Randy L. Pederson v. Robert A. McDonald

27 Vet. App. 276, 2015 U.S. Vet. App. LEXIS 180, 2015 WL 590779
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 13, 2015
Docket13-1853
StatusPublished
Cited by94 cases

This text of 27 Vet. App. 276 (Randy L. Pederson v. Robert A. McDonald) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Randy L. Pederson v. Robert A. McDonald, 27 Vet. App. 276, 2015 U.S. Vet. App. LEXIS 180, 2015 WL 590779 (Cal. 2015).

Opinions

MOORMAN, Judge:

The appellant, Randy L. Pederson, appeals through counsel a February 26, 2013, Board of Veterans’ Appeals (Board) decision that denied entitlement to (1) a disability rating in excess of 20% for his service-connected right knee disability; (2) a disability rating in excess of 20% for his service-connected left knee disability; and (3) a total disability rating based on individual unemployability (TDIU). Record (R.) at 3-31. This appeal is timely, and the Court has jurisdiction to review the Board’s' decision pursuant to 38 U.S.C. § 7252(a). On August 22, 2014, this case was submitted for en banc review, and the Court directed the parties to file supplemental memoranda of law. The Court issues this opinion to clarify the reach of the [279]*279holdings in Cacciola v. Gibson, 27 Vet.App. 45 (2014), regarding the effect of the abandonment of a claim or issue appealed to this Court. For the reasons that follow, the Court concludes that (1) the appellant has knowingly abandoned the issues of entitlement to disability ratings in excess of 20% for his service-connected right knee and left knee conditions and (2) the Court has jurisdiction and the authority to review the merits of the abandoned issues. However, for prudential reasons, we will decline to review the merits of the abandoned issues and, therefore, we will dismiss the appeal from the Board’s denial of the increased rating claims. The Court will affirm the Board’s denial of TDIU.

I. BACKGROUND

Mr. Pederson served honorably on active duty in the U.S. Army from May 1980 to May 1981. R. at 524. In June 1983, Mr. Pederson was awarded service connection for chondromalacia of ■ the bilateral knees; each knee was rated 10% disabling, effective the date of his separation from service. R. at 1862-66. As of February 1999, each knee was separately rated 20% disabling. R. at 1689-99. Prior to entering service, Mr. Pederson achieved a high school education and worked at a grocery store. R. at 1845, 2014. After service, Mr. Pederson returned to his grocery store position until 1984. R. at 1845. He was employed as a custodial laborer by the U.S. Postal Service (USPS) from November 1985 to November 2001. R. at 1099, 1390-92.

Mr. Pederson underwent a VA compensation and pension (C & P) examination in May 1999. R. at 1748-50. The examiner noted that Mr. Pederson was employed at USPS and that he reported that his position involved relatively long periods of walking, occasionally outside; driving snow removal equipment; and sometimes functioning as a part-time security guard. R. at 1748. Mr. Pederson reported that he had lost, at most, four days of work that year as a result of medical appointments for his knees or because of “significant pain that prevents him from completing the day[’]s work.” Id. The examiner noted that the “[e]xtent of initial knee injury during military service is unknown to this examiner. Most of [the] veteran’s current bilateral knee symptoms are due to progressive degenerative changes from aging and obesity.” R. at 1750.

In December 2000, Mr. Pederson was examined by Dr. Clayton Van Balen for USPS. R. at 892. Dr. Van Balen noted that Mr. Pederson’s medical history included a cardiac valve replacement, degenerative joint disease of his ankles and feet, morbid obesity, insulin dependent diabetes, and hyperlipidemia. Id. Upon physical examination, Dr. Van Balen noted morbid obesity, severe pain in the feet and ankles, and limited ability to stand and walk. Id. Dr. Van Balen suggested job ■ accommodations to include no squatting or climbing, alternating standing and sitting as tolerated, no lifting more than 20 pounds, and no walking long distances. Id. In February 2001, Dr. Van Balen also recommended that Mr. Pederson not work at night because of his diabetes, that he avoid uneven surfaces due to his arthritis, and that he limit his outdoor exposure to no more than 30 minutes when the temperature is below 32 degrees. R. at 362-63, 885-86.

During a January 2001 VA followup medical examination for diabetes mellitus, the examiner noted that Mr. Pederson had “several limitations in his job because of his [degenerative disc disease] and diabetes” and that he was thinking of applying for total disability. R. at 1582. The examiner noted that, although Mr. Peder-son’s job at USPS might not be suitable [280]*280for him, he did not feel Mr. Pederson was eligible for total disability “as he may be eligible for many other jobs.” Id.

In April 2001, Mr. Pederson was examined by Dr. Bryce Robinson in connection with his disability claim with USPS. R. at 372. Dr. Robinson noted Mr. Pederson’s history of cardiac valve replacement, degenerative joint disease with chondromala-cia of his right and left knees, morbid obesity, insulin-dependent diabetes, and peripheral neuropathy of the hands and feet. Id. He stated that he agreed with the work restrictions recommended by Dr. Van Balen. Id, Dr. Robinson opined that Mr. Pederson’s medical conditions were “stable, but as the years go on, his degenerative changes in the knees and neuropa-thy secondary to the diabetes will not improve.” Id, In June 2001, Mr. Pederson was examined by Dr. John Prevo in connection with his USPS disability retirement claim. R. at 343. Dr. Prevo noted that Mr. Pederson suffered from degenerative joint disease of the spine and lower extremities. Id. He opined that Mr. Ped-erson was disabled and could no longer perform his job as a custodian, with or without accommodations. Id. Mr, Peder-son’s disability retirement from USPS was approved in August 2001. R. at 911-14.

Mr. Pederson submitted a request to VA for TDIU in March 2002. R. at 1390-92. He underwent a VA C & P examination in April 2002. R. at 1375-82. Mr. Pederson reported that he had lost over one month of work because of pain and inability to walk and that he had lost his job with USPS and remained unemployed. R. at 1376. The regional office (RO) denied TDIU in February 2004. R. at 1083-87. The RO found that Mr. Pederson did not meet the schedular requirements for TDIU pursuant to 38 C.F.R. § 4.16(a), and that referral for an extraschedular rating was not warranted because the evidence failed to show that Mr. Pederson was unemployable as a result of service-connected disabilities. R. at 1086. Mr. Pederson appealed that decision (R. at 1077-78) and in February 2006, the Board remanded his request for TDIU as inextricably intertwined with his pending claim for an increased rating for his service-connected knee disabilities (R. at 852-57).

Mr. Pederson underwent a VA C & P examination in January 2007. R. at 826-30. The examiner opined that Mr. Peder-son’s bilateral knee disability and his non-service-connected diabetic neuropathy “both have a moderate effect on his activities of daily living and his ability to work as a maintenance person”; that his knee condition “affects his ability to kneel down, climb ladders, or stand for more than 30 minutes”; and that his “diabetic neuropa-thy also has an effect on his ability to stand for a long time or climb ladders.” R. at 830. The RO issued a Supplemental Statement of the Case in March 2007, continuing the denial of Mr. Pederson’s request for TDIU. R. at 767-70.

The Board issued a decision in August 2007 denying Mr.

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27 Vet. App. 276, 2015 U.S. Vet. App. LEXIS 180, 2015 WL 590779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/randy-l-pederson-v-robert-a-mcdonald-cavc-2015.