Citation Nr: 21031908 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-04 138A DATE: May 24, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for mild patellofemoral syndrome of the left knee is reopened. New and material evidence having been received, the claim of entitlement to service connection for a right wrist disability is reopened. Entitlement to a total disability rating based on individual unemployability (TDIU) from September 7, 2012 is granted. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected right knee disability, is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to a disability rating in excess of 50 percent prior to June 30, 2017 and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial disability rating in excess of 10 percent for right knee laxity associated with right knee retropatellar pain syndrome is remanded. Entitlement to an initial compensable disability rating prior to April 25, 2014 and in excess of 10 percent thereafter for right eye retinal pigment epithelium dropout, residual of resolved macular hole (right eye disability) is remanded. Entitlement to a TDIU prior to September 7, 2012 is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for mild patellofemoral syndrome of the left knee was previously denied by a January 2010 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Evidence received since the January 2010 rating decision is new and raises a reasonable possibility of substantiating his claim of entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability. 3. The Veteran's claim for service connection for a right wrist condition was previously denied by a February 1993 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 4. Evidence received since the February 1993 rating decision is new and raises a reasonable possibility of substantiating his claim of entitlement to service connection for a right wrist disability. 5. The evidence establishes that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment from at least as early as September 7, 2012. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection for mild patellofemoral syndrome of the left knee is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. The criteria to reopen the finally denied claim of entitlement to service connection for mild patellofemoral syndrome of the left knee have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The February 1993 rating decision denying service connection for a right wrist disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 4. The criteria to reopen the finally denied claim of entitlement to service connection for a right wrist disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for a TDIU have been met effective September 7, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Air Force from December 1983 to August 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from January 2010, January 2012, and September 2013 rating decisions of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing is associated with the claims file. The Veteran was previously represented by a Veterans Service Organization. However, he indicated in a February 2015 written statement that he wished to revoke his representative. The Veteran was not represented at his hearing, and he indicated that he wished to proceed unrepresented. Therefore, the Board considers the matters on appeal with the understanding that the Veteran is appearing pro se. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Regardless of whether the AOJ found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board will therefore undertake a de novo review of the new and material evidence determinations required to resolve the Veteran's petitions to reopen service connection claims in this case. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for mild patellofemoral syndrome of the left knee The Veteran's claim of entitlement to service connection for left knee mild patellofemoral syndrome was initially denied in a July 2007 rating decision on the basis that the evidence did not show that his left knee mild patellofemoral syndrome was related to his service-connected right knee retropatellar pain syndrome, nor was there evidence of the disability during military service. The Veteran submitted a notice of disagreement (NOD), and a May 2008 Statement of the Case (SOC) confirmed the denial of service connection. The Veteran did not perfect a substantive appeal, and the July 2007 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. A January 2010 rating decision reopened the claim but denied service connection on the merits because the evidence continued to show that the Veteran's left knee mild patellofemoral syndrome was not due to his service-connected right knee disability. The Veteran did not appeal that decision, and it became final. The pertinent evidence of record at the time of the January 2010 rating decision, the most recent final decision, included the Veteran's service treatment records (STRs), VA treatment records, a December 2009 VA examination report during which the examiner found no evidence of an altered gait causing left lower extremity problems or any other related issues, an August 2009 lay statement from the Veteran, and an August 2009 letter from the Veteran's private physician suggesting a connection between the Veteran's left knee disability and his right knee disability. The claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The evidence associated with the claims file since the January 2010 rating decision includes additional VA treatment records, the Veteran's February 2021 Board hearing testimony, and medical records from the Social Security Administration, including a February 2011 assessment from a private physician indicating the Veteran exhibited a mildly antalgic gait, favoring the left lower extremity, and that he favored the left lower extremity during positional change between sitting and standing. Overall, the Board finds that the evidence submitted since the January 2010 rating decision is new and material. It directly relates to an unestablished fact necessary to substantiate the claimnamely, that the Veteran's left knee disability may be related to his service-connected right knee disability. As noted, a February 2011 assessment indicated the Veteran did, in fact, exhibit an antalgic gait in which he favored the left lower extremity. The Board notes that this evidence is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, reopening the claim of entitlement to service connection for left knee mild patellofemoral syndrome is warranted. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right wrist disability A February 1993 rating decision denied the Veteran's claim of entitlement to service connection for a right wrist condition based on lack of evidence of a current disability. The Veteran did not appeal the decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The pertinent evidence of record at the time of the February 1993 rating decision included the Veteran's STRs and a December 1992 VA examination report. The claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The evidence associated with the claims file since the February 1993 rating decision includes VA, Social Security Administration, and private medical treatment records, lay statements from the Veteran, an April 2014 VA examination report, and the Veteran's February 2021 Board hearing testimony. Available medical treatment records are silent for complaints of or treatment for a current right wrist disability. The April 2014 VA examiner found no evidence of a right wrist disability. However, during his February 2021 Board hearing, the Veteran testified that he saw a civilian practitioner a few years before the hearing, and that the practitioner completed nerve tests that showed pinched nerves in his wrist. He testified that he was given a shot that improved his wrist, though it was not yet "100 percent[.]" Overall, the Board finds that the evidence submitted since the February 1993 rating decision is new and material. It relates to an unestablished fact necessary to substantiate the claim, as it suggests that the Veteran may have a current right wrist disability. In this regard, the Board reiterates that the threshold for reopening claims is low. The Board notes that this evidence is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, reopening the claim of entitlement to service connection for a right wrist disability is warranted. TDIU A TDIU may be assigned where the schedular rating is less than total, but the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In adjudicating a claim for VA benefits, 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, 53-56 (1990). 3. Entitlement to a TDIU prior to June 30, 2017 In this case, the Veteran is already in receipt of a TDIU from June 30, 2017. However, the issue of entitlement to a TDIU prior to that date remains on appeal. The Veteran meets the schedular criteria for a TDIU effective September 7, 2012. As of that date, service connection is in effect for PTSD (rated 50 percent disabling from July 2, 2009); pes planus (rated 20 percent disabling from September 7, 2012); retropatellar pain syndrome of the right knee (rated 10 percent disabling from July 24, 2006); and right knee laxity associated with right knee retropatellar pain syndrome (rated 10 percent from October 27, 2010). His combined schedular rating as of September 7, 2012 is 70 percent. The Veteran does not yet meet the criteria for TDIU on a schedular basis prior to September 7, 2012, and the issue of entitlement to a TDIU prior to that date will be addressed in the remand section below. Turning to the evidence, the Veteran submitted formal applications for TDIU in November 2010 and March 2014. In both applications, the Veteran wrote that his PTSD prevented him from securing or following any substantially gainful occupation, and that he had not been able to work full time since May 2007. In a statement submitted with his November 2010 application, the Veteran wrote that he was forced to close the retail store he owned due to symptoms of PTSD and chronic right knee pain. He wrote that he had trouble working part-time, noting that he was fired from a job as a school lunch monitor for hitting a student (a fact corroborated by a May 2007 letter from the school, which is associated with the claims file). He wrote that he was presently unable to get hired because of his many medical appointments. A March 2011 VA knee examination report indicated that the Veteran was unable to perform work duties due to a bilateral knee condition, chronic deep vein thrombosis of the left lower extremity, and PTSD. The examiner determined that the Veteran's right knee disability rendered him unable to perform employment activities requiring lifting, prolonged ambulation, prolonged standing, squatting, and kneeling, but that he would likely not be limited for other more sedentary forms of substantially gainful employment. In a March 2011 response to a request for information, one of the Veteran's prior part-time employers wrote that the Veteran lost 75 percent of time due to disability during the preceding 12 months, noting that the Veteran worked "only when he did not hurt," and that he "had a lot of time missed for medical appointment[s]." The employer noted that the Veteran's employment ended due to "pain, PTSD, missed work." Records obtained from the Social Security Administration show the Veteran was found to be totally disabled for Social Security purposes beginning in February 2011. The Disability Determination and Transmittal shows a primary diagnosis of osteoarthritis and allied disorders and a secondary diagnosis of affective (mood) disorders. VA treatment records from the period on appeal include an August 2012 mental health progress note in which the practitioner found that the Veteran's PTSD symptoms resulted in ongoing occupational and social impairment with deficits in work, family, school, marital relations, and pattern of poor judgment and impaired impulse control resulting in inability to establish and maintain effective relationships, and financial stressors. The practitioner noted difficulty functioning in some aspects of the roles as independent adult and parent. In an October 2012 psychiatric progress note a VA psychiatrist wrote that the Veteran's PTSD was "chronic" and that he should be considered "totally disabled and therefore unemployable." The psychiatrist noted that the Veteran had difficulties getting along with others, accepting authority, and managing his anger. The psychiatrist also noted that there was social isolation associated with symptoms of hypervigilance and hyperarousal to the point of difficulty trusting others other than himself, and that he had had difficulty keeping jobs because of his inability to trust others as well as losing his control. A February 2014 VA treatment note indicates the Veteran reported losing his job with the local police department, which he had enjoyed. The Veteran reported that he was told they were concerned he was suicidal and could not have him working there, though he stated they misunderstood his description of his mental health problems, and he had not been suicidal. The Veteran was afforded a VA PTSD examination in April 2014. The examiner determined that the Veteran's PTSD caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Board notes that entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). Overall, after careful review of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities have been severe enough to cause unemployability for the period starting September 7, 2012the date he meets the schedular criteria for a TDIU. Both the medical and lay evidence indicate the Veteran's PTSD significantly impacts his ability to maintain a substantially gainful occupation, as evidenced by his inconsistent employment history during the period. As previously discussed, one of the Veteran's prior employers submitted a statement indicating the Veteran missed 75 percent of work due to his disabilities. A letter from a different employer documented his termination due to repeated inappropriate behavior, and VA medical records indicate the Veteran was terminated from a job with the local police department due to mental health concerns. Further, a VA psychiatrist wrote that the Veteran's PTSD was "chronic" and that he should