Citation Nr: 21015973 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 13-03 931 DATE: March 18, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Beginning September 13, 2010, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to TDIU on an extraschedular basis prior to September 13, 2010 is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability is not etiologically related to his time in service, to include as secondary to any service-connected disability. 2. Beginning September 13, 2010, the Veteran has been unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3.310. 2. The criteria for entitlement to TDIU were met effective September 13, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to February 1971. He appeals a July 2011 rating decision by the Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for a right knee disability. Additionally, the Veteran has been granted TDIU effective February 1, 2012, and the issue of an earlier effective date is on appeal as well. This case was previously before the Board. Most recently, in September 2020 and remanded for additional development. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Right Knee The Veteran has a diagnosed right knee disability, namely tri-compartment arthritis of the knees bilaterally. See August 2018 VA examination report. Generally, the Veteran attributes his knee disability to his service-connected back disability. Id. As to nexus, the October 2020 VA opinion opined that the Veteran’s right knee disability is less likely than not caused by his service-connected low back disability, or sciatica in each lower extremity. The examiner reasoned that there is no direct relationship between a low back disorder and a knee disorder. Further, the examiner stated that there are other causes of the knee osteoarthritis that are much more likely to be the cause and/or source of aggravation for the Veteran’s knee osteoarthritis, specifically his weight and the weakness in the right leg due to his stroke in 1999. Ultimately, the examiner concluded that there is no evidence in the medical record of a disorder causing or contributing to/aggravating the Veteran’s knee condition. See October 2020 VA opinion. As to aggravation, the examiner stated that it is less likely than not that the Veteran’s right knee disability was aggravated by his service-connected low back disability, or sciatica in each lower extremity. He provided identical rationale contained in the previous causation opinion. Id. As noted, the Veteran contends that his right knee disability is related to his service-connected back disability. See August 2018 VA examination report. The Board notes that the Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran’s right knee disability is attributable to in-service events or secondary to his service-connected disabilities cannot be determined by mere observation alone. The Board finds that determining the etiology of the Veteran’s right knee disability is not within the realm of knowledge of a non-expert and concludes that his opinion in this regard is not competent evidence and therefore not probative of whether his right knee disability is attributable to service, or secondary to a service-connected disability. Accordingly, the Board affords considerable probative weight to the opinion of the October 2020 VA examiner. The opinion was drafted by a medical doctor, based on a review of the evidence in the claims file, and supported by adequate rationale. Therefore, service connection for a right knee disability is denied because the preponderance of the evidence weighs against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to TDIU prior to February 1, 2012 The Veteran has been granted TDIU beginning February 1, 2012. He contends that he should be entitled to an earlier effective date. Total disability will be considered to exist where there is present any impairment of mind and 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 for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). As a preliminary matter, the Board notes that the Veteran first met the schedular requirements for TDIU on September 13, 2010. As of September 13, 2010, the Veteran was service-connected for the following disabilities: a low back disability, rated as 50 percent disabling; diabetes, rated as 20 percent disabling; right sciatica, rated as 10 percent disabling; and left sciatica, rated as 10 percent disabling. Overall, his total disability rating was 70 percent. Notably, the Board finds that there is compelling evidence that the Veteran was unable to secure and follow substantially gainful employment based on the combined effect of his service-connected disabilities prior to the date he met the schedular requirements for TDIU. As such, extraschedular consideration will be addressed in the remand section of this decision below. In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board will consider the following factors: (1) the Veteran’s occupational 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 by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). “Substantially gainful employment” is employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). The Veteran has maintained that he last worked full time in May 2010. See September 2017 VA 21-8940. In a November 2017 correspondence, he stated that he had been retired for seven and a half years—which is consistent with the May 2010 timeframe of his reported date of last employment. See November 2017 Veteran statement. After review of the record, the Board finds that the criteria for entitlement to TDIU have been at least as early as September 13, 2010. Specifically, the Veteran stated that he retired from his job as a forklift driver at a warehouse in May 2010. He worked for the same company from 1979 to 2010. See October 2017 VA Form 21-8940. The Veteran’s coworker submitted a statement explaining that the Veteran’s back problems inhibited his ability to work, and but for the help provided by his friends on the job, he would not have lasted as long as he did there. See January 2014 coworker statement. The Veteran also submitted a statement echoing the same sentiments, and noted he received help from friends at work because his back problems prohibited him from doing various jobs, and ultimately, he was forced to retire because of his service-connected disabilities. See February 2014 Veteran statement. The Veteran’s back disability, coupled with his service-connected bilateral lower extremity sciatica, has been noted by various VA examiners to impede his employability. The April 2015 VA examiner stated that the Veteran’s back disability would limit him to sedentary sitting occupations. See April 2015 VA examination report. Further, the Veteran reported to a June 2013 VA examiner that he ceased working in May 2010 due to his back pain and right lower extremity pain. Notably, he informed the examiner that his coworkers had been “covering for me” for six years prior to his actual retirement date. See June 2013 VA examination report. Thus, it appears the Veteran’s back pain and associated sciatica were possibly affecting his ability to do his job as early as 2004. Moreover, the July 2010 VA examiner stated that the Veteran’s “employment was affected by his chronic back pain and sciatica in that he has pain getting off and on the forklift, which he has to do numerous times a day, and occasionally he would have to do some bending and lifting.” See July 2010 VA examination report. The examiner noted that the Veteran would require help from coworkers to do the unloading of pallets. Id. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical clinician. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical clinician’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Beginning September 13, 2010, the Board finds that the Veteran’s back disability and associated sciatica made it impossible for him to continue his job at the warehouse where he worked as a forklift driver. He was unable to sit for the hours required to do the driving, and especially unable to do any required lifting. Just about all the Veteran’s work history and experience post service was as a forklift driver. As outlined above, the Veteran worked the same job as a forklift driver for 31 years. He has a high school education, but no further education or training that would allow him to pursue other vocational opportunities. See July 2013 VA Form 21-8940. Therefore, the Board finds that the Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment at least as early as from September 13, 2010. Accordingly, the criteria for TDIU have been met from September 13, 2010, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to TDIU on an extraschedular basis prior to September 13, 2010 is remanded Prior to September 13, 2010 the Veteran did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b) provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation Service, for consideration of an extraschedular rating of unemployability. The Board is prohibited from awarding extraschedular TDIU in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). For the reasons stated in the “TDIU” section above, the Board finds that there is compelling evidence that the Veteran was unable to secure and follow substantially gainful employment based on his service-connected disabilities prior to September 13, 2010. Accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service. The matters are REMANDED for the following action: 1. Refer the matter of entitlement to TDIU prior to September 13, 2010 to the Director of the Compensation Service for extraschedular consideration. 2. After completing the above to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.