Citation Nr: 20002019 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 10-22 097 DATE: January 9, 2020 ORDER The issue of entitlement to a rating in excess of 60 percent for a left knee replacement since June 1, 2010, exclusive of periods of a temporary total rating is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU). FINDING OF FACT The Veteran is currently in receipt of the maximum rating assignable for knee impairment. CONCLUSION OF LAW 1. The criteria for a rating in excess of 60 percent for a left knee replacement since June 1, 2010 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Codes 5055, 5162 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1996 to July 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was last before the Board in February 2018 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. Increased Rating 1. Entitlement to a rating in excess of 60 percent for a left knee replacement since June 1, 2010, exclusive of periods of a temporary total rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). The Board finds that a rating in excess of 60 percent is not warranted at any time during the period under review, as the assignment of a higher rating would violate the amputation rule. The amputation rule provides that the "combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were an amputation to be performed." 38 C.F.R. § 4.68. Under Diagnostic Code 5162, an amputation of the middle or lower third of the thigh warrants a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5162. As the Veteran is already in receipt of a 60 percent rating for his left knee disability, a rating in excess of 60 percent for the left knee is precluded by the amputation rule. Accordingly, the appeal is denied. REASONS FOR REMAND 2. The issue of entitlement to TDIU is remanded. As previously noted in the February 2018 Remand, the Veteran’s December 2014 application for TDIU indicates that he last worked in December 2011 as a youth counselor; however, he did not provide the names and addresses of any of his former employers. The Board directed the Veteran to fully complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to include the names and addresses of his prior employers. In a September 2018 written statement, the Veteran indicated that he last worked in December 2011 at Auto Zone, but his store manager was unable to access his employee file. He further stated that he has not worked since December 2011. However, a review of the Veteran’s VA treatment records suggests that he has been working since that time. In June 2017, he reported tightness in his hands when working. In January 2019, he reported being self-employed. In May 2019, he reported being employed doing lawn care. In September 2019, he reported working when able to. Accordingly, the Board finds that a remand is necessary in order to request proof of income from December 2011 to the present. The Veteran should also be asked again to fully complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to include the names and addresses of his prior employers. The Veteran is again reminded that his failure to cooperate in the development of his claim could result in denial of the claim. See 38 C.F.R. § 3.158; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to submit copies of his income tax returns or other proof of income from December 2011 to the present. 2. Ask the Veteran to fully complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to include the names and addresses of his prior employers. Thereafter, the RO should request pertinent information from the identified employers. 3. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.