC to the Veteran and his representative and allow an appropriate period for response. Thereafter, the case should be returned to the Board, if in order. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.