Citation Nr: 21013916 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-34 899 DATE: March 10, 2021 ORDER Prior to August 30, 2018, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. From August 30, 2018, entitlement to a TDIU is granted. FINDINGS OF FACT 1. Prior to August 30, 2018, the Veteran’s service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. 2. From August 30, 2018, the Veteran’s service-connected disabilities likely preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to August 30, 2018, the criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.26. 2. From August 30, 2018, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1971 to February 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing in January 2018. A transcript of the hearing has been associated with the claims file. By way of background, in April 2018, the Board found that a claim for TDIU was raised as part and parcel of the increased rating claims pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As such, the Board remanded the issue of entitlement to a TDIU for further evidentiary development and adjudication. In August 2019, the Board denied the Veteran’s claim for entitlement to a TDIU. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued a Joint Motion for Remand (JMR) and vacated and remanded the Board decision regarding entitlement to a TDIU. As such, the claim has now been returned to the Board for further action. 1. Prior to August 30, 2018, entitlement to a TDIU is denied. 2. From August 30, 2018, entitlement to a TDIU is granted. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). 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). The issue is not whether the veteran can find employment generally, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. As an initial matter, the Veteran filed his claim for entitlement to increased rating in January 2012. In an April 2018 Board decision, the Board found a claim for TDIU was raised as part and parcel of the increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A May 2019 rating decision denied the Veteran’s claim for entitlement to a TDIU. During the appeal period, the Board notes that the Veteran is service connected for anxiety, depressive and alcohol use disorder rated at 70 percent effective October 11, 2020; left knee osteoarthritis rated at 10 percent prior to August 3, 2017, 100 percent from August 3, 2017 to October 1, 2018 (convalescence period), and 30 percent from October 1, 2018; right knee osteoarthritis rated at 20 percent prior to August 30, 2018, 100 percent from August 20, 2018 to October 1, 2018 (convalescence period), and 30 percent thereafter; right knee dislocated semilunar cartilage rated at 20 percent from January 20, 2012 to August 3, 2018; left knee dislocated semilunar cartilage rated at 20 percent from January 20, 2012 to August 3, 2017; instability of the right knee rated at 10 percent from January 9, 2008 to August 30, 2018; instability of the left knee rated at 10 percent from January 9, 2008 to August 3, 2017; limitation of extension of the left knee rated at 10 percent from January 20, 2012 to August 3, 2017; limitation of extension of the right knee rated at 10 percent from January 20, 2012 to August 30, 2018; osteoarthritis of the bilateral knees rated at 10 percent from March 1, 1992 to April 2, 2001; chronic obstructive pulmonary disorder rated at a noncompensable rating prior to May 16, 2014 and 10 percent thereafter; scar of the left knee rated at noncompensable rating effective August 3, 2017; and scar of the right knee rated at noncompensable rating effective August 30, 2018. He has a combined evaluation of 80 percent from January 20, 2012 to August 2, 2017; 100 percent from August 3, 2017 to October 1, 2019 (convalescence period); 60 percent effective October 1, 2019; and 90 percent effective October 11, 2020. Pursuant to 38 C.F.R. § 4.26, when a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor will be treated as one disability for the purpose of arranging in order of severity and for all further combinations. 38 C.F.R. § 4.26. It is further provided under 38 C.F.R. § 4.26(b) that the correct procedure when applying the bilateral factor to disabilities affecting both upper extremities and both lower extremities is to combine the ratings of the disabilities affecting the 4 extremities in the order of their individual severity and apply the bilateral factor by adding, not combining, 10 percent of the combined value thus attained. Regarding the period from October 1, 2019 to October 11, 2020, the Board combines the 30 percent rating for his right knee total replacement and 30 percent for his left knee total replacement, resulting in 51 percent rating. The Board then takes 10 percent of 51 percent, resulting in a bilateral factor of 5.1 percent. The Board then adds the 5.1 bilateral factor to the 51 percent figure, resulting in a total of 56.1 percent, which is rounded to 60 percent. Based on the foregoing, the Board finds that for the entire appeal period, the Veteran is eligible for TDIU consideration on a schedular basis. Turning to the relevant evidence, the Veteran alleged that he is unable to secure or follow any substantially gainful occupation due to his service-connected bilateral knee disabilities as of May 2012. See November 2018 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran did not state that his service-connected chronic obstructive pulmonary disease (COPD) prevents him from securing or following any substantially gainful occupation. However, the Court directed the Board to consider the Veteran’s service-connected COPD in his claim for TDIU. In 2012, the Veteran stated that he is unable to walk long distances, stand for prolonged periods of time, and barely climb stairs. See December 2012 VA 21-4138 Statement in Support of Claim. In 2016, the Veteran stated that due to his bilateral knee pain his sleep is constantly disturbed and that he cannot stand for longer than about five to ten minutes as his knees would lock up or give out. See August 2016 VA 21-4138 Statement in Support of Claim. In the January 2018 hearing, the Veteran stated that he had to quit his job as a station engineer as it required a lot of squatting, lifting, climbing ladders, and crawling on stilt-edge plates. A review of the records shows that the Veteran has completed some college courses and has an education in air conditioning, refrigeration and environmental control technology. The Veteran’s past work history consists of a steam operator engineer and plant operator. See January 2018 SSA/SSI Letter. Regarding the Veteran’s bilateral knee disabilities, the Veteran was afforded VA examinations in February 2012, August 2014, June 2016, January 2019, January 2020, October 2020, and November 2020. In the February 2012 examination, the examiner opined that due to the Veteran’s bilateral knee disability the Veteran would have impaired ambulation. The August 2014 examiner opined that the Veteran would have difficulties with any activities that involve prolonged weight bearing or deep knee bending. The June 2016 examiner opined that the Veteran’s bilateral knee disability would impact his ability to run, walk or kneel for prolonged periods of time. The January 2019 examiner did not opine as to the Veteran’s functional limitation due to his bilateral knee disability. However, the Veteran reported that he is unable to utilize his left knee for heavy lifting, climbing stairs, standing, and walking for any distance or duration due to decreased range of motion and pain. The January 2020 examiner opined that the Veteran has limitations with going upstairs and is extra limited in going downstairs. The Veteran is also limited in walking, bending and kneeling. The October 2020 examiner opined that the Veteran cannot run, jog, or walk for prolonged distances. The November 2020 examiner opined that due to the Veteran’s bilateral knees he has limitations in lifting or carrying 30 pounds or more; sitting, standing, or walking for more than half an hour without breaks; and repetitive bending, squatting, or walking for more than half a mile without breaks. A review of the treatment records shows that the Veteran’s bilateral knees progressively worsened. In a September 2011 VA treatment record, the Veteran stated that he was physically active going to the gym three times per week. See February 2012 CAPRI. In a November 2011 treatment record, the Veteran reported that he was able to conduct normal activities despite his limited mobility in his knees. Then, in a June 2012 private treatment record, the Veteran claimed that he could not squat and that he has unstable gait and pain with range of motion. See February 2019 Medical Treatment Record – Non-Government Facility. In a February 2013 private treatment record, the Veteran stated that he reinjured his left knee and was unable to walk or go to the gym despite medication. However, despite the Veteran’s claimed limited mobility, in a September 2013 private treatment record the Veteran showed normal muscle strength. See January 2019 Medical Treatment Records – Furnished by SSA. In fact, in a January 2013 and January 2014 VA treatment record the Veteran’s range of motion of the bilateral knee was to 135 degrees. See August 2014 CAPRI records. In a February 2016 VA treatment record, the Veteran reported that he walks about 15 to 20 minutes and exercises with a rowing machine. See March 2016 CAPRI. In an August 2017 VA treatment record, the Veteran was noted to have undergone a total left knee replacement. See October 2020 CAPRI. An August 30, 2018 private treatment record reflects that the Veteran underwent a total right knee athroplasty. See February 2020 Medical Treatment Record – Non-Government Facility. In a December 2018 private treatment record, the Veteran exhibited normal reflexes and coordination, normal strength and tone, and normal sensation with no instability, subluxation or laxity. See January 2019 Medical Treatment Record – Non-Government Facility. However, in a January 2019 private treatment record, the Veteran showed moderate movement abnormality with considerable compensations to complete the movement. In a May 2019 private treatment record, it was noted that the Veteran was not able to bear full weight on his knee and that the Veteran’s knee buckled twice in the last week. The Veteran reported that he has struggles climbing up the stairs and that he cannot walk down the stairs. See February 2020 Medical Treatment Record – Non-Government Facility. In a June 2019 private treatment record, the Veteran stated that he can walk 0.5 to 1.5 miles without symptoms and climb 10 to 20 steps. The Veteran also remained active in recreational/leisure activities such as walking and riding his bike for 20 minutes. See February 2020 Medical Treatment Record – Non-Government Facility. In an August 2019 VA treatment record, the Veteran reported that he exercises on a regular basis. See November 2020 CAPRI. In an October 2019 VA treatment record, it was noted that the Veteran’s left total knee replacement turned out perfect, but the right total knee replacement was never quite right as the Veteran reinjured the right knee shortly after the surgery. As such, the Veteran was unstable and he was unable to go up and down the stairs as his leg would collapse on him and he would fall. See November 2020 CAPRI. As for the Veteran’s COPD, the Veteran was afforded VA examinations in October 2013, August 2014, October 2020, and November 2020. The October 2013 examiner opined that the Veteran has impaired exertion. The August 2014 examiner did not opine as to the Veteran’s functional limitations. However, the examiner noted that the Veteran has a history of severe right lower chest and right hypochondrium pain for three weeks which cause difficulties in performing any activities. That being said, the examiner determined that future duration of this is unknown. The October 2020 examiner noted that the Veteran cannot perform extraneous tasks. The November 2020 examiner opined that the Veteran is limited in lifting or carrying 50 pounds or more; limited in sitting, standing, or walking for more than an hour without breaks; and limited repetitive bending, squatting, walking or light jogging for more than a mile without breaks. A review of the treatment records shows that the Veteran’s COPD does not prevent the Veteran from securing or following a substantially gainful occupation. For instance, in February 2014 and August 2014 VA treatment records, the Veteran denied having shortness of breath and dyspnea on exertion or cough. See August 2014 CAPRI. Although in a November 2015 VA treatment record the Veteran endorsed having increased shortness of breath during cold weather and in a May 2016 VA treatment record the Veteran stated that he has shortness of breath when walking greater than 20 feet, the Veteran predominantly denied having shortness of breath, dyspnea on exertion, and cough. See May 2019 CAPRI and August 2016 CAPRI. The Board notes that since the August 2020 JMR, the Veteran is service connected for a psychiatric disability with a 70 percent rating effective October 11, 2020. The October 2020 VA examiner opined that the Veteran has occupational and social impairment with deficiencies in most area, such as work, school, family relations, judgment, thinking and/or mood. Based on the treatment records, VA examinations, and the Veteran’s statements, the Board finds that prior to August 30, 2018, the Veteran was not precluded from securing and following a substantially gainful occupation. The Board finds that the Veteran was able to lift and carry up to ten pounds. The Veteran would be limited in his ability to run, walk, stand, and sit for prolonged periods of time. The Veteran was able to work in an occupation that gives a sit/stand option with limited bending, kneeling, and climbing stairs. As the Veteran has some college courses, an education in air conditioning, refrigeration and environmental control technology, and was an engineer, the Board finds that the Veteran would not be precluded from performing jobs of semi-skilled level that were primarily sedentary – or mostly involving sitting – in nature. However, from August 30, 2018, the Board finds that the Veteran’s bilateral knee disability would likely preclude him from securing and following a substantially gainful occupation. On August 30, 2018, the Veteran underwent a total right knee replacement. However, as noted in an October 2019 VA treatment record, the surgery did little to alleviate the Veteran’s right knee pain and instability as the Veteran reinjured his right knee shortly after the surgery. The Veteran stated that he cannot climb upstairs or downstairs without his knees giving out. Although the treatment records show that the Veteran reported that he can walk 0.5 to 1.5 miles without symptoms, climb 10 to 20 steps, and ride a bike for 20 minutes, the treatment records also noted that the Veteran is not able to bear full weight on his knee and his knee would buckle. Further, the Veteran stated that he cannot go downstairs as his leg would collapse and he would fall. The Board also acknowledges the Social Security Administration (SSA) decision wherein the SSA determined that the Veteran’s disabilities preclude the Veteran from performing a substantial gainful occupation. The Board gives little probative weight to the SSA decision as the decision is based on service-connected disabilities and non-service connected disabilities such as a neck disability, hip disability, left shoulder disability, and a back disability. The Board cannot consider the impact of the non-service-connected disabilities on his employment. See January 2019 Medical Treatment Records – Furnished by SSA. In conclusion, the Board finds that the preponderance of evidence weighs against a finding that the Veteran is precluded from securing and performing substantial gainful employment prior to August 30, 2018. From August 30, 2018, the Board finds that the Veteran is likely not capable of performing the physical acts required for employment and thus grants the Veteran’s claim for entitlement to a TDIU from August 30, 2018. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.