Citation Nr: 21075321
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 15-43 916
DATE: December 20, 2021

ORDER

Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee disability is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

REMANDED

Entitlement to service connection for right foot disability is remanded.

Entitlement to service connection for left foot disability is remanded.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's degenerative arthritis of the left knee disability was manifested by painful motion, with limitation of flexion at most to 70 degrees during flare-ups with full extension; but not by limitation of flexion to 45 degrees or less limitation of extension to 10 degrees or more, removed or dislocated semilunar cartilage, tibia and fibula impairment, or ankylosis.

2. The Veteran did not return a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and the evidence of record shows that the Veteran was employed throughout the period on appeal, and there is no evidence such employment was not substantially gainful.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for degenerative arthritis of the left knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260.

2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from September 1979 to September 1986.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision and a February 2020 decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Board previously remanded these claims in November 2018 and March 2021 for additional development. As the actions specified in the remand have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. 

In response to the Board's November 2018 and March 2021 remand directives, the RO sent the Veteran letters in October 2019, April 2021, and June 2021 requesting that he complete and return a VA Form 21-8940. To date, the Veteran has not responded to any of VA's requests. Given the decision by the Veteran not to participate in any further development of his claim, the Board points out that the duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that, as the Veteran has rejected VA's attempts to generate the necessary information to assist with substantiating his claim, there is no duty to seek further development. 

Neither the Veteran nor the record has raised any other issues with regard to VA's duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). As such, the Board will proceed with appellate consideration of the issues on appeal. 

Increased Ratings

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.

The veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

1. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee disability

Throughout the period on appeal, the Veteran has generally asserted that his left knee disability is worse than currently rated.

The Veteran's degenerative arthritis of the left knee disability is evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 

The Board notes that the schedular criteria for rating for the musculoskeletal system, to include the knee, have been amended once during the pendency of the Veteran's appeal, effective February 7, 2021. See 85 Fed. Reg. 76,453  (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 

The Board notes that, pertinently, Diagnostic Codes 5003, 5010, 5055, and 5257 were amended. The other rating criteria applicable to the knee have not been changed. 

Prior to February 7, 2021, Diagnostic Code 5003 provided that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is to be assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.

Effective February 7, 2021, Diagnostic Code 5003 expressly excludes application to post-traumatic arthritis. The rest of the rating criteria remained unchanged.

Prior to February 7, 2021, Diagnostic Code 5010 provided that arthritis due to trauma, substantiated by X-ray findings, should be rated as degenerative arthritis and referred to Diagnostic Code 5003.

Effective February 7, 2021, Diagnostic Code 5010 provides that post-traumatic arthritis is now rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints affected, each rating shall be combined in accordance with § 4.25.

Under Diagnostic Code 5010, applicable to traumatic arthritis, traumatic arthritis is rated as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 provides for rating on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. 

Degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a , Diagnostic Codes 5003, 5010.

Under Diagnostic Code 5260, which contemplates limitation of leg flexion, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, which contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

For reference, normal range of motion of the knee is 140 degrees of flexion and zero degrees of extension. See id. at Plate II.

Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005).

Under Diagnostic Code 5257, which contemplates recurrent subluxation or lateral instability, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability of the knee; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

The Board observes that the words "slight," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 also address ratings for knee disabilities. However, in this case, the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256), dislocated semilunar cartilage (Diagnostic Code 5258), symptomatic removal of the semilunar cartilage (Diagnostic Code 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263); thus, the Diagnostic Codes pertaining to such impairments are not applicable.

When evaluating disabilities of the musculoskeletal system predicated on limitation of motion, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity, or atrophy of disuse. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during periods of flare-up. See DeLuca, 8 Vet. App. at 206; see also Johnson v. Brown, 9 Vet. App. 7 (1996).

In determining if a higher rating is warranted on this basis, it is important to note that pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements of the body with normal excursion, strength, speed, coordination, or endurance, as provided in 38C.F.R. §4.40. Id. at 38. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor, for example, deformity, adhesion, atrophy, tendon tie-up, see 38 C.F.R. §§ 4.40, 4.45, that actually limited motion. Id. at 37.

The Veteran contends his left knee disability, diagnosed as degenerative arthritis status post arthroscopy and meniscectomy, is more severe than his current disability rating reflects. His symptoms are rated as 10 percent disabling throughout the appeal period. The Board notes that the Veteran filed his claim for an increased rating in April 2014; therefore, the following analysis considers the relevant evidence of record up to one year prior to the date of claim. For the following reasons, the Board finds that a rating in excess of 10 percent is not warranted at any time during the period on appeal.

Turning to the relevant evidence of record, the Board initially notes that VA treatment records show that the Veteran has consistently reported and sought treatment for chronic left knee pain throughout the duration of the period on appeal. During this period, the Veteran has attempted to treat his pain with over the counter and prescribed pain medications, cortisone injections, and use of a brace.

The Veteran was provided with VA examinations in October 2014, September 2019, and August 2021. During the October 2014 examination, the Veteran described experiencing persistent left knee pain, made worse by any prolonged activities such as walking, standing, going up and down the steps. 

Range of motion testing revealed the Veteran to have flexion to 120 degrees and full extension to 0 degrees. Pain was noted on both flexion and extension that does not result in functional loss. There was no additional loss of function or range of motion following repetitive-use testing.

The examiner noted a history of a left knee meniscectomy, characterizing the residuals of that surgery as periodic swelling, chronic constant pain, noticeable hypertrophic changes-left knee. Ankylosis was not present. Joint stability testing and muscle strength were within normal limits. Pain on palpation of the knee was noted. There was no history or evidence of recurrent subluxation or lateral instability. The examiner noted that the Veteran occasionally employs the use of a cane.

The Veteran underwent a VA knee examination in September 2019. Upon examination, the Veteran described experiencing persistent left knee pain worsened by prolonged walking, especially on inclines and uneven surfaces. He reported experiencing flare-ups during the wintertime.

Range of motion testing revealed the Veteran to have flexion to 120 degrees and full extension to 0 degrees. Pain noted on flexion, extension, passive motion, weight-bearing and non-weight bearing did not result in functional loss. There was no additional loss of function or range of motion following repetitive-use testing. The examiner noted an observation of crepitus, but no instability. Joint stability testing and muscle strength were within normal limits. Localized tenderness on palpation of the knee and tenderness at the base of the kneecap was noted. There was no history or evidence of recurrent subluxation, lateral instability, or recurrent effusion and muscle strength was noted to be normal with no atrophy or shin splints. The examiner noted that the Veteran occasionally employs a brace on his left knee, particularly when he goes for walks.

Pursuant to the Board's March 2021 remand, the Veteran underwent another VA knee conditions examination in August 2021. Upon examination, he reported pain and achiness in his left knee which he characterized as moderate but worsening with activity. He reported experiencing flare-ups of his left knee disability which are precipitated by activity. He stated that flare-ups occur daily and last for all day. They are alleviated with rest, using a hot tub, and stretching his knee.

On examination the Veteran had left knee flexion to 95 degrees and full extension to 0 degrees. There was pain on active motion, passive motion and weightbearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Veteran performed repetitive use testing of the left with at least three repetitions, which revealed additional functional loss due to pain and range of motion recorded as flexion to 80 degrees and extension to 0 degrees. The Veteran was not examined immediately after repetitive use over time. However, the examiner noted that the Veteran's statements suggested that pain in both knees significantly limits functional ability with repeated use over time and estimated range of motion in the left knee after repeated use to be flexion to 75 degrees and full extension to 0 degrees.

The examination did not take place during a flare up, but examiner estimated that after repetitive use over time and during flare-ups the Veteran would have left knee flexion to 70 degrees and full extension to 0 degrees. Sharp, 29 Vet. App. at 3436. The examiner stated that there was no ankylosis or loss of use. The examiner stated that the Veteran experiences frequent episodes of joint pain following his left knee meniscectomy.

The Veteran did not have muscle atrophy in the left knee. The examiner found that there was no history of recurrent subluxation or persistent instability. The Veteran did not have recurrent patellar dislocation, "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner noted that the Veteran occasionally employs a brace on his left knee.

There is no evidence that the above examiners were either not competent or credible. Further, each examiner based their assessment of the left knee disability on both the Veteran's reports of his symptoms, as well as their own objective examinations of the left knee joint. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's bilateral knee disabilities during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Board notes that the October 2014 and September 2019 examiners did not estimate range of motion loss during flare-ups, and that the required testing for pain was not conducted in the examinations prior to August 2021. However, this does not vitiate the probative value of the other findings contained in the examination reports. Further, the required testing for pain and an estimate of range of motion loss during flare-ups were obtained in the subsequent August 2021 examination. As such, the Board finds there is sufficient evidence to accurate rate the Veteran's disabilities.

Based on a careful review of the evidence, an increased rating based on limitation of flexion is not warranted in this case. The Veteran's currently assigned 10 percent rating contemplates painful motion of the joint without compensable limitation of motion. 38 C.F.R. § 4.59, 4.71a, Diagnostic Code 5260. The VA examination from the period on appeal clearly demonstrates that the Veteran has left knee flexion that is not limited to 45 degrees required for a compensable rating based on limitation of motion or with the limitation to 30 degrees required for an increased rating in excess of 10 percent based on limitation of flexion. Based on the foregoing, the Board finds that the Veteran's left knee disability does not more nearly approximate the level of severity contemplated by a 20 percent rating, as at no point during the period on appeal has the medical evidence shown limitation of flexion to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board is sympathetic to the Veteran's reported left knee symptomatology; however, there is no basis upon which to award a disability rating in excess of 10 percent for his left knee disability under Diagnostic Code 5260.

In reaching the above conclusions, the Board is cognizant that the Veteran has consistently reported experiencing left knee pain, weakness, stiffness, and swelling throughout the period on appeal, particularly during periods of flare-up or after repetitive use. The Board has considered these reports, as well as any additional limitations of motion due to pain (including difficulty walking and standing). However, even considering additional limitation of motion or function of the knee due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, DeLuca), the evidence still does not show that the left knee disability more nearly approximates the criteria for higher ratings under either Diagnostic Codes 5260 or 5261 for limitation of motion in flexion or extension. Moreover, as the Veteran's subjective reports of pain and painful motion are already contemplated by his currently assigned 10 percent rating as it does not contribute to additional functional loss, therefore the assignment of a higher rating under DeLuca is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59.

The Board is aware of the United States Court of Appeals for Veterans Claims (Court) decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017), holding that when flare-ups are an indicated part of a claimant's service-connected disability, VA examiners are obligated to elicit information concerning the "severity, frequency, duration, or functional loss manifestations" of flare-ups. As discussed above, the Veteran denied flare-ups during his most recent VA examination rendering Sharp inapplicable as examiners are only required to attempt to provide estimates concerning loss of motion during flare-ups when a Veteran in fact endorses flare-ups upon examination. Id. With respect to Correia v. McDonald, the December 2019 C&P report reflects pain in non-weight-bearing and in passive situations but does not indicate additional functional loss. The Board finds the concerns of Correia have been adequately addressed. See Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint).

Finally, the Board has considered whether the Veteran is eligible for a separate rating under any other potentially applicable diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran is already in receipt of a separate 20 percent rating for residual signs of symptoms due to a meniscectomy and arthroscopic ligament repair under Diagnostic Code 5258 and left knee scars associated with degenerative arthritis of the left knee, status post arthroscopy and meniscectomy. Moreover, as noted above, there is no evidence during the period on appeal of ankylosis, removed semilunar cartilage, tibia and fibula impairment, or genu recurvatum in the left knee. As such, the Board finds that separate ratings under Diagnostic Codes 5256, 5262, or 5263 are not warranted.

In reaching the above conclusions, the Board acknowledges that the Veteran sincerely believes his symptoms are more severe than contemplated by his currently assigned 10 percent rating for his left knee disability. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of pain and other symptomatology. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno, 6 Vet. App.at 469-71. While the Board has considered the lay statements of record and has given them appropriate weight where they are consistent with the objective medical evidence of record, the Board has accorded greater probative weight to the objective evidence of record as VA clinicians and examiners have the requisite medical training and expertise to make complex medical determinations. Therefore, the medical evidence is more probative regarding the current level of severity of the Veteran's disability, and the most probative medical evidence has shown that his left knee disability is no more than 10 percent disabling under the applicable criteria.

In summary, the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the Veteran's left knee disability under Diagnostic Code 5260. Therefore, the benefit-of-the-doubt rule does not apply and the Veteran's claim for an increased rating for his left knee disability must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) 

The Veteran's claim for a TDIU was raised during the pendency of his appeal for an increased rating for a bilateral knee disability, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran continues to assert that his service-connected disabilities prevent his from securing and following a substantially gainful occupation.

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. 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." See 38 C.F.R. §§ 3.340(a)(1), 4.15.

TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363.

The phrase "unable to secure and follow a substantially gainful occupation" has been interpreted to consist of two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 7274 (2019). 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. Id. at 73.

With respect to the noneconomic component, when determining whether a veteran can secure and follow a substantially gainful occupation, consideration should be given to the following: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required; and, (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. at 7374.

In this case, the Veteran has a both a single service-connected disability ratable at 60 percent or more and a combined rating of 70 percent or higher and a single disability rated at least 40 percent disabling. 38 C.F.R. §§ 4.16(a), 4.25. As such, the threshold rating requirements for a TDIU are met. 38 C.F.R. § 4.16(a).

Turning to the relevant evidence of record, on October 2019, April 2021, and June 2021, the VA sent the Veteran correspondence requesting that he complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Veteran has not completed and submitted a copy of the form to the VA. 

Potentially relevant evidence could have been provided by the Veteran through the filing of VA Form 21-8940, to include his full employment history, income, training and education, and specific circumstances of prior employment. 

Moreover, the Veteran's own statements and medical records reflect that during the period on appeal he has worked as a mail carrier and clerk for the United States Postal Service. He has reported difficulties with some of his employment activities but has also, throughout the period on appeal, reported full-time employment with the USPS for the past ten years in a November 2015 VA mental disorders examination as well as continued full-time employment in June 2016, July 2017, March 2018, September 2019, July 2020, and March 2021 VA treatment records. 

As a final matter, the TDIU claim is not intertwined with the service connection claims being remanded below. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). It is axiomatic that in order to be entitled to a TDIU one must in fact be unemployed, or capable of being considered unemployed. Only when unemployment, either actual or functional, has been established is the disability or disabilities underlying such unemployment relevant.

There is no question that the Veteran's bilateral knee disability impacts his ability to work. However, based on the evidence of record, the Board cannot determine with any reasonable specificity when the Veteran has worked and how much income he has earned. Thus, the Board is unable to determine eligibility for TDIU benefits. The Veteran has failed in his duty to provide VA information solely within his control. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim). Moreover, the preponderance of the evidence of record shows that the Veteran has been able to maintain employment throughout the period on appeal, and there is no evidence showing that such employment was either not gainful. As such, entitlement to a TDIU is not warranted in this case. On this record, the Veteran has not met his burden of establishing entitlement to a TDIU, therefore, must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

REASONS FOR REMAND

Unfortunately, the remaining claims must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these matters so that the Veteran is afforded every possible consideration.

1. Entitlement to service connection for right foot disability is remanded.

2. Entitlement to service connection for left foot disability is remanded.

As an initial matter, as the facts and analysis are the same for both of these claims, the Board will address them together for the purposes of brevity.

The Veteran seeks entitlement to service connection for a bilateral foot disability which he contends was incurred in, caused, or aggravated by military service. Alternatively, the Veteran contends his bilateral foot condition is secondary to his service-connected bilateral knee disability.

The Veteran underwent a September 2019 VA examination to determine the nature and etiology of his bilateral foot disability. The examiner confirmed diagnoses of bilateral hammer toes and calcaneal spurs. The examiner opined that it was less likely than not that the Veteran's bilateral foot disability were directly related to service or caused or aggravated by the Veteran's service-connected left knee disability. The condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner based his negative opinion solely on a lack of documented injuries to the feet during service and the fact that the Veteran's bilateral foot conditions were not diagnosed until many years after service. The Board finds that the opinion, which was based on an absence of medical records without full consideration of the Veteran's competent lay reports, are inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007).

In regard to secondary service connection, the examiner opined that the Veteran's bilateral foot conditions were less likely than not caused or aggravated by the Veteran's service-connected disabilities, to include his service-connected left knee disability, stating that no documentation or medical literature supports this claim. The Board finds this opinion inadequate for a number of reasons. First, the Board finds this opinion to be conclusory and unsupported by sufficient rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion).  Next, the Board finds that the opinion was based on an absence of medical records without full consideration of the Veteran's competent lay reports, rendering it inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). 

In the March 2021 remand, the Board directed the RO to obtain an addendum medical opinion from a qualified VA examiner to assess the nature and etiology of the Veteran's bilateral foot disability, to include his contention that his bilateral foot disability is related to his service-connected bilateral knee disabilities. The Board notes that between the Veteran's September 2019 examination and August 2021 examination, service connection was granted for the Veteran's right knee disability. Therefore, the Veteran's claim for service connection for a bilateral foot condition secondary to a left knee disability was recharacterized to service connection for a bilateral foot condition secondary to a bilateral knee disability.

Pursuant to these instructions, an addendum opinion was obtained in August 2021. The VA examiner opined that the Veteran's bilateral foot disability is less likely than not proximately due to or the result of his service-connected bilateral knee disabilities, citing to PubMed.gov articles listing causes of plantar fasciitis, hammer toes, and calcaneal spurs. However, the examiner did not explain how these medical findings relate to the specific facts of the Veteran's case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, and sound reasoning for the conclusion that contributes to the probative value of a medical opinion); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion). Moreover, the examiner did not address the matter of aggravation, as is required when evaluating a claim under the theory of entitlement of secondary service connection. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 

In light of the above, the Board finds that the Veteran's claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009).

Accordingly, the matters are REMANDED for the following action: 

1. Provide the entire claims file to a medical doctor (M.D.) to determine the nature and etiology of any diagnosed bilateral foot disability. The examiner must review the Veteran's entire claims file, to include a copy of this REMAND, and that review must be noted in the examination report. All clinical findings considered as well as lay statement should be reported in detail.

If an examination is required to provide the opinions requested, such should be scheduled.

The examiner must set forth all currently diagnosed bilateral foot disabilities, including those diagnosed during the pendency of the appeal (since November 2013), even if currently resolved.

Thereafter, the examiner is asked to provide an opinion with respect to the following:

(a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed bilateral foot disability is causally related to the Veteran's active service?

(b) Is it at least as likely as not (50 percent or greater probability) that that any diagnosed bilateral foot disability was caused by his service-connected bilateral knee condition?

(c) Is it at least as likely as not (50 percent or greater probability) that the that any diagnosed bilateral foot disability was aggravated (increased in severity beyond its natural progression) by his service-connected bilateral knee condition?

The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.

The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner is advised that the Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service.

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The examiner must provide a complete rationale for any opinion expressed.  If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rosenthal, Ariana

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.