Citation Nr: 1428186 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 10-17 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for arthritis of the right knee. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran had active service from February 1976 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and February 2009 decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Columbia, South Carolina. In April 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of this proceeding has been associated with the claims folder. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's arthritis of the right knee is manifested by flexion to no less than 30 degrees, including on repetition, without clinical evidence of ankylosis, dislocated or removed semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum. 2. From January 15, 2010, the Veteran's right knee is manifest by limitation of extension to 10 degrees. 3. Throughout the appeal, the Veteran has had slight instability of the right knee. 4. The Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for limitation of flexion of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2013). 2. Since January 15, 2010, the criteria are met for a disability rating of 10 percent for limitation of extension of the right knee. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2013). 3. The criteria for a separate 10 percent disability rating for right knee instability throughout the appeal period have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5257 (2013). 4. The criteria for a TDIU are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Proper notice under this law includes informing the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, letters sent in August, October and November 2008 advised the Veteran of the evidence and information necessary to substantiate his claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letters advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records, VA and private treatment records have been obtained and considered. The Veteran also reported he was receiving disability benefits from the Social Security Administration (SSA), in part due to his knee disability. However, the RO issued a Formal Finding of Unavailability with respect to the existence of these records in March 2012. The Veteran has not identified any additional, outstanding relevant records that have not been requested or obtained. Further, the Veteran was afforded VA examinations in September 2008, January 2010, and January and November 2012 in conjunction with the claims on appeal. The Veteran has not alleged that these examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate to evaluate the Veteran's claims as it includes an interview with the Veteran, a review of the record, and a full physical examination addressing the relevant criteria. The Board thus finds that the examination reports are adequate to adjudicate the increased rating claim and no further examination is necessary. Further, in obtaining these VA compensation examinations, the Board is also satisfied that there has been compliance with its July 2011 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. As such, the Board finds that it can proceed to adjudicate the claims based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist, and it may proceed to an adjudication of the claims. Higher Ratings The Board has reviewed all the evidence in the appellant's claims file and electronic file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "moderate" and "severe" are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's right knee disability is rated as 20 percent disabling pursuant to the provisions of Diagnostic Code 5010-5260. The Veteran was first examined in September 2008 in connection with his claim for an increased rating. At that time, the examiner noted the Veteran's complaints of locking, instability, and swelling. Upon physical examination, flexion was noted to be to 30 degrees, with pain throughout. Extension was to 0 degrees. The examiner also indicated there was mild diffuse tenderness to palpation and moderate crepitus. It was noted the Veteran had extreme difficulty transferring to the exam table due to lack of knee flexion, and he had severe gait disturbance. Concerning any functional impairment, the examiner found that the Veteran is unemployed and receiving Social Security disability payments. The Veteran stated all of his daily activities were impacted and he required the use of a cane and a knee brace. The Veteran was next examined in January 2010 to determine the severity of his right knee disability. Again, swelling, locking, and instability of the right knee were noted. Upon physical examination, flexion was to 75 degrees, with pain throughout. Extension was to 10 degrees, with pain throughout. The examiner stated that there was no additional limitation following repetitive use. Also, while there was slight swelling of the right knee and tenderness to palpation, there was no warmth, redness, or crepitus. As for functional impairment, the examiner noted the Veteran has been unemployed since 1991. The Veteran also reported difficulty dressing himself and reported severe, constant pain. He still required the use of knee braces and a cane. In January 2012, the Veteran was again afforded a VA examination. Flexion was noted to 10 degrees, and extension to 0 degrees. The Veteran was unable to perform repetitive testing due to extreme right knee and low back pain, and guarding. As for functional impairment, the examiner noted pain on movement, swelling, instability, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. There was also tenderness to palpation. This examiner also specifically found there was no evidence of recurrent patellar subluxation or dislocation, and no impairment of the tibia or fibula. The examiner noted the Veteran required the use of a cane. Finally, the examiner stated that the Veteran's right knee disability impacts his ability to work given the fact that the Veteran was a former factory worker and has limitations with standing. Further, the Veteran has a 10th grade education with adequate literacy and basic math skills. The Veteran was most recently examined in November 2012. Range of motion testing revealed flexion to 45 degrees, with pain at the endpoint; and, extension to 10 degrees. Upon repetitive testing, the Veteran exhibited the same ranges of motion for the right knee. As for functional impairment, decreased movement and disturbance of locomotion was noted. Again, tenderness or pain to palpation was indicated for the right knee. The examiner noted the Veteran reported flare-ups of the right knee that cause difficulty bending over and a general decrease in mobility. As with the January 2012 examination, there was no evidence of recurrent patellar subluxation or dislocation, and no impairment of the tibia or fibula. The examiner indicated the Veteran required the use of a cane and brace for his right knee disability. The VA examiner also found that the Veteran's knee and low back disabilities impacted his ability to work since the Veteran had to quit his job in the lumberyard in 2005 due to pain. The Board also notes there are VA treatment records dating through 2013 associated with the Veteran's physical and virtual claims files, which show his continued complaints of pain associated with his right knee disability. However, these records do not contain any objective range of motion findings pertaining to the right knee. In fact, his VA treatment records only state the Veteran suffers from "some restriction on flexion." See January 2013 VA treatment record. There are also private treatment records from Dr. Drakeford, dated through November 2009, which document the Veteran's reports of right knee pain. However, the only notation concerning range of motion is dated in October 2008 and shows flexion to 80 degrees. There was no measurement for extension, repetitive range of motion testing, or functional impairment. After reviewing all of the clinical evidence and subjective complaints since the effective date of service connection, the Board finds that the preponderance of the evidence shows that a disability rating in excess of 20 percent for limitation of motion of the right knee is not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260. The Board is aware that the January 2012 VA examiner noted flexion to 10 degrees. However, the Board is considering this rating to be an outlier as the VA examination in November of that same year showed flexion to 45 degrees. As such, at its most limited, the Veteran's right knee had flexion to no less than 30 degrees, including on repetition, as noted in the September 2008 VA examination. In fact, since that examination, the flexion in his right knee steadily increased. In reaching this determination, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, even where there is compensable loss as a result of limitation of motion. DeLuca v. Brown, 8 Vet. App. at 205 -06. To receive disability compensation, however, for painful motion, that pain must result in functional loss, i.e., limitation in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination or endurance." See 38 C.F.R. § 4.40; see also Mitchell, 25 Vet. App. at 38. In other words, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes. Mitchell, 25 Vet. App. at 37. Here, given the Veteran's ability to perform physical tasks and his overall range of motion on subsequent examinations, the Boards finds that the preponderance of the evidence is against entitlement to a rating in excess of 20 percent based on limitation of flexion for the right knee. Other potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diagnostic Code 5261 provides for 10, 20, 30, 40, and 50 percent ratings when extension of the leg is limited to 10, 15, 20, 30, and 45 degrees, respectively. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. In this case, the Veteran is already in receipt of a separate10 percent rating for limitation of extension, effective from November 6, 2012, the date of the most recent VA examination. However, the Board notes that the Veteran's extension was first noted to be limited to 10 degrees during the January 15, 2010 VA examination. As such, this 10 percent disability rating is effective from January 15, 2010, the date of his VA examination. See 38 C.F.R. § 4.71a, Diagnostic Code 5261; see also VAOGCPREC 9-2004, 69 Fed. Reg. 59,990 (Sept. 17, 2004). Further, the evidence shows the Veteran suffered from instability of the right knee throughout the entirety of his appeal. Specifically, although not clinically found, the Veteran competently reported having giving way and instability at the September 2008, January 2010, and January 2012 VA examinations, and in statements made in support of his claim. As such, he is entitled to a separate 10 percent rating for slight instability of the right knee. See id.; see also VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (Dec. 1, 1997). The lay and medical evidence, however, does not support the higher than 10 percent, which contemplate at least moderate recurrent subluxation or lateral instability. See Diagnostic Code 5257. On the other hand, the VA examination reports and private treatment records do not indicate ankylosis of the right knee, and the record does not show dislocation or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum of the right knee. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263 (2013). In reaching the above determinations, the Board has considered the doctrine of reasonable doubt and the staged ratings assigned represent the maximum ratings warranted during each stage of the appeal. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria adequately contemplate the manifestations of the Veteran's right knee disability. The rating criteria are thus adequate to rate the right knee and referral for extraschedular consideration is not warranted. Moreover, even if the established schedular criteria are found to be inadequate to describe the severity and symptoms of the Veteran's right knee disability, this case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. The Board thus finds that referral for consideration of an extraschedular rating is not warranted. TDIU The Veteran presently seeks a TDIU, indicating that his service-connected disabilities prevent his from following and maintaining gainful employment. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper or lower or one or both lower extremities, including the bilateral factor if applicable; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or, (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The United States Court of Appeals for the Federal Circuit recently held that VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities in TDIU cases. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Following and taking note of the Federal Circuit's decision in Geib, the Court stated in Floore v. Shinseki, 26 Vet. App. 376 (2013) that the need for a combined-effects medical examination report or opinion with regard to multiple-disability TDIU entitlement decisions is to be determined on a case-by-case basis, and depends on the evidence of record at the time of decision by the RO or the Board. The Court emphasized that this was not to say that a combined-effects medical examination report or opinion likely would not be helpful to the proper adjudication of entitlement to TDIU for a veteran with multiple service-connected disabilities, but such an examination is not required per se as a matter of statute, regulation, or policy. Here, in addition to the grant of service connection for instability of the right knee above, service connection is in effect for arthritis of the right hip (30 percent disabling); degenerative joint disease of the left knee (30 percent disabling); right knee arthritis (20 percent disabling); scars of the right knee (10 percent); depressive disorder, associated with the lumbar spine disability(10 percent); limitation of extension of the right knee (10 percent); and, leg length discrepancy associated with degenerative arthritis of the right hip (0 percent). The Veteran's combined disability is currently 100 percent, but he has had a combined disability rating of 60 percent since February 1, 2005. Since his disabilities are all arising from the same body system, i.e., orthopedic, the 60 percent disability rating effective from February 1, 2005, is sufficient to meet the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a). Further, the evidence of record establishes that the Veteran's service-connected disabilities preclude gainful employment. A March 2004 VA examination, conducted in connection with a previous claim for an increased rating for the right knee disability noted the Veteran was unemployed and receiving Social Security disability due to his knee and hip arthritis. The September 2008 VA examination for the right knee echoed the March 2004 findings and did not provide any further comment on the issue of unemployability. A January 2010 VA joints examination noted the Veteran had been unemployed since 1991, when he used to work for a wood company doing manual labor. The Veteran stated he had to quit because he was unable to perform his job appropriately due to his polyarthralgias. In November 2010, the Veteran was again examined by VA. At that time, following an examination of the Veteran's right knee disability, the examiner opined that the Veteran was unemployable considering his modest educational level and severe limitation of mobility on examination. Specifically, the Veteran required assistance getting on and off the table, and used a cane for basic slow ambulation. Pursuant to the Board's July 2011 remand directives, the Veteran was provided a VA examination in January2012 to specifically determine whether his service-connected disabilities, alone or together, rendered him unemployable. The VA examiner determined that his knee and low back disabilities impacted his ability to work since the Veteran had to quit his job in the lumberyard in 2005 due to pain. Most recently, the November 2012 VA examiner opined that the Veteran's right knee disability impacts his ability to work given the fact that the Veteran was a former factory worker and has limitations with standing. Further, the Veteran has a 10th grade education with adequate literacy and basic math skills. The evidentiary standard for TDIU opinions is not whether the average person would be precluded from substantially gainful employment, but whether the specific Veteran would be so precluded as a result of service-connected disabilities. Unlike the regular disability rating schedule, however, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); see Friscia v. Brown, 7 Vet. App. 294 (1994). Thus, when considering this specific Veteran's disabilities in connection with his employability, the evidence of record establishes entitlement to TDIU. It is clear that the Veteran's musculoskeletal disabilities - including his right knee - precludes most types of employment requiring manual labor, which was his prior career and what he is capable of doing. As the November 2012 VA examiner also noted, the Veteran has limited education, including literacy and math skills. Consideration of the Veteran's employability must take into account the limits placed on that type of work environment by all service-connected disabilities. Here, the Board finds that the Veteran's service-connected musculoskeletal disabilities, results in a clinical picture so severe as to preclude substantially gainful employment. On this basis, the Board finds that TDIU is warranted. ORDER A disability rating in excess of 20 percent for limitation of motion of the right knee is denied. Subject to the law and regulations governing payment of monetary benefits, an initial disability rating of 10 percent for limitation of extension of the right knee is granted, effective from January 15, 2010. Subject to the law and regulations governing payment of monetary benefits, a separate disability rating in excess of 10 percent for instability of the right knee is granted. Subject to the law and regulations governing payment of monetary benefits, entitlement to a TDIU is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs