Citation Nr: 21075638 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 13-17 785A DATE: December 21, 2021 ORDER Service connection for a right knee condition, to include degenerative joint disease, is denied. Service connection for a left knee condition, to include degenerative joint disease, is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's right knee condition began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's left knee condition began during active service, or is otherwise related to an in-service injury or disease. 3. The evidence does not show that the Veteran's service-connected disabilities are of sufficient severity to preclude him from obtaining and/or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee condition, to include degenerative joint disease, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left knee condition, to include degenerative joint disease, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.16 (a), (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to May 1971 and from October 1972 to May 1973. The Veteran filed a claim in January 2009 for service connection, which was denied in a February 2010 rating decision. The matter went to the Board of Veterans' Appeals (Board) in March 2021 and was remanded for further development. 1. Service connection for a right knee condition, to include degenerative joint disease is denied. 2. Service connection for a left knee condition, to include degenerative joint disease is denied. The Veteran asserts that his knee disabilities have been aggravated by his service-connected bilateral ankle disability. The Veteran also testified that he played basketball, while in the Air Force and played between 80 and 100 games a year, which may have also caused his current bilateral knee disability. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran was afforded a VA examination in February 2010 and the examiner provided a negative nexus opinion regarding the etiology of the Veteran's bilateral knee disability. The examiner explained that secondary service connection was not warranted because there was no evidence-based medicine to indicate that arthritis in one joint (the ankles), would cause another (the knees) to become arthritic. Regarding direct service connection, the examiner explained that there was no in-service medical documentation of knee problems, which created a significant issue in establishing a nexus between his current knee problems and his active-duty service. The Veteran's representative asserted at the November 2020 Board hearing that the February 2010 VA examination was inadequate because the examiner did not cite to the evidence-based medicine and because the examiner failed to consider the possibility of aggravation. The Board previously noted that the Veteran credibly testified that although he did not seek treatment for his knees during his active-duty service, his participation in a large number of basketball games, did cause him knee pain Pursuant to a March 2021 Board remand, the Veteran was scheduled for a VA examination in July 2021 in an effort to address the etiology of his knee conditions. Per the Board's instructions, an examination was scheduled, but the Veteran informed the examiner that he no longer wished to pursue his claim for service connection for his knee conditions and asked that the exam not be completed. The Veteran was given an opportunity to formally withdraw his claims but did not respond to that request by the RO. As such, his claims will be rated based on the evidence of record. 38 C.F.R. § 3.655. The Veteran's service treatment records (STRs) do not show any complaints, treatment, or diagnosis for any knee problems. The Veteran acknowledged this, when he testified that he did not receive any treatment for his knees during his active-duty service. However, he did credibly testified that his knees would get sore if he played too many games in a row. An October 2006 private medical treatment records show that the Veteran sought treatment for bilateral knee pain that he reported had occurred for approximately 10 years. Of note, the Veteran had been out of the service for more than 30 years at this point. An October 2010 private treatment note shows that the Veteran reported a fall and subsequent knee pain. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a bilateral knee disability, and evidence shows that he experienced knee pain in service, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of a bilateral knee condition began during service or is otherwise related to an in-service injury, event, or disease. Private treatment records show the Veteran was not diagnosed with bilateral arthritis of the knees until October 2006. The Veteran reported the knee pain had been present for the last 10 years (e.g., 1996). Thus, the onset of pain and diagnosis of arthritis were decades after his separation from service. While the Veteran is competent to report having experienced symptoms of pain intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, at the only examination of record from February 2010 the VA examiner opined that the Veteran's bilateral knee disability was not at least as likely as not related to an in-service injury, event, or disease. The examiner's opinion is probative, because it is based on an accurate medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While there are shortfalls to the examiner's opinion as noted above, the Veteran was scheduled for a new examination at the request of his attorney, but he declined to participate in the rescheduled exam and asked that his claim be withdrawn. To the extent the Veteran believes his bilateral knee disability is related to an in-service injury, event, or disease, he has not been shown to be competent (meaning medically qualified by training and experience) to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the private treatment records and VA examination of record. Accordingly, the Board finds that there is insufficient evidence of record to show that the Veteran's bilateral knee condition was related to military service. The claim is denied. 3. TDIU The Veteran seeks a TDIU. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. "[U]nable to secure and follow substantially gainful employment" in 38 C.F.R. § 4.16 (a) comprises both economic and noneconomic components, which required consideration of a wide range of factors, and one is a veteran's ability to perform sedentary activities. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (also holding that Social Security Administration (SSA) regulations defining "sedentary" are not binding on VA). Withers v. Wilkie, 30 Vet. App. 139, 148 (2018) held that while 38 C.F.R. § 4.16 "does not make the concept of sedentary work an explicit TDIU factor" if TDIU is denied because "a veteran is capable of sedentary work" this must be explained in the context of that case." Thus, while not a legally governing consideration, the ability to perform sedentary work can be a relevant factor and a finding that sedentary employment is possible can be determinative when explained in relation to past education and occupational history. See id. However, neither VA nor the Court has explicitly defined the term "sedentary employment." Withers, 30 Vet. App. at 148. The Board finds that sedentary employment is the common meaning in society of non-physical, white collar, office-type work. The Board envisions potential non-physical employment to encompass administrative, managerial or other forms of employment that would not require the Veteran to spend a significant amount of time standing, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). The Veteran has the following disabilities that are service connected: traumatic degenerative joint disease left ankle (10 percent from January 30, 2009) and traumatic degenerative joint disease right ankle (10 percent from January 30, 2009). Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). For the reasons that follow, the Board finds that there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities, and therefore referral of the claim is not warranted. At the February 2010 VA examination, the Veteran reported being unemployed. At his Board hearing in 2020, the Veteran indicated that he had a college degree and had worked as a national sales manager for a copier company, but when he became unable to travel because of physical limitations, largely from his knees, he got a job locally. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his bilateral ankle condition. An April 2014 private treatment note indicates that the Veteran's ankle condition would result in him being absent from work approximately two to three times per month due to this condition. The Veteran testified that he uses ankle braces and has instability in his ankles, but no limitation of range of motion. The February 2010 VA examiner indicated that the Veteran's ankle condition resulted in soreness when walking, limited walking/standing because of his ankles. Given the forgoing, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. While the Veteran's ankle condition would limit walking and standing and results in some instability, there is no evidence that the Veteran has trouble sitting or any other issues with his ankles that would affect employment, especially in a sedentary environment. The Board finds that sedentary employment is the common meaning in society of non-physical, white collar, office-type work. The Board envisions potential non-physical employment to encompass administrative, managerial or other forms of employment that would not require the Veteran to spend a significant amount of time standing, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks. Here, the Veteran has a college degree and is well-spoken. As such, the Board anticipates that his ankle disabilities alone would not preclude him from being able to obtain or maintain substantially gainful employment. Accordingly, a TDIU is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, Associate 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.