be considered "totally disabled and therefore unemployable." Moreover, a March 2011 VA examiner determined that the Veteran's right knee disability rendered him unable to perform physical employment activities, such as lifting, prolonged ambulation, prolonged standing, squatting, and kneeling. Finally, the Board finds it notable that the Social Security Administration deemed the Veteran totally disabled due in part to his psychiatric disability. Because the Veteran's service-connected disabilities precluded him from securing and following a substantially gainful occupation consistent with his education, skills, training, and work history prior to June 30, 2017, the Board finds that a TDIU is warranted effective September 7, 2012the date the Veteran meets the schedular criteria for a TDIU. The issue of entitlement to an even earlier effective date for the award of a TDIU is discussed in the remand section, below. REASONS FOR REMAND For the reasons discussed below, the remaining issues on appeal must be remanded for additional development. At the outset, the Board notes that potentially relevant medical treatment records appear to be missing from the claims file. In particular, the Veteran testified during his February 2021 Board hearing that he was recently hospitalized for eight weeks for PTSD treatment. Records associated with this hospitalization have not been associated with the claims file. Further, the Veteran testified that he saw a private practitioner a couple of years ago, who administered nerve tests that purportedly showed he had pinched nerves in his right wrist. The practitioner allegedly gave him a shot that improved his wrist. Records of this treatment have not been associated with the claims file. Finally, the evidence suggests the Veteran has received treatment from private practitioners for his bilateral knee disabilities. On remand, the AOJ should attempt to obtain these outstanding medical treatment records. Specific, additional development is also warranted for the following issues: 1. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability 2. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected right knee disability The Veteran contends that his currently diagnosed left knee and lumbar spine disabilities are related to his service-connected right knee disability. Service connection may be granted 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). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In this case, the Veteran was afforded VA examinations concerning his left knee disability in April 2007, December 2009, February 2011, and April 2014, and he was afforded a VA examination concerning his lumbar spine disability in June 2013. Unfortunately, while the examiners provided opinions concerning whether the Veteran's left knee and lumbar spine disabilities were caused by the Veteran's service-connected right knee disability, no examiner has offered an adequate opinion concerning whether the disabilities have been aggravated by his right knee disability. Therefore, remand is warranted to obtain addendum opinions concerning whether the Veteran's claimed disabilities were aggravated by his service-connected right knee disability. 3. Entitlement to a disability rating in excess of 50 percent prior to June 30, 2017 and in excess of 70 percent thereafter for PTSD 4. Entitlement to an initial disability rating in excess of 10 percent for right knee laxity associated with right knee retropatellar pain syndrome 5. Entitlement to an initial compensable disability rating prior to April 25, 2014 and in excess of 10 percent thereafter for right eye retinal pigment epithelium dropout, residual of resolved macular hole (right eye disability) The Veteran was most recently afforded VA examinations to determine the severity of his PTSD, right knee disability, and right eye disability in July 2017. During his February 2021 Board hearing, the Veteran testified that his disabilities have worsened since then. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Given the Veteran's contentions that his disabilities have worsened since the most recent examinations of record, remand for new examinations is warranted. 6. Entitlement to a TDIU prior to September 7, 2012 The Board finds that adjudication of the Veteran's increased rating and service connection claims could impact the claim seeking TDIU for the period prior to September 7, 2012; therefore, the issue of entitlement to a TDIU for that period is inextricably intertwined with the remaining claims on appeal. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA medical treatment records, including records from May 2018 to the present, and records associated with any inpatient psychiatric treatment. All efforts to obtain such records should be documented in the claims file. 2. After obtaining any necessary authorization from the Veteran, attempt to obtain private medical treatment records associated with treatment for a claimed right wrist disability, bilateral knee disabilities, and any other disability for which the Veteran has received private medical treatment. 3. Then, obtain addendum opinions from appropriate VA medical professionals concerning the etiology of the Veteran's claimed left knee and lumbar spine disabilities. The need for additional examinations is left to the discretion of the medical professional offering the addendum opinion. For each of the claimed disabilities, the examiner should address whether each disability is at least as likely as not (50 percent probability or greater) caused by the service-connected right knee disability, or whether the disability has been aggravated (i.e., any worsening of the condition beyond its natural progression) by the Veteran's service-connected right knee disability. The examiner must provide separate findings and rationales relating to causation and aggravation. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 4. Schedule the Veteran for VA examinations to determine the current severity of his PTSD, right eye, and right knee disabilities. The claims folder (including a copy of this remand) must be provided to and reviewed by each examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. The examinations should be conducted in accordance with the current disability benefits questionnaires or examination worksheets applicable to each disability. In this regard, the Board notes that the regulations concerning the evaluation of musculoskeletal disabilities were amended effective February 7, 2021; therefore, the knee and spine examination reports should reflect the new criteria, if applicable. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A complete rationale for all opinions expressed must be provided. 5. Then, readjudicate the claims on appeal, including consideration of entitlement to TDIU prior to September 7, 2012, to include consideration of whether referral for TDIU on an extraschedular basis is warranted, if the service-connected disabilities continue not to meet the schedular criteria for TDIU. If any benefit sought remains denied, issue a supplemental statement of the case to the Veteran, and return the case to the Board. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.