Citation Nr: 18145148 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 08-39 006 DATE: October 26, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service connected disabilities preclude him from performing gainful employment for which his education and occupational experience otherwise qualify him from the date of the claim in January 2007. CONCLUSION OF LAW The criteria for an award of a TDIU are met from the date of claim in January 2007. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army on active duty from May 1975 to May 1976. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran contends that he is unemployable due to his service connected disabilities, specifically his back condition and bilateral knee conditions. VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017); VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017); VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Veteran meets the schedular criteria for an award of TDIU. 38 C.F.R. § 4.16(a) (providing that the schedular criteria are met if there are two or more service-connected disabilities with 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. § 4.25, Table I (Combined Ratings Table). The Veteran filed his claim for TDIU in January 2007. A February 2007 letter from a private chiropractor characterized the Veteran as 100 percent disabled. The physician stated this was due to the Veteran’s radicular pain which “causes muscles supporting the injured area to go into spasm and to splint in an effort to immobilize the area, to relieve pain and as a protective mechanism from further aggravation and re-injury.” See Letter from J.M., D.C. dated February 8, 2007. The Veteran submitted a buddy statement letter from E.J.W. who stated that due to his physical limitations she “had to take over some of [Veteran’s] daily chores, such as ironing his clothes, preparing his meals, making his bed and lifting items.” See February 28, 2007 Buddy Statement from E.J.W. In March 2007, the Veteran submitted notice that the Social Security Administration found him “unable to consistently perform basic work activities on a regular and continuing basis at even a sedentary exertional level in a competitive work environment” and awarded benefits based on his service connected lumbar spine and bilateral knee conditions. See February 23, 2005 Social Security Administration Notice of Decision. In February 2018 the Veteran testified in hearing before the undersigned and stated that he last worked as a shoe repairman in 1993. He stated that he is unable to do much during the day and spends his time lying down in bed trying to keep himself calm while taking pain medications. He attempted to participate in vocational training shortly after he stopped working but was unable to sit through the class due to increasing discomfort. He testified that he experienced pain in his back when standing, and then in his back and knees while sitting. He also testified that he only gets four hours of sleep a night due to pain and stiffness. He reported using a cane for standing, sitting and for balance. He also reported that he wore a brace on his lower back as well as both knees. He stated that he cannot sit or stand for too long without experiencing pain and stiffness. In April 2018, a private medical opinion from an orthopedic surgeon opined that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment since 1991 based on his service connected lumbar spine symptoms. The examiner noted the Veteran cannot tolerate prolonged standing, sitting or walking and that a number of physical examinations to include his November 1992 C&P examination, documented “severe spasms and severe loss of functional range of motion involving the thoracolumbar spine.” See April 2018 Private Medical Opinion from Dr. D.M. The examiner also noted the Veteran has had several hospitalizations over the years for his ongoing severe back pain. The examiner confirmed a thorough review of the Veteran’s claims file to include review of relevant medical records, an interview of the Veteran, and review of layperson affidavits. In light of the above and resolving all reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is supported by the evidence of record. Accordingly, entitlement to TDIU is granted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REMANDED Entitlement to an increased rating in excess of 40 percent for right knee degenerative joint disease, status post arthroscopic surgeries is remanded. Entitlement to an increased rating in excess of 30 percent for chronic left knee chondromalacia patella is remanded. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 40 percent for right knee degenerative joint disease, status post arthroscopic surgeries. The Veteran’s right knee disability, diagnosed as degenerative joint disease, status post arthroscopic surgeries, is currently rated as 40 percent disabling. He seeks a higher evaluation. The Veteran’s right knee was last assessed by VA in 2009. The Veteran maintains that his right knee disability has increased in severity. In March 2009, the Veteran submitted a handwritten buddy statement from E.M.J. who stated the she observes the Veteran on a daily basis and he can barely walk due to his knees. See Buddy Statement from E.M.J. dated February 26, 2009. In a 2012 statement the Veteran reported he experiences pain that radiates down to his knee area. In 2017, the Veteran reported being unable to put on his pants without pain, as well as having limited ability to stand. It is unclear whether this due to his back or his knee. In April 2018 he reported to a private orthopedic surgeon that his knees swell quite often. He also testified before the undersigned that he currently wears a brace due on his right knee and uses a cane for balance. As the above evidence suggests a worsening of the Veteran’s right knee disability, the Board finds a remand for a new examination warranted to assess the current extent and severity of his right knee disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to an increased rating in excess of 30 percent for chronic left knee chondromalacia patella. The Veteran’s left knee disability, diagnosed as chronic chondromalacia patella, is currently rated as 30 percent disabling. He seeks a higher evaluation. The Veteran’s left knee was last assessed by VA in 2009. The Veteran maintains that his left knee disability has increased in severity. In April 2018, the Veteran reported his left knee gives out, buckles and swells. Given this, as well as the aforementioned statements concerning the Veteran’s knees, the evidence suggests a worsening of the Veteran’s left knee disability, the Board finds a remand for a new examination warranted to assess the current extent and severity of his left knee disability. See Gober. The matter is REMANDED for the following action: 1. Obtain any and all outstanding VA and private medical treatment records and associate them with the Veteran’s claims file. 2. Schedule the Veteran for an examination to assess the current nature and severity of his service connected bilateral knee disabilities. The Veteran’s claims file and a copy of this remand must be made available to the examiner for review in conjunction with this examination, and the examination report should reflect that these items were reviewed. The examiner is asked to review all of the evidence of record, examine the Veteran and interview the Veteran, and describe in detail all symptomatology associated with his bilateral knee disabilities. All indicated tests and studies must be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. The examiner must provide a complete rationale for all opinions and conclusions reached. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel