Citation Nr: 21013467 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 190618-10114 DATE: March 9, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s left knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran’s right knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran’s service-connected disabilities do not meet the scheduler requirements for a TDIU nor do they render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 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, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1961 to November 1963. The rating decision on appeal was issued in June 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the June 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. In August 2019, the Board denied, in part, the Veteran’s claims of service connection for bilateral knee disabilities and TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued an Order that granted a Joint Motion for Partial Remand (JMPR) filed by counsel for the Veteran and VA, vacated the Board’s decision on these issues, and remanded the matters to the Board for readjudication in compliance with the JMPR. 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. In the August 2020 JMPR, the parties agreed that the Board provided an inadequate statement of reasons or bases when denying the Veteran’s claims for entitlement to service connection for bilateral knee disabilities in its August 2019 decision. Specifically, the Board erred when it based its denial on conclusions not supported by the record, as well as by substituting its own judgment on a medical matter without the medical authority to do so. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307 (a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. The Veteran has a current diagnosis of degenerative joint disease of the bilateral knees as evidenced by VA treatment records. See July 2018 VA Communication note. Arthritis (and osteoarthritis) are enumerated conditions under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Initially, the Board notes that aside from the inclusion of “R & L Knees” on his October 2018 claims form, the Veteran has not identified an in-service injury or event to which the current knee disabilities are causally related, has not asserted that his knee disabilities manifested to a compensable degree within one year from separation, or that he has had continuity of symptoms since service. The Veteran’s service treatment records are silent for complaints of or treatment for any knee disability. The September 1963 Report of Medical Examination at separation indicates normal lower extremities with normal strength and motion. Moreover, in a September 1963 Report of Medical History, the Veteran indicated that he did not have nor had he ever had arthritis, bone or joint deformity, lameness, or a “trick” or locked knee. Despite consistent VA treatment beginning in March 2004, the first indication of any knee complaints appears in July 2018 VA treatment reports while the Veteran was receiving in-patient care for another disability. During a November 2018 VA Primary Care examination, the Veteran reported right knee pain that had been ongoing for “months.” While a VA medical opinion has not been obtained, the Board finds that one is not required before adjudication of this appeal. VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). In this case, the Board finds that the second prong of McLendon is not met. There is simply no evidence of record establishing that an event, injury, or disease occurred in service, or establishing that the Veteran’s degenerative joint disease manifested during an applicable presumptive period. The Board finds that the preponderance of the evidence supports a finding that there was no in-service incurrence or aggravation of a disease or injury of the bilateral knees. Accordingly, the Veteran has not met the standards for direct service connection. Furthermore, presumptive service connection for a chronic disease is not warranted under 38 C.F.R. § 3.309(a) as there is no evidence to show that degenerative joint disease of the bilateral knees manifested to a compensable level with in the first year post service or that the Veteran has had continuity of symptoms since service. The Veteran himself has asserted he incurred bilateral knee disabilities during service, or as a result of an in-service disease, injury, or other incident of service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, orthopedic disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. Additionally, the Board finds the Veteran’s lay assertions to lack credibility, as they are contradicted by the remainder of the record. As noted above, the service treatment records are negative for any diagnosis of or treatment for a disability of either knee, and no such disability was noted at service separation. The remainder of the record also reflects a lack of treatment of any knee disabilities for many years following service. For all the above reasons, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for bilateral knee disabilities. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to a TDIU. The Veteran contends he is unemployable due to his service-connected disabilities. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service (Director) for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran’s only service-connected disability at the time of the June 2019 rating decision on appeal is a noncompensable old left foot fifth metatarsal fracture without sequela. Therefore, the Veteran does not meet the schedular rating criteria for TDIU. The Board will thus consider whether referral for extraschedular consideration is warranted. The central inquiry in entitlement to TDIU is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor that takes the veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). On his November 2018 Application for Increased Compensation Based on Unemployability, the Veteran indicated he had been self-employed as a commercial equipment salesperson from January 1966 to August 2010. He indicated that his highest level of education completed was high school. The Veteran’s DD-214 lists his military specialty as supply handler and stock clerk. An August 2014 VA examiner opined that the Veteran’s left foot disability had no functional impact on his ability to perform any type of occupational task; while a March 2019 VA examiner opined that the Veteran was limited to a sedentary-type job that did not require prolonged standing or prolonged ambulation activities due to his service-connected foot disability. However, upon further review, it is evident that the March 2019 VA examiner incorrectly examined the Veteran’s nonservice-connected right foot and based his opinion regarding occupational functional impact on the nonservice-connected right foot disability. Indeed, VA treatment records noting surgical intervention on the Veteran’s right foot confirm his statements regarding the medical history of his foot disability during the March 2019 VA examination. See December 2018 VA VIST Inpatient Note. Therefore, the Board affords no probative value to the March 2019 VA examiner’s opinion. Further, there is no evidence in the Veteran’s VA treatment records indicating or supporting a worsening of the Veteran’s left foot disability between the August 2014 VA examination and the June 2019 rating decision on appeal. In consideration of the entire evidence of record, the Board finds that the preponderance of evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment due to his single service-connected disability at the time of the June 2019 rating decision on appeal. The most probative evidence of record indicates that the Veteran’s left foot disability has no functional impact on his ability to perform any type of occupational task. There is no evidence to the contrary. Based on the forgoing, the Board finds that the Veteran is not entitled to TDIU and referral to the Director for consideration of entitlement to TDIU is not warranted. T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.