Citation Nr: 18155322 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 10-44 366 DATE: December 4, 2018 ORDER Entitlement to service connection for the Veteran’s left knee disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The probative evidence of record is against a finding that a current left knee disability was caused or aggravated by his service-connected right knee disabilities. 2. The Veteran’s service-connected disabilities are not shown to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a TDIU are not been met. 38 U.S.C. §§ 1155, 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 4.16(a), (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1965 to December 1968. This case comes before the Board of Veteran’s Appeals (Board) on appeal of an October 2009 rating decision. 1. Service connection for a left knee disability The Veteran contends that service connection is warranted for a left knee condition, which he asserts is secondary to his service-connected right knee disability. He specifically argues that his left knee disability is due to forty years of altered weight bearing and altered gait, requiring overuse of his left knee. The Veteran has not asserted his disability is related to any in-service injury or disease. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. For entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). At the outset, the Board notes that the Veteran has been diagnosed with degenerative joint disease of the left knee, and therefore the existence of a left knee disability is not at issue. Likewise, the Veteran has service-connected right knee disabilities to include degenerative joint disease right knee and postoperative residuals of the right knee. Therefore, the key question at issue is whether the Veteran’s service-connected right knee disabilities caused or aggravated his left knee disability. The most probative evidence of record addressing the possible relationship between the Veteran’s right and left knee disabilities is the opinion of the March 2016 VA examiner, who after examination of the Veteran, review of the Veteran’s file, and consideration of his assertions—to specifically include the Veteran’s assertion that his left knee pain is due to overuse, compensating for his disabled right knee (See the March 2016 VA examiner’s report at 2)—concluded that “it is less likely than not that the veteran's left knee condition was caused or aggravated by his service-connected right knee disability.” By way of rationale, the examiner stated that “the degenerative process in the left knee is simply the result of aging and very common for a person of this veteran’s age.” This opinion is consistent with that of a June 2015 VA examiner, who similarly noted that the Veteran’s left knee condition is less likely secondary to his service-connected right knee, noting that orthopedic literature does not support such a claim, and that the Veteran has done years of heavy work since service, and the left knee condition is due to aging and attrition. Although an August 2009 VA examiner did not comment upon whether the Veteran’s right knee disability aggravated the Veteran’s left knee disability (as pointed out in the Board’s prior remand), with respect to causation, the examiner did conclude that the Veteran’s left knee degenerative joint disease was caused from an aging process. There are no medical opinions of record contrary to that of the March 2016 VA examiner. The Veteran has had the opportunity to submit medical evidence contrary to the reasoned conclusions of the March 2016 VA examiner, but he has not done so. To the extent the Veteran himself contends that his left knee disability is related to his right knee disability, although competent to report his observable symptoms, he is not competent however to clinically associate his service-connected right knee disability to his left knee disability through a finding of causation or aggravation. Indeed, the Board finds that the most probative evidence concerning the nature, development, and etiology of the Veteran’s left knee disabilities is the report of the March 2016 VA examiner, who has professional expertise to offer the medical findings presented, and in rendering such findings took into account the Veteran’s complaints of right knee pain affecting his left knee and overuse, and provided conclusions supported with a clear clinical rationale. Thus, the Board concludes that the greater weight of the evidence is against the Veteran’s left knee disability claim. The left knee disability is not shown to have been caused or aggravated by his service-connected right knee disability. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for a left knee disability as secondary to a service-connected disability is denied. 2. Entitlement to a rating of total disability based on individual unemployability (TDIU) It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran’s only service connected disabilities are those affecting his right knee, with a combined rating of 30 percent. The Veteran does not qualify for a schedular TDIU at this time because his currently rated service connected disabilities do not meet the requirements of 38 C.F.R. § 4.16(a). Because the Veteran's combined rating did not meet the percentage standards of 38 C.F.R. § 4.16(a) for the appeal period, the claim for a TDIU may be considered only under 38 C.F.R. § 4.16(b) on an extraschedular basis. An extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a); in such cases, the rating authority should refer the matter to the Director of the Compensation Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board concludes that referral for an extraschedular TDIU is not warranted in this case. Consideration has been given to the fact that the Veteran has a long history of right knee pain that interferes with his daily activities; however, the Veteran has other skills, as shown by his education and prior work experience, that the Board finds would not preclude his ability to secure and follow gainful employment. At the March 2016 VA examination, it was noted that the Veteran had previously ran his own business in pest control, and he also worked on his family farm. The Veteran stated he stopped working five years earlier because of his right knee condition. Impairment from the knee included limited walking, squatting and standing. While the evidence suggests that the Veteran’s right knee disability may preclude gainful employment in a manual labor job—such as working on a farm—the Veteran has prior experience running his own business, and he has a bachelor’s degree in biology. During service, the Veteran served as an electronic warfare operations analyst. His training and work experience has not been limited to solely working in a manual labor capacity. While not diminishing the severity of the Veteran’s service-connected right knee disorders, the Board finds that when considering the Veteran’s education and training, which include a college education, experience in the military as an analyst and subsequent experience in running his own business, the evidence does not support a finding that he is not capable of using these skill-sets in securing or following gainful work despite the physical impairments associated with his knee. Accordingly, the Board finds referral of the Veteran’s TDIU claim for extraschedular consideration is not warranted. As the preponderance of the evidence is against a finding of unemployability, the “benefit of the doubt” rule does not apply, and the Board must deny the claim. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David M. Sebstead, Associate Counsel