Citation Nr: 18149054 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 14-11 046A DATE: November 8, 2018 ORDER For the period prior to July 24, 2006, an initial rating higher than 30 percent for status post right total knee arthroplasty, is denied. For the period since November 1, 2008, a rating of 60 percent, but no higher, for status post right total knee arthroplasty, is granted. For the period since November 1, 2008, a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a TDIU for the period prior to July 24, 2006, is remanded. FINDINGS OF FACT 1. For the period prior to July 24, 2006, the evidence fails to show that the Veteran’s status post right total knee arthroplasty manifested as chronic residuals consisting of severe pain and weakness, or symptoms analogous to the criteria for a rating higher than 30 percent under DCs 5256, 5261, and 5262. 2. For the period since November 1, 2008, the Veteran is in receipt of the maximum rating available for prosthetic replacement of the knee. 3. For the period since November 1, 2008, forward, the Veteran’s service-connected right knee disability is as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. For the period prior to July 24, 2006, the criteria for an initial rating higher than 30 percent for status post right total knee arthroplasty have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055. 2. For the period since November 1, 2008, the criteria for a rating higher than 60 percent for status post right total knee arthroplasty have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055. 3. For the period since November 1, 2008, the criteria for an award of TDIU on a schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1960 to September 1962. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision. 1. Entitlement to a higher initial rating for status post right total knee arthroplasty, currently rated as 60 percent disabling, The March 2010 rating decision established service connection for status post right total knee arthroplasty, effective March 27, 2001. The Veteran appealed the assigned rating via an August 2010 notice of disagreement. The Veteran’s service-connected right knee disability is currently rated under 38 C.F.R. § 4.51a, DC 5055, as follows: 30 percent disabling from March 27, 2001; 100 percent disabling from July 24, 2006; 30 percent disabling from November 1, 2008; and 60 percent disabling from November 9, 2011. (As a rating of 100 percent has been assigned from July 24, 2006, to October 31, 2008, and a higher rating is not available, this specific period is not for consideration.) DC 5055 for prosthetic replacement of the knee joint assigns a 100-percent evaluation for one year following implantation of prosthesis. With chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60-percent rating is assigned. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to DCs 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of tibia and fibula). The minimum rating is 30 percent. 38 C.F.R. § 4.71a. The Veteran receives treatment for his right knee through the VA system. Available VA treatment records cover the period since May 2000. See, e.g., CAPRI records (1,817 pages), received July 19, 2018. In addition, since June 2009, the Veteran has undergone five VA examination for his right knee disability. The Veteran has also submitted lay statements describing his symptoms. Based on this evidence, the Board reaches the following findings and conclusions. For the period prior to July 24, 2006, the Board finds no evidence to support a rating higher than the currently assigned 30 percent. A review of the Veteran’s VA treatment records reflects that, in July 2006, the Veteran’s right knee disability experienced a marked increase in severity. Records from that period show that the Veteran sought treatment for a sudden onset of pain and swelling in the right. Records prior to July 2006 indicate that, by October 2003, the Veteran was using a cane, but are otherwise silent regarding chronic severe pain or weakness in the right knee, as required for a rating of 60 percent under DC 5055. Similarly, there is no indication that the Veteran’s right knee disability manifested as symptoms analogous to a rating higher than 30 percent under DCs 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of tibia and fibula). However, for the period since November 1, 2008, the Board finds that the Veteran’s right knee disability meets the criteria for a 60 percent rating under DC 5055. In this regard, a July 2010 VA treatment note shows a history of on-going chronic pain in the right knee. Additionally, a June 2009 VA examination shows that the Veteran reported weakness, instability, giving way, and incoordination. He also reported being unable to stand for more than a few minutes or walk for more than a few yards. Use of a cane was noted. A subsequent December 2010 VA examination shows also use of a walker (as well as a cane). The Veteran reported a history of falls due to weakness and instability in his right knee. The examiner commented that the Veteran had senescence of the right knee joint status post a knee infection in 2006 and a total knee replacement in 2007. Based on this evidence of chronic, severe pain and weakness in the right knee, the Board finds that a rating of 60 percent is warranted from November 1, 2008, forward. This is the maximum rating under DC 5055 (excluding the 1 year following knee replacement surgery, which has been awarded as described above). A higher rating is not available per the rating schedule, as the Veteran’s right knee replacement is directly contemplated by the VA’s Rating Schedule. Indeed, a listed condition should be rated under the DC that specifically pertains to it. Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) 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). As discussed above, the Board has granted entitlement to a rating of 60 percent for the Veteran’s service-connected right knee disability for the period since November 1, 2008. As a result of this decision, the Veteran meets the schedular criteria under § 4.16(a) for consideration for entitlement to a TDIU on a schedular basis from that date forward. (Prior to July 24, 2006, the Veteran’s combined rating is 30 percent. A rating of 100 percent has been assigned from July 24, 2006, to October 31, 2008.) 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 (2018). 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. The Veteran’s formal TDIU claim indicates that last worked, and became too disabled to work, in 1994. The evidence of record further shows that the Veteran worked many years as a school bus mechanic. See August 2015 TDIU claim: October 2018 VA examination. At an October 2018 VA examination (for a claimed mental health disability), the Veteran stated that quit his job as mechanic due to leg problems. The Veteran has a GED and has reported two years of college. Significantly, a September 2018 mental disorders DBQ, completed by a private provider, indicates that the Veteran does not have marketable job skills or specifications. 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 right knee disability renders him unemployable for purposes of a TDIU. In this regard, the Board notes that the Veteran’s capacity to work is specifically impacted by his limited ability to stand, walk, kneel, push, pull, and squat from his right knee. A VA examiner has expressly stated that such limitations cause functional impairment for physical employment. See August 2018 VA knee examination. Although some evidence suggests that the Veteran might be able to do sedentary work, the Board finds that such option is not realistic given the Veteran’s education level and previous work experience. As mentioned, a private provider has concluded that the Veteran does not have any marketable skill or qualifications. Furthermore, there is no indication that the Veteran would be able to secure substantially gainful employment in the modern economy or in a non-physical, work environment. (The Board also notes that a recent November 2018 rating decision granted service connection for depressive disorder. While the evidence does not show that this condition results in total occupational impairment, the aforementioned mental disorder DBQ indicates that it results in reduced reliability and productivity, as well as loss of employment opportunities. See September 2018 DBQ, labeled “other”.) Based on the above, the Board finds the evidence to be in equipoise as to whether the disability at issue precludes the Veteran 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 right knee disability is 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. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, entitlement to a TDIU is warranted from November 1, 2008, forward. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to July 24, 2006, is remanded. The evidence of record shows that the Veteran stopped working in 1994. The Veteran has stated that this decision was based on leg problems, which presumably include his service-connected right knee. As such, there is evidence of unemployability prior to the date on which the Veteran met the schedular percentage threshold for a TDIU. Accordingly, the case must be remanded for referral to the Director, Compensation Service, for a consideration of whether a TDIU is warranted on an extraschedular basis for the period prior to July 24, 2006. See 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the Veteran’s claim for TDIU prior to July 24, 2006, to VA’s Director of Compensation Service for extraschedular consideration. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel