92 Decision Citation: BVA 92-25511 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-56 386 ) DATE ) ) ) THE ISSUES 1. Entitlement to an earlier effective date for the grant of service connection for a left knee disorder prior to August 16, 1988. 2. Entitlement to an earlier effective date for the grant of service connection for a right knee disorder prior to August 16, 1988. 3. Entitlement to an earlier effective date for the grant of service connection for low back strain prior to September 8, 1975. 4. Entitlement to service connection for post-traumatic stress disorder. 5. Entitlement to a total disability rating based upon individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD F. H. Ayer, Counsel INTRODUCTION The veteran had active military service from September 1968 to October 1969. This case came before the Board of Veterans' Appeals (Board) on appeal from adverse rating determinations of the Chicago, Illinois, Regional Office. A February 1989 rating action granted service connection for left and right knee disorders and assigned 10 percent evaluations for each effective August 16, 1988. The 20 percent evaluation previously in effect for low back strain was confirmed and continued. A notice of disagreement as to the effective dates assigned for both knees and the back was received in September 1989. A statement of the case was issued in September 1989. The substantive appeal was received in October 1989. A personal hearing was conducted before a hearing officer at the regional office in November 1989. In November 1989, the veteran filed a claim for service connection for post-traumatic stress disorder. A June 1990 rating action denied service connection for this disorder and also denied entitlement to a total disability rating based upon individual unemployability. The notice of disagreement as to these issues was received in September 1990. A supplemental statement of the case was issued in October 1990. The substantive appeal as to these issues was received in December 1990. A personal hearing was conducted before a hearing officer at the regional office in February 1991. The appeal was received and docketed at the Board in February 1992. The claims file was then referred to the veteran's accredited representative, Disabled American Veterans, and that organization presented additional written argument to the Board in April 1992. The case is now ready for appellate review. The Board notes that service connection for a psychiatric disorder other than post-traumatic stress disorder was denied in a March 1985 rating action which was not appealed. Currently, the veteran's sole contention is that he has a post-traumatic stress disorder. Since this issue was not previously specifically considered, the Board will accord the veteran de novo consideration and will limit its review in this regard solely to this issue. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that service connection for his knee disability and back disability should be retroactive to his separation from service since these disorders are attributable to service and have persisted since service. The veteran also contends that he has a post-traumatic stress disorder which is attributable to his military service which included direct involvement in combat and wounds sustained as a consequence thereof. Finally, the veteran maintains that he is unable to obtain or retain any form of substantially gainful employment due to the nature and severity of his service-connected disabilities. The veteran points out that he had to be retired from his last employment with the Post Office due to disability for which he is service connected. He also points out that he has been unable to obtain other employment since this time because he cannot sit or stand for any length of time and his overall physical debilitation, which has been getting progressively worse, essentially precludes him from doing much of anything. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claims for entitlement to service connection for right knee disability prior to August 16, 1988; entitlement to service connection for low back strain prior to September 8, 1975; entitlement to service connection for post-traumatic stress disorder; and entitlement to a total disability rating based upon individual unemployability. It is the further decision of the Board that the evidence of record supports granting entitlement to service connection for a left knee disorder effective August 8, 1979. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The claim for service connection for a left knee disorder was received by the Department of Veterans Affairs (VA) on August 8, 1979, and this claim has not previously been subject to a final adjudication. 3. Left knee disability has been demonstrated since August 8, 1979. 4. A claim for service connection for a right knee disorder was received by the VA on July 14, 1988. 5. A right knee disability is first objectively shown on August 16, 1988. 6. A 20 percent evaluation for low back strain was first granted effective September 8, 1975, in a July 1976 rating action which was not appealed. 7. A claim for service connection for a back disorder was first received in the VA on September 8, 1975. 8. No objective evidence of post-traumatic stress disorder is of record. 9. The regional office last denied entitlement to a total disability rating based upon individual unemployability in rating actions dated January 1980, April 1980, and December 1980, from which an appeal was not perfected. 10. The evidence submitted since 1980 shows the veteran has since established service connection for additional disabilities for which compensable evaluations have been assigned. 11. The veteran has a 12th grade education, 1 1/2 years of training in commercial art, and work experience as a truckdriver and letter carrier with the United States Postal Service and as a custodian at an animal control center. 