Citation Nr: 21002656 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 20-15 571 DATE: January 14, 2021 ORDER Service connection for a right leg/knee condition, other than right leg sciatic nerve radiculopathy, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 40 percent for lumbosacral strain with degenerative arthritis is remanded. Entitlement to an effective date prior to June 19, 2018 for a 40 percent rating for lumbosacral strain with degenerative arthritis is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Service connection for a left leg/knee condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a right leg/knee condition, other than right lower extremity sciatic nerve radiculopathy, at any time during or approximate to the pendency of the claim. 2. The Veteran’s service-connected disabilities preclude substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for service connection for a right leg/knee condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to TDIU have 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 November 1971 to July 1973. The Board notes that in December 2020, the Agency of Original Jurisdiction (AOJ), sent letters to the Veteran’s former employers regarding his TDIU claim. The employers have not responded. But because the Board is granting TDIU, there is no prejudice to the Veteran. 1. Service Connection for a Right Leg/Knee Condition The Veteran asserts that he is entitled to service connection for a right leg or knee condition other than his already service connected right lower extremity sciatic nerve radiculopathy. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a right leg or knee condition, other than his already service-connected sciatic nerve radiculopathy and has not had such condition at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran has been treated for right leg and knee pain, it has been associated with his already service-connected conditions. See, e.g., January 2018 VA Treatment Record; March 2018 VA Treatment Record. There is no indication in the medical evidence of record that the Veteran has complained of, treated for, or diagnosed with any other right leg or knee conditions. Therefore, a separate grant of service connection or separate rating for the pain resulting from sciatic nerve radiculopathy cannot be assigned without pyramiding (compensating the same sign or symptom twice). 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). While the Veteran believes he has a current diagnosis of right leg or knee disability other than right lower extremity sciatic nerve radiculopathy, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing to provide a diagnosis or an opinion on the etiology of pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for a right leg or knee condition, other than sciatic nerve radiculopathy, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 2. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017). The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase “unable to secure and follow a substantially gainful occupation” under 38 C.F.R. § 4.16 (b). The Court defined the term to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component, which is pertinent in this case, includes consideration of: The Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran has met the schedular criteria for the entire appeal period. See 38 C.F.R. § 4.16(a). But the Board must still consider whether his service-connected disabilities have precluded him from securing and following substantially gainful employment for that period. See 38 C.F.R. §§ 3.341, 4.16(a); see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In his July 2018 Application for Increased Compensation Based on Unemployment (Application), the Veteran asserted he became unable to work due to his lumbar spine and leg disabilities disease in 2005. In a later October 2020 Application, he broadened his claim, asserting he was also unable to work due to his psychiatric disability. During an October 2018 VA examination for his psychiatric condition, the Veteran reported after he left active-duty service he went to art school to become a commercial artist but could not survive on minimum wage and began working unloading cars from railroad cars for a dealership, which he did for 12 years. He then ran a fishing boat for one year and then worked various construction jobs. In a November 2020 statement, the Veteran reported that he worked as cable technician in 1996 but was not able to complete tasks because he took frequent breaks due to pain in his back and leg and was eventually let go. He stated he tried to work again in 2004 at a car wash but was not able to meet the expectations of job and was only employed for two weeks. Finally, he last worked in 2005 as manufactured home salesperson for a few months. He described the position as a sedentary position, but he could not sit long enough to work and had to get up every 30 minutes to an hour and walk around due to pain. He was reprimanded and eventually fired for his frequent need to stand and walk. The Veteran has difficulty dressing and bathing. He asserted that because of his back pain, he would have to take too many breaks, could not focus due to pain, has not regularly used a computer in years and does not feel he could keep up with technology if he were to attempt to work. He argued that his most recent experience in sales shows that he could not do a desk job. Turning to the medical evidence of record, an October 2018 VA examination report shows that due to his lumbar spine disability, the Veteran experiences pain after prolonged sitting or standing or walking for more than 5 minutes. He stated that during flare-ups, which could last for 2 to 3 days, he could not move around much. The examiner noted that the Veteran could not do the physical aspects of employment and had difficulty bending, stooping, squatting, sitting or standing for prolonged periods, or engaging in physical activity due to his back disability. The examiner also reported that the Veteran’s right lower extremity radiculopathy results in difficulty walking or prolonged standing. Considering the Court’s holding in Ray, the Board finds significant that the Veteran held jobs requiring physical labor for most of his working life. And even for the short period during which the Veteran held a sales job requiring him to sit at a desk, he was unable to successfully maintain employment due to his need for very frequent breaks to alleviate pain resulting from his physical disabilities. Having considered the Veteran’s history, education, skill, and training along with the evidence of record, the Board finds that the Veteran has been rendered unable to obtain and maintain a substantially gainful occupation due to the physical limitations resulting from his service-connected disabilities. REASONS FOR REMAND 1. Increased Rating for Lumbosacral Strain with Degenerative Arthritis The October 2018 VA examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. And while the examiner stated that an opinion could not be provided without resorting to speculation unless the Veteran was examined during a flare-up, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. 2. Earlier Effective Date for an Increased Rating for Lumbosacral Strain with Degenerative Arthritis A decision on the remanded issue of an increased rating for lumbosacral strain with degenerative arthritis could significantly impact a decision on the issue of the effective date for the rating, the issues are inextricably intertwined, and a remand of the claim is required. 3. Increased Rating for Right Lower Extremity Sciatic Nerve Radiculopathy In a December 2020 statement, the Veteran asserted that his right lower extremity radiculopathy has increased in severity since he was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right lower extremity radiculopathy. 4. Service Connection for a Left Leg/Knee Disability VA treatment records document a history of left lower extremity radiating pain. See, e.g., VA Treatment Records dated in October 2011, December 2014, and January 2018. The October 2018 VA examiner documented mild constant pain, mild paresthesias and dysesthesias, mild numbness, and diminished reflexes in the Veteran’s left lower extremity. While examiner did not diagnose any disability related to the Veteran’s left lower extremity, and also did not discuss the symptomatology documented during or prior to the examination or explain why those symptoms did not warrant a diagnosis. Additionally, a January 2017 VA treatment record includes a diagnosis of left knee degenerative joint disease and suggests that the diagnosis could be aggravated pain or the result of an altered gait resulting from trying to protect his knee or back. But the Veteran has not been afforded a VA examination for his left knee. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbosacral strain with degenerative arthritis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing and must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right lower extremity sciatic nerve radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 3. Schedule the Veteran for a VA examination for his claimed left knee/leg disability. The examiner must review the claims file and specifically discuss the Veteran’s history of left lower extremity radiating pain and left knee degenerative joint disease. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Is any knee or leg disability at least as likely as not proximately due to the Veteran’s service-connected lumbosacral strain with degenerative arthritis? Is any knee or leg disability aggravated, i.e., worsened beyond its natural progression, by the Veteran’s service-connected lumbosacral strain with degenerative arthritis? DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mine, Eric 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.