Citation Nr: 21012730 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 13-21 041A DATE: March 5, 2021 ORDER Entitlement to a rating in excess of 60 percent for right knee total arthroplasty is granted on and after November 1, 2013, is granted. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) on and after November 1, 2013, is granted. REMANDED ISSUES Entitlement to a rating in excess of 40 percent prior to February 11, 2013, for degenerative disc disease with spondylolisthesis and lumbar fusion is remanded. Entitlement to a rating in excess of 20 percent on and after February 11, 2013, for degenerative disc disease with spondylolisthesis and lumbar fusion is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity lumbar radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity lumbar radiculopathy is remanded. Entitlement to TDIU prior to November 1, 2013, is remanded. INTRODUCTION The Veteran served on active duty from July 1968 to November 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified before the undersigned Veterans Law Judge with respect to each of the above-captioned claims except the increased rating claims for lower extremity lumbar radiculopathy. A transcript of this hearing has been associated with the claims fie. FINDINGS OF FACT 1. On and after November 1, 2013, the record reflects the Veteran has chronic residuals of a total right knee arthroplasty that more nearly approximate severe painful motion and weakness. 2. On and after November 1, 2013, it is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Since November 1, 2013, the criteria for entitlement to a rating of 60 percent for total right knee arthroplasty have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5055. 2. The criteria for entitlement to TDIU have been met on and after November 1, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Right Knee The Veteran seeks a rating in excess of 30 percent for his total right knee arthroplasty. The Veteran underwent a total right knee replacement on September 12, 2012 and was assigned a 100 percent rating from September 12, 2012 to November 1, 2013. A 30 percent rating was assigned on and after November 1, 2013. The Veteran’s total right knee arthroplasty and its residuals are rated under Diagnostic Code 5055. Diagnostic Code 5055 provides a 100 percent rating for one year following implantation of prosthesis; a 60 percent rating for chronic residuals consisting of severe painful motion or weakness in the affected extremity; and a 30 percent minimum rating for intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262. At the April 2018 hearing, the Veteran testified that since the right knee replacement surgery, he continues to experience constant pain in his right knee, “tightening up,” stiffness, swelling, an inability to sit or stand for prolonged periods, and subjective sensation of instability, described as “a little bit” wobbly. On January 2016 and April 2019 VA examination, the examiners noted that there was pain on range of motion testing, and also with weight bearing. Range of motion studies revealed flexion to 100 degrees, but after repetitive range of motion testing flexion was reduced to 90 degrees. The January 2016 examiner noted that the Veteran constantly utilized a brace and cane for ambulation, as well as decreased muscle strength. The April 2019 VA examiner indicated that the Veteran’s right knee resulted in a disturbance of locomotion and interference with standing. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s total right knee arthroplasty warrants a (maximum) rating of 60 percent under Diagnostic Code 5055 since November 1, 2013. 38 C.F.R. §§ 3.102, 4.7. 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 or of a common etiology or single accident 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. Herein, the Board granted a 60 percent rating for the Veteran’s right knee total arthroplasty, effective November 1, 2013. Consequently, the Veteran’s service-connected disabilities satisfy the criteria set forth in 38 C.F.R. § 4.16(a). 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 master’s 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). The Veteran lists 2002 as the year he lasted worked. See December 2011 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. During the April 2018 hearing, the Veteran testified that he finished two years of college, but did not earn a degree, and did not partake in any vocational training thereafter. He worked for approximately 20 years post-service for a pharmaceutical manufacturing company before they downsized in 1991. He then worked at a vacuum assembly plant, before simply doing “odd jobs” on an irregular basis. Then, until 2002, the Veteran testified that he worked part-time as a greens keeper at a golf course because the position allowed him to ride in a gold cart. Otherwise, his service-connected back and right knee disabilities prevented him from getting and keeping employment. A September 2014 opinion from a private physician discusses both the Veteran’s back and right knee: This [Veteran] has two significant abnormalities for which is receiving Veteran’s Benefits. The first is degenerative disc disease of his back with osteoarthritis and his records support that this was of a severe degree at least as far back as 2009 when he did have supporting MRI evidence to indicate the severity…The limitations that he mentions with regard to standing, sitting, and walking are consistent with both the clinical exam and the radiologic images. His second major problem is his degenerative joint disease of the knees. He has had two total knee replacements with an excellent result on the left and not as good result on the right. I feel that if this were his only problem and he had a normal back, it would not be disabling and probably would allow him to perform at least sedentary and possible even light work activities. The Board acknowledges that the Veteran’s left knee disability is not service-connected, and that service connection has also been grated for the Veteran’s right and left lower extremity radiculopathy and surgical scars on his right knee and low back. According to an April 2019 VA examiner, the Veteran’s service-connected degenerative disc disease with spondylolisthesis and lumbar fusion impairs the Veterans ability for physical work that required prolonged standing, repetitive bending, walking, or lifting. Given the evidence regarding the severity of the Veteran’s service-connected disabilities, the Veteran’s functional limitations due to his service-connected disabilities, his individual work experience and training, and with resolution of all reasonable doubt in his favor, the Board finds that the evidence shows he is entitled to an award of TDIU on and after November 1, 2013. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). REASONS FOR REMAND The Veteran’s claim of entitlement to increased ratings for his degenerative disc disease with spondylolisthesis and lumbar fusion was to ascertain whether this disability was manifested by ankylosis. In April 2019, the Veteran underwent a VA examination to ascertain the severity of this disability. In part, the examiner determined that no ankylosis was present, but also observed that factors contributing to this disability included “less movement than normal due to ankylosis, adhesions, etc.” The Board is unable to reconcile these findings. Consequently, the Board finds a remand to provide the Veteran with a new VA examination is required. The issues of entitlement to increased ratings for right and left lower extremity radiculopathy, as well as entitlement to TDIU prior to November 1, 2013, are inextricably intertwined with the spine claim and, thus, a remand for contemporaneous consideration is warranted. The matters are REMANDED for the following action: 1. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current severity of the Veteran’s degenerative disc disease with spondylolisthesis and lumbar fusion. In so doing, the examiner is requested to consider and discuss the difference in functional impairment between the Veteran’s spinal fusion and ankylosis, if any. The examiner is also requested to ascertain the severity of the Veteran’s right and left lower extremity lumbar radiculopathy and, to the extent possible, differentiate those symptoms from other service-connected and non-service-connection disabilities. A thorough rationale for any rendered opinion is required. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.