Citation Nr: 18155147 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 10-30 241 DATE: December 3, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Claim of entitlement to an extraschedular rating for left knee disability is remanded. Claim of entitlement to an increased rating for left knee disability is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, her service-connected disabilities render her unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. § 1110, 1131, 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.15, 4.16 (2017) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to August 1994. The Department of Veterans Affairs (VA) is grateful for her service. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Veteran contends, in effect, that her service-connected disabilities render her incapable of obtaining or maintaining substantially gainful employment. The Veteran has informed that she has not been gainfully employed since 1994. While the clinical records since that time inform of multiple non-service-connected disabilities, the record also reflects significant impairment due to her service-connected disabilities which the Board here concludes, affording the Veteran the benefit of the doubt, render her incapable of obtain or sustaining substantially gainful employment, or that the evidence is at least in equipoise. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, and that, 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). VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that a veteran is precluded, by reason of her service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with her education and occupational experience. 38 C.F.R. § 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to her age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. 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). In determining whether service connection is warranted, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The Veteran is currently service connected for a left knee disability status-post total knee arthroplasty, rated 60 percent disabling; a right knee disability status post total knee arthroplasty, rated 60 percent disabling; a total abdominal hysterectomy with bilateral salpingo oophorectomy, rated 50 percent disabling; carpal tunnel syndrome of the right wrist, rated 10 percent disabling; status-post bunionectomy of the right foot, rated 10 percent disabling; status-post bunionectomy of the left foot, rated 10 percent disabling; and post-operative scars of the left and right knees, rated zero percent disabling. The Veteran’s combined schedular rating of 90 percent renders her eligible for TDIU on a schedular basis. 38 C.F.R. §§ 4.16(a), 4.25 (2017). Recent examination records reflect significant pain and impairment associated with disabilities of the knees, and a long history of knee surgeries and ultimately knee replacements and revisions of the left knee replacement, which service-connected knee disabilities have resulted in significant work impairment since service. The Veteran’s carpal tunnel syndrome of the right wrist also significantly impaired functioning including at computer or typing tasks prior to her carpal tunnel release surgery. Historically the Veteran’s gynecological conditions with fibroids resulted in significant ongoing pain and debilitating complications which contributed to substantial impairment in her ability to rejoin the workforce following her service separation. Thus, her service-connected disabilities not only caused significant work impairment but also substantially impaired her capacity to gain work experience following service. Affording the Veteran the benefit of the doubt, the Board finds that currently her significant impairment due to service-connected disabilities combined with limited educational achievement and little or no work experience outside the military, render her incapable of obtaining or retaining substantially gainful employment, or that the evidence is at least in equipoise. While the Board is mindful that the VA examiner in February 2016 assessed that the Veteran was capable of sedentary work, it does not appear that this examiner adequately considered the Veteran’s limited education and work history and the combined effects of her multiple disabilities on her particular circumstances. Accordingly, notwithstanding that examiner’s finding, the Board concludes that TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.15, 4.16. REASONS FOR REMAND 1. – 2. Claims of entitlement to an increased rating for left knee disability and an extraschedular rating for left knee disability are remanded. Obtained private treatment records reflect that the Veteran in June 2016 underwent revision of her left total knee arthroplasty, and hence the examination in February 2016 does not reflect the current status of that knee. Current findings are therefore required to address her knee disability. Littke v. Derwinski, 1 Vet. App. 90 (1990). The matters are REMANDED for the following action: 1. Afford the Veteran and her authorized representative appropriate opportunity to submit evidence and argument in furtherance of the remanded claims. 2. Associate any pertinent, outstanding records with the claims file. 3. Schedule the Veteran for an appropriate examination by an examiner other than the one who conducted the February 2016 examination addressing the Veteran’s knees. The requested examination is to determine the current nature, extent, and severity of the Veteran’s service-connected right and left knee disabilities. The claims file should be made available to the examiner, and all appropriate tests and studies should be accomplished. A complete rationale supporting assessments of disability and impact on employment capacity must be provided. The examiner should address the following: (a.) The examiner should address the nature and extent of the Veteran’s subjectively reported instability in each knee, as well as objective findings. The examiner should address whether instability in each knee is slight, moderate, or severe, with due consideration of subjective instability even in the absence of objective findings. (b.) All findings and conclusions should be reported clearly and in detail. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter