Citation Nr: 22010543 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 17-62 002 DATE: February 23, 2022 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a right total knee replacement is denied. New and material evidence not having been received, the petition to reopen a claim for service connection for left ankle arthritis, secondary to a right total knee replacement, is denied. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU), prior to October 23, 2020, is denied. Entitlement to a TDIU, from October 23, 2020, is granted, subject to regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The evidence is persuasively against a finding that the Veteran has an additional right knee disability due to right total knee replacement surgeries and treatment at a VA Medical Center that was proximately caused either by VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA medical personnel relative to the Veteran's VA medical treatment, or by an event during or related to that treatment that was not reasonably foreseeable. 2. The Veteran's claim for service connection for left ankle arthritis was previously denied by a June 2013 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 3. Additional evidence received since the June 2013 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for left ankle arthritis, and does not raise a reasonable possibility of substantiating the claim. 4. Prior to October 23, 2020, the Veteran's service-connected disabilities did not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. 5. From October 23, 2020, the Veteran's service-connected PTSD precludes him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. § 1151 for a right total knee replacement are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2021). 2. The June 2013 rating decision denying service connection for left ankle arthritis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2021). 3. New and material evidence has not been received to reopen the Veteran's claim for service connection for left ankle arthritis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). 4. Prior to October 23, 2020, the criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2021). 5. From October 23, 2020, the criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1959 to May 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. This case was previously before the Board in September 2018 and December 2020 when it was remanded for further development. In the September 2018 decision, the Board reopened the claim for compensation under 38 U.S.C. § 1151 for residuals of a right total knee replacement. 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a right total knee replacement The Veteran asserts that he has an additional right knee disability due to VA treatment, including an April 2011 VA total knee replacement surgery and follow up treatment. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability in the same manner as if such additional disability were service connected. For purposes of this section, a disability is a qualifying additional disability if (1) the disability was not the result of the Veteran's willful misconduct, (2) the disability was caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under the law administered by the Secretary, either by a Department employee or in a Department facility defined in 38 U.S.C. § 1701(3)(A), and (3) the proximate cause of the disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. The implementing regulation is 38 C.F.R. § 3.361, which provides that claims based on additional disability due to VA hospital care, medical or surgical treatment, or examination must meet the actual causation requirements of 38 C.F.R. § 3.361(c)(1)-(2), and proximate causation of 38 C.F.R. § 3.361(d)(1) (informed consent) or 38 C.F.R. § 3.361(d)(2) (unforeseen event). To establish actual causation, the evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. Merely showing that a Veteran received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's, informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). The Veteran contends that he is entitled to compensation for an additional right knee disability that was caused by an April 2011 VA total knee replacement surgery and VA follow up treatment. In a November 2011 statement, the Veteran stated that he had a right knee replacement in April 2011, and he had been informed that they would have to do another replacement because of a procedure that did not go right. He stated that he wished to file a 38 U.S.C. § 1151 claim due to the wrongful procedure of right knee replacement. In an August 2016 statement, the Veteran specifically asserted that a delay in physical therapy aggravated his right knee disability. An April 2011 VA treatment record reflects that the Veteran had a right total knee arthroplasty on April 7, 2011. An April 7, 2011, Orthopedic Surgery Procedure Note reflects that the right knee had adequate stability post-operatively. No complications were noted. A March 2011 informed consent form for the right total knee arthroplasty, signed by the Veteran, reflects that the Veteran was informed of a description of the procedure, the potential benefits of the procedure, and the known risks and side effects of the procedure. The known risks included "Failure of the prosthesis requiring further treatment" and "Breakage or wearing out of prosthesis requiring revision, replacement or other treatment." An April 2011 VA surgery attending note indicated that the Veteran had been informed of the potential risks and complications (including death) in addition to its potential benefits and alternatives and had chosen to proceed. An April 10, 2011, VA treatment record indicated that the Veteran "expressed several concerns regarding the care he has been receiving at the VA since his surgery." He stated that he had not seen a doctor since his surgery, and he was concerned that his dressing had come loose in the continuous passive motion machine. He was concerned about his risk for infection stating "my knee hurts worse now and I have a temp." The record noted his temperature maximum that shift was 101.5 degrees. He expressed concern about the possibility of losing his limb or his life. He stated that his personal employment history was in the medical field as an Emergency Medical Technician and a critical care tech, and he did not feel like he was receiving appropriate post-operative care. The nurse stated that they spoke at length with the patient about his risk for infection and the infectious process. His dressing, which had come loose, was reinforced. A Dr. L. was notified and came to see the patient. He ordered tests which were completed during the evening shift. The Veteran indicated that he felt much better about his current medical situation. The incision was noted to be well approximated with no redness or heat. Slight swelling was noted at the site, and bloody drainage was noted on the original ABD pad. An April 12, 2011, VA discharge record indicates the Veteran had point of care (POC) complicated by community-acquired pneumonia (CAP), but no other post-operation issues. A December 30, 2011, VA treatment record noted that the Veteran had continued pain of the right knee, mostly beneath the patella. He had undergone physical therapy with good range of motion, but continued to be symptomatic. On December 30, 2011, a right total knee replacement diagnostic arthroscopy, biopsy and aspiration of synovial fluid was performed. The preoperative diagnosis was a symptomatic right total knee replacement. The post-operative diagnosis was mid-flexion instability, right total knee replacement. A right total knee arthroplasty revision surgery was performed on March 27, 2012. The reason for the surgery was a worn or misaligned synthetic knee. A March 2012 VA treatment record noted that the Veteran had right knee pain since April 2011. The December 2011 arthroscopy had a negative aspirate/biopsy. The knee was positive for swelling, and always sore, worse with activities. He used an ace bandage most of the time and a brace as needed. A March 27, 2012, Orthopedic Attending note stated that for the first three months, rehabilitation progressed well, but after that he developed persistent right knee pain. A thorough infection workout was completed including aspiration and biopsy in the operating room. This was negative. The note stated that a revision of the femoral component which is in valgus orientation has been suggested and accepted. There was no evidence of patellar "laltracking," and the clinical alignment was unremarkable. However, radiographic analysis strongly suggested that revision of the femoral component was required. It was noted that the alternatives, indications, risks, benefits, complications, short/long term published results, expected outcome, rehabilitation, and follow up had been explained. A separate pre-operative note indicates that the Veteran understood the risks and benefits of surgery and wished to proceed. The March 27, 2012, orthopedic surgery note indicated that the preoperative diagnosis was a failed right total knee arthroplasty. The procedure performed was a revision of the right total knee arthroplasty (revision of femoral component to posterior stabilized and polyethylene exchange). The findings were well fixed components and well-maintained patellar component. No complications were apparent. In a May 2012 VA orthopedic attending note, a VA physician stated that in his opinion the source of the need for revision was lateral subsidence of the femoral component producing, in effect a "valgus deformity." There was no instability detected in the total knee replacement and range of motion was 0 to 115 degrees with normal patellar tracking. There was no effusion, redness, nor tenderness, and the incision was well healed. A November 2012 physical therapy record indicated that the Veteran had been in physical therapy continuously secondary to pain and valgus collapse through the knee and ankle following the total knee replacement and revision surgery. A January 2014 VA treatment record indicated that the Veteran wanted to proceed with a right knee replacement revision surgery. He had pain in the knee for many years and could walk about 50 yards without stopping using a knee brace. A July 1, 2014, VA treatment record indicates that the Veteran had a revision total knee replacement due to ongoing pain and instability. The record noted that informed consent was reviewed and confirmed with the patient, which included instability and the need for more surgery. The Veteran wanted to proceed with the revision surgery. The preoperative diagnosis was "failed right total knee arthroplasty (instability)." Following the surgery, a July 3, 2014, VA treatment record noted that the Veteran's anger at the staff was inhibiting their ability to provide adequate care. The right total knee replacement had no purulent drainage or foul odor noted. In a November 2016 VA treatment record a VA orthopedic surgeon stated that he did not feel comfortable operating on the patient. He stated that he had gone out of his way to ensure quality care, including arranging for him to see an outside surgeon, who did not find any indication for a revision. The VA orthopedic surgeon also opined that the Veteran would not benefit from additional surgery to his right knee, and noted that he had openly stated that his goal was to have increased disability from his leg. In a November 2016 VA treatment record, the Chief, Orthopedic Surgery, opined that a right total knee revision was not indicated. He stated that the Veteran had reportedly seen about 4 other orthopedic surgeons in the area who did not think that he needed another right knee revision. The orthopedic surgeon stated that there was no definitive evidence that the right total knee replacement was loose, but there were the typical "minor cortication" changes noted around the stem of the femoral component. There was no change in position, and no subsidence. The bone scan did not suggest loosening. In a March 2016 statement, the Veteran contended that the continued failure of knee operations, viewed individually do not constitute negligence, or lack of care or skill, but support the 1151 claim when viewed as a whole with three consecutive failures on a procedure with a 10 percent failure rate. The Veteran noted that he required a fourth operation. At the March 2018 Board hearing, the Veteran testified that his right knee hurt all the time. He stated that VA physicians told him that they could fix his knee, but the right knee was still painful. Several VA opinions were obtained addressing whether the Veteran had an additional disability that resulted from carelessness, negligence, lack of skill, or similar instance of fault on the part of the attending VA personnel, an event that could not have reasonably been foreseen or failure on the part of VA to timely diagnose or properly treat the condition. A December 2015 VA examiner opined that the April 2011 right total knee replacement was well-indicated, performed in a standard of care fashion (per the operative note), was without operative mishap and was without complication with an exception of an inconsequential lung infiltrate that was treated with antibiotics. The examiner stated that the subsequent March 2012 revision and July 2014 right total knee replacement procedure were unfortunate residuals of the April 2011 right total knee replacement. However, the December 2015 VA examiner did not address whether the Veteran's overall treatment at VA, including follow up treatment, multiple surgeries, and physical therapy, caused or aggravated an additional right knee disability. As the opinion was inadequate, the Board remanded the claim in September 2018 to obtain a new VA opinion. In a November 2019 VA examination and opinion, the VA examiner found that the Veteran had an additional disability of a failed right total knee arthroplasty resulting in instability. Specifically, the examiner stated that July 2014 VA treatment records showed a diagnosis of failed right total knee arthroplasty resulting in instability, a condition that was not present on the initial diagnosis prior to the first surgery. The examiner opined that it was less likely than not that the cause of the additional right knee disability was the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in furnishing treatment. However, the rationale for the opinion was contradictory, as the examiner opined that the right knee additional disability was less likely than not foreseeable as an ordinary risk of treatment, but the rationale indicated that the examiner believed several risks involved in the surgical procedure were disclosed in the informed consent. It was also unclear whether the examiner had reviewed the informed consent form for the right knee replacement surgery and the rationale did not address VA treatment. Therefore, the opinion has little probative value, and the Board remanded the claim for a new opinion in December 2020. In a February 2021 opinion, a VA clinician opined that the "Veteran does not have a right knee disability; there are not a lot of men Veteran's age who have the stamina, endurance and physical fitness that he has displayed. Most recent imaging demonstrates excellent alignment and 'no evidence to suggest loosening of the right knee prosthesis.'" The reviewing clinician opined that there is insufficient evidence that there is currently a right knee disability. The clinician noted that the Veteran did have multiple right knee surgical procedures at a VA facility; however, there is no evidence that the claimed right knee disability was caused by or became worse as a result of the VA treatment at issue. The VA clinician stated that surgery is irreversible, complications of surgery are unpredictable and unforeseeable, and results cannot be guaranteed. Therefore, a calculated measured approach to treatment is necessary, as was the case in this Veteran. His providers were sympathetic to his cause, listened to his concerns, reached out to him, and documented his complaints in his medical records according to his wishes, as he repeatedly threatened VA with a lawsuit. He was advised about potential complications, before each and every surgery. The reviewing clinician opined that the Veteran had excellent care at the VA facilities. He presented with almost bone-on-bone tri-compartmental right knee arthritis, complicated by industrial injuries, aging, co-morbidities and lifestyle. As is the case in severe arthritic cases, arthroscopy is helpful only briefly (remarkable that it helped almost 3 years) but ultimately, knee replacement is required. He elected to proceed with total right knee arthroplasty as recommended. The orthopedic surgical process involves selecting the correct implant/spacers, cutting, sawing, drilling, sewing, cauterizing, stapling, filling, cementing, screwing, as the case may be, and solely determined by the surgeon in real time. It is a judgement call, based on best surgical practice guidelines, and individual patients. It is never the same for two individuals, not even the same for the same patient on separate instances. The Veteran's arthroplasty(s) was uneventful, post-op follow up demonstrated slow but progressive healing. Each knee procedure healed without complications, but the Veteran was less than satisfied due to persistent pain. Surgical outcome is also patient dependent, more so than surgical technique, especially in this Veteran. The Veteran's age, co-morbidities, severe baseline arthritis, and ongoing musculoskeletal conditions (foot/spine/neuropathy), all played a role in the surgical outcome. The reviewing clinician stated that it is the opinion of the clinician that the Veteran's multiple right knee surgical procedures "were anything other than iatrogenic in nature," complicated by the Veteran's demographic profile, injuries, and co-morbidities. There is insufficient evidence that it was as a result of VA providers error or became worse as a result of the VA treatment. There is no evidence of an additional disability, specifically, no disability resulted from the attending VA personnel's failure to follow the appropriate standard of care; and no additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The clinician stated that there is no evidence of a failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability or allowed the disease or disability to continue to progress. After a review of the record, the Board finds that the most competent and probative evidence is persuasively against the Veteran's claim for compensation for a right knee disability under 38 U.S.C. § 1151. As described above, to establish causation, the evidence must show that VA hospital care, medical or surgical treatment, or examination actually and proximately caused the Veteran's additional disability. Merely showing that a Veteran received VA medical care and has an additional disability does not establish causation. 38 C.F.R. § 3.361(c)(1). Rather, it must be shown that VA hospital care, medical or surgical treatment, or examination actually caused the Veteran's additional disability and that the additional disability was proximately caused by VA failure to exercise the degree of care that would be expected of a reasonable health care provider. The other basis to establish proximate cause, that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's informed consent, has not been asserted by the Veteran or shown by the evidence in this case. 38 C.F.R. § 3.361(d)(1)(ii). To determine whether a veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). The evidence of record shows that the Veteran had several revision surgeries following his April 2011 total right knee replacement. However, the February 2021 opinion concluded that the Veteran did not have an additional right knee disability as most recent imaging demonstrated excellent alignment and no evidence of loosening of the right knee prosthesis. Although the Veteran had additional right knee surgeries, the reviewing clinician found that the Veteran's arthroplasties were uneventful and post-operation follow up demonstrated slow but progressive healing. Each knee procedure healed without complications, but the Veteran was less than satisfied due to persistent pain. The clinician stated that the Veteran's age, co-morbidities, severe baseline arthritis, and ongoing musculoskeletal conditions all played a role in the surgical outcome. The Board finds the February 2021 opinion to be highly probative as the reviewing clinician provided a thorough rationale consistent with the evidence of record. The November 2019 VA examiner found that the Veteran had an additional disability of a failed right total knee arthroplasty resulting in instability. However, as the November 2019 VA examiner's rationale was contradictory, the opinion has limited probative value. The Board finds that the most persuasive evidence of record is against a finding that the Veteran had an additional right knee disability as a result of the April 2011 VA total knee replacement surgery and follow up VA treatment, including the revision surgeries. The Board further finds that even if there was an additional disability caused by the VA treatment, the evidence of record is persuasively against a finding that the Veteran's right knee required further surgeries due to a proximate cause of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA medical personnel relative to the Veteran's VA medical treatment. The February 2021 reviewing clinician opined that the Veteran had excellent care at VA facilities and opined that the Veteran's multiple right knee surgical procedures were iatrogenic in nature and there was insufficient evidence that they were the result of VA provider error or that the knee became worse as a result of the VA treatment. The clinician found specifically that no disability resulted from the attending VA personnel's failure to follow the appropriate standard of care. The clinician found that there was no evidence of a failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability or allowed the disease or disability to continue to progress. The February 2021 opinion is highly probative as it was completed by a medical professional following a review of the record, and it was accompanied by a thorough and adequate rationale referring to accurate factual data for support. The evidence of record weighs also against a finding that the Veteran's right total knee replacement revision surgeries were proximately caused by an event during or related to VA treatment that was not reasonably foreseeable. The Veteran was informed of the risks of the surgeries. The March 2011 informed consent form for the right knee arthroplasty reflects that known risks included the failure of the prosthesis requiring further treatment, and breakage or wearing out of prosthesis requiring revision, replacement, or other treatment. The February 2021 VA reviewing clinician opined that no additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The clinician stated that the Veteran was advised appropriately, in a timely fashion by the VA providers, and referred to civilian medical providers and facilities for evaluation and treatment. The Board concludes that the Veteran's theory of negligence with regard to the medical care administered by the VA is not supported by the competent and probative medical evidence of record, which is persuasively against a finding that the Veteran had an additional right knee disability as a result of negligent VA medical care. The Veteran is competent to describe lay discernible symptoms without any specialized knowledge or training, such as pain, and his training and work as an EMT reflect that he has medical competence to provide opinions on some medical matters. Although the Veteran may believe that there was VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, he has not provided an opinion with a clear rationale on that question. Therefore, the Board places greater weight of probative value on the February 2021 opinion that objectively reviewed the claims file and medical evidence to address the pertinent questions herein. Based on the evidence of record, the Board finds that the evidence is persuasively against a finding that the Veteran has an additional right knee disability that was caused by the April 2011 VA total knee replacement surgery and subsequent VA treatment that was proximately caused either by VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA medical personnel relative to the Veteran's VA medical treatment, or by an event during or related to that treatment that was not reasonably foreseeable. Accordingly, the Board finds that compensation for an additional right knee disability under 38 U.S.C. § 1151 is not warranted, and the appeal in this matter must be denied. 2. Whether new and material evidence has been received to reopen a claim for service connection for left ankle arthritis, secondary to a right total knee replacement. The Veteran's claim of service connection for left ankle arthritis was originally denied by June 2013 rating decision. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The June 2013 rating decision denied the claim of service connection for left ankle arthritis based on a finding that the condition was neither incurred in nor caused by service. In the Veteran's May 2015 petition to reopen the claim for service connection, he indicated he was asserting that he had a left ankle disability, secondary to a right knee disability. In a January 2016 rating decision denying the petition to reopen, the RO stated that new and material evidence had been submitted sufficient to reopen the claim for service connection. However, the RO did not indicate what evidence was new and material. The RO found there was no evidence showing that the left ankle arthritis was incurred in or aggravated by military service and noted that service connection had not been established for the right knee disability. In a January 2016 notice of disagreement, the Veteran asserted that service connection was warranted for left ankle arthritis secondary to the right knee replacement. At the March 2018 Board hearing, the Veteran also asserted that he was claiming the left ankle disability secondary to his right knee. Evidence added to the record since the June 2013 rating decision includes VA treatment records, statements from the Veteran and a November 2019 VA opinion indicating that the left ankle arthritis was related to his right knee replacement. This evidence is new in that it was not previously of record at the time of the June 2013 decision. However, the new evidence is not material as it does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. Specifically, the VA treatment records, statements and VA opinion do not indicate that the Veteran's left ankle arthritis is related to service. Although the November 2019 opinion indicated that the Veteran's left ankle arthritis is related to the Veteran's right total knee replacement, as the Veteran is not service connected for a right knee disability, and the decision above has denied entitlement to benefits under § 1151 for the right total knee replacement, the opinion does not raise a reasonable possibility of substantiating the claim. The Board finds the evidence received since June 2013 is either duplicative of evidence considered at the time of the prior rating decision or would not reasonably substantiate the claim, were it to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Accordingly, new and material evidence to reopen the claim for service connection for left ankle arthritis has not been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Entitlement to a TDIU The Veteran asserts that he is entitled to a TDIU due to his service-connected disabilities. VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The established policy of VA reflects 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. Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Court has held that "substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person." Id. The non-economic component requires consideration of the Veteran's history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Further, the word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 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). In this case, the Veteran meets the schedular requirements of a TDIU from October 23, 2020. He is service connected for posttraumatic stress disorder (PTSD) (rated as 70 percent disabling from October 23, 2020); bilateral hearing loss (rated as 40 percent disabling from July 21, 2011); and tinnitus (rated as 10 percent disabling from August 23, 2011). The Veteran had a disability rating of 40 percent prior to August 23, 2011, a combined rating of 50 percent from August 23, 2011, to October 22, 2020, and a combined rating of 80 percent from October 23, 2020. As the Veteran met the requirement of having at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent from October 23, 2020, he met the schedular criteria for a TDIU from that date. Prior to October 23, 2020, the Veteran does not meet the schedular criteria for a TDIU. Although the percentage requirements of § 4.16(a) are not met, if the evidence establishes that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred to the Director, Compensation Service (Director) for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board must first determine whether referral for an extraschedular evaluation is warranted by determining whether there is "sufficient evidence to substantiate a reasonable possibility" that the Veteran is unemployable by reason of his service-connected disabilities prior to October 23, 2020. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); Snider v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 2050, No. 19-6707 (Nov. 19, 2021). The question remaining is whether the Veteran's service-connected disabilities (alone) render him incapable of participating in a substantially gainful occupation. Prior to October 23, 2020 Here, the evidence of record reflects that the Veteran has not worked full time during the appeal period. A May 2013 VA audiological examination indicates that he had worked in construction for 10 years and as an EMT for 14 years. The examiner found that the Veteran's hearing loss and tinnitus would impact ordinary conditions of daily life including the ability to work. The examiner stated that the Veteran reported difficulty hearing in most situations. He also stated that tinnitus can be annoying and distracting. At the March 2018 Board hearing, the Veteran testified that he had worked as a carpenter for many years. He also worked as a critical care tech in emergency rooms and an EMT in the ambulance for 12 years. He stated that his hearing loss affected his ability to work. He stated that he had hearing aids and he tried to wear them. A November 2021 VA psychiatric examination report indicates that the Veteran had been unemployed for nearly 20 years. He reported that he had previously worked as an EMT and that he had stopped working in that field because it was too much stress for him. The Board finds that prior to October 23, 2020, referral for an extraschedular rating is not warranted. As noted above, the Veteran did not meet the schedular criteria for a TDIU prior to October 23, 2020. The Veteran's only service-connected disabilities were bilateral hearing loss and tinnitus and there is not sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable due to those service-connected disabilities. Although the Veteran reported difficulty hearing in most situations and noted that his tinnitus could be annoying and distracting, the evidence did not show that the hearing loss and tinnitus disabilities alone would prevent him from obtaining and maintaining substantially gainful employment. The Veteran noted that he wore hearing aids, and his VA treatment records reflect that he was generally able to communicate. Although the Veteran testified that he wore hearing aids and had difficulty hearing, he did not indicate that he was unable to perform work tasks as an EMT, in construction, or in any other field solely because of his service-connected bilateral hearing loss and tinnitus. Therefore, the Board finds that there is not sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable prior to October 23, 2020, due to his service-connected bilateral hearing loss and tinnitus. Next, the Board finds the weight of the evidence is persuasively against a finding that the Veteran's bilateral hearing loss and tinnitus precluded him from obtaining or maintaining substantially gainful employment prior to October 23, 2020. While the evidence of record does indicate that the Veteran was not working during this time, his inability has been primarily attributed to his PTSD symptoms, for which he was not service connected prior to October 23, 2020. The Board acknowledges the Veteran's reports that his hearing loss and tinnitus impact his ability to hear in most situations, but find his reports detailing how the conditions impact his life would not prevent him from securing or engaging in employment, as he has reported wearing hearing aids and the treatment records reflect that he is generally able to hear. Thus, the record reflects that with assistance from hearing aids, he would be able to communicate and continue working in many fields for which he is educated. Based on the foregoing, the Board finds the weight of the evidence is persuasively against finding that the Veteran's bilateral hearing loss and tinnitus prevented him from securing or following a substantially gainful occupation prior to October 23, 2020, and the claim seeking entitlement to TDIU is denied. From October 23, 2020 As noted above, form October 23, 2020, the Veteran is service connected for PTSD, as well as bilateral hearing loss and tinnitus, and meets the criteria for a schedular TDIU. A November 2021 VA examination report indicates that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examination report indicated that the Veteran had been unemployed for nearly 20 years. The Veteran's PTSD condition continued to interfere and impair his current social and occupational functioning. He had persistent difficulties with maintaining stamina and sustained attention and concentration throughout an eight-to-ten-hour-workday due to anxiety. He had irritability due to mood, memory lapses due to anxiety, and sleep problems (more days than not each week) often resulting in next day fatigue and somnolence. The Veteran's PTSD was chronