Citation Nr: 21077101
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 13-04 587
DATE: December 28, 2021

ORDER

1. Entitlement to a disability rating in excess of 30 percent for residuals of a right knee injury, with traumatic arthritis, (right knee disability) is denied.

2. Entitlement to a disability rating in excess of 10 percent for instability of the right knee is denied.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to July 27, 2012, is denied.

FINDINGS OF FACT

1. During the period on appeal, the Veteran's right knee disability was not manifested by nonunion of the tibia or fibula with loose motion. 

2. The most probative evidence of record does not reflect moderate impairment due to right knee instability, the presence of right knee ligament damage, or patellar instability of the right knee.  

3. Prior to July 27, 2012, the preponderance of the evidence is against finding that the Veteran's service-connected disabilities precluded him from securing and following any substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 30 percent for the right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5262 (2020). 

2. The criteria for a disability rating in excess of 10 percent for instability of the right knee are not met. 38 U.S.C. §§ 1110, 1131, 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.1, 4.3, 4.7, 4.71a, DC 5257 (2020). 

3. The criteria for TDIU, prior to July 27, 2012, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from January 1980 to January 1984.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified before a Veterans Law Judge (VLJ) at a Board videoconference hearing in June 2014. Unfortunately, a transcript of this hearing could not be obtained, and the Veteran was afforded a second Board videoconference hearing before the undersigned VLJ in April 2016. A transcript of the April 2016 proceeding has been associated with the claims file. 

Most recently, in July 2021, the Board remanded these matters for further development.

1. Entitlement to a disability rating in excess of 30 percent for the right knee disability, as well as a rating in excess of 10 percent for instability of the right knee, is denied.

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. 

Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. § § 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). 

In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. (quoting 38 C.F.R. § 4.40). 

The Veteran is currently assigned a 30 percent rating for his right knee disability under DC 5262. Since the filing of the instant claim, he has been awarded a separate 10 percent rating for instability of the right knee under DC 5257. The Board notes that the Veteran is in receipt of a temporary 100 percent disability rating for his right knee disability from January 11, 2010 to March 1, 2010. As such, an increased rating for that period of time is not on appeal. 

The knee may be rated under various diagnostic codes. The criteria for rating musculoskeletal disabilities have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change.

DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. However, where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. 

DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. 

Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, DCs 5260 and 5261 remained the same.

The diagnostic criteria applicable to recurrent subluxation or lateral instability, prior to February 7, 2021, is found at 38 C.F.R. § 4.71a, DC 5257 (2020). Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. 

The terms "mild," "moderate," and "severe" are not defined in the Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. 

The criteria for DC 5257 have been amended to address recurrent subluxation and patellar instability, effective February 7, 2021, as explained below.

Under DC 5257 for recurrent subluxation or instability, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescription for a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) the unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescription for either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for the unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescription for both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

Regarding patellar instability, DC 5257 awards a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 

For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, DC 5257, Note. A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. 

Other DCs pertaining to the knee include DC 5258, under which a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. Because DCs 5258 and 5259 have been interpreted as already contemplating limitation of motion of the knee generally (which means it contemplates limitation of flexion and extension), the law does not allow for a separate rating under DCs 5259 and 5260 and/or 5261, because that would be compensating the same limitation of motion more than once. 

Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, DCs 5258 and 5259 remained the same.

The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262 and have been amended, effective February 7, 2021.

Under that code, prior to February 7, 2021, a 10 percent evaluation is warranted when malunion of the tibia and fibula is productive of slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula is productive of moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. 

Since February 7, 2021, malunion of the tibia and fibula is to be evaluated under DCs 5256, 5257, 5260, or 5261, whichever results in the highest evaluation. Nonunion of the tibia and fibula continues to warrant a 40 percent evaluation with loose motion, requiring a brace.

Medial tibial stress syndrome (MTSS) and shin splints are also rated under DC 5262, effective February 7, 2021. A noncompensable rating is warranted for treatment for less than 12 consecutive months for one or both lower extremities. A 10 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to either shoe orthotics or other conservative treatment for one or both lower extremities. A 20 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to surgery and either shoe orthotics or other conservative treatment for one lower extremity. A 30 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to surgery and either shoe orthotics or other conservative treatment for both lower extremities.  

Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, the diagnostic criteria related to ankylosis of the knee, DC 5256, and genu recurvatum, DC 5263, remained the same. Finally, the diagnostic criteria applicable to knee replacement (prosthesis) are found at 38 C.F.R. § 4.71a, DC 5055 (2020). As the Veteran has not had a knee replacement, or demonstrated ankylosis or genu recurvatum in either knee, these codes are inapplicable. 

In June 2009, the Veteran underwent a VA examination for his right knee. He reported a popping of his knee without a brace for support. The examiner noted some crepitus and instability of the right knee. Flexion was to 130 degrees, with extension to 0 degrees. The Veteran further described having difficulty bending and squatting.

In December 2009, the Veteran attended another VA examination. He reported instability in his right knee, for which he used a brace and a cane. He further described difficulty squatting, as well as walking and sitting for prolonged periods of time. Flare-ups resulted after prolonged periods of walking and resulted in swelling, increased pain, and decreased flexibility. The examiner noted a trace of instability in the right knee, as well as crepitus. Flexion was to 140 degrees, with extension to 0 degrees, with no evidence of pain. 

At a March 2010 VA examination, the Veteran reported chronic right knee pain, along with flare-ups occurring three times weekly following prolonged sitting, standing, walking, and climbing. He indicated that extension was limited to 45 degrees during flare-ups, but this was not confirmed upon examination. He described periodic stiffness, intermittent swelling, and frequent locking of the right knee. The Veteran also experienced occasional instability and subluxation. Flexion was to 120 degrees, with extension to 0 degrees, with evidence of pain at extension to 15 degrees. Repetitive use testing did not result in additional loss of range of motion or functional impairment. 

In July 2011, the Veteran underwent another VA examination to evaluate his right knee. He reported using a cane and supportive brace due to buckling of his right knee. He further stated that he experienced rare instances of swelling and did not have any limitations regarding activities of daily living. He did, however, experience a limited ability to run or participate in sporting activities. Flexion was to 130 degrees, with extension to 5 degrees. In August 2011, a VA examiner noted the Veteran's reports of instability of the right knee, but concluded that there were no objective findings of instability upon examination. 

At a December 2012 VA examination, the Veteran reported flare-ups resulting from cold weather and periods of walking. Flexion was to 140 degrees or greater, with extension to 0 degrees and no objective evidence of pain. The Veteran was able to perform repetitive use testing with no additional limitation of motion. Muscle strength testing and joint stability testing were normal. The examiner noted no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The report noted a meniscectomy of the right knee, with no residual symptoms upon examination. The Veteran occasionally used a wheelchair and regularly used a brace to assist with ambulation. The examiner concluded that the right knee was clinically stable with no evidence of laxity. 

At the April 2016 Board hearing, the Veteran testified that he wore a supportive brace to prevent his knee from giving way and that he had experienced multiple falls in the previous year. He also described difficulty bending due to knee pain.

In March 2017, the Veteran was afforded another VA examination for his right knee. He stated that his knee would give way without the assistance of a brace, and that he experienced occasional difficulty getting out of a bed or a chair due to pain. He described flare-ups resulting in severe pain due to bending, walking, and standing for prolonged periods of time. Flexion was to 135 degrees, with extension to 5 degrees. Pain was noted upon examination, but did not result in functional loss. The examiner noted no evidence of pain with weight-bearing or crepitus. The Veteran was unable to perform repetitive use testing due to pain and swelling. Although he was not examined following repetitive use over time or during a flare-up, the examiner concluded that such circumstances would not result in significantly limited functional ability. Muscle strength testing resulted in active movement against some resistance, with no evidence of muscle atrophy or ankylosis. The examiner noted no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing revealed no evidence of instability in the right knee. The Veteran did have "shin splints," which resulted in pain and swelling, but did not have a history of stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The report noted a meniscectomy of the right knee, which resulted in residuals symptoms including pain and swelling. The Veteran regularly used a wheelchair and constantly used a cane to assist with ambulation. 

In November 2018, the Veteran was attended another VA examination for his right knee. He reported symptoms including pain, occasional instability, as well as difficulty squatting and kneeling. He described flare-ups that occurred up to two times weekly and resulted in giving way. Flexion was to 100 degrees, with extension to 5 degrees. Pain was noted upon examination, along with pain with weight-bearing and evidence of crepitus. The Veteran was able to perform repetitive use testing, with no additional loss of function or range of motion. Although he was not examined following repetitive use over time or during a flare-up, the examiner explained that loss of range of motion was variable, depending on how strenuously the joint was used on any occasion. As such, estimations of loss of range of motion could not be provided. Muscle strength testing resulted in active movement against some resistance, with no evidence of muscle atrophy or ankylosis. The examiner noted no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing revealed no evidence of instability in the right knee. The Veteran did not have "shin splints," stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The report noted a meniscectomy and meniscal tears of the right knee, which did not result in any residual symptoms. The Veteran occasionally used a wheelchair and cane, and regularly used a brace to assist with ambulation. 

The Board finds that a rating in excess of 30 percent is not warranted under DC 5262. As noted, a 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion and requiring a brace. See 38 C.F.R. § 4.71a, DC 5262. Indeed, no VA examiner has indicated the Veteran had nonunion of the tibia and fibula with loose motion at any time during the appeal period. Furthermore, VA treatment records do not indicate the Veteran's right knee disability is manifested by nonunion of the tibia and fibula. Moreover, neither the Veteran, nor his representative, have asserted or provided any evidence that demonstrates the Veteran has right knee nonunion of the tibia and fibula. Based on these findings, a rating in excess of 30 percent for the right knee disability is not warranted. See 38 C.F.R. § 4.71a, DC 5262. 

The Board has also considered whether separate ratings are warranted under any other DCs related to the knee. In that regard, under DC 5260, the Veteran demonstrated flexion limited to 100 degrees. Under DC 5260, a noncompensable disability rating is warranted for limitation of flexion to 60 degrees. DC 5261 provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. The Board notes that the Veteran reported limitation of extension to 45 degrees. However, throughout the appeal period, the Veteran objectively demonstrated extension, at worst, limited to 5 degrees. As such, a higher rating is not warranted under DC 5261. Furthermore, the Veteran's right knee symptoms are adequately contemplated under DC 5262, such that assignment of a separate rating under DCs 5260 or 5261 would constitute impermissible pyramiding as the Veteran's symptoms would overlap. See 38 C.F.R. § 4.14. 

Moreover, the evidence of record does not demonstrate ankylosis of the knee, any meniscus conditions resulting in residual symptomatology, or genu recurvatum. As such, consideration of DCs 5256, 5258, 5259 and 5263 related to the knee are inapplicable. 

Additionally, the Board does not find that an increased rating is warranted for instability of the right knee under DC 5257. Prior to February 7, 2021, the record does not indicate moderate impairment of the right knee due to lateral instability. The Board acknowledges the Veteran's reports of his knee giving way during this period. However, upon examination, VA examiners consistently found no objective evidence of recurrent subluxation or lateral instability in the right knee.  That consistent finding over such a long period of time persuades the Board that any instability is no more than slight.  Additionally, under the amended diagnostic criteria, the record does not contain evidence of a sprain, incomplete ligament tear, or repaired complete ligament tear, nor an unrepaired or failed repair of complete ligament tear causing persistent instability. There is also no evidence of a condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. Although the Veteran has consistently used a knee brace to assist with right knee instability, the brace is not the result of ligament damage or patellar instability. As such, a higher rating under DC 5257 is not warranted.

In evaluating the Veteran's increased rating claim under DeLuca and Mitchell, supra, the Board notes that there has been objective evidence of painful motion on examination, as well as notations of functional impairment regarding the Veteran's ability to walk for long distances, sit and stand for prolonged periods of time, and bend. The evidence of record reflects that the Veteran demonstrated pain, but no additional limitation of motion following repetitive use testing as to warrant a rating in excess of 30 percent for the right knee disability. As such, the pertinent evidence of record has not revealed that flexion or extension were further limited as a result of pain, weakness, fatigability, incoordination, lack of endurance, or repetitive motion to a degree as to warrant a higher rating. Therefore, the Board finds that any rating higher than the current rating assigned is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45. 

The Board notes that, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Nevertheless, it is reasonable that flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. The Veteran has generally reported flare-ups of the right knee which resulted in varying symptomatology, to include pain, limitation of motion, weakness, and instability. The examiners of record obtained adequate descriptions of such circumstances, to include frequency, duration, and precipitating factors. Although testing during flare-ups was not feasible upon each examination, the VA examiners considered these lay reports in rendering their conclusions regarding the Veteran's range of motion under such circumstances. In November 2018, the examiner explained that an estimation of limitation of motion could not be rendered due to the varying exertion of different precipitating activities. The Board has also considered the Veteran's statements regarding increased pain following certain physical activities. Based on the VA examination reports and lay statements, the evidence does not reflect symptomatology due to flare-ups to the degree that would warrant a higher rating. 

Based on the foregoing, the preponderance of the evidence demonstrates that a disability rating in excess of 30 percent for the Veteran's right knee disability is not warranted for any time during the period on appeal. A rating in excess of 10 percent for instability of the right knee is also not warranted. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the appeal must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

2. Entitlement to a TDIU, prior to July 27, 2012, is denied.

The Board notes that entitlement to a TDIU was awarded in an August 2018 rating decision, effective July 27, 2012. However, as the claim for a TDIU stemmed from an April 2009 claim for an increased rating, entitlement to a TDIU for the period prior to July 27, 2012 remains on appeal.

In order to establish service connection for TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially-gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.

When a claimant's combined schedular rating is less than total, a total rating based upon unemployability may nonetheless be assigned. If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. See 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id.  A total disability rating also may be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). 

For a veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment cannot be considered substantially-gainful employment. Generally, marginal employment exists when a veteran's earned annual income does not exceed the Federal poverty threshold for one person. 38 C.F.R. § 4.16(a). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra.

Prior to July 27, 2012, the Veteran's service-connected disabilities included his right knee disability rated as 30 percent disabling; instability of the right knee rated as 10 percent disabling; a low back disability rated as 20 percent disabling; a right wrist injury rated as 10 percent disabling; residuals of a broken nose rated as 10 percent disabling; adjustment disorder rated as 10 percent disabling; a left knee disability rated as 10 percent disabling; and right and left knee scars rated as noncompensable. The Veteran's right knee disability, left knee disability, lumbar spine and right wrist disability all being orthopedic in nature are considered one disability for TDIU purposes. When combined, the percentage of these disabilities is greater than 40 percent, with a total overall rating of 70 percent beginning that date. Thus, the schedular criteria for TDIU are met prior to July 27, 2012. See 38 C.F.R. § 4.25. Additionally, the Board notes that the Veteran is in receipt for temporary 100 percent disability ratings for the periods between November 12, 2009 and January 1, 2010 as well as between January 11, 2010 and March 1, 2010. As such, the Board will not consider entitlement to a TDIU for either of these periods. 

However, the remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). After careful review of the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against the award of a TDIU for any portion of the period on appeal as explained below.

With respect to the Veteran's education and work experience, the Board notes that the Veteran has not submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Nevertheless, the record indicates that the Veteran worked as a general factory laborer from May 2008 to June 2011, and as a security guard from July 2011 to July 2012. 

The VA examination reports of record consistently documented findings that the Veteran's service-connected disabilities, including his right knee disability and adjustment disorder, did not rise to the level of impairment so severe that it would be impossible for the average person to follow a substantially-gainful occupation. Notably, a June 2009 VA psychological examiner concluded that the Veteran's adjustment disorder did not preclude gainful employment. Following a June 2009 VA orthopedic examination, another examiner opined that the Veteran's right knee disability did not prevent him from performing sedentary employment, as he would be able to work in a seated capacity and function satisfactorily. March 2010 and July 2011 VA examiners noted the Veteran's challenges with strenuous physical activities, but did not indicate that he was prohibited from completing sedentary tasks. The Board notes that a December 2009 VA examiner found the Veteran unemployable at that time. However, such opinion was rendered during a period in which the Veteran was awarded a temporary total disability rating following a surgical procedure. As such, the opinion is not applicable to the periods on appeal. 

Additionally, in a February 2014 decision, the SSA determined that the Veteran was unemployable from July 27, 2012. While SSA decisions are not binding on the Board, they are indeed probative information, especially in considering the impairment of a service-connected disability or disabilities on a claimant's capacity for employment.

The Board finds that the competent medical evidence offering detailed specific findings pertinent to the criteria governing the award of a TDIU is the most probative evidence in evaluating the functional impact of the Veteran's service-connected disabilities on his employability for the period prior to July 27, 2012. As such, while the Board accepts the Veteran's statements regarding the matters he is competent to address, the Board relies upon the unbiased competent medical evidence related to the specialized evaluation of functional impairment, symptom severity, and the impact of the service-connected disabilities on the Veteran's employability.

However, as indicated above, unemployed does not mean unemployable. The question is whether the Veteran was capable of performing the physical and mental acts required by employment, not whether the Veteran could find employment. Van Hoose, supra. The Veteran has not submitted any additional information related to his claim for entitlement to a TDIU, to include a VA Form 21-8940. Thus, based on the above, the Board finds that the evidence does not persuasively show the Veteran was incapable of performing the tasks that comported with his education and occupational experience due to his service-connected disabilities for the period prior to July 27, 2012. The Board reiterates that the sole fact that the Veteran is unemployed or has difficulty obtaining or following employment is not enough to warrant entitlement to a TDIU. The ratings for the Veteran's service-connected disabilities consider the limitations and difficulties he has due to these disabilities. 38 C.F.R. § 4.1. The ultimate question is whether the Veteran could perform the physical and mental acts required by employment, not whether he could find employment. 

The evidence shows that the Veteran worked for a significant amount of time after separation from service. Prior to July 27, 2012, he was able to communicate fully, and while he did have some physical limitations related to his right knee disability and instability, he has not been shown to have been precluded from performing the tasks required in sedentary employment. Indeed, the February 2014 SSA decision reflects that his conditions did not prevent sedentary employment prior to July 27, 2012. The evidence of record further indicates that he was gainfully employed until July 2012, and that his physical limitations did not impact his ability to perform occupational functions required of a sedentary job. After considering the limitations related to the service-connected disabilities as shown by the credible lay and medical evidence, the Board finds that, prior to July 27, 2012, the Veteran was able to perform work considering the symptomatology and functional impairment of service-connected disability alone, without regard to age or nonservice-connected disabilities. 

As such, prior to July 27, 2012, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for a TDIU, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-7 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 

 

MICHAEL KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Erin J. Trojanowski, 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.