Citation Nr: 21014878 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-15 705 DATE: March 16, 2021 ORDER Entitlement to service connection for a right knee strain is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 19, 2016 is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not caused or aggravated by any service-connected disability. 2. The Veteran’s left knee disability did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not caused or aggravated by any service-connected disability. 3. Prior to April 19, 2016, the Veteran met the schedular criteria for TDIU starting on January 9, 2015; but the evidence of record does not show that his service-connected disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee strain have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to TDIU prior to April 19, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 3.1000, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1974 to May 1978. These matters are before the Board of Veterans’ Appeals (Board) from April 2015 and December 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board remanded the issues on appeal for further development, specifically, to afford the Veteran with a VA examination for his knees and for a VA addendum opinion for a bladder disorder. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). Here, the RO scheduled the Veteran for examinations for the issues on appeal and, following his failure to report for the examinations, readjudicated the claims based on the evidence in the record. The Veteran has not given good cause for his failure to appear. Thus, the Board finds that the RO substantially complied with the February 2019 remand directives. The appeal originally included the issue of entitlement to service connection for a bladder condition, to include urinary incontinence. In June 2020, the RO granted service connection for urinary incontinence (claimed as a bladder condition) and assigned a 40 percent rating effective January 9, 2015. Thus, the claim for service connection for a bladder condition, to include urinary incontinence has been resolved and is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). Service Connection 1. Entitlement to service connection for a right knee strain 2. Entitlement to service connection for a left knee disability Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease; or (b) when a chronic disease is not shown as such during service, by evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA must determine 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts that his bilateral knee disabilities are caused by or aggravated by his service-connected lumbar spine disability and/or that his right knee strain was caused by or aggravated by his left knee disability. The Veteran’s statements make it clear that he contends only that these claimed disabilities are proximately due to his service-connected lumbar spine disability or his left knee disability. He has not contended that the claimed disabilities are otherwise related to active duty or may be so presumed. When neither the Veteran nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not sua sponte consider and discuss that theory. Therefore, the Board will not discuss direct service connection. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Service treatment records are silent concerning any treatment for or diagnosis of any left or right knee disability including as secondary to the Veteran’s lumbar spine disability or his left knee disability. Medical treatment records reflect the Veteran was complained of bilateral knee pain and guarding of the right knee in 1996. In 2002, private records discussed the intermittent left knee pain in conjunction with the chronic low back pain and noted that the Veteran had stiffness of the left lower lumbar paraspinal muscles that were relieved by self-manipulation. In 2003, it was noted that the Veteran received treatment for bilateral knee pain as a result of an injury, and the Veteran was diagnosed with bilateral patellofemoral pain. The March 2015 Report of VA knee and lower leg conditions examination documents diagnosis of a right knee strain; there was no diagnosis of a left knee disability. The physician opined that the right knee strain was not proximately due to or the result of the Veteran’s service-connected lumbar spine disability. The physician explained that the Veteran had some gait disturbance related to his left knee and indicated that he wore a brace. The physician further stated that the Veteran had degenerative joint disease of the lumbar spine for many years, only reported right knee pain for several months, and there was no indication that these complaints were related to his back. However as determined in the February 2019 Board remand, the March 2015 bilateral knee examination was of little probative value because there was no indication of review of the medical evidence of record, specifically including years of treatment for bilateral knee pain since at least 1996; the physician provided inadequate rationale for the opinion; and; the physician failed to provide an opinion as to whether the Veteran’s right or left knee disabilities were aggravated by his service-connected lumbar spine disability. See El-Amin v. Shinseki, 26 Vet.App. 136, 140-41 (2013). Accordingly, the Veteran was scheduled for further examination but as discussed below, he did not participate in the scheduled examination. The Veteran has continuously sought treatment for his knee disabilities through VA and private facilities, but none of them have provided any positive etiological opinion regarding the onset of the Veteran’s bilateral knee disability. Without any supporting objective medical evidence, the Board finds that claims for service connection for left and right knee disabilities, claimed secondary to service-connected lumbar spine disability and/or a left knee disability are not warranted. Given the Veteran’s refusal to cooperate with VA to obtain an adequate opinion as to etiology of his claimed left and right knee disabilities (by refusing to participate in the scheduled examination), further inquiry would not assist. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). Further, because the Veteran has not submitted any other probative opinion regarding the etiology of his claimed left and right knee disabilities (regardless of confirmed diagnoses of current left and right knee disabilities), the Board finds that there is no probative evidence of a nexus between his claimed disabilities and his service-connected lumbar spine disability upon which to grant service connection. The only evidence of record suggesting a link or nexus between the Veteran’s service-connected lumbar spine disability and his claimed disabilities comes from the Veteran himself. While the Veteran is competent to provide statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). The record does not show, nor does the Veteran contend, that he has specialized education, training, or expertise that would qualify him to render a diagnosis or render a medical opinion on this matter. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issues in this case are outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). As a final matter, the Board reiterates that the Veteran was provided an opportunity to appear at a VA examination to assist in developing his claims. The Veteran did not participate in his scheduled examination, and thus failed to take advantage of the opportunity which could have been beneficial to his claims. The Veteran’s failure to appear for his examinations thus limited the available evidence before the Board. For the reasons stated above, the Board concludes that the preponderance of evidence is against granting claims of service connection for left and right knee disabilities on any theory of entitlement raised by the Veteran or the record. Thus, there is no reasonable doubt to be resolved in the Veteran’s favor, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. TDIU prior to April 19, 2016 The Veteran asserts that his back disability, radiculopathy, left knee injury, and tinnitus prevent him from securing or following any substantially gainful occupation. Total disability will be considered to exist when there is any present impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). In exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, 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). Consideration may be given to a 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Prior to April 19, 2016, service connection was in effect for lumbar strain with degenerative joint disease (40 percent disabling); radiculopathy of the left lower extremity (20 percent disabling); urinary incontinence (40 percent disabling); and tinnitus (10 percent disabling). The Veteran had a combined evaluation of 60 percent from May 21, 2012 and 70 percent from January 9, 2015. Thus, the Veteran meets the criteria for schedular consideration of TDIU under 38 C.F.R. § 4.16(a) starting on January 9, 2015. For the Veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Turning, to the evidence of record, in a May 2012 statement, the Veteran reported that he missed a lot of work due to his back injury and was in jeopardy of losing his ability to earn a living because of it. The March 2013 VA back examination documented that the Veteran’s thoracolumbar spine disability would impact his ability to work as the disability prevented employment of a physical nature. The March 2013 VA hearing examination documents that the Veteran’ s tinnitus does not impact his ability to work. In a January 2015 statement, the Veteran reported that he was an aircraft mechanic in the Air Force and worked as a civilian helicopter and aircraft mechanic since military service. He explained that because of his service-connected disabilities he has not been able to work full time since 2012. He reported that he was hired by a company in Texas and worked for them for two weeks and one day in June 2014, but the pain in his back and in the left leg made it impossible for him to continue. He reported that he submitted applications to at least eight companies, but as soon as he walks in for the job interviews the interviewers see that he walks with a walking stick and tell him that the job is already filled. He asserted that he thought about applying for a sedentary job, but his back hurts so much that he is constantly getting up and down because of the back pain. He also reported that his hands are numb and tingle so it would be hard for him to operate a computer. In the March 2015 VA peripheral nerves examination, the examiner noted that the Veteran’s peripheral nerve disability did not impact his ability to work. In August 2015, the Veteran submitted an Application for Increased Compensation Based on Unemployability where he reported that his back and radiculopathy are preventing him from securing or following any substantially gainful occupation. He reported that his disability affected full-time employment starting on June 24, 2014 and that he became too disabled to work then as well. He worked at Alabama Aircraft Industries as an aircraft mechanic from September 2009 to March 2010, Dynacorp International as an aircraft mechanic from May 2010 to March 2013, and PAE/Defense Support Services as an aircraft mechanic from June 9, 2014 to June 24, 2014. The Veteran indicated that he left his last job because of his disability, and that he has not tried to obtain employment since he became too disabled. He indicated that he completed up to two years of college but did not have any other type of education or training. In a January 2015 Request for Employment Information by PAE/Defense Support Services, the employer reported that the Veteran started work on June 9, 2014 and ended work on June 24, 2014. The employer reported that he lost eight hours of work during this short period of time. The employer stated that the Veteran “quit due to health reasons.” In a February 2015 Request for Employment Information by DynCorp, the employer reported that the Veteran began working in May 2010 and ended working in March 2013. The employer reported that the Veteran did not lose any time in the last year of his job. The employer indicated that the Veteran was laid off from the job. In an August 2015 statement, the Veteran reported that he has been unemployed since July 2014. He explained that during his last job as a helicopter mechanic his back started to really bother him, and he requested light duty from his boss. His boss told him there was no light duty on the job and so the Veteran decided to resign because he knew he could not stand the pain associated with working on helicopters. He explained that he worked on aircrafts since 1974. He further reported that he must walk with the aid of a walking stick and cannot sit or stand in one place for more than a few minutes at a time and is constantly in pain at a 7/10 severity. An August VA Vocational Rehabilitation and Employment determination reported that the Veteran’s disabilities make it unreasonable to expect that he could use the program to obtain and maintain competitive employment. The determination reported that it was determined that the Veteran did not have any transferable skills that would enable him to work in a field that does not aggravate his service-connected disabilities. It furthered that the Veteran’s has significant disabilities that would be consistent with permanent unemployability and that it is not feasible to believe that other employers would hire him with the numerous limitations to employment he has. The December 2015 VA peripheral nerves examination reported that the Veteran’s disability did impact his ability to work since it interferes with prolonged standing and walking. In a VA thoracolumbar spine examination, the examiner noted that the Veteran’s back disability impacts his ability to work since it interferes with prolonged standing, walking, and lifting. The Veteran submitted another Application for Increased Compensation Based on Unemployability in March 2016 where he reported that his degenerative disc disease, left knee injury, and his tinnitus prevent him from securing or following any substantially gainful occupation. He reported that his disability affected his full-time employment since June 2014 and that he became too disabled to work on June 23, 2014. The Veteran listed the past two employers (the same from the previous application). The Veteran reported that he left his las job because of his disability, but that he has tried to obtain employment since he became too disabled. In an April 2016 statement, the Veteran reported that he has been unemployed since July 2014 and that during his last job his back started to really bother him. He requested for light duty, but his employer told him there was no light duty on the job. The Veteran reported that he resigned because he knew he could not stand the pain associated with working on helicopters. He stated that he went through VA Vocational Rehabilitation to see if there was something they could do for him, but he was told that he was infeasible for vocational rehabilitation. Social Security Administration (SSA) records reflect that the Veteran was granted disability benefits that began in May 2015 due to his back. The records show that the Veteran worked as an aircraft mechanic since April 2001. It also indicated that the Veteran was injured in June 2012 and that he was put on restricted duty for the rest of his employment at that job. A February 2016 examination conducted for SSA purposes reflected that the Veteran could not sit and or stand for more than five to ten minutes without causing him to shift positions for back and left knee relief. An August 2015 Counseling Record for VA Vocational Rehabilitation reported that the Veteran had vocational impairment. It explained that the Veteran’s 40 percent rated lumbar strain limits the Veteran ability to lift medium to heavy objects, sit, stand, bend, kneel, climb, walk, and stoop for long periods of time. It reported that the Veteran gets cramps and spasms periodically throughout the day. The 20 percent rated radiculopathy in the left lower extremity affected the Veterans ability to stand, kneel, and stoop for prolonged periods. It continued that the Veteran could not work in areas with continuous loud noises due to tinnitus and that his loss of bladder control prevented him from being able to perform duties without taking frequent breaks as noted during the orientation process. It further explained that the Veteran’s service-connected disabilities significantly impaired his ability to prepare for, obtain, and/or retain employment and that because of the conditions he was unable to apply transferrable skills from military training as a mechanic. The report explained that job duties associated with the occupation for which he is currently trained for require him to perform duties that will affect the impairments such as prolonged kneeling, stooping, and bending. It furthered that the Veteran’s proposed service-connected disabilities are the cause for the above limitations as he is unable to obtain, maintain, or prepare for specific employment in the labor market that does not aggravate his service connected disabilities without additional training. Based on the foregoing evidence, the Board finds that the award of a TDIU prior to April 19, 2016 is not warranted. Here, the Veteran has repeatedly been examined and reported to be unable to perform physical forms of employment, such as the occupation he last held as an aircraft mechanic. However, the evidence does not establish that the symptoms of the Veteran’s service-connected disabilities prevented him from completing the physical and mental acts required by some employment, specifically employment that does not include physical activities. While the Veteran does report that his bladder disorder requires him to use the restroom frequently, a VA examiner reported that the Veteran could still work as long as the employer was open to allowing the Veteran to use the restroom frequently. In summary, while the Board does not doubt that the Veteran’s service connected disabilities have an impact on his employability, the weight of the evidence does not support his contention that they are of such severity so as to preclude his participation in any form of substantially gainful employment. In fact, while the medical opinions of record have concluded that there is some impact on his ability to work, there is no medical opinion of record which indicates that he is unable to work. The Board finds that the symptoms associated with the Veteran’s service-connected disabilities are appropriately compensated via the currently assigned ratings. See 38 C.F.R. §§ 3.321 (a). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim for TDIU prior to April 19, 2016 must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on the next page)   The Board is cognizant of the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008), in which the Court held that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an additional disability of 60 percent or more. Here, the Veteran is in receipt of a 100 percent schedular rating for depressive disorder and has also been awarded SMC under 38 U.S.C. § 1114 (s) for the period from April 19, 2016. Accordingly, a claim for entitlement to a TDIU from April 19, 2016 is rendered moot. G. Jackson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, Associate 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.