12. Service connection is in effect for residuals, shell fragment wound, Muscle Group XVII, left hip (40 percent); residuals, shell fragment wound, Muscle Group XIV with fracture and shortening of the left femur (30 percent); low back strain (20 percent); degenerative joint disease, right knee (10 percent); degenerative joint disease, left knee (10 percent); left thigh scar (10 percent); and inactive osteomyelitis, left femur (no percent), for a combined 80 percent schedular evaluation. 13. The veteran is capable of performing sedentary and light work notwithstanding his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a left knee disorder effective August 8, 1979, are met. 38 U.S.C.A. §§ 5107, 5110(a) (West 1991); 38 C.F.R. § 3.400 (1991). 2. The criteria for establishing entitlement to service connection for a right knee disorder prior to August 16, 1988, are not met. 38 U.S.C.A. §§ 5101(a), 5107, 5110(a) (West 1991); 38 C.F.R. § 3.400 (1991). 3. Evidence submitted since the regional office granted service connection for low back strain effective September 8, 1975, in a July 1976 rating action is not new and material. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1991). 4. The July 1976 rating action granting a 20 percent evaluation for low back strain effective September 8, 1975, is final and may not be reopened. 38 U.S.C.A. §§ 5107, 7105 (West 1991); 38 C.F.R. § 3.104(a) (1991). 5. The veteran has not submitted a well-grounded claim for service connection for post-traumatic stress disorder. 38 U.S.C.A. §§ 1110, 5107 (West 1991). 6. The criteria for establishing entitlement to a total disability rating based upon individual unemployability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims as to issues 1, 2, 3, and 5 are well-grounded within the meaning of 38 U.S.C.A. § 5107. That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107. I. Effective Date for Service Connection for a Left Knee Disorder On August 8, 1979, the VA received correspondence from the veteran which amounts to a claim for service connection for a left knee disorder, among other things. The veteran's claim as to this issue was not acted on. Similar correspondence was received by the VA on January 8, 1987. This was also not acted on as to this issue. On July 14, 1988, the veteran filed another claim for service connection for a left knee disorder. A VA examination was conducted on August 16, 1988, service connection was granted for a left knee disorder, and a 10 percent evaluation for a left knee disorder was assigned effective August 16, 1988. The law provides that the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The regional office granted a 10 percent evaluation for a left knee disorder from August 16, 1988, the date of the VA examination, on the basis that that was the first showing of compensable disability and the first time that a correlation between the left knee pathology and his other service-connected disabilities was noted. Historically, in June 1969, the veteran sustained a gunshot wound to the left buttock which caused a severe comminuted fracture of the proximal femoral shaft which extended into the intertrochanteric area with avulsion of the greater trochanter. He later developed osteomyelitis of the left femur. By December 1969, there was osseous union of the fracture fragments. In April 1970, the veteran was rehospitalized due to osteomyelitis. On VA examination in February 1971, range of motion of the left knee was from 0 to 110 degrees. No other left knee pathology was then noted. On VA examination in May 1976, a noticeable left limp was noted. There was a mild left pelvic tilt with compensatory lumbar scoliosis. The left knee lacked 20 degrees of full flexion. There was no instability, the cruciate and lateral ligaments were intact, and there was no capsular thickening or evidence of synovitis. X-rays were negative. In September 1976, the veteran complained of the left knee slipping out of place and of locking of the knee. There was minimal effusion and tenderness over the lateral aspect of the knee. There was no instability. The assessment was chronic synovitis. On VA examination in October 1979, the veteran complained that he had constant swelling of the left knee. Findings essentially similar to those shown on examination in May 1976 were noted and, in addition, also noted was some swelling of the left knee. On VA examination in November 1984, the veteran said his left knee swelled a lot and was aggravated by prolonged sitting or standing. Similar physical findings as seen in 1979 were noted and, in addition, also noted was a tendency to genu valgus left. In January 1987, the veteran complained that his left leg disability was getting worse. On VA examination in March 1987, he said he couldn't put any pressure on the left knee. There was effusion of the left knee, a pronounced left limp, and swelling. Flexion was limited to 90 degrees. A 10 percent evaluation for knee impairment is warranted when flexion is limited to 45 degrees or extension is limited to 10 degrees, where there is other impairment such as recurrent subluxation or lateral instability which is slight in degree, and for genu recurvatum when there is weakness and insecurity in weight bearing objectively demonstrated. 38 C.F.R. Part 4, Codes 5257, 5260, 5261, 5263. Other rating codes applicable to the knee and leg including 5003 and those other codes from 5256 to 5263 not previously mentioned are not applicable given the facts of this case. Prior to August 16, 1988, arthritic changes in the knee were not shown and the criteria set forth in Codes 5260 and 5261 were not met. In addition, a genu recurvatum has never been shown. Nevertheless, a genu valgus was shown in 1984 as was slight hyperextension and weakness, the latter having been shown since October 1979. Pain has been present in varying degrees since 1976 and the pathological picture has been declining since this time. The veteran currently is assigned a 10 percent evaluation for slight impairment of the left knee under Code 5257. Slight is defined as (small in amount, degree, etc.; of little importance, influence, etc.; trivial; of little substance or strength. The Random House College Dictionary, Revised Edition, 1237 (1980). Overall, given the varied symptoms reported since 1976, the Board is of the opinion that a left knee disability has more probably than not been demonstrated since that time. However, since a claim for a left knee disorder was not submitted until August 8, 1979, the effective date of award of a 10 percent evaluation may not predate this. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Given the foregoing, a grant of service connection for a left knee disorder effective August 8, 1979, is warranted. II. Effective Date of Service Connection for a Right Knee Disorder In order for benefits to be paid or furnished to a person under the laws administered by the VA, a claim must be filed. 38 U.S.C.A. § 5101(a). In this case, the VA received a claim from the veteran for service connection for a right knee disorder on July 14, 1988. The law provides that the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The regional office granted service connection for a right knee disorder and assigned a 10 percent evaluation from August 16, 1988, the date upon which VA examination of the veteran first revealed right knee pathology. A review of the evidence of record concerning treatment of the veteran prior to this date fails to reasonably show any right knee pathology. Accordingly, since the first definitive evidence of right knee pathology is August 16, 1988, there is no basis upon which to grant an earlier effective date of award. III. Whether New and Material Evidence has been Submitted to Reopen a Claim of Entitlement to a 20 Percent Evaluation for Low Back Strain Effective Prior to September 8, 1975 In a rating action dated in July 1976, service connection for low back strain was established and a 20 percent evaluation assigned effective September 8, 1975. The veteran was notified of this determination and he did not appeal. The law grants a period of one year from the date of the notice of the result of the determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). In order to reopen a claim previously denied, it is incumbent on the veteran to present new and material evidence with respect to the claim. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matters under consideration, which is neither cumulative nor redundant and which, by itself, or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Evidence added to the record since July 1976 only shows treatment for back complaints after September 8, 1975. This evidence is not material to the effective date issue. The veteran first requested service connection for a back disorder in a claim received by the VA on September 8, 1975. Accordingly, his claim in not reopened and the July 1976 decision of the regional office remains final. IV. Service Connection for Post-Traumatic Stress Disorder The threshold question to be answered as to this issue is whether the veteran has presented a well-grounded claim; that is, one which is plausible. 38 U.S.C.A. § 5107(a). We find that the veteran's claim is not well-grounded. In order to establish service connection for post-traumatic stress disorder, it would have to be shown that that disability is present and that it resulted from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. In this case, no medical practitioner has ever determined the veteran to have post-traumatic stress disorder. There are certain criteria which must be met in determining whether an individual has a post-traumatic stress disorder. The essential criteria include a recognized stressor, such as combat; reexperiencing the traumatic events; numbing of responsiveness to or reduced involvement with the external world; and a variety of other symptoms. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 247-251 (3d ed. rev. 1987). The record shows that the veteran has been amply evaluated on various occasions to determine whether post-traumatic stress disorder was present and, on all pertinent occasions, it was noted that post-traumatic stress disorder was not found. The most recent finding in this regard was on VA examination conducted in April 1990. Based on the facts of this case, we conclude that the veteran has not met the initial burden of presenting evidence of a well-grounded claim imposed by 38 U.S.C.A. § 5107(a). V. Total Disability Rating Based upon Individual Unemployability In rating actions dated in January 1980, April 1980, and December 1980, total disability ratings based upon individual unemployability were denied by the regional office. The veteran was notified of these determinations and he did not perfect an appeal. An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. A substantive appeal shall be filed within 60 days from the date of mailing of the statement of the case, or within the remainder of the one-year period from the date of mailing of the notification of the initial review and determination being appealed, whichever period ends later. An extension of the 60-day period for filing a substantive appeal or the 30-day period for responding to a supplemental statement of the case may be granted for good cause shown. A request for such an extension should be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. Otherwise, the determination becomes final and is not subject to revision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). In order to reopen a claim previously denied, it is incumbent on the veteran to present new and material evidence with respect to the claim. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant and which, by itself, or in connection with evidence previously assembled, is so significant that it must be considered in order to fully decide the merits of the claim. 38 C.F.R. § 3.156(a). Additional evidence submitted since 1980 includes determinations made by the regional office which service connected the veteran for additional disabilities for which compensable evaluations have been assigned. In addition, current medical evidence with respect to the nature and severity of the veteran's service-connected disabilities is also of record. This evidence, when considered with evidence previously of record, is highly significant and must be considered in order to fairly decide the merits of this claim. Accordingly, we conclude that the additional evidence is new and material and the veteran's claim is reopened. The veteran is currently service connected for residuals, shell fragment wound, Muscle Group XVII, left hip (40 percent); residuals, shell fragment wound, Muscle Group XIV with left femur fracture (30 percent); low back strain (20 percent); degenerative joint disease, right knee (10 percent); degenerative joint disease, left knee (10 percent); left thigh scar (10 percent); and inactive osteomyelitis of the left femur (no percent). The combined schedular evaluation is 80 percent. The historical nature of the veteran's gunshot wounds has been previously noted in Subsection I of this decision. The nature of the left knee impairment was also recorded in that section. Low back strain developed as a consequence of pathology from the gunshot wounds during the mid-1970's and right knee pathology is of recent origin. The left thigh scar has been essentially static since the initial injury in service and osteomyelitis has not been a factor since the early 1970's. The veteran's educational level has been variously reported as HS-1, 11th grade, and 12th grade. The most consistent education reports have been of a 12th grade education and the Board concludes that this is the most probable, especially in view of a previous report that he had 1 1/2 years of training in commercial art. The veteran also has work experience as a truckdriver and letter carrier with the United States Postal Service and as a custodian at an animal control center. The veteran's most recent employment was with the United States Postal Service and this employment ended in March 1990, at which time he was approved for disability retirement. The law provides that, before a total disability rating based upon individual unemployability may be granted, it must be shown that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. With respect to the laws and regulations pertaining to the VA, neither the United States Code nor the Code of Federal Regulations offers a definition for "substantially gainful employment" or "substantially gainful occupation." The VA Adjudication Manual, M21-1 Section 50.55(8) defines "substantially gainful employment" as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation and the community where the veteran resides." This is a subjective standard, as are the standards set forth in 38 C.F.R. §§ 3.341, 4.16. In addition, the United States Court of Veterans Appeals, hereinafter the Court, in Moore v. Derwinski, 1 Vet.App. 83, 356 (1991), and Ferraro v. Derwinski, 1 Vet.App. 326 (1991), noted that, since the foregoing terms were ill-defined by the laws and regulations pertaining to the VA, much could be learned from the decisions of the United States Circuit Courts of Appeals which had considered the question of whether a Social Security disability claimant was able to engage in "substantial gainful activity." The Court, in Moore, noted in particular the following standard announced by the 8th Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total "basket case" before the Courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The thrust is whether any particular job is realistically within the physical and mental capabilities of the claimant. The veteran's service-connected disabilities have resulted in significant limitation of the lower extremities, particularly the left lower extremity. Most noticeable are the left-sided limp, pain in the right knee and left lower extremity, pain in the hip, restricted motion of the left lower extremity, and loss of strength in the left lower extremity. Also significant is the veteran's back pain. These functional limitations essentially preclude the veteran from performing all but light or sedentary work. Although neither light work nor sedentary work is defined for VA benefits purposes, regulations applicable to the Social Security Administration do define them and we find these definitions to be helpful. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even if the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b) (1990). Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a) (1990). Although the veteran has not been employed since his disability retirement in March 1990, it is also true that the veteran has not attempted to find additional employment since that time. The veteran has a high school education and, given this fact, is certainly mentally capable of performing sedentary work, particularly sedentary work which is more cerebral than physical. The veteran's mental faculties are not impaired by any service-connected disability and the physical impairment occasioned by his service-connected disabilities clearly does not preclude sedentary work and, although the question as to whether he has the ability to perform light work is closer, the preponderance of the evidence suggests that he is capable of performing such work. We have considered the veteran's testimony presented at the personal hearings but find his testimony to be less than persuasive as his complaints as recorded in sworn testimony have not been confirmed by objective clinical findings. Given the foregoing, it is reasonable to assume that, were the veteran to receive appropriate on the job training, he could perform a light or sedentary occupation. Accordingly, a total disability rating based on individual unemployability is not warranted at this time. ORDER Service connection for a right knee disorder prior to August 16, 1988, is denied. New and material evidence not having been submitted to reopen a claim of entitlement to a 20 percent evaluation for low back strain effective prior to September 8, 1975, the prior July 1976 rating action remains final. A well-grounded claim for service connection for post-traumatic stress disorder has not been submitted. A total disability rating based on individual unemployability is denied. Service connection for a left knee disorder, effective August 8, 1979, is granted subject to the law and regulations governing the payment of monetary benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 M. SABULSKY HARRY M. McALLISTER, M.D. J. U. JOHNSON (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.