Citation Nr: 1546360	
Decision Date: 11/02/15    Archive Date: 11/10/15

DOCKET NO.  14-36 781	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to a rating in excess of 60 percent for degenerative joint disease, right knee, post-op total knee arthroplasty.

2.  Entitlement to a rating in excess of 10 percent for instability of the left knee.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU). 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P. Lopez, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1958 to February 1960.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied increased ratings for the Veteran's status post total right knee replacement and left knee instability, and entitlement to a TDIU.

The Veteran appealed the April 2014 rating decision in a June 2014 notice of disagreement.  In identifying the issues on appeal, the Veteran listed the issues of increased ratings for his right and left knee, but omitted the issue of a TDIU.  Nonetheless, the claim for a TDIU is under the Board's jurisdiction as part and parcel of the appeal from the ratings assigned for the underlying disabilities.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Further, there is no clear indication that the Veteran decided not to appeal that aspect of the April 2014 rating decision.  Rather, he again alluded to his unemployability in the October 2014 substantive appeal.

During a September 2014 informal conference with a Decision Review Officer, the Veteran raised claims of service connection for a left hand condition (under 38 U.S.C.A. § 1151), a right shoulder condition, insomnia, and depression.  The RO denied these claims in a March 2015 rating decision.  With regard to the issue of the Veteran's left hand, the RO considered the question of direct service connection, but not the 1151 aspect of the claim.  The Veteran submitted an April 2015 notice of disagreement with regard to his 1151 claim for his left hand.  Thereafter, the RO sought clarification as to whether the Veteran was appealing the March 2015 denial or submitting a new claim.  In September 2015, the Veteran submitted a statement that he described as a notice of intent to file an 1151 claim for his left hand.  In view of the above, the Board finds that the issue of benefits under 38 U.S.C.A. § 1151 for a left hand condition is not on appeal.  Rather, the Board finds that it has been raised by the record.  As it has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014).  

The claims file is now entirely contained in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). 

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 2014).

The issues of increased ratings for the Veteran's service-connected status post total right knee replacement and left knee instability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

The Veteran's service-connected knee disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment.


CONCLUSION OF LAW

The criteria for an award of TDIU have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. §§ 3.340, 4.16(a).  This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

The Veteran's service-connected disabilities are degenerative joint disease of the right knee, status post total knee replacement, rated as 60 percent disabling since February 1, 2006; left knee degenerative joint disease/chondrocalcinosis, rated as 10 percent disabling since December 30, 2005; and left knee instability, rated as 10 percent disabling since December 30, 2005.  The combined rating for these disabilities is 80 percent.  38 C.F.R. § 4.25.

The Veteran meets the criteria for consideration for entitlement to TDIU on a schedular basis because the ratings satisfy the percentage requirements of 38 C.F.R. § 4.16(a).  Even so, it must be found that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.

Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage").  Moore v. Derwinski, 1 Vet. App. 356 (1991).  The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative.  The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  An inability to work due to advancing age may not be considered.  38 C.F.R. §§ 3.341(a), 4.19 (2014).  In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. 

In his March 2013 application for a TDIU, the Veteran indicated that he worked from 1960 to 1987 as supervisor at an oil company and had last worked full-time in January 2004, date on which he became too disabled to work.  A VA Form 21-4192 (received March 2014) shows that the Veteran had a part-time job (10 hours per week) in May 2013 and that he was terminated from it because he could not stand for long or use his hands for assembly work.  A March 2014 statement from that employer indicates that the Veteran was not able to stand during the day to perform his duties and that his ability to assemble with his hands was not sufficient enough for the required jobs.  It also stated that the Veteran has problems raising his right arm above his shoulder, keeping him from reaching and placing.  Last, the Board notes that the Veteran's highest level of education is high school.

The Veteran underwent a February 2014 VA examination to determine the current severity of his service-connected knee disabilities.  The VA examiner noted that the Veteran's service-connected knee disabilities would have a severe impact in his ability to do physical work due to his inability to ambulated without cane/braces severe decreased range of motion in extension, and antalgic gait.  In contrast, the examiner stated that the Veteran's knee disabilities would have no impact in his capacity to perform sedentary work.  While the Board acknowledges the VA examiner's opinion, it notes that the ultimate issue of whether a TDIU should be awarded is not a medical issue, but is a legal determination for the adjudicator to make. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

After having reviewed the record and weighing the evidence both in support of and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's service-connected knee disabilities combine to render him unemployable.  Although some evidence suggests that the Veteran might be able to perform sedentary work, the Board finds that such option is not realistic given the Veteran's education level and limited variety of work experience.  As stated above, he has a high school education and has not had a full-time job since January 2004.  While the record shows that the Veteran worked on a supervisory role up to 1987, there is no indication that he has the skills to work effectively in a modern office setting.  Furthermore, his last attempt at employment was a part-time (two hours per day) position from which he was terminated after one month due to multiples disabilities, to include his knees.  As such, the Board finds the evidence to be in equipoise with respect to whether the service-connected disabilities at issue preclude him from obtaining and retaining substantially gainful employment.  When reasonable doubt is resolved in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment.  See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. §§ 3.102, 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, entitlement to a TDIU is warranted.


ORDER

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted.


REMAND

With regard to increased ratings for the Veteran's service-connected bilateral knee disabilities, he was last afforded a VA examination in February 2014.  Since then, he has twice indicated that his knee conditions have worsened.  See October 2014 substantive appeal (stating that left knee had worsened); April 2015 notice of disagreement (stating that both knees had worsened).  VA must provide a new examination with consideration of all pertinent evidence when there is an indication that the record does not adequately reveal the current state of the claimed disability.  Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007).

In addition, the Veteran contends that his status post total right knee replacement merits a rating higher than 60 percent.  See October 2015 appellate brief.  He acknowledges that he is in receipt of the maximum rating available under DC 5055 for a knee replacement that is past the one year mark.  Id.  As such, he argues that consideration of an extraschedular rating is warranted for his status post right knee replacement.  Id.  The February 2014 VA examination report notes that a 2008 bone scan revealed aseptic loosening of the right femoral shaft prosthesis; subsequent surgery attempted to revise the implants, but the Veteran developed a large femoral shaft crack that continued to cause pain up to the Veteran's mid-thigh.  The Board is persuaded by the Veteran's suggestion that his disability picture is unusual and not fully contemplated by the schedular criteria.  As such, consideration of an extraschedular rating for status post total right knee replacement is warranted under 38 C.F.R. § 3.321(b)(1).  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain any outstanding VA treatment records.  All requests and responses for the records must be documented.  If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records.

2.  Thereafter, schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral knee disabilities.  The examiner should note review of the claims file.

The examiner should address the following:

(a)  Measure and record the current level of disability in the Veteran's knees.  Range of motion testing should be conducted, and the examiner should note the point at which the Veteran experiences pain, if applicable.  The examiner should also state whether there is any additional loss of function upon repetitive movement, due to factors such as pain, weakness, fatigability, and loss of endurance.  If so, the examiner should indicate the extent of such loss of function, in degrees.  If the Veteran reports flare-ups in symptoms, the examiner should provide an opinion on the degree of impairment during any flare-ups, in degrees of lost motion.

(b)  Measure and record any instability, subluxation, and dislocation in the knees and the nature and severity of those symptoms. 

If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or is due to the limits of scientific or medical knowledge.

3.  Additionally, the Veteran's claim should be submitted to the Director, Compensation and Pension Service, for consideration of an extraschedular rating in excess of 60 percent for status post total right knee replacement.

4.  If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
All claims remanded for additional development or other appropriate action must be handled expeditiously.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




_________________________________________________
Eric S. Leboff 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs