Citation Nr: 21026873 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-02 476 DATE: May 4, 2021 ORDER A rating in excess of 40 percent for Reiter's Syndrome is denied. A rating in excess of 30 percent for left total knee arthroplasty is denied. A rating in excess of 30 percent for right total knee arthroplasty is denied. A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's Reiter's syndrome disability is not productive of weight loss and anemia productive of severe impairment of health, of severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods, or of totally incapacitating constitutional manifestations associated with active joint movement. 2. The Veteran's left total knee replacement, performed more than one year prior to his award of service connection, is not productive of chronic residuals consisting of severe painful motion or weakness in the left lower extremity or of intermediate degrees of residual weakness, pain, or limitation of motion. 3. The Veteran's right total knee replacement, performed more than one year prior to his award of service connection, is not productive of chronic residuals consisting of severe painful motion or weakness in the left lower extremity or of intermediate degrees of residual weakness, pain, or limitation of motion. 4. The Veteran's service-connected disabilities have not rendered him unemployable or unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for Reiter's syndrome are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.14, 4.20, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5009. 2. The criteria for a rating in excess of 30 percent for left total knee arthroplasty are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.27, 4.40-4.71, 4.71a, Diagnostic Code 5055. 3. The criteria for a rating in excess of 30 percent for right total knee arthroplasty are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.27, 4.40-4.71, 4.71a, Diagnostic Code 5055. 4. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 the Board issued a remand order for further development. The Board finds that there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). INCREASED RATINGS Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable rating is warranted for painful limitation of motion. See 38 C.F.R. § 4.59. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Veteran is currently rated at 40 percent for Reiter's syndrome, and asserted that he is entitled to a higher rating. Reiter's syndrome is rated as arthritis, other types under Diagnostic Code 5009. This code directs that the disability be rated under the criteria for rheumatoid arthritis under Diagnostic Code 5002. Under this Diagnostic Code, the syndrome is rated either under the criteria for an active process or for chronic residuals such as limitation of motion or ankylosis, whichever criteria yield a higher rating. As an active process, the Veteran's assigned 40 percent rating is warranted for symptom combinations productive of definite impairments of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times per year. A 60 percent rating is warranted for weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times per year or a lesser number over prolonged periods. A 100 percent rating is warranted for totally incapacitating constitutional manifestations associated with active joint involvement. Alternatively, chronic residuals such as limitation of motion or ankylosis are to be rated under the appropriate diagnostic codes for the specific joints involved. Where the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a 10 percent rating is to be applied to each major joint or group of minor joints affected by limitation of motion, to be combined. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The Veteran also asserted that he is entitled to a rating in excess of 30 percent for left and right residuals of total knee arthroplasty, rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, for prosthetic replacement of the knee joint. Under Diagnostic Code 5055, a 100 percent rating is assigned for 1 year following implantation of prosthesis. Thereafter, a 30 percent rating is the minimum rating; where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to Diagnostic Codes 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula); and a 60 percent rating is warranted where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Reiter's Syndrome As a way of history, in January 2011 the Veteran submitted a claim for a rating in excess of 40 percent for Reiter's Syndrome. The Veteran was provided a VA examination in February 2011. The VA examiner did not find that the Veteran suffered from weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times per year or a lesser-number over prolonged periods, nor did the Veteran claim as such. A review of the Veteran's medical record does not show any such complaints, treatment or diagnosis, nor did the Veteran submit any lay statements making such a contention. Likewise, totally incapacitating constitutional manifestations associated with active joint involvement were neither found, nor claimed. In September 2011 the Veteran's increased rating claim for Reiter's Syndrome was denied and in May 2012 the Veteran submitted a notice of disagreement (NOD), for which he was provided a statement of the case (SOC) in November 2015. The Veteran perfected his appeal in January 2016 via the submission of VA Form 9. Neither the Veteran, nor the record, indicated that the Veteran suffered from either weight loss or anemia, with the Veteran merely claiming that an increased rating was warranted. In November 2018 the claims were remanded by the Board for further development. As per Board remand orders, a VA examination was provided in August 2019. The VA examiner noted that the Veteran suffered from anemia in 1970 during service, but no anemia or weight loss was found to have occurred during the appellate period. The VA examiner summarized his findings as such: "There is no evidence for recurrence of acute inflammatory arthritis after the initial episode, nor does the Veteran endorse recurrence of the reactive arthritis, at that time called Reiter's syndrome (terminology has changed to "Reactive arthritis")." The Board finds that rating in excess of 40 percent for Reiter's Syndrome under Diagnostic Code 5009-5002 is not warranted. The probative evidence of record does not show evidence of weight loss, anemia, totally incapacitating constitutional manifestations, or severely incapacitating exacerbations occurring 4 or more times per year or a lesser number of over prolonged periods. In the absence of any such evidence, an increased rating may not be granted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Residuals of Left and Right Total Knee Arthroplasty As a way of history, a September 2011 rating decision grated service connection for left and right total knee arthroplasty (TKA) as being secondary to the Veteran's Reiter's Syndrome and was assigned a 30 percent rating for each knee. This was granted based on an August 2011 examination, in which the Veteran's knees were found to have symptoms of pain and tenderness. No significant range of motion limitations were found, as the Veteran's right and left knee flexion was to 120 degrees without evidence of painful motion and right knee extension was normal. The VA examiner did not find subluxation or instability of the knee. In May 2012 the Veteran submitted a notice of disagreement (NOD) and was provided a statement of the case (SOC) in November 2015. The Veteran perfected his appeal in January 2016 via the submission of VA Form 9. In November 2018 the claims were remanded by the Board for further development. The Board found, that given the length of time since the last VA examination, a new examination was warranted to determine the current symptomatology of the Veteran's condition. As such, a VA examination was ordered by the Board which was provided in August 2019. There, the Veteran reported bilateral knee pain described as aching inside the knee joint, exacerbated by walking for over 10 minutes, or walking on uneven ground. The Veteran previously used crutches, a cane and a walker to ambulate, but stopped as of the VA examination and had not had any knee aspirations or knee injections. Range of motion testing showed right knee flexion was 0 to 120 degrees and extension was 120 to 0 degrees. Left knee flexion was 0 to 125 degrees and extension was 125 to 0 degrees. Repetitive use testing did not cause additional functional loss. Flare ups were reported, with pain during flare ups being the limiting factor rather than a change in range of motion. No ankylosis, subluxation, lateral instability or recurrent effusion was found. Joint stability testing was normal on both knees and muscle strength testing was bilaterally normal without evidence of muscle atrophy. In addition to these findings, the VA examiner reported that the Veteran was involved in a motor vehicle accident in the 1980s and underwent pervious arthroscopy of the knees in the 1990s, which identified a torn meniscus. The examiner reported that the Veteran had moderately severe bilateral osteoarthritis of the knees in 2001, which progressed over the years resulted in the needed bilateral TKA in 2008 and 2009. The examiner reported that there was no evidence for recurrent of acute inflammatory arthritis after the initial episode, nor did the Veteran endorse recurrence of the reactive arthritis. The Board has reviewed the Veteran's medical history and finds while it shows continual complaint and treatment for the Veteran's knee disabilities, the medical records do not contradict the findings of the August 2011 and August 2019 VA examinations. Diagnostic Code 5055 provides two avenues through which to obtain a higher rating. First, under Diagnostic Code 5055 itself, a 60 percent rating is warranted where there are chronic residuals of severe painful motion or weakness. As the evidence does not show that such residuals are present, a 60 percent rating is not warranted in this case. Second, Diagnostic Code 5055 allows for rating by analogy where there is an intermediate degree of residual pain, weakness, or limitation of motion. The analogous rating is done via Diagnostic Codes 5256, 5261, and 5262. Through such analogous ratings, a claimant is potentially able to obtain a higher 40, 50, or 60 percent rating. In this case, a higher rating is not warranted pursuant to any of these Diagnostic Codes. A higher rating is not warranted under Diagnostic Code 5256 because the Veteran's right knee disability does not manifest in ankylosis. A higher rating is not warranted under Diagnostic Code 5261 because the Veteran's extension is normal. Furthermore, the functional loss factors of 38 C.F.R. §§ 4.40 and 4.45 cannot be used to show that the Veteran's disability approximates a more limited amount of extension because the functional loss factors considered in those regulations are already contemplated by Diagnostic Code 5055. See 38 C.F.R. § 4.14. Lastly, a higher rating is not warranted under Diagnostic Code 5262 because the evidence does not show that the Veteran experiences impairment of the tibia and fibula. Furthermore, the Veteran is separately rated for surgical scars and has not appealed the rating decision therein, therefore a separate rating is not warranted. Consideration has been given to the provisions of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, 8 Vet. App. 202. In that regard, the Board has considered the Veteran's complaints of pain, especially on flare-ups and pain on motion, in determining that the preponderance of the evidence is against the Veteran's claim of entitlement to higher ratings. Specifically, range of motion testing on VA examination did not meet the criteria for higher ratings under the rating schedule, even when taking into consideration limitation of function due to pain. The Board has also considered whether staged ratings are warranted; however, the Veteran is rated 40 percent under Diagnostic Code 5009 and 30 percent under Diagnostic Code 5055, and at no point has his disability approximated the criteria for a higher rating. Accordingly, the assignment of staged ratings is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if 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. 38 C.F.R. § 4.16(a). If the Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age which would justify a TDIU rating. See 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014); Van Hoose, 4 Vet. App. at 363. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2014); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The critical question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). As an initial matter, as of January 2011 the Veteran has met the statutory requirements for TDIU. This is due to the Veteran being rated at 40 percent for Reiter's syndrome, 30 percent for right total knee arthroplasty, 30 percent for left total knee arthroplasty, and being noncompensable for both right and left knee scars associated with total knee arthroplasty. In total, the Veteran has had a combined rating of 70 percent. 38 C.F.R. § 4.16(a). In May 2012 the Veteran submitted a claim of entitlement for TDIU. In doing so, the Veteran wrote that he worked at Haskins Realty doing real estate 40 to 50 hours a week, then he worked 45 hours a week at Dahlin Dental Lab as a dental technician from April 2010 to May 2010, and finally he worked at Ace Hardware doing retail work 30 hours a week from June 2010 to July 2010. He reported that he finished three years of high school and did not have any other education or training. In support, the Veteran's supervisor at Ace Hardware stated that the Veteran worked 40 hours a week as a clerk until June 23, 2010, and left worked because "his feet hurt too bad to work 8 hours a day as we needed him to." The Veteran further stated that he believed that his reason for being unable to stay employed was his arthritis in both knees and in his right foot. These statements stand in contrast to wat the Veteran reported in January 2014 at a urology ultrasound appointment. He told his provider that he retired from owning a dental lab. Likewise, a December 2011 primary care outpatient note stated that the Veteran's last employment was as a dental technician. What somewhat reconciles these inconsistencies is the Veteran's August 2011 VA examination, where the examiner wrote: "He is unable to be on his feet for more than 30-60 min. He was not able to work at Ace Hardware, too much standing. He was a dental tech x 20 yrs, but stopped because his hands were bothering him, did not have problems due to knees." The Board finds the Veteran's lay statements as to his employment history and education to be inconsistent, as the Veteran reported to VA, for the purpose of seeking benefits, that he only had three years of high school education and worked as a dental tech for one month, while telling medical providers that he worked as a dental technician for twenty years, owned his own dental lab, and stopped working as a dental technician due to non-service connected hand pain. Given these inconsistencies, the Board affords diminished probative value to the Veteran's lay statements. Regarding the Veteran's service-connected knee disabilities, the Board acknowledges the Veteran's belief that he is unable to work due to knee pain. However, of greater probative value is the medical determination of the August 2019 VA examiner, whom upon performing an in-person examination opined: "Veteran is suited for mainly sedentary type work, but employment that would allow Veteran to get up and stretch and walk about briefly every ~30 min, so as to avoid the pain that he c/o in his knees from prolonged sitting." The Board finds that the Veteran's knee disabilities have caused functional impairment that has limited his ability to productively work. While the Board accepts that the Veteran has been shown to be unable to work as a clerk at Ace hardware, a TDIU rating is not warranted simply because the evidence shows a veteran would be unable to return to the specific job or line of work performed in the past or that he or she would make a lower salary than in the past. Rather, VA regulation provides 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." 38 C.F.R. § 4.16(b). Also, to the extent that in making this argument the Veteran's is suggesting that the Board should make specific findings as to what forms of employment were available to him, in light of his functional impairment due to his service-connected disabilities, there is no legal requirement that the Board make specific findings as to which particular types of employment the Veteran is capable of performing. Moreover, "a TDIU determination does not require any analysis of the actual opportunities available in the job market." See Pederson v. McDonald, No. 13-1853, slip op. (U.S. Vet. App. Feb. 13, 2015) (en banc) (quoting Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011)). Moreover, to the extent the Veteran may attempt to argue that the Board must specifically identify the degree to which his service-connected disability, as opposed to his non-service-connected disabilities, impairs his ability to work, such an analysis is not required. See Pederson, No. 13-1853, slip op. Additionally, the sole fact that a claimant is unemployed or has difficulty obtaining employment the claimant would prefer or had in the past is not sufficient to warrant entitlement to TDIU. The critical question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In the present case, the most probative evidence of record merely shows that for the Veteran to maintain employment, he must be allowed to get up, stretch and walk around briefly every 30 minutes. While this would realistically preclude the Veteran from some types of employment, the question before the Board is whether this impairment would preclude substantial employment realistically within the physical and mental capabilities of the claimant. Given that the Veteran has worked for two decades as a dental technician, and was unable to work as a clerk at a specific place of employment because he could stand for eight hours, the Board finds that his service connected disabilities have not rendered him unable to obtain or maintain substantially gainful employment. As such, the Veteran is not entitled to a TDIU rating. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In sum, the Board finds that the preponderance of the evidence is against a claim for a TDIU. 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, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.