Citation Nr: 21031909 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-15 475 DATE: May 25, 2021 ORDER Entitlement to a rating of 60 percent for left knee, total knee replacement is granted. Entitlement to a rating of 60 percent for residuals, total knee arthroplasty, right knee is granted. Entitlement to a rating in excess of 30 percent for right ankle fracture involving tibia and fibula with posttraumatic arthritis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his left knee replacement resulted in chronic residuals consisting of severe painful motion and/or weakness. 2. Resolving reasonable doubt in favor of the Veteran, his right knee replacement resulted in chronic residuals consisting of severe painful motion and/or weakness. 3. Throughout the pendency of this appeal, there has been no evidence that the Veteran's right ankle ankylosis resulted in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees with abduction, adduction, inversion or eversion deformity. 4. The Veteran's service-connected disabilities alone did not preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating of 60 percent for left knee, total knee replacement have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5055 (2019). 2. The criteria for a rating of 60 percent for residuals, total knee arthroplasty, right knee have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5055 (2019). 3. The criteria for a rating in excess of 30 percent for right ankle fracture involving tibia and fibula with posttraumatic arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5270 (2019). 4. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1950 to June 1974. He passed away in July 2014. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2019. A transcript of the hearing is associated with the electronic claims file. The Board issued a prior remand on these claims in November 2019. I. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's knee replacements are evaluated under DC 5055 for knee resurfacing or replacement. Under DC 5055 a 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity; this is the highest available rating except for the 100 percent rating assigned directly after knee replacement surgery occurs. The Veteran's ankle is evaluated under DC 5270 for ankylosis of the ankle. Under DC 5270 a 30 rating is warranted for ankylosis resulting in plantar flexion between 30 degrees and 40 degrees, or dorsiflexion between 0 degrees and 10 degrees; a 40 percent rating is warranted for ankylosis resulting in plantar flexion at more than 40 degrees or dorsiflexion at more than 10 degrees with abduction, adduction, inversion, or eversion deformity. 1. Entitlement to a rating of 60 percent for left knee, total knee replacement. 2. Entitlement to a rating of 60 percent for residuals, total knee arthroplasty, right knee. The Veteran filed an application for TDIU in May 2014. In June 2014, the Veteran was given a VA examination to determine the severity of his service-connected conditions. Following the examination, the examiner provided an opinion stating: "I have visited patient in hospice, a staff nurse [nurse's name] was present at that time. Patient was very sick and terminally ill due to non-s/c conditions, lying in bed unresponsive and not in position to give history or participate in any physical exam. In these conditions I am unable to evaluated [sic] patient's s/c conditions of knees and right ankle. Hence I can not [sic] opine without mere speculation about patient's unemployability due to s/c knees and ankle conditions as per current exam." Accordingly, the RO issued a June 2014 rating decision denying a rating in excess of 30 percent for the bilateral knees. In July 2014, the Veteran passed away. The appellant was subsequently substituted as the claimant. In the appellant's notice of disagreement and at her June 2019 hearing, she requested the claim be remanded for a complete file review of all of the Veteran's medical records and a VA opinion as to the severity of his service-connected conditions and their effect on his ability to work. Thus, in November 2019, the Board remanded the claim to update the record and obtain an addendum opinion regarding the Veteran's limitation of motion of the bilateral knees following a file review. In December 2020 it was opined that the Veteran's bilateral knee conditions would prevent him from standing for long periods or walking great distances. In a January 2021 addendum opinion, the examiner opined that "Review of the extensive medical record shows that this is the best estimate of the Veteran's functional disabilities, further more detailed evaluation cannot be completed due to the Veteran's death." Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's request for a higher rating for his bilateral knee replacements indicated a worsening in pain. As under DC 5055 a rating of 60 percent is warranted for chronic residuals consisting of severe painful motion or weakness, the Board finds that a rating of 60 percent for each knee is warranted. Tedesco v. Wilkie, 31 Vet. App. 260 (2019). The Board notes that this is the highest schedular rating for this condition. Accordingly, entitlement to a rating of 60 percent for left knee, total knee replacement and entitlement to a rating of 60 percent for residuals, total knee arthroplasty, right knee is granted. 3. Entitlement to a rating in excess of 30 percent for right ankle fracture involving tibia and fibula with posttraumatic arthritis. As noted above, in June 2014, the Veteran was given a VA examination to determine the severity of his service-connected conditions. Following the examination, the examiner provided an opinion stating: "I have visited patient in hospice, a staff nurse [nurse's name] was present at that time. Patient was very sick and terminally ill due to non-s/c conditions, lying in bed unresponsive and not in position to give history or participate in any physical exam. In these conditions I am unable to evaluated [sic] patient's s/c conditions of knees and right ankle. Hence I can not [sic] opine without mere speculation about patient's unemployability due to s/c knees and ankle conditions as per current exam." Accordingly, the RO issued a June 2014 rating decision denying a rating in excess of 30 percent for the Veteran's right ankle fracture. In July 2014, the Veteran passed away. The appellant was subsequently substituted as the claimant. In the appellant's notice of disagreement and at her June 2019 hearing, she requested the claim be remanded for a complete file review of all of the Veteran's medical records and a VA opinion as to the severity of his service-connected conditions and their effect on his ability to work. Thus, in November 2019, the Board remanded the claim to update the record and obtain an addendum opinion regarding the Veteran's limitation of motion of the right ankle following a file review. In December 2020 it was opined that the Veteran's right ankle fracture would prevent him for standing for long periods or walking great distances. In a January 2021 addendum opinion, the examiner opined that "Review of the extensive medical record shows that this is the best estimate of the Veteran's functional disabilities, further more detailed evaluation cannot be completed due to the Veteran's death." The Board notes that DC 5270 is based on specific degrees of ankylosis, with the next higher rating requiring a finding of ankylosis resulting in plantar flexion at more than 40 degrees or dorsiflexion at more than 10 degrees with abduction, adduction, inversion, or eversion deformity. The record contains no such evidence that the Veteran met this criterion during his lifetime. Moreover, neither the appellant nor her representative has provided any evidence in support of such. The Court has held that, when a medical examiner concludes that he or she is unable to provide an opinion, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Jones v. Shinseki, 23 Vet. App. 382 (2010). Here, the examiner specifically explained that because the Veteran is deceased, he is unable to provide a more detailed evaluation as to the limitation of motion caused by the Veteran's right ankle fracture. The Board finds the January 2021 report contains a "legitimate inconclusive opinion," and VA does not have to demand a conclusive opinion from the examiner. Id. Accordingly, entitlement to a rating in excess of 30 percent for right ankle fracture involving tibia and fibula with posttraumatic arthritis is denied. II. TDIU 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). 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 caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). However, it must be considered whether to refer a TDIU claim to the Director of Compensation Service for extraschedular consideration when the Veteran's service-connected disabilities do not meet the schedular percentage requirement. 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 4. Entitlement to a TDIU. As a result of this decision, the Veteran is currently service-connected for a total knee replacement of the left knee, evaluated at 60 percent; residuals of a total knee arthroplasty of the right knee, evaluated at 60 percent; a right ankle fracture involving tibia and fibula with posttraumatic arthritis, evaluated at 30 percent; amputation of the distal phalanx left index finger, evaluated at 0 percent; vocal cord stripping for chronic laryngitis, status post, evaluated at 0 percent; tonsillectomy, status post, evaluated at 0 percent; and essential hypertension, evaluated at 0 percent, for a total combined evaluation of 90 percent. 38 C.F.R. § 4.25. As the claim has been pending since May 2014, the date the Veteran filed a claim for a TDIU, the Board's grant of 60 percent ratings for the Veteran's bilateral total knee replacements will also be effective as of that date. The Board finds that a TDIU is not warranted. On the Veteran's TDIU application, he indicated that he could not work due to his knees, right ankle, and Alzheimer's. Following the Board remand, the RO obtained several opinions regarding the functional impact caused by the Veteran's service-connected disabilities. First, in June 2020 an examiner opined that the totality of the Veteran's service-connected conditions were less likely than not to impact his ability to obtain and maintain substantially gainful sedentary employment. However, the RO noted that the examiner provided no real rationale for his opinion and obtained another opinion in December 2020. Here, the examiner opined that "Review of the medical record shows the Veteran's left knee total replacement, right ankle fracture involving the tibia and fibula with posttraumatic arthritis, and total knee arthroplasty of the right knee disability would prevent standing for long periods or walking great distances, however the Veteran could perform sedentary work." In another addendum opinion to his findings, in January 2021, the examiner wrote "Previous medical opinion remains unchanged. Review of the extensive medical record shows that the Veteran's lower extremity disabilities of total knee replacement of the left knee, right knee ankle fracture involving tibia and fibula with posttraumatic stress arthritis, total knee arthroplasty of the right knee would impact the Veteran's ability to stand for long periods or walk great distances due to pain and reduced ROM secondary to pain, however a sedentary job would not impart [sic] such disability. The Veteran's amputation of the distal phalanx left index finger could possibly preclude some dexterity with the left hand but would be minor and would allow at least light tasks. The Veteran's status post vocal cord stripping for chronic laryngitis, status post tonsillectomy, and essential hypertension pose no functional limitations. Review of the extensive medical record shows this is the best estimate of the Veteran's functional disabilities, further more detailed evaluation cannot be completed due to the Veteran's death." The Board finds this opinion to be consistent with the record, entitling it to significant probative weight. The Board is cognizant of the decision of the Court in Withers v. Wilkie, which held that the term "sedentary" has no legal significance to the issue of employability under VA regulations; it is not defined for VA employability purposes; and, when it is used, there must be an explanation as to how it is applied to a veteran's individual case. Withers v. Wilkie, 30 Vet. App. 139 (2018). The word "sedentary" clearly has "the general sense of sitting." The Board finds that it is reasonable to assume that the VA examiners used the term "sedentary" with this general sense of the word in mind as they noted the Veteran's limitations were in non-sitting activities such as standing and ambulating. The Board envisions potential sedentary employment to include administrative, semi-skilled, unskilled or other forms of non-physical employment that would not require the Veteran to spend a significant amount of time on his feet, ambulating or physical activity requiring walking or standing for long periods of time. The dispositive issue is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). On the Veteran's current application, he indicated that he had a college degree. The Veteran previous applied for unemployment benefits in 2006. He indicated that he was an insurance salesman. His prior employer indicated that the Veteran retired in 1996 and no concessions were made on account of disability. There is no persuasive evidence that the Veteran was unable to perform the mental acts required to perform a job on account of service connected disability. Neither the appellant, nor her representative has provided any additional medical evidence in support of this claim. Moreover, as the Veteran is now deceased and a complete review of the existing medical record has been completed, the Board finds that no additional medical opinions are necessary. Finally, the Board notes that on his application the Veteran listed Alzheimer's as a condition precluding him from securing or following substantial gainful employment, however the Veteran was never service connected for this condition, therefore the effects of such cannot be considered in this decision. As the preponderance of the evidence is against the claim, the Board finds that entitlement to a TDIU is not warranted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.