Citation Nr: 0810930 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-31 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased disability evaluation for the veteran's right total knee arthroplasty residuals, currently evaluated as 30 percent disabling. 2. Entitlement to an increased disability evaluation for the veteran's right thigh gunshot wound residuals with Muscle Group XIII injury, currently evaluated as 30 percent disabling. 3. Entitlement to an increased disability evaluation for the veteran's lumbosacral spine degenerative joint disease, currently evaluated as 40 percent disabling. 4. Entitlement to an increased disability evaluation for the veteran's right foot gunshot wound residuals, currently evaluated as 10 percent disabling. 5. Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The veteran had active service from January 1943 to February 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the St. Louis, Missouri, Regional Office (RO) which denied increased disability evaluations for the veteran's right total knee arthroplasty residuals, right thigh gunshot wound residuals with Muscle Group XIII injury, lumbosacral spine degenerative joint disease, and right foot gunshot wound residuals and a total rating for compensation purposes based on individual unemployability. In July 2006, the veteran submitted a Motion to Advance on the Docket. In August 2006, the Board granted the veteran's motion. In September 2006, the Board remanded the veteran's claims to the RO for additional action. FINDINGS OF FACT 1. The veteran's right total knee arthroplasty residuals have been shown to be manifested by no more than severe progressive knee pain; a knee flexion deformity; limitation of flexion to 20 degrees; scattered metallic foreign bodies throughout the joint; and an inability to walk more than 50 feet without resting due to joint pain. 2. The veteran's right thigh gunshot wound residuals have been shown to be manifested by severe Muscle Group XIII injury and compound, comminuted, and complete right femoral lateral condyle fracture residuals with nonunion. 3. The veteran's lumbosacral spine degenerative joint disease has been shown to be manifested by no more than a range of motion of forward flexion to 0 degrees without pain and to 30 degrees with pain, extension to 0 degrees without pain and to 10 degrees with pain, lateral bending to 10 degrees without pain and to 20 degrees with pain, bilaterally, and rotation to 10 degrees without pain and to 20 degrees with pain, bilaterally; and no tenderness on palpation. 4. Service connection is currently in effect for right total arthroplasty replacement residuals evaluated as 60 percent disabling; right thigh gunshot wound residuals with Muscle Group XIII injury evaluated as 40 percent disabling; lumbosacral spine degenerative joint disease evaluated as 40 percent disabling; right foot gunshot wound residuals evaluated as 10 percent disabling; and a left ear region shell fragment wound scar evaluated as noncompensable. The veteran has a combined rating of 90 percent. 5. An evaluation in excess of 10 percent for the veteran's right foot gunshot wound residuals may not be combined with the current evaluations assigned for his right total arthroplasty replacement residuals and right thigh gunshot wound residuals with Muscle Group XIII injury. 6. The veteran has reported completing two years of college and occupational experience as sales representative, a drapery installer, and an office worker. He reported having last worked on a full-time basis in 1983. 7. The veteran's service-connected disabilities are of such severity as to preclude him from securing and following some form of substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for a 60 percent evaluation for the veteran's right total knee arthroplasty residuals have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.321(b)(1), 3.326(a), 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5055 (2007). 2. The criteria for a 40 percent evaluation for the veteran's right thigh gunshot wound residuals with Muscle Group XIII injury have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.321(b)(1), 3.326(a), 4.7, 4.10, 4.40, 4.45, 4.56, 4.71a, Diagnostic Code 5313 (2007). 3. The criteria for an evaluation in excess of 40 percent evaluation for the veteran's lumbosacral spine degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.321(b)(1), 3.326(a), 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5242 (2007). 4. An evaluation in excess of 10 percent for the veteran's right foot gunshot wound residuals may not be assigned. 38 C.F.R §§ 4.25, 4.68, 4.71a, Diagnostic Code 5161 (2007). 5. A total rating for compensation purposes based on individual unemployability is warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. In reviewing the veteran's claims, the Board observes that the RO issued VCAA notices to the veteran in May 2004, June 2004, June 2005, and September 2006 which informed him of the evidence needed to support a claim of entitlement to an increased evaluation and a total rating for compensation purposes based on individual unemployability; what actions he needed to undertake; and how the VA would assist him in developing his claims. Such notice effectively informed him of the need to submit any relevant evidence in his possession. The May 2004 and June 2004 VCAA notices were issued prior to the July 2004 rating decision from which the instant appeal arises. The VA has attempted to secure all relevant documentation. The veteran has been afforded a VA examination for compensation purposes. The examination report is of record. The Board remanded the issue to the RO for additional development of the record. There remains no issue as to the substantial completeness of the veteran's claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007). Notwithstanding any deficiency in the notices given the veteran, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision as to the issues of increased evaluations for the veteran's right total knee arthroplasty residuals, right thigh gunshot wound residuals with Muscle Group XIII injury, and a total rating for compensation purposes based on individual unemployability given the favorable outcome below. In reference to the issues of increased evaluations for the veteran's lumbosacral spine degenerative joint disease and right foot gunshot wound residuals, the preponderance of the evidence is against the veteran's claims and any notice deficiencies are thus rendered moot. Any duty imposed on the VA, including the duty to assist and to provide notification, has been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); petition for cert. filed, __ U.S.L.W.__ (U.S. Mar. 21, 2008) (No. 07A588); Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). II. Right Total Knee Arthroplasty Residuals A. Historical Review The veteran's service medical records indicate that he was struck in the right knee by shell fragments during combat on June 6, 1944. In February 1945, the RO established service connection for chronic traumatic right knee arthritis with ankylosis; a penetrating right thigh wound with right femoral lateral condyle fracture residuals; right first, second, and third distal metatarsal fracture residuals, and a mastoid process scar and assigned a 50 percent evaluation for the veteran's disabilities. The report of a February 1946 VA examination for compensation purposes states that the veteran was diagnosed with right knee ankylosis secondary to his shell fragment wound. In February 1946, the RO recharacterized the veteran's right knee disability as right knee ankylosis and assigned a 30 percent evaluation for that disability. A January 1984 VA hospital summary indicates that the veteran underwent a right total knee arthroplasty. In May 1984, the RO recharacterized the veteran's right knee disability as right total knee arthroplasty residuals and assigned a 100 percent evaluation for that disability for the period from January 3, 1984, to February 28, 1985 and a 30 percent evaluation for the period on and after March 1, 1985. B. Increased Evaluation Disability evaluations are determined by comparing the veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). Replacement of the knee joint with a prosthesis warrants assignment of a 100 percent evaluation for a period of one year following implantation of the prosthesis. This period commences at the conclusion of the initial grant of a total rating for one month following discharge from the hospital under the provisions of 38 C.F.R. § 4.30. Thereafter, a minimum 30 percent disability evaluation will be assigned. A 60 percent evaluation will be assigned for chronic residuals consisting of severely painful motion or severe weakness in the affected lower extremity. Intermediate degrees of residual weakness, pain, or limitation of motion will be evaluated by analogy under 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2007). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40 (2007), which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2007). At a February 2004 VA examination for compensation purposes, the veteran complained of chronic right knee pain, weakness, stiffness, and lack of mobility. On examination of the right knee, the veteran exhibited a range of motion of 10 to 80 without pain and to 90 degrees with pain and no tenderness or laxity. In his undated Appeal to the Board (VA Form 9) received in September 2005, the veteran advanced that his right knee artificial joint had "worn to the point it is painful." He stated that he could not stand for more than five minutes without experiencing severe pain in the entire right lower extremity. An April 2006 VA treatment record states that the veteran experienced progressive right knee pain which impaired his ability to walk more than 50 feet without resting. He exhibited a right knee flexion deformity; right knee flexion to 20 degrees; and scattered metallic foreign bodies throughout the joint. The Board has reviewed the probative evidence of record including the veteran's written statements on appeal. The veteran's right total knee arthroplasty residuals have been shown to be manifested by progressive severe right knee pain; a flexion deformity; limitation of flexion to 20 degrees; retained metallic foreign bodies; and associated impaired ambulation. Such findings merit assignment of a 60 percent evaluation, the maximum schedular evaluation for knee replacement residuals available after the elapse of the initial year following implantation of the prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2007). The veteran's right knee symptomatology falls squarely within the relevant diagnostic criteria. Therefore, an evaluation on an extra-schedular basis is not warranted. 38 C.F.R. § 3.321(b)(1) (2007). Hart v. Mansfield, 21 Vet. App. 505 (2007). III. Right Thigh Gunshot Wound Residuals A. Historical Review The veteran's service medical records indicate that he was struck in the right thigh by shell fragments during combat in Normandy, France, on June 6, 1944. He was found to have sustained a severe penetrating wound on the lateral aspect of the distal third of the right thigh and a compound, comminuted, and complete right lateral femoral condyle fracture. Approximately 27 hours later, his wound was cleaned and dressed at a division aid station. On June 10, 1944, the veteran was evacuated to a station hospital in England where his wound was debrided and a double hip spica cast was applied. He was subsequently transferred to a general hospital in the continental United States. Contemporaneous X-ray studies of the right thigh revealed a loss of bony substance of the right lateral femoral condyle and an associated right knee valgus deformity. The veteran was subsequently found to be unfit for further military service and discharged. In February 1945, the RO established service connection for chronic traumatic right knee arthritis with ankylosis; a penetrating right thigh wound with right femoral lateral condyle fracture residuals; right first, second, and third distal metatarsal fracture residuals, and a mastoid process scar and assigned a 50 percent evaluation for the veteran's disabilities. In February 1946, the RO recharacterized the veteran's right thigh shell fragment wound residuals as right thigh shell fragment wound residuals with Muscle Group XIII injury and scars evaluated as 20 percent disabling. In January 1948, the RO recharacterized the veteran's right thigh shell fragment wound residuals as right thigh gunshot wound residuals with Muscle Group XIII injury evaluated as 30 percent disabling. The report of a March 1948 VA examination for compensation purposes notes that the veteran exhibited considerable right thigh atrophy; loss of three-quarters of the right lateral femoral condyle; and multiple retained metallic foreign bodies. B. Increased Evaluation A 30 percent evaluation is warranted for moderately severe injury to Muscle Group XIII (posterior thigh group). A 40 percent evaluation requires severe injury. 38 C.F.R. § 4.71a, Diagnostic Code 5313 (2007). The provisions of 38 C.F.R. § 4.56 (2007) offer guidance for evaluating muscle injuries caused by various missiles and other projectiles. The regulation directs, in pertinent part, that: (c) For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue- pain, impairment of coordination and uncertainty of movement. (d) Under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows: (1) Slight disability of muscles-(i) Type of injury. Simple wound of muscle without debridement or infection. (ii) History and complaint. Service department record of superficial wound with brief treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. (iii) Objective findings. Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue. (2) Moderate disability of muscles-(i) Type of injury. Through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. (ii) History and complaint. Service department record or other evidence of in-service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective findings. Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. (3) Moderately severe disability of muscles-(i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. (4) Severe disability of muscles-(i) Type of injury. Through and through or deep penetrating wound due to high- velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2007). A February 2004 VA X-ray study of the right knee revealed findings consistent with a right lateral femoral condyle fracture with displacement of the fracture fragment since August 1996 and numerous retained metallic foreign bodies within the distal thigh and the upper right leg. The veteran sustained a significant penetrating right thigh shell fragment wound with a severe compound, comminuted, and complete right lateral femoral condyle fracture. The veteran's wound and associated femoral fracture residuals necessitated delayed debridement, closure, and casting; prolonged hospitalization; and his discharge from active service. The veteran has been shown to currently manifest severe right thigh shell fragment wound residuals including femoral nonunion. Such findings most closely approximate the criteria for severe right Muscle Group XIII injury under the provisions of 38 C.F.R. § 4.56. Therefore, the Board concludes that a 40 percent evaluation is warranted for the veteran's right thigh shell fragment wound residuals. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5313 (2007). The veteran's right thigh symptomatology falls squarely within the relevant diagnostic criteria. Therefore, an evaluation on an extra-schedular basis is not warranted. 38 C.F.R. § 3.321(b)(1) (2007). Hart v. Mansfield, 21 Vet. App. 505 (2007). IV. Lumbosacral Spine A. Historical Review The report of a March 1983 VA examination for compensation purposes diagnosed the veteran with lumbosacral spine degenerative joint disease and degenerative disc disease secondary to his service-connected right lower extremity disabilities. In April 1984, the Board granted service connection for lumbosacral spine degenerative disc disease and degenerative joint disease. In May 1984, the RO effectuated the award and established service connection for lumbosacral spine degenerative joint disease and assigned a 20 percent evaluation for the period from May 28, 1981, to March 27, 1983, and a 40 percent evaluation for the period on and after March 28, 1983, for that disability. B. Increased Evaluation Generally, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion of the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). Degenerative arthritis (degenerative joint disease) of the spine is to be evaluated under the provisions of the General Rating Formula for Diseases and Injuries of the Spine. The rating formula directs that a 40 percent evaluation will be assigned for either unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation will be assigned for unfavorable ankylosis of the entire spine. At the February 2004 VA examination for compensation purposes, the veteran complained of chronic low back pain and stiffness. On examination of the lumbar spine, the veteran exhibited a range of motion of forward flexion to 0 degrees without pain and to 30 degrees with pain, extension to 0 degrees without pain and to 10 degrees with pain, lateral bending to 10 degrees without pain and to 20 degrees with pain, bilaterally, and rotation to 10 degrees without pain and to 20 degrees with pain, bilaterally; no tenderness on palpation; and reduced left lower extremity sensation. Contemporaneous X-ray studies of the lumbosacral spine revealed findings consistent with moderate to marked degenerative disc disease, a L5 pars defect, and lumbar spine scoliosis An April 2006 VA treatment record states that the veteran complained of progressive low back pain which impaired his ability to sit, to stand, and to walk for prolonged periods of time. Contemporaneous X-ray studies of the lumbosacral spine were reported to show moderate to severe degenerative disc disease. The veteran's lumbosacral spine disability is manifested by significant limitation of motion due to pain which clearly merits at least a 40 percent evaluation. The veteran has not been shown to have thoracolumbar spine ankylosis. In the absence of such clinical findings, an evaluation in excess of 40 percent under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242 (2007) is not warranted. The veteran's lumbosacral spine degenerative joint disease symptomatology falls squarely within the relevant diagnostic criteria. Therefore, an evaluation on an extra-schedular basis is not warranted. 38 C.F.R. § 3.321(b)(1) (2007). Hart v. Mansfield, 21 Vet. App. 505 (2007). V. Right Foot Gunshot Wound Residuals The combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68 (2007). In the instant appeal, the Board has granted a 60 percent evaluation for the veteran's right total knee arthroplasty residuals and a 40 percent evaluation for his right thigh gunshot wound residuals with Muscle Group XIII injury. A 10 percent evaluation is currently in effect for the veteran's right foot gunshot wound residuals. Therefore, the veteran has a combined 80 percent evaluation for his right lower extremity disabilities. 38 C.F.R. § 4.25 (2007). Amputation of a lower extremity at the upper third of the thigh warrants an 80 percent evaluation if the point of amputation is at or above a point one-third of the distance from the perineum to the knee joint, measured from the perineum. 38 C.F.R. § 4.71a, Diagnostic Code 5161 (2007). Given the current 80 percent combined evaluation for the veteran's service-connected right lower extremity disabilities, an increased evaluation may not be assigned for the veteran's right foot gunshot wound residuals. VI. Total Rating for Compensation Purposes Based on Individual Unemployability Total ratings for compensation purposes may be assigned where the combined schedular rating for the veteran's service-connected disability or disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to render the veteran unemployable without regard to either his advancing age or the presence of any nonservice--connected disorders. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341 (2007). The provisions of 38 C.F.R. § 4.16(a) (2007), elaborate, in pertinent part, that: Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. ... It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Service connection is currently in effect for right total knee arthroplasty residuals evaluated as 60 percent disabling; right thigh gunshot wound residuals with Muscle Group XIII injury evaluated as 40 percent disabling; lumbosacral spine degenerative joint disease evaluated as 40 percent disabling; right foot gunshot wound residuals evaluated as 10 percent disabling; and a left ear region shell fragment wound scar evaluated as noncompensable. The veteran has a combined rating of 90 percent. At a June 1982 VA examination for compensation purposes, the veteran reported that he had occupational experience as a sales representative, a drapery installer, and an office worker. In his October 2003 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the veteran conveyed that he had completed two years of college. He reported having last worked on a full time basis in December 1983. An April 2006 VA treatment record states that the veteran is "totally disabled due to his knee and back pain." The Board observes that the veteran meets the schedular requirements of 38 C.F.R. § 4.16(a) (2007). A preponderance of the evidence reflects that his service-connected disabilities have rendered him unable to secure and follow any form of full-time employment. Therefore, the Board concludes that the veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment consistent with his education and work experience. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2007). Accordingly, a total rating for compensation purposes based on individual unemployability is granted. ORDER A 60 percent evaluation for the veteran's right knee arthroplasty residuals is granted subject to the law and regulations governing the award of monetary benefits. A 40 percent evaluation for the veteran's right thigh gunshot wound residuals with Muscle Group XIII is granted subject to the law and regulations governing the award of monetary benefits. An increased evaluation for the veteran's lumbosacral degenerative joint disease is denied. An increased evaluation for the veteran's right foot gunshot wound residuals is denied. A total rating for compensation purposes based on individual unemployability is granted subject to the law and regulations governing the award of monetary benefits. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs