Citation Nr: 1803773 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-53 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a total rating by reason of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran had active service with the U.S. Army from December 1946 to April 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 decision issued by the San Diego, California, Regional Office (RO). This case was previously before the Board in May 2017 and was remanded for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (7). 38 U.S.C. § 7107(a)(2) (2014). FINDINGS OF FACT 1. Service connection is in effect for residuals of a total right knee replacement with instability, evaluated as 60 percent disabling, and for surgical scars of the right knee, evaluated as noncompensably disabling; the combined disability rating is 60 percent. 2. The Veteran's service-connected disorders do not render him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2014); 38 C.F.R. §§ 3.321(b)(1), 3.340, 3.341, 4.16, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in correspondence dated December 7, 2015 and May 25, 2017. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Law and Analysis The Veteran is seeking a TDIU. In this regard, the Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). However the Board has no authority to assign a TDIU rating under 4.16(b) in the first instance and may only refer the claim to the Director of Compensation Services for extra-schedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran is service connected for residuals of status post total knee replacement, rated as 60 percent disabling and surgical scars right knee rated as noncompensably disabling. The combined rating for his service-connected disabilities is 60 percent. As both disorders share a common origin, the Veteran meets the minimum percentage rating required for consideration of assignment of TDIU. 38 C.F.R. § 4.16(a). Turning to whether the service-connected disorders preclude the Veteran from obtaining or maintaining substantially gainful employment, on his TDIU application, he indicated that he last worked full-time in 1990 as vice president of sales for a hotel company when he had become too disabled to work. He reported severe functional loss of his right knee due to multiple surgeries and that he could not sit, stand, or walk. He also reported that he completed high school and that he had not gone to college. See VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in November 2015. When examined by VA in January 2016, the examiner noted the Veteran's report of constant pain, which causes difficulty with prolonged standing, walking, bending, crouching, crawling, and kneeling, but did not suggest that there was an inability to work due solely to the service-connected right knee total knee replacement, right knee instability. Instead he concluded that the Veteran's non-service-connected left knee strain functionally also impaired his ability to perform certain activities, but that he could still "entertain" light physical and sedentary employment. In other words, the VA opinion did not adequately address the impact of the service-connected right knee disability alone on the Veteran's employability without the impact of nonservice-connected left knee disorder. In an addendum to that report, the examiner reiterated his previous conclusion that the examiner the Veteran was capable of light physical and sedentary employment. He provided a full description of the effects of the service-connected residuals of status post total knee replacement with instability on ordinary activities, and offered his professional opinion on how it affected the Veteran's ability to work. He referred to X-ray findings from March 2004, which showed good aligned prosthesis of the right knee with no patella, and just a small fragment noted. A December 2015 knee examination showed decreased range or motion, pain on movement, pain to palpation, decreased muscle strength, and positive instability testing. The examiner then concluded that the Veteran is likely limited in prolonged running, jumping, directly kneeling, and activities that will cause increased torque on the right knee which could cause pain. Hence, considering the evidence, the Veteran can likely to "entertain" light physical and sedentary occupational and employment activities which do not involve prolonged running, jumping, directly kneeling, and activities that will cause increased torque on the right knee which could cause pain. The examiner also noted that the Veteran's three right knee surgical scars were all well-healed, nontender, and stable and do not cause functional impairment. Hence, he could perform general physical activities without significant restriction as it pertains to his service connected right knee surgical scars. None of the remaining medical records suggest an increase in disability had occurred as compared to recent examination findings and do not ascribe an inability to work due solely to the Veteran's service-connected residual right knee disabilities. While the Board recognizes the nature and extent of the Veteran's overall disability, the evidence of record does not support the claim that his service-connected residuals of status post total knee replacement with instability and scars alone are sufficient to produce unemployability even when he disabilities are assessed in the context of subjective factors such as his occupational and educational background. While the Veteran's service-connected right knee disability keeps him from doing heavy physical work, he has the skills, experience, and education to perform more sedentary tasks given his high school eduction and career achievement as vice president in sales. The Veteran does not otherwise contend that his service-connected right knee surgical scars have played any role in his unemployment. The evidence shows that they have been rated as noncompensable throughout the appeal period; that an examiner has specifically opined that they would not affect employment; and no symptoms of the knee scars have been reported. For all the foregoing reasons, the claim for entitlement to a TDIU is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs