Citation Nr: 20049934 Decision Date: 07/27/20 Archive Date: 07/27/20 DOCKET NO. 14-13 117 DATE: July 27, 2020 ORDER 1. Entitlement to an evaluation higher than 30 percent from August 20, 2012 for service-connected insomnia associated with left shoulder strain status post debridement with arthritis is dismissed. 2. Entitlement to a combined disability rating in excess of 80 percent from August 9, 2017, 90 percent from April 11, 2018, 100 percent from June 14, 2019, and 100 percent from August 1, 2020 percent is denied. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED 1. Entitlement to an evaluation in excess of 30 percent for service-connected total left knee replacement (previously rated as left knee strain, to include meniscal tear and degenerative arthritis) is remanded. 2. Entitlement to an evaluation in excess of 30 percent for service-connected total right knee replacement (previously rated as right knee strain to include meniscal tear and degenerative arthritis) is remanded. 3. Entitlement to an initial evaluation higher than 10 percent for service-connected right shoulder strain with arthritis, and higher than 20 percent after October 1, 2018, is remanded. FINDINGS OF FACT 1. The grant of an earlier effective date for major depressive disorder effective August 20, 2012, renders moot the claim for entitlement to an evaluation in excess of 30 percent prior to August 20, 2012 for service-connected insomnia associated with left shoulder strain status post debridement with arthritis. 2. The combined disability rating from August 9, 2017 is 80 percent. 3. The combined disability rating from April 11, 2018 is 90 percent. 4. The combined disability rating from June 14, 2019 is 100 percent. 5. The combined disability rating from August 1, 2020 is 100 percent. 6. Throughout the appeal period, the Veteran has maintained substantially gainful employment. CONCLUSIONS OF LAW 1. Service-connected insomnia and service-connected major depressive disorder (MDD) to include unspecified anxiety disorder and insomnia are both rated under the general rating formula for mental disorders. 38. C.F.R. § 4.126 (2019). 2. The criteria for entitlement to a combined disability rating in excess of 80 percent from August 9, 2017, 90 percent from April 11, 2018, 100 percent from June 14, 2019, and 100 percent from August 1, 2020 percent have not been met. 38 C.F.R. § 3.323. 3. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to May 2006. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The issues of insomnia and right shoulder disability were previously before the Board in March 2018, when an increased evaluation of 30 percent was granted for service-connected insomnia, and the right shoulder disability was remanded for further development. The Veteran appealed the insomnia decision to the Court of Appeals for Veterans Claims (CAVC) when it was remanded to the Board for further development in January 2019. In an October 2019 Board decision, an evaluation higher than 30 percent prior to October 27, 2015 for service-connected insomnia was denied, and the issues of an evaluation higher than 30 percent on and after October 27, 2015 for service-connected insomnia, an initial evaluation higher than 10 percent for service-connected right shoulder disability, and higher than 20 percent after October 1, 2018, and entitlement to a total disability rating based on individual unemployability (TDIU) were remanded for further development. That development was completed. On a separate appeals stream, the issues of entitlement to an initial rating greater than 10 percent for the bilateral knee disabilities, and entitlement to a combined disability rating greater than 80 percent were previously before the Board in January 2019. The Board granted entitlement to an effective date of August 20, 2012 for service-connected major depressive disorder (MDD), to include unspecified anxiety disorder and insomnia, and remanded the rest for further development. That development was completed. For the reasons mentioned below, the claim for entitlement to an evaluation higher than 30 percent, on and after October 27, 2015, for service-connected insomnia, has been recharacterized as entitlement to an evaluation higher than 30 percent prior to August 20, 2012 for service-connected insomnia. The two appeals streams have been merged, and have now returned to the Board for appellate review. Dismissal 1. Entitlement to an evaluation higher than 30 percent prior to August 20, 2012 for service-connected insomnia is dismissed. The Board is dismissing the claim for entitlement to an evaluation higher than 30 percent for service-connected insomnia as moot. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. The October 2019 Board decision denied entitlement to an initial evaluation higher than 30 percent prior to October 27, 2015 for insomnia. The Board remanded the issue of a higher rating on and after October 27, 2015. However, in a January 2019 decision, the Board granted an effective date of August 20, 2012 for the service-connected MDD with insomnia. A May 2020 rating decision effectuated the January 2019 Board decision, assigning an earlier effective date for service connection for MDD with insomnia, effective August 20, 2012. Because MDD and insomnia are both rated under the general rating formula for mental disorders, the separate evaluation for insomnia ended the day that MDD became effective, and the two are now rated together. Thus, the insomnia is evaluated as 30 percent disabling from December 5, 2011 to August 20, 2012. As the issue of MDD is not on appeal here and this period of time for insomnia was considered and denied in the October 2019 rating decision, there is nothing to rate. Accordingly, entitlement to an evaluation higher than 30 percent prior to August 20, 2012 for service-connected insomnia is dismissed. Increased Rating 2. Entitlement to a higher combined disability rating In a December 2017 notice of disagreement, the Veteran disagreed with the combined disability rating of 80 percent assigned to him in the September 2017 rating decision of the RO. In his May 2020 Post-Remand Brief, the Veteran’s representative expressed the Veteran’s contention that the ratings he has received are not accurate, and the combined rating has not been calculated correctly. Other than those currently on appeal, the Veteran does not specify which service-connected ratings he contends are not accurate. Accordingly, the Board will only address the calculations of the combined ratings for the four distinct time periods reflected on appeal. When there are two of more service-connected compensable disabilities, a combined rating will be made following the table and rules prescribed in the Schedule for Rating Disabilities. 38 C.F.R. § 3.323. Combined ratings are determined by using the Combined Ratings Table in Table I of 38 C.F.R. § 4.25. To use Table I, the disabilities are first arranged in the order of their severity, beginning with the greatest disability and then combined using Table I. The figures appearing in the space where the column and the row intersect represent the combined value of the two. This combined value is then converted to the nearest number divisible by 10. Combined values ending in 5 are adjusted upward. If there are more than two disabilities, the combined value of the first two disabilities is charted against the third disability using Table I. The same procedure is used if there are four or more disabilities. 38 C.F.R. § 4.25(a). When a partial disability results from disease or injury of both arms or both legs, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of that value will be added, not combined, before proceeding with further combinations. The bilateral factor will be applied before other combinations are made. 38 C.F.R. § 4.26. From August 9, 2017 to April 10, 2018, the Veteran’s compensable service-connected disabilities include: 1) MDD to include unspecified anxiety disorder and insomnia evaluated at 50 percent; 2) degenerative disease of the cervical spine evaluated at 20 percent; 3) lumbar strain and degenerative disease of the thoracic spine evaluated at 20 percent; 4) right shoulder strain with arthritis evaluated at 20 percent; 5) left shoulder strain status post debridement with arthritis evaluated at 10 percent; 6) left knee strain to include meniscal tear and degenerative arthritis at 10 percent; 7) right knee strain to include meniscal tear and degenerative arthritis at 10 percent; and 8) tinnitus evaluated at 10 percent. Using the bilateral factor for the knee and shoulder disabilities yields ratings of 21 and 31 respectively, and rounded to the nearest 10, we get 20 and 30. Applying the above ratings to Table I, the 50 percent for the MDD is combined with the 30 for the bilateral shoulder disabilities, yielding a combined rating of 65. The 65 is combined with the 20 for the bilateral knee disorders, yielding a combined rating of 72. The 72 is combined with the 20 for the thoracic spine, yielding a combined rating of 78. And the 78 is combined with the 20 for cervical spine, yielding a combined rating of 82. The 82 is combined with the 10 for the tinnitus, yielding a combined rating of 84, which is rounded down to 80. Accordingly, a combined rating of 80 percent from August 9, 2017 is confirmed and continued. From April 11, 2018 to June 13, 2019, the Veteran’s compensable service-connected disabilities include: 1) MDD to include unspecified anxiety disorder and insomnia evaluated at 50 percent; 2) sleep apnea evaluated at 50 percent; 3) degenerative disease of the cervical spine evaluated at 20 percent; 4) lumbar strain and degenerative disease of the thoracic spine evaluated at 20 percent; 5) right shoulder strain with arthritis evaluated at 20 percent; 6) left shoulder strain status post debridement with arthritis evaluated at 10 percent; 7) left knee strain to include meniscal tear and degenerative arthritis at 10 percent; 8) right knee strain to include meniscal tear and degenerative arthritis at 10 percent; and 9) tinnitus evaluated at 10 percent. As the ratings remain unchanged from the prior period, we use the same bilateral factors for the knee and shoulder disabilities, yielding 20 and 30 respectively. Applying the above ratings to Table I, the 50 percent for the MDD is combined with the 50 percent for the sleep apnea, yielding a combined rating of 75. The 75 is combined with the 30 for the bilateral shoulder disabilities, yielding a combined rating of 83. The 83 is combined with the 20 for the bilateral knee disabilities, yielding a combined rating of 86. The 86 is combined with the 20 for the thoracic spine, yielding a combined rating of 89. The 89 is combined with the 20 for the cervical spine, yielding a combined rating of 91. The 91 is combined with the 10 for the tinnitus, yielding a combined rating of 92, which is rounded down to 90. Accordingly, a combined rating of 90 percent from April 11, 2018 is confirmed and continued. In a September 2019 rating decision, the RO granted an evaluation of 100 percent for bilateral knee replacement, from the date of the surgery June 14, 2019 until August 1, 2020, which is 13 months following implantation of the prostheses. After that time, the evaluation will drop to 30 percent for each of the knees. From June 14, 2019 to July 31, 2020, the Veteran’s compensable service-connected disabilities include: 1) bilateral total knee replacement evaluated at 100 percent; 2) MDD to include unspecified anxiety disorder and insomnia evaluated at 50 percent; 3) sleep apnea evaluated at 50 percent; 4) degenerative disease of the cervical spine evaluated at 20 percent; 5) lumbar strain and degenerative disease of the thoracic spine evaluated at 20 percent; 6) right shoulder strain with arthritis evaluated at 20 percent; 7) left shoulder strain status post debridement with arthritis evaluated at 10 percent; and 8) tinnitus evaluated at 10 percent. As the Veteran is already rated at 100 percent for the bilateral knee disabilities, there is no need to evaluate the combined rating under Table I. Accordingly, a combined rating of 100 percent from June 14, 2019 is confirmed and continued. And finally, from August 1, 2020 going forward, the Veteran’s compensable service-connected disabilities currently will include: 1) MDD to include unspecified anxiety disorder and insomnia evaluated at 50 percent; 2) sleep apnea evaluated at 50 percent; 3) total left knee replacement at 30 percent; 4) total right knee replacement at 30 percent; 5) degenerative disease of the cervical spine evaluated at 20 percent; 6) lumbar strain and degenerative disease of the thoracic spine evaluated at 20 percent; 7) right shoulder strain with arthritis evaluated at 20 percent; 8) left shoulder strain status post debridement with arthritis evaluated at 10 percent; and 9) tinnitus evaluated at 10 percent. Utilizing the bilateral factor on the knee and shoulder disabilities yields ratings of 56 and 31 respectively, and rounded to the nearest 10 to be 60 and 30 respectively. Applying the above ratings to Table I, the 60 percent for the bilateral knees is combined with the 50 percent for the MDD, yielding a combined rating of 80. The 80 is combined with the 50 for the sleep apnea, yielding a combined rating of 90. The 90 is combined with the 30 for the bilateral shoulders, yielding a combined rating of 93. The 93 is combined with the 20 for the cervical spine, yielding a combined rating of 94. The 94 is combined with the 20 for the thoracic spine, yielding combined rating of 95. There is no need to further evaluate the remaining compensable ratings as the combined rating is now effectively 100 percent. Accordingly, a combined rating of 100 percent from August 1, 2020 is confirmed and continued. As a combined rating in excess of 80, 90, or 100 percent for the aforementioned time periods is not warranted, entitlement to a higher combined rating is denied. 3. Entitlement to a TDIU The Veteran contends that his sleep related issues routinely cause him to miss work. 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. Id., 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. Id., 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). Service connection is in effect for the following disabilities: 1) MDD to include unspecified anxiety disorder and insomnia; 2) sleep apnea; 3) total left knee replacement; 4) total right knee replacement; 5) degenerative disease of the cervical spine; 6) lumbar strain and degenerative disease of the thoracic spine; 7) right shoulder strain with arthritis; 8) left shoulder strain status post debridement with arthritis; 9) tinnitus; 10) hypertension; 11) left shoulder scars; 12) left knee surgical scar; and 13) right knee surgical scar. For the time period on appeal, the Veteran’s combined disability evaluation is 80 percent from August 9, 2017, 90 percent from April 11, 2018, and 100 percent from June 14, 2019. Thus, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, at least one of which is rated as 50 percent disabling, and his combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16(a). However, the Veteran is currently employed in a substantially gainful occupation and therefore, assignment of a TDIU is not warranted. During a December 2019 VA examination, the Veteran reported that since separated from service in 2006, he has worked as a civilian in aviation operations at Fort Bragg, essentially the same job that he did while in service. He reported that he enjoys his job and coworkers very much. The Veteran also reported some difficulty with attention, concentration and memory due to fatigue, but that he does not believe that it affects his job. The examiner did find that the Veteran has some occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks, but only during periods of significant stress, or that the symptoms are controlled by medication. Additionally, during a March 2012 VA examination, the Veteran reported that he completed high school, has a Bachelor of Arts in Criminal Justice, and was pursuing a master’s degree in management and leadership. The Board finds that the Veteran does not meet the criteria for a TDIU. The Veteran is currently gainfully and substantially employed. The Board acknowledges the Veteran's statements that he experiences daytime drowsiness, and often has to miss work for medical appointments. Although these reported problems in daily living and at work may reflect impaired industrial capabilities, they do not suggest unemployability. Instead, as aptly indicated by the record of evidence, the Veteran has secured and is following a substantially gainful occupation. Under these particular circumstances, the Board finds that the criteria for invoking the procedures for assignment of a TDIU, pursuant to 38 C.F.R. § 4.16, are not met, and that the claim for a TDIU must be denied. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 30 percent for service-connected total bilateral knee replacement Remand is required to obtain Army hospital records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to army hospitals. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). May 2019 VA records indicate that the Veteran receives treatment for his bilateral knee pain at Womack Army Hospital at Fort Bragg. While surgical reports from Womack appear in the claims folder, other treatment records appear to be missing. Accordingly, remand is required to obtain treatment records from Womack Army Hospital. 2. Entitlement to an initial evaluation higher than 10 percent for service-connected right shoulder strain with arthritis, and higher than 20 percent after October 1, 2018, is remanded. Remand is required to obtain private treatment records (PTRs). VA’s duty to assist claimants includes making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1). February 2019 VA records indicate that the Veteran’s bilateral shoulder pain is managed by an outside provider. PTRs regarding the shoulder do not appear in the claims folder, nor has the RO made any efforts to obtain them. Accordingly, remand is required to obtain PTRs. The matters are REMANDED for the following action: 1. Contact Womack Army Hospital 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 or her 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. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.