Citation Nr: 21074961 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-50 144A DATE: December 16, 2021 ORDER Entitlement to a rating of at least 20 percent for right knee instability is granted throughout the appeal period. Entitlement to a rating of at least 20 percent for left knee instability is granted throughout the appeal period. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted throughout the appeal period. REMANDED Entitlement to service connection for a right hip disability, claimed as secondary to service-connected bilateral knee disabilities is remanded. Entitlement to service connection for a left hip disability, claimed as secondary to service-connected bilateral knee disabilities is remanded. Entitlement to a rating in excess of 10 percent for right wrist carpal tunnel syndrome is remanded. Entitlement to a rating in excess of 10 percent for left wrist carpal tunnel syndrome is remanded. Entitlement to a rating in excess of 10 percent for left knee disability based on limitation of motion is remanded. Entitlement to a rating in excess of 10 percent for right knee disability based on limitation of motion is remanded. Entitlement to a rating in excess of 20 percent for left knee instability is remanded. Entitlement to a rating in excess of 20 percent for right knee instability is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability is manifested by at least moderate instability. 2. The Veteran's left knee disability is manifested by at least moderate instability. 3. Throughout the appeal period, the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for a rating of at least 20 percent for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5257. 2. Throughout the appeal period, the criteria for a rating of at least 20 percent for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5257. 3. Throughout the appeal period, the criteria for a grant of TDIU are met, effective February 12, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1978 to July 1998. His decorations include a Combat Action Ribbon and the Southwest Asia Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2021 virtual hearing. INCREASED RATING 1. Entitlement to a rating in excess of 10 percent for right knee instability. 2. Entitlement to a rating in excess of 10 percent for left knee instability. Under 38 C.F.R. § 4.71a Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms "mild," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. The Veteran's service treatment records show the use of bilateral hinge braces, as well as use of a cane. See June 2010 VA treatment record. On June 2017 VA knee and lower leg conditions examination, the Veteran reported flare-ups about four times per week, manifested by worsened pain and stiffness, sometimes lasting for several days. The Veteran also complained of bilateral knee instability, although none was found on physical examination. It was indicated the Veteran required constant use of a cane and bilateral knee braces. At the October 2021 hearing, the Veteran reported he wears bilateral leg braces. The Veteran's son testified regarding the instability of the appellant's knees, indicating that they buckle. The Veteran testified that his knees buckle approximately three times per week. In this case, the Board finds the Veteran's reports of right and left knee instability competent and credible. See English v. Wilkie, 30 Vet. App. 347 (2018). The evidence of record indicates that the right and left knee instability has been present throughout the appeal period. Accordingly, the Board finds that throughout the appeal period, based on the Veteran's competent and credible testimony, that his right and left knee disability is manifested by at least moderate instability. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for at least a separate rating of 20 percent for moderate instability is warranted throughout the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. Entitlement to 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's masters degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). After a review of the evidence of record, the Board finds that, when resolving any reasonable doubt in the Veteran's favor, the evidence supports awarding TDIU throughout the appeal period. In reaching this determination, the Board emphasizes that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this regard, the Board notes that the Veteran's employment history since service has included working as a sheet metal worker, construction worker, and utility line repairer. See Social Security Administration (SSA) records; see also May 2017 VA Form 21-8940s. The Veteran's education includes approximately three years of college education. See May 2017 VA Form 21-8940s. The critical facts in this case are not in dispute. In approximately 2010, the Veteran ceased working due to his various ailments, and as he testified at the October 2021 hearing, due to being considered a safety risk because of his service-connected disabilities. Based on the decision above awarding at least a 20 percent rating for the Veteran's right and left knee instability throughout the appeal period, the Veteran met the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) throughout the appeal period. His service-connected disabilities include sinusitis, bilateral wrist carpal tunnel syndrome, bilateral knee instability, bilateral knee disability based on limitation of motion, and residual left knee scar. The pertinent evidence of record includes a June 2017 VA knee and lower leg conditions examination noting the Veteran experiences difficulty walking, sitting and squatting due to knee pain and instability which impairs his ability to work in the trades as a welder, sheet metal, fabricator, carpenter, which require a lot of climbing and/or work on the knees. In a June 2017 VA peripheral nerve conditions examination, the examiner noted the Veteran had difficulty using his hands at work to grip, carry or lift items due to weakness and pain, and that writing and typing would be painful and difficult due to numbness. Based on the evidence of record, including the evidence highlighted above, the Board finds that the evidence is at least in equipoise regarding whether the functional impairment associated with his service-connected disabilities, alone, is of such nature and severity as to prevent him from securing or following a substantially gainful employment. In reaching this finding, the Board finds it significant that the Veteran's employment history includes physically demanding work and duties, and due to his service-connected bilateral knee and wrist disabilities, he suffers from significant functional impairment such as to prevent him from securing or following a substantially gainful employment. Hence, the Board finds that TDIU is warranted throughout the appeal period due on his service-connected disabilities. REASONS FOR REMAND 4. Entitlement to service connection for a right hip disability, claimed as secondary to service-connected bilateral knee disabilities is remanded. 5. Entitlement to service connection for a left hip disability, claimed as secondary to service-connected bilateral knee disabilities is remanded. The Veteran seeks service connection for a right and left hip disability, claimed as secondary to his service-connected bilateral knee disabilities. See May 2017 VA Form 21-526EZ. The Veteran was afforded a VA examination and opinion in June 2017. The Veteran reported that he has treatment with a chiropractor about once per month and they have to "realign" his hips by pushing on it. The Veteran complained of pain, and reported that excessive use (e.g., walking) can worsen his left hip pain, forcing him to sit down and get off his feet. The examiner noted that physical examination was normal. It was therefore opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition (i.e., service-connected bilateral knee disabilities) because no hip condition was presently diagnosed based on examination. Notably, the examiner did not address the etiology of the Veteran's bilateral hip pain, or his reported of reduced activity after excessive use. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In addition, at the October 2021 hearing, the Veteran testified that his doctors have told him that his hips are due to his knees. He is competent to report what his physician reportedly told him. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board finds that the June 2017 examination and opinion is not adequate for rating purposes. In addition, the referenced private chiropractic treatment records are not associated with the evidence of record. Hence, the Board finds that these matters must be remanded for a new and examination and opinion as to the etiology of the Veteran's bilateral hip disabilities/functional impairment, as well as to secure any outstanding VA and private treatment records. 6. Entitlement to a rating in excess of 10 percent for right wrist carpal tunnel syndrome is remanded. 7. Entitlement to a rating in excess of 10 percent for left wrist carpal tunnel syndrome is remanded. 8. Entitlement to a rating in excess of 10 percent for left knee disability based on limitation of motion is remanded. 9. Entitlement to a rating in excess of 10 percent for right knee disability based on limitation of motion is remanded. 10. Entitlement to a rating in excess of 20 percent for left knee instability is remanded. 11. Entitlement to a rating in excess of 20 percent for right knee instability is remanded. At the October 2021 hearing, the Veteran testified that his right and left wrist carpal tunnel syndrome, and right and left knee disabilities (to include right and left knee instability) had worsened in severity since the most recent June 2017 VA examinations. Under the circumstances, the Board finds that VA is required to afford him a contemporaneous VA examination(s) to assess the current nature, extent, and severity of his right and left wrist carpal tunnel syndrome, and right and left knee disabilities (to include right and left knee instability). See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, the issues must be remanded. In this regard, the Board notes that on June 2017 VA knee and lower leg examination, the Veteran complained of left knee "locking." Notably, in May 1996, the Veteran underwent arthroscopy of the left knee, debridement of a medial meniscal tear of the left knee, and ACL reconstruction of the left knee. On June 2017 VA examination, the examiner indicated that the Veteran did not now have or ever had a meniscus (semilunar cartilage) condition. However, that finding appears to conflict with the evidence of record, particularly considering the Veteran's complaint of left knee "locking" on examination. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that the evaluation of a knee disability under Diagnostic Code 5257 and Diagnostic Code 5260 or 5261 does not preclude, as a matter of law, a separate evaluation under Diagnostic Code 5258). The matter of the Veteran's reported left knee locking should be specifically addressed on examination, particularly in light of his surgical history and complaints on examination. In addition, at the October 2021 hearing, the Veteran testified that he suffers from several maladies due to his service-connected wrists and knees, to include medication prescribed for the disabilities, to include bowel and bladder dysfunction, erectile dysfunction, memory loss/psychiatric impairment, and gastrointestinal impairment (including gastroesophageal reflux disease (GERD)). In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the United States Court of Appeals for Veterans Claims (Court) held, "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." Morgan, 31 Vet. App. at 167. Indeed, the Court stated doing so was necessary to ensure a veteran is appropriately compensated before resorting to § 3.321(b)'s extraschedular provisions. In doing so, the Court held this included secondary service connection. Id.; see also Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc). In light of the Veteran's testimony, the Board finds that further information is necessary to properly rate, on a schedular basis, all of the manifestations of the Veteran's service-connected bilateral wrist carpal tunnel syndrome and bilateral knee disabilities, in this case, to include any bowel and bladder dysfunction, erectile dysfunction, memory loss/psychiatric impairment, and gastrointestinal impairment (including GERD), as manifestations of or secondary conditions related to his bilateral wrist carpal tunnel syndrome and bilateral knee disabilities, to include as due to prescribed medications to treat his bilateral wrist carpal tunnel syndrome and bilateral knee disabilities. In light of the foregoing, on remand, a medical opinion should be obtained to determine any symptoms/secondary disability, the Veteran may have and whether they are proximately due to his service-connected bilateral wrist carpal tunnel syndrome and/or bilateral knee disabilities, to include prescribed medications to treat the disabilities. Bailey, 33 Vet. App. at 203; Long, 33 Vet. App. at 174; Morgan, 31 Vet. App. at 167. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, to specifically include any chiropractic treatment records regarding the Veteran's treatment for his right and left hip disabilities. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of the Veteran's right and left hip disability. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any right or left hip disability found. If no such disability is diagnosed, the examiner should indicate whether the Veteran's right or left hip pain causes any functional impairment. (b) For any right or left hip disability/functional impairment diagnosed, is it at least as likely as not that the Veteran's right or left hip disability is caused by his service-connected bilateral knee disabilities? (c) For any right or left hip disability/functional impairment diagnosed, is it at least as likely as not that the Veteran's right or left hip disability was aggravated by his service-connected bilateral knee disabilities? A complete rationale should be given for all opinions and conclusions expressed. Please note that separate opinions addressing proximate cause and aggravation are needed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of the Veteran's right and left wrist carpal tunnel syndrome, and right and left knee disabilities (to include right and left knee instability). The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all right and left wrist, and right and left knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should specifically discuss whether the Veteran's left knee disability involves a meniscus condition, acknowledging his May 1996 left knee surgery that included debridement of a medial meniscal tear and ACL reconstruction, and his complaint on June 2017 VA examination of left knee "locking." The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-ups. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. If unable to opine without speculation, the examiner should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner must also opine as to whether it is at least as likely as not that the Veteran has any bowel and bladder dysfunction/disability, erectile dysfunction, memory loss/psychiatric impairment/disability, and gastrointestinal impairment/disability (including GERD), that is a manifestation of or was caused or aggravated by his service-connected bilateral wrist carpal tunnel syndrome and bilateral knee disabilities, to include as due to prescribed medications to treat his bilateral wrist carpal tunnel syndrome and bilateral knee disabilities. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.