Citation Nr: 21030489 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-19 192 DATE: May 19, 2021 ORDER Entitlement to a disability rating in excess of 60 percent for a right knee disability rated as status-post right leg amputation above the knee from July 1, 2020, and as status-post right knee replacement from July 17, 2012, to October 31, 2012, from March 1, 2014, to September 8, 2014, from December 1, 2014, to June 13, 2018, and from August 1, 2019, to December 31, 2019, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. From July 17, 2012, to October 31, 2012, from March 1, 2014, to September 8, 2014, from December 1, 2014, to June 13, 2018, from August 1, 2019, to December 31, 2019, the Veteran's s/p right knee replacement was manifested by chronic residuals consisting of severe painful motion or weakness. The Veteran underwent a right leg amputation above the knee on December 31, 2019. 2. Throughout the period on appeal, the Veteran has been unable to obtain or retain substantially gainful employment due to his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 60 percent a right knee disability from July 17, 2012, to October 31, 2012, from March 1, 2014, to September 8, 2014, from December 1, 2014, to June 13, 2018, from August 1, 2019, to December 31, 2019, and from July 1, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a Diagnostic Codes 5055, 5162. 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1985 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted an increased rating of 60 percent for a right knee disability effective July 12, 2012, a temporary 100 percent rating from October 31, 2012, and a 30 percent rating effective March 1, 2014. The Board notes that the Veteran is in receipt of temporary 100 percent ratings for convalescence for the periods of October 31, 2012, to March 1, 2014, from September 8, 2014, to December 1, 2014, from June 13, 2018, to August 1, 2019, and from December 31, 2019, to July 1, 2020. As the Veteran has been granted a maximum available rating for those periods, they are not for consideration as part of this appeal. The Veteran has been granted entitlement to a 60 percent rating effective July 17, 2012, for all remaining applicable periods during the pendency of the appeal. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here 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. 1. Entitlement to a disability rating in excess of 60 percent for a right knee disability for the periods on appeal. The Veteran, through his representative, argues that he is entitled to a rating greater than 60 percent for his right knee disability prior to December 2019. After review of the evidence, the Board finds that a rating in excess of 60 percent for the periods on appeal is not warranted. Schedular Evaluation The Board notes that a disability rating greater than 60 percent is not available for the residuals of a prosthetic replacement of a knee joint because such a rating would exceed the maximum 60 percent allowable under the "amputation rule." See 38 C.F.R. §§ 4.25, 4.68, 4.71a, Diagnostic Codes 5162 to 5164. Under the "amputation rule" the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.68. As 60 percent is the maximum disability rating one can receive under the amputation rule, no higher disability rating is available for the periods on appeal and a discussion of ratings under other potentially applicable Diagnostic Codes is not warranted. As such, the Veteran is not entitled to a disability rating greater than 60 percent for his right knee disability on a schedular basis for the periods on appeal. Extraschedular Consideration VA must refer a claim for consideration of an extraschedular rating where a Veteran's service-connected disabilities present an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The threshold element for an extra-schedular rating, "an exceptional disability picture," is met where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the level of severity of the Veteran's right knee disability is adequately contemplated by the applicable diagnostic criteria. The Veteran's right knee disability is manifested by pain, instability, and limitation of motion. These manifestations are contemplated in the applicable rating criteria, which rate on the basis of pain, weakness, limitation of motion and functional loss. 38 C.F.R. §§ 4.40, 4.45; see also Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 ); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). The Board does not find that the Veteran has described other effects that are "exceptional" or not otherwise contemplated by the rating schedule. Rather, his description of his symptomatology is consistent with the degree of disability addressed by the rating criteria. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extraschedular consideration. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2018). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed to Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58 (2019). 2. Entitlement to TDIU. The issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The Veteran has alleged that he has been unable to work since July 2012 due to his service-connected right knee disability. He worked in the field of construction materials sales for 20 years prior to being laid off in 2011. It is unclear from the record whether he has any postsecondary education. The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis. Throughout the period on appeal, the Veteran's right knee disability has been rated at 60 percent or more. He is not service-connected for any other disabilities. Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected right knee disability. Throughout the period on appeal, various VA and SSA clinicians have opined that the Veteran's service-connected disabilities have had an impact on his ability to work. At his November 2011 VA examination, the Veteran reported a total of 13 surgical procedures for his right knee. He reported missing time at work due to his condition and believed that this played a part in his recent layoff. The examiner noted chronic pain and swelling as well as disturbance of locomotion. Moreover, the Veteran later reported that he had been unable to operate a vehicle since July 2012 due to his right knee condition. Notably, the Veteran was awarded SSA disability effective July 2012 based in part on his right knee disability. Multiple SSA clinicians examined the Veteran in October 2012. Dr. A noted that the Veteran could not ambulate without the use of a wheelchair, walker, or 2 crutches, but determined that he could sit for an 8-hour work-day. Dr. W was of the opinion that the Veteran could only work a 4-hour work-day. Regarding sedentary work, the Veteran testified to SSA that his right knee constantly swelled to the point that he had to ice and elevate the right leg about three times daily. He also reported that his pain medications made him drowsy. At his May 2014 VA examination, the Veteran complained of constant knee pain and weakness. In terms of functional impairment, the examiner noted symptoms such as less movement than normal, weakened movement, excess fatiguability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion, and interference with sitting. He required constant use of a brace and crutches for ambulation. At his September 2015 VA examination, the examiner confirmed that the Veteran must frequently elevate his leg due to the constant swelling. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the evidence demonstrates that the Veteran's right knee disability makes a significant impact on his ability to obtain even sedentary employment. He cannot reasonably be expected to perform work that requires standing or walking of any kind. Furthermore, his ability to perform sedentary employment is seriously undermined by his need to frequently elevate and treat the constant swelling in his right knee. As such, the Board finds the Veteran and his medical treatment providers credible as to his functional limitations attributable to his service-connected disabilities. The Board recognizes that the Veteran underwent an above the knee amputation in December 2019. However, there is no evidence of record which indicates that the Veteran's symptoms have been alleviated to the point that he can successfully obtain substantially gainful employment post-surgery. Therefore, the Board finds that the Veteran's service-connected right knee disability has at least as likely as not prevented him from obtaining and maintaining gainful employment throughout the period on appeal. Accordingly, resolving all doubt in his favor, the criteria for TDIU has been met. See Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, 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.