Citation Nr: 21074708 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-11 589 DATE: December 16, 2021 ORDER Service connection for right knee strain is denied. From June 1, 2020, entitlement to a total disability rating based upon individual unemployability (TDIU) due to one service-connected disability is denied. REMANDED Entitlement to apportionment of the Veteran's VA compensation benefits based on his incarceration is remanded. Entitlement to a TDIU for the period prior to June 1, 2020 is remanded. FINDINGS OF FACT 1. The Veteran's right knee disorder was not manifest to a compensable degree within one year of separation from active-duty service and is not otherwise related to service. 2. From June 1, 2020, the evidence of record does not show that the Veteran was unable to secure or follow substantially gainful employment as a result of one service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 101, 106, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 4.71a. 2. From June 1, 2020, the criteria for a TDIU based on one disability have not been met. 38 U.S.C. § 1114(s); Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1996 to January 2000. 1. Entitlement to service connection for right knee strain 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). Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; see also Walker v. Shinseki, 708 F. 3d 1331, 1338 (Fed. Cir. 2013). In this case, however, the Veteran does not contend, and the evidence does not demonstrate, that he had a diagnosis of right knee strain during service or within a year after separation from service. In addition, the preponderance of the evidence weighs against finding that the Veteran's right knee strain began during service or is otherwise related to an in-service injury, event, or disease. A review of the Veteran's service treatment records shows the Veteran denied swollen or painful joints, arthritis, "trick" or locked knee, or other illness or injury on the October 1995 report of medical history at entrance into service. The accompanying report of medical examination showed a normal clinical evaluation of his lower extremities. A June 1998 treatment note shows the Veteran was running and felt a "pop" in his right knee, followed by a sharp pain. In his October 1999 report of medical history at separation, the Veteran denied swollen or painful joints, arthritis, "trick" or locked knee, or other illness or injury. The Veteran filed a claim of service connection for a right knee disorder in April 2014. At a March 2015 VA examination, the examiner diagnosed right knee strain. The Veteran reported that his symptoms of right knee pain began around 1996 or 1997, during his military service. He stated that he did not have any specific injuries to the knees during military service but used to run a great deal. The Veteran also stated that he had to jump from vehicles and trucks frequently, which caused his right knee pain. He was treated with pain medication during service. The examiner opined that it is less likely as not that the Veteran's current right knee disability is related to his active service. As a rationale, the examiner stated that, [T]he Veteran was in military service from 01/16/1996 to 01/15/2000, per VA rating decision. A chronological record dated January 11, 1996 noted complained of lower leg pain to the front of the right leg. The complaint of right leg pain was before the Veteran's entrance to active during, therefore, the Veteran had leg pain prior to military service. In addition, recorded complaints of a right knee condition were not found on the Veteran's separation examination. Therefore, no connection can be made between the Veteran's current right knee conditional being caused by the right knee complaint in STRs during service. The Veteran's claim of service connection was denied in an April 2015 rating decision. The Veteran disagreed with this decision and a statement of the case was issued in May 2015. The Veteran filed a substantive appeal in May 2015. In November 2018, the Board remanded the claim of service connection for a right knee disorder for additional development. Specifically, the Board found the March 2015 VA examination to be inadequate as it did not consider the Veteran's lay statements regarding his activities in service, specifically that his right knee disability was are related to lifting, carrying, and dropping artillery shells; unhitching Howitzer cannons; and moving a bladder full of water. Therefore, the Board directed the RO to obtain an addendum opinion. An addendum VA opinion was issued in March 2019. The VA examiner opined, [I]t is less likely than not that this veteran's contention that the right knee disability and left knee disability are related to lifting, carrying, and dropping artillery shells; unhitching Howitzer cannons; and moving a bladder full of water during his service (separation over 19 years ago) was the origin of his bilateral knee claims. There is no evidence to link in a cause-to-effect relationship his activities over 20 years ago to current knee strain condition and without any radiographic or orthopedic or exam evidence of any significant internal derangement of the knee that originated over 19 years ago in service. A September 2019 supplemental statement of the case continued denial of service connection for a right knee disorder. In an October 2019 statement, the Veteran contended that he is entitled to service connection for a right knee disorder because a January 2016 medical report showed that the Veteran endorsed a knee injury in service and "research shows that even joint injuries which may be considered 'trivial' at the time even by the injured party can accelerate the development of arthritis later in life." The claim came back before the Board in February 2020, at which time it was again remanded for additional development. The Board noted that the March 2015 VA examiner indicated that the Veteran had right knee pain prior to his January 1996 entrance into service; however, no opinion was offered regarding a preexisting condition or aggravation. A VA opinion was obtained in April 2021. The examiner opined that the Veteran's right knee disorder was less likely than not incurred in or caused by service. He provided the following rationale: [R]ight sided knee pain from 1996 status-post fall and pounding on the right knee while training causing a lot of pain per Veteran report. However, there is insufficient evidence from records to support that the claimed knee disability, currently diagnosed as knee strain was due to service. Therefore, it is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner provided the following rationale: [H]is knee pain did exist prior to his service time but there were no records found to indicate that it was aggravated by the service during the years of 1996 to 2000. Due to lack of supporting medical record evidence to support a baseline and evidence of an aggravation during service, it is less likely than not that the claimed knee condition was aggravated by an in-service injury, event, or illness. Upon review of the record, the Board finds that service connection is not warranted. To the extent that the March 2015 VA examiner raised the issue of a pre-existing condition, the Board finds that the Veteran was sound upon entry into service. A Veteran is presumed sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). To be "noted" within the meaning of the statute and regulation, the condition must be recorded in the entrance examination report. Id. When no pre-existing condition is noted upon entry into service, the Veteran is presumed sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that (1) the Veteran's disability both pre-existed and (2) was not aggravated by service. Here, the Veteran's service treatment records show that as part of enlistment, the Veteran underwent an examination to determine his fitness for service. No knee conditions were noted on that examination and the Veteran did not report any. A single complaint of knee pain is not sufficient to rebut this presumption. Therefore, the Veteran is presumed to have been sound upon entry for any right knee disability. Regarding direct service connection, the Board finds that the preponderance of the evidence is against the claim. Although there is evidence of right knee pain in service, it was an isolated incident, and no diagnosis of a chronic disorder was made. Additionally, the Veteran's separation examination showed a normal clinical evaluation of his lower extremities and the Veteran did not report any knee complaints. Furthermore, the VA examiner opined that it was not related to his current diagnosis as it was not diagnosed until many years after service and there is no medical evidence to support this theory of etiology. The Board is cognizant of the Veteran's lay statements regarding his knee disability. The Veteran is competent to provide evidence of lay observable symptoms. However, the VA examiner's expert opinion is more probative regarding causation and etiology as it is supported by medical principles and the examiner's specialized knowledge. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(1). Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for a right knee disorder and the Veteran's claim is denied. 2. Entitlement to a total disability rating for individual unemployability from June 1, 2020 The Board notes that a grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation (SMC). SMC may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that TDIU is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). With respect to the remaining appeal period from June 1, 2020, this case is distinguishable from both Bradley and Buie exceptions to the rule that a 100 percent combined schedular disability rating moots a TDIU. Under the unique facts of Bradley, SMC was available where a veteran had been granted TDIU based on a "less than total" 70 percent rating for only one disability and had subsequently obtained service connection for multiple orthopedic disabilities that combined to 60 percent. Under those circumstances, there was no "duplicate counting of disabilities." Bradley at 293. This case is distinguishable from Bradley because, in this case, the Veteran is not in receipt of a less than 100 percent schedular disability rating for any one service-connected disability upon which a TDIU is granted. Rather, the 100 percent schedular disability rating assigned from June 1, 2020 is based on the combined ratings of multiple service-connected disabilities. Concerning both Bradley and Buie, in this case, the Veteran is currently service connected for multiple disabilities and has previously contended that the combination of these disabilities renders him unemployable. To award a TDIU rating for the period since April 14, 2015 (when the 100 percent combined schedular disability rating began) would result in duplicate counting of disabilities. 38 C.F.R. § 4.14. As neither Bradley nor Buie is applicable, the question of entitlement to a TDIU rating has been rendered moot by the 100 percent combined schedular disability rating for all service-connected disabilities that has been in effect from June 1, 2020. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). There is no indication that any of his service-connected disabilities alone renders him unemployable. In the June 2020 VA PTSD examination, the Veteran reported that he had been unemployed since April 2020 due to his mental health symptoms. The VA examiner opined that, Claimant's depressed mood, anxiety, and panic could impact work productivity. Claimant's suspiciousness, flattened affect, impaired impulse control, and difficulty with relationships could impact professional relationships. Claimant's sleep impairment, memory loss, disturbance in mood, and difficulty adapting to stress could impact work attendance. As explained in the September 2020 rating decision, granting a 70 percent rating for PTSD and a combined 100 percent rating, his service-connected psychiatric disability causes a 70 percent level of disability, which contemplates such symptoms as difficulty in adapting to stressful circumstances (including work or a worklike setting) and inability to establish and maintain effective relationships, with deficiencies in most areas, including work. However, as indicated above by the VA examiner, the Veteran's psychiatric symptoms significantly impacted his ability to maintain a substantially gainful occupation, but the examiner did not conclude that it would preclude all types of substantially gainful occupation, such as one that had minimal interactions with others, allowed a flexible work schedule, and allowed for reasonable accommodations in terms of structuring the work environment to facilitate his limitations. See Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017). Thus, the evidence does not support a TDIU based solely on the service-connected psychiatric disability. REASONS FOR REMAND 1. Entitlement to apportionment of the Veteran's VA compensation benefits based on his incarceration is remanded. The Board issued a decision and remand remanding this issue in November 2018. In the remand portion of that decision and remand, the Board directed the Agency of Original Jurisdiction (AOJ) to "[a]djudicate on the merits the Veteran's claim for entitlement to apportionment of his VA compensation benefits based on his incarceration." In February 2020, this matter was again before the Board at which time, the Board again issued a directive to adjudicate on the merits the Veteran's claim of entitlement to apportionment of his VA compensation benefits based on his incarceration. To date, no such adjudication has been issued. Therefore, regrettably, the Board must again remand this issue for Agency of Original Jurisdiction (AOJ) adjudication. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to June 1, 2020 is remanded. Remand is necessary for additional development. In the February 2020 Board remand, the Board remanded a claim for TDIU pending adjudication of the Veteran's claim of a right knee disorder. In the June 2020 VA PTSD examination, the Veteran indicated that he was unemployed since March 2020 due to his disabilities. In a September 2020 deferred rating decision, the AOJ directed that VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. be sent to the Veteran to substantiate a claim of TDIU. To date, no form has been received. An October 2020 rating decision denied the claim, finding that the Veteran had not submitted a completed VA Form 21-8940. The Board notes that submission of VA Form 21-8940 is not required to render a decision concerning entitlement to a TDIU. While failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to address a claim for TDIU. "The duty to assist is not always a one-way street." Woods v. Gober, 14 Vet. App. 214, 224 (2000). The evidence indicates that the Veteran was unemployed for a period prior to his 100 percent rating, effective June 1, 2020. However, there is insufficient evidence available for the Board to make a decision in this matter. Therefore, remand is necessary to afford the Veteran an opportunity to submit documentation of his employment and subsequent unemployment prior to adjudication. The matters are REMANDED for the following action: 1. Adjudicate on the merits the Veteran's claim of entitlement to apportionment of his VA compensation benefits based on his incarceration. 2. Allow the Veteran an opportunity to clarify his employment history and submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for a TDIU. B. J. KOMINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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.