Citation Nr: 21013384 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-54 357 DATE: March 9, 2021 ORDER Entitlement to a rating of 60 percent, but no higher, for service-connected right knee replacement is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s right knee replacement manifested with chronic residuals consisting of severe painful motion, limitation of motion, swelling and arthritis. 2. The Veteran’s service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating of 60 percent, but no higher, for right knee replacement have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5055 (2019). 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.3, 4.10, 4.15, 4.16 (a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Navy from February 1980 to May 1988 and from February 1989 to April 1994. This case comes before the Board on appeal of May 2015 rating decision. In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via live video conference. A transcript of the proceeding will be associated with the record. Increased Rating Claim Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, separate ratings for distinct periods of time, based on the facts may be for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2019). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 30 percent disabling for service-connected right knee replacement Here, the Veteran contends that his right knee disability warrants a rating in excess of 30 percent disabling. Resolving reasonable doubt in the Veteran’s favor, the Board agrees. At the outset, the Veteran’s right knee disability is rated at 30 percent disabling under DC 5055. DC 5055 provides disability ratings for knee replacement (prosthesis). Under DC 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DCs 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a. In the May 2015 VA examination, the Veteran was diagnosed with degenerative joint disease status post total joint replacement surgery. The Veteran also had torn lateral collateral ligament from 1983. During the examination, the Veteran reported that his pain triples when bad weather comes and last for one to two days. He reported bad days two to three times per week. He explained that if he walked half-a-block his knee pain worsened. Similarly, if he walked a couple blocks, his knee would hurt for several days. On examination, the Veteran’s right knee had flexion to 120 degrees and extension to 10 degrees. The examiner indicated that the ROM itself did not contribute to functional loss. No pain was noted on examination and there was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the lateral patella. There was no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of ROM or functional loss. There was no evidence of ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was performed. Lachman test was normal, but there was evidence of posterior instability, medial instability, and lateral instability. The examiner indicated that the Veteran had residuals of intermediate degrees of residual weakness, pain or limitation of motion. The Veteran reported the occasional use of a brace and cane. At the conclusion of the examination, the examiner remarked that the Veteran’s osteoarthritis with total right knee replacement with residuals continued to affect his ability to work. The examiner added that the Veteran could not walk for more than five minutes or half to one bloc without having significant pain. The Veteran was unable to climb stairs, ladders, or hills without significant pain. He was unable to kneel or squat without significant pain. The Veteran was capable of sedentary to light physical activity. In the August 2018 VA examination, the Veteran had left knee replacement due to compensating for his right knee condition. The Veteran reported constant pain in right knee with intermittent throbbing, aching type of feeling. He was unable to stand longer than ten minutes, unable to bend and kneel, unable to climb stairs. At that time, the Veteran was an oil engineer tankman on a ship, which required standing eighty percent of the time. The Veteran reported flare-ups where his pain increased with activity and standing. On examination, the Veteran’s right knee manifested with flexion to 85 degrees, extension to 0. There was evidence of pain with weight bearing but no evidence of crepitus. The Veteran reported that pain, weakness, lack of endurance and fatigue caused functional loss. The examiner indicated that the Veteran would experience increased pain with movement, fatigue, weakness and lack of endurance with repeated use over time, leading to a decrease in functional capacity. Likewise, the Veteran would experience increased pain with movement, fatigue, weakness and lack of endurance with flare-ups, which led to decreased functional capacity. There was evidence of reduction in muscle strength, but no muscle atrophy. There was no evidence of ankylosis. Joint stability testing was conducted with all normal findings. The examiner indicated that the Veteran’s right knee replacement had chronic residuals consisting of severe painful motion or weakness. The Veteran did not report the use of assistive devices. The Board notes that VA treatment records indicated that the Veteran reported constant pain in his right knee that ranged from 4-8 out of 10 on the pain scale. The Veteran also reported his right knee locked and buckled intermittently. See VA treatment records. Additionally, during the hearing, the Veteran reported swelling, daily pain, arthritis and throbbing pain of his right knee. Resolving reasonable doubt in the Veteran’s favor, the Board finds that his right knee replacement most closely approximated a 60 percent rating, but no higher. The Veteran reported constant pain oftentimes severe especially during bad weather. He was unable to walk longer than half a block without pain, unable to stand for prolonged periods and reported swelling, locking and buckling of his knee. In fact, the physician from the August 2018 examination indicated that the Veteran’s right knee replacement had chronic residuals consisting of severe painful motion or weakness. However, a higher evaluation is not warranted as the Veteran’s prothesis was implanted in 2011. Furthermore, the other diagnostic codes that would be applicable (5256-5263) do not provide a rating that would be higher than the 60 percent evaluation. Additionally, the Veteran is separately rated for right knee DJD. Accordingly, resolving all reasonable doubt in the Veteran’s favor, a 60 percent rating, but no higher, is granted for his service-connected right knee replacement. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU Claim A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16 (a) (2019). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16 (a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The United States Court of Appeals for Veterans Claims (CAVC) has indicated that the unemployability question, or the veteran’s ability or inability to engage in substantial gainful activity, must be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2019); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “Substantially gainful” employment is employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the occupation in the community where the veteran resides. See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16 (a); see also Moore, 1 Vet. App. at 358 (“The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment.”). In reaching a decision, it is necessary that the record reflect some factor, which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2019); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) Here, the Veteran meets the schedular criteria for TDIU. He is currently service-connected for left knee degenerative joint disease (DJD) status post total knee arthroplasty of the left knee at 60 percent disabling; right knee replacement at 60 percent disabling (as decided herein); right knee DJD at 10 percent disabling; and noncompensable evaluations for obstructive pulmonary disease and scars. For a combined rating of 90. Therefore, the Board must determine whether the Veteran’s service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. In a September 2014 orthopedic clinic note, the physician explained that the Veteran had a terrible architecturally destroyed right knee which is service related. He could not understand how the Veteran worked as long as he did on his right knee. The physician stated that the Veteran had such ligamentous instability that he had to have a revision total-knee component used for his original, first, total-knee arthroplasty on the right knee. He continued that the Veteran had severe arthritic changes in the left knee as well, which was caused by the overworking of the left knee, protecting the severely arthritis right knee. The physician stated that both of the Veteran’s knees are vulnerable and that he was not able to do more than sedentary activities. Furthermore, the physician remarked that the Veteran was not able to climb, crawl, squat, heavy lift, stand for prolonged periods, or walk for an extended period. Importantly, the physician concluded that for all practical purposes, the Veteran is permanently and totally disabled. He added that he felt the Veteran was unemployable at that time. (Continued on the next page)   As discussed above, the VA examinations from May 2015 and August 2018 showed that the Veteran would be limited to only sedentary activities. Yet, given that employability must be looked at in a practical manner, sedentary employment is not realistic as the evidence shows that the Veteran worked for more than a decade as an offshore oil engineer on a ship, which required standing eighty percent of the time. Importantly, the Veteran indicated that he had no other education or training aside from completing high school. Additionally, the Social Security Administration (SSA) determined that the Veteran was disabled due to his bilateral knee condition. Furthermore, as the SSA explained, the Veteran’s skills as an offshore oil engineer were not transferable to work in a seated position. Accordingly, the Board finds that based on the Veteran’s level of education and prior vocational experience, his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (a). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, 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.