Citation Nr: 1807554 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-16 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an extension of a temporary total evaluation beyond April 30, due to treatment for right knee total arthroplasty revision with poly exchange and resurfacing of the patella, necessitating convalescence. 2. Entitlement to a rating in excess of 60 percent for arthritis, right knee, status post-total right knee replacement from October 5, 2011 to March 7, 2013 and from May 1, 2013 (right knee disability, status post-knee replacement). 3. Entitlement to a rating in excess of 20 percent for anterior cruciate ligament deficiency, right knee, status post plica resection and arthroscopy, with partial medial meniscectomy, quadriceps atrophy and positive pivot and Lachman's (right knee instability). 4. Entitlement to service connection for a right hip disability, to include as secondary to a right knee disability. 5. Entitlement to service connection for a bilateral foot disability, to include as secondary to a right knee disability. 6. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 8. Entitlement to a combined evaluation greater than 70 percent from May 1, 2013 to June 9, 2014 and 80 percent from June 10, 2014. REPRESENTATION Veteran represented by: Alexandra M. Jackson, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1985 to December 1986. These matters come before the Board of Veterans' Appeals (Board) from October 2012, May 2013, and November 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a videoconference hearing before the undersigned Veteran's Law Judge in July 2017. A transcript of the hearing was prepared and associated with the claims file. At this hearing, the undersigned accidently noted that the issue of whether or not the severance of the Veteran's 20 percent rating for right knee instability was proper was an issue before the Board, but no testimony was taken in regard to the issue. Upon review, the Board notes that a rating decision on this claim was issued in April 2017. The Veteran has filed a Notice of Disagreement, but the appeal has not been certified, and therefore, the Board does not have jurisdiction over this issue. The Board notes that the record shows that the RO is developing that issue and thus it will not remand this claim for the RO to issue a statement of the case. FINDINGS OF FACT 1. On March 8, 2013, the Veteran underwent surgery for his service-connected right knee disability, which necessitated convalescence. 2. The evidence of record does not reflect that the Veteran's March 8, 2013 surgery required convalescence after May 1, 2013. 3. The Veteran's knee disability, status post-knee replacement is manifested by chronic severe pain and weakness. 4. The Veteran has no more than moderate right knee instability. 5. The Veteran does not have a current right hip disability. 6. The Veteran's bilateral foot disability is not caused or aggravated by a service-connected right knee disability, nor is it causally or etiologically related to any disease, injury, or incident in service. 7. The Veteran's left knee disability is not shown to have had its onset in service and is not otherwise related to service or caused or aggravated by the service-connected right knee disability. 8. The Veteran's service-connected disabilities prevented the Veteran from obtaining substantially gainful employment. 9. The RO has properly applied the Combined Ratings Table. CONCLUSIONS OF LAW 1. The criteria for an extension of a temporary total rating for convalescence after May 1, 2015 have not been met. See 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R §§ 4.3, 4.30 (2017). 2. A rating in excess of 60 percent for right knee disability, status post-knee replacement, is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Code 5055 (2017). 3. The criteria for a rating in excess of 20 percent disability rating for instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5257 (2017). 4. The requirements for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2017). 5. The Veteran's bilateral foot disability was not incurred in or aggravated by the Veteran's active duty service and is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 6. The Veteran's left knee disability was not incurred in or aggravated by the Veteran's active duty service and is not presumed to have incurred therein and is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 7. The requirements for entitlement to a TDIU rating have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b) (2107). 8. A 70 percent rating from May 1, 2013 to June 9, 2014 and an 80 percent rating from June 10, 2014 is proper. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.25, Table 1 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Extension of Convalescence VA medical records show that the Veteran underwent a right total knee arthroplasty revision with poly exchange and resurfacing of the patella in March 2013. Applicable law provides that a total disability rating (100 percent) will be assigned for convalescence without regard to other provisions of the Rating Schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. In order to attain a temporary total rating, the Veteran must demonstrate that his service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). A review of the record includes a March 2013 VA discharge information and education note, which indicates that the Veteran was limited to minimal lifting, but he was allowed to walk, bear weight, stand, and engage in other activities to the extent he was able to tolerate such activity, and it was noted that he would be allowed to work as soon as he was released by the surgeons. It was also indicated that the Veteran was to keep his knee extended with a pillow under his ankle. A specific order identifying the length of convalescence was not contained in the record. However, at a follow-up appointment in April 2013, approximately six weeks after the Veteran's surgery, it was noted that the Veteran was ambulating with a cane and wearing a brace, though he noted that the brace was uncomfortable. It was noted that the Veteran's incision was well healed, he was able to fully extend his right knee, and he no longer needed to wear his brace. For all the foregoing reasons, the Board finds that the termination of the temporary total rating for convalescence following right knee surgery on April 30, 2013 is proper and an extension is not warranted. III. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Court has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. (a) Right Knee Disability, Status Post-Knee Replacement Diagnostic Code 5055 provides for a 30 percent rating as a minimum rating for knee replacement. With intermediate degrees of residual weakness, pain, or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is warranted for knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A maximum rating of 100 percent is warranted for one year following implantation of prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran has been assigned a 60 percent rating for the chronic residuals including severe painful motion and weakness of his right knee disability, status post-knee replacement. As this is a highest available rating for this disability beyond the initial period of convalescence, a rating higher than 60 percent is denied. (b) Right Knee Instability Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate, or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. The words "slight," "moderate," "severe," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just" decisions. 38 C.F.R. § 4.6. At a VA examination in October 2012, the Veteran reported that his knee would often give out, causing him to fall. The examiner noted instability of station and noted posterior, anterior and medial lateral instability at 1+ (versus 2+ or 3+), which is indicative of slight instability, but there was no indication of patellar subluxation or dislocation. At an October 2013 VA examination, following the Veteran's most recent right knee surgery, stability testing was normal in the right knee. The Board acknowledges the Veteran's July 2017 testimony indicating that the instability in his right knee has not improved. However, the evidence of record, regardless of whether the Veteran's instability remained following his March 2013 right knee surgery, indicates that the Veteran's instability was never severe, as is required for a higher 30 percent rating under Diagnostic Code 5257. Additionally, the Board acknowledges the medical opinion provided by a private physician in October 2016 noting that there is still evidence of instability following the Veteran's March 2013 right knee surgery. However, this opinion does not indicate that any remaining instability rises to the level of a "severe" instability as required for a 30 percent rating. Accordingly, the Board finds that the Veteran does not warrant a disability rating in excess of 20 percent for right knee instability under Diagnostic Code 5257. IV. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). In this case, the disorder at issue is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Additionally, where a Veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report to the onset and continuity of his symptomatology. Id. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Kahana, 24 Vet. App. at 433, n. 4. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). (a) Right Hip Disability The Veteran contends that his right hip disability is secondary to his service-connected right knee disability. The Veteran testified that his right hip started hurting between 2012 and 2013 and got significantly worse after his March 2013 right knee surgery. Upon a review of the Veteran's records, there is not a clear diagnosis of a right hip disability. The Veteran notes that he has pain, and an October 2016 letter from a private physician provided an opinion that a "right hip condition" was more likely than not related to the Veteran's right knee disability, but there is no diagnosis of a current disability. The private physician reviewed at least a portion of the Veteran's medical records, but this opinion does not appear to be based on an examination of the Veteran. Absent a current diagnosis, service connection cannot be granted. (b) Bilateral Foot Disability The Veteran contends that his bilateral foot disability is secondary to his service-connected right knee disability. The Veteran was diagnosed with plantar fasciitis and heel spurs at a VA examination in November 2013. It was noted that the Veteran had heel spur surgery in 2007 and 2009. The Veteran contends that he has chronic tendinitis and arthritis in both feet. However, the November 2013 VA examiner, upon review of the Veteran's radiographs, noted no degenerative arthritis of joints in his feet. At a February 2013 VA examination, the examiner opined that the Veteran's heel spurs were less likely than not caused or aggravated by the Veteran's service-connected right knee disability. The Board finds that the Veteran is not competent to diagnose himself with arthritis or tendinitis, and therefore, the VA examiner's November 2013 medical opinion, supported by an in-person examination, and review of the Veteran's medical history and diagnostic imaging, is more probative. Additionally, the examiner opined that even if the Veteran had arthritis in his feet, medical literature indicates that arthritis is not a contagious process, but rather, is predominantly age-related, and therefore, any arthritis in the Veteran's feet would not likely have been caused or aggravated by a service-connected right knee disability. As a result, the Board finds the Veteran's bilateral foot disability is not caused or aggravated by the service-connected right knee disability. When a Veteran is found not to be entitled to service connection on a secondary for a given disability, his claim must still be reviewed to determine whether service connection can be granted on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection. As noted above, the Veteran has a current bilateral foot disability, which has been diagnosed as plantar fasciitis and heel spurs, meeting the first requirement for service connection on a direct basis. It was noted on the Veteran's entrance examination that he had moderate and asymptomatic pes planus, but the Veteran's service treatment record do not indicate any complaints of a foot disability, injury, or pain in service. Additionally, at the Veteran's VA examination in May 2013, the Veteran indicated that he first began experiencing pain in his feet until 2006, and the first notations of foot pain in the Veteran's medical treatment records was in February 2007. As the Veteran did not begin experiencing pain in his feet until approximately 20 years after discharge from service and the Veteran does not contend that he had an incident or injury in service that caused his current bilateral foot disability, the Board finds there is no nexus between the Veteran's current disability and his active duty service, and as such, service connection must be denied. (c) Left Knee Disability The Veteran contends that his left knee disability is secondary to his service-connected right knee disability. The Veteran was diagnosed with left knee arthritis in October 2009 and underwent a left knee replacement surgery in 2012. However, in November 2013, a VA examiner opined that the only remaining arthritis in the Veteran's left knee after his total knee replacement would be on his natural patellae, and additionally, the onset of arthritis in the Veteran's left knee is less likely than not caused or aggravated by the Veteran's right knee disability as arthritis is not a contagious disability, but rather, is age-related and arthritis in one knee would not cause arthritis to develop in the opposite knee. Furthermore, the examiner noted that there is no medical research to support the belief that favoring one leg will adversely affect the other. The Board acknowledges the private medical opinion submitted in October 2016, which included the opinion that the gait change associated with the right knee injury was causally related to the Veteran's right knee injury. However, the Board finds the VA examiner's November 2013 opinion to be more probative as it was supported by medical literature, an in-person examination, and review of the Veteran's medical history. The Board notes that prior to his left knee replacement, the Veteran was diagnosed with osteoarthritis, which is a chronic disease under 38 C.F.R. § 3.309(a). However, the Veteran's service treatment records do not show a diagnosis of or treatment for a left knee disability in service. Furthermore, the Veteran's medical treatment records do not indicate complaints of pain in the left knee until January 2006, approximately 20 years after discharge from service, and at his November 2013 VA examination, the Veteran reported that he did not have a left knee injury in service and did not begin to have problems with his left knee until 2007 or 2008. As such, the Board finds that the Veteran is not entitled to a presumption of service connection under 38 C.F.R. § 3.307 as the Veteran's disability did not occur within one year of discharge from service and the preponderance of the evidence is against a finding of continuity of symptomatology between the Veteran's separation from service and the current disability. When a Veteran is found not to be entitled to service connection on a secondary or presumptive basis for a given disability, his claim must still be reviewed to determine whether service connection can be granted on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection. As noted above, the Veteran did develop osteoarthritis in his left knee, which was ultimately treated with a knee replacement surgery in 2012, meeting the first requirement for service connection on a direct basis. However, as noted above, the preponderance of the evidence is against a finding that the Veteran's disability began in service, and the Veteran does not dispute that he did not have a left knee injury while in service. As such, service connection on a direct basis must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the Veteran's service connection claims must be denied. V. TDIU A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under 38 C.F.R. § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If a Veteran does not meet the aforementioned criteria, a total disability may still be assigned, but on a different basis. 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. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage of standards set forth in 38 C.F.R. § 4.16(a). Id. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service connected for a right knee disability, status post-knee replacement with a 10 percent rating from May 1, 1996 to February 3, 2004, a 100 percent rating from February 4, 2004 to December 31, 2006 and March 8, 2013 to April 31, 2013, a 30 percent rating from January 1, 2007 to October 4, 2011, and a 60 percent rating from October 5, 2011 to March 7, 2013 and from May 1, 2013 to the present; right knee instability with a rating of 10 percent from May 1, 1996 to February 3, 2004 and May 1, 2004 to April 17, 2005, a 100 percent rating from February 4, 2004 to April 31, 2004, and a 20 percent rating from April 18, 2005 to July 1, 2017 when the Veteran's rating for right knee instability was severed; and an adjustment disorder with depressed mood at a 50 percent rating from June 10, 2014. The Veteran's combined rating for compensation purposes is 10 percent from May 1, 1996 to November 10, 2003; 20 percent from November 10, 2003 to February 3, 2004 and from May 1, 2004 to April 17, 2005; 30 percent from April 18, 2005 to November 13, 2005; 40 percent from January 1, 2007 to October 4, 2011; 70 percent from October 5, 2011 to March 7, 2013 and May 1, 2013 to June 9, 2014; 100 percent from February 4, 2004 to April 31, 2004, November 14, 2005 to December 31, 2006, and March 8, 2013 to April 31, 2013; and 80 percent from June 10, 2014 to the present. The Veteran filed his claim for TDIU in June 2014, and since that time, the Veteran has a total combined rating of 80 percent, meeting the schedular requirement for TDIU. After reviewing all of the evidence of record, both lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's service-connected disabilities prevent obtaining or maintaining substantially gainful employment. The TDIU claim indicates that the Veteran completed high school and has past relevant work experience as a security guard, shift supervisor, vehicle operator, correctional officer, and, most recently, as a rural mail carrier on a part-time basis. In July 2012, the Veteran left this job as his right knee, along with a left knee disability and a bilateral foot disability, made him unable to complete the tasks required to do the job. The Board notes that the Veteran has had multiple knee surgeries on his right knee since leaving service, and his testimony from his July 2017 videoconference hearing along with notes from a private vocational rehabilitation evaluation indicates that despite numerous surgeries, the Veteran still experiences significant pain in his right knee, which limits his ability to bend, knee, squat, and stand for more than 15 minutes. He testified that he walks with a cane and uses a brace to support his knee on a daily basis, and he indicated that he has a mobility scooter and walker, though he noted that he tries not to use them. The Veteran's testimony and a private vocational rehabilitation evaluation indicate the Veteran has difficulty walking up and down stairs and walking for further than 50 yards. Additionally, the Veteran takes multiple medications to lessen the pain, however, these medications leave him in a tired state, and they often make it difficult for him to concentrate. The Veteran also testified that driving is not recommended given the strength of his pain medications. The Board notes that the Veteran's service-connected adjustment disorder with depressed mood is secondary to the pain and medication associated with his right knee. Based on the above, the Board finds that the evidence is at least in equipoise as to whether the service-connected disabilities preclude the type of employment for which the Veteran is trained and has experience and prevent the Veteran from obtaining or maintaining substantially gainful employment. In this case, the evidence shows that the Veteran stopped working on July 1, 2013, so an effective date for the TDIU of July 1, 2013, and no earlier, is warranted because entitlement to a TDIU arose less than one year prior to the June 2014 claim for a TDIU. The effective date for an increased rating for disability compensation (in this case, assignment of a TDIU, which is a form of increased rating) will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (holding that, in order to obtain an increased disability rating earlier than the date of the claim for increase, the evidence must show that the increase in disability occurred within the one year period prior to the date of claim for increase); VAOPGCPREC 12-98. VI. Combined Ratings Under 38 C.F.R. § 4.25, Table 1, when the Veteran has multiple disabilities, a total rating is assigned by considering the efficiency of the individual as affected first by the most disabling disability, then by the less disabling disability, then by other less disabling disabilities, if any, in the order of severity. The Veteran was assigned a 70 percent rating from May 1, 2013 based on a 60 percent rating for a right knee disability, status post-knee replacement, and a 20 percent rating for right knee instability. The Veteran was assigned an 80 percent rating from June 10, 2014 after being granted a 50 percent rating for an adjustment disorder. The Veteran's 80 percent rating was continued despite the severance of the Veteran's 20 percent rating for right knee instability. When these adjustments are applied to the Combined Ratings Table, the Board finds the RO properly assigned the Veteran's combined ratings, and therefore, a rating in excess of 70 percent from May 1, 2013 to June 9, 2014 and a rating in excess of 80 percent from June 10, 2014 is denied. ORDER Entitlement to an extension of a temporary total evaluation beyond April 30, due to treatment for right knee total arthroplasty revision with poly exchange and resurfacing of the patella, necessitating convalescence, is denied. Entitlement to a rating in excess of 60 percent for a right knee disability, status post-knee replacement, from October 5, 2011 to March 7, 2013 and from May 1, 2013 is denied. Entitlement to a rating in excess of 20 percent for right knee instability is denied. Entitlement to service connection for a right hip disability, to include as secondary to a right knee disability, is denied. Entitlement to service connection for a bilateral foot disability, to include as secondary to a right knee disability, is denied. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability, is denied. Entitlement to a TDIU is granted. Entitlement to a combined evaluation greater than 70 percent from May 1, 2013 to June 9, 2014 and 80 percent from June 10, 2014 is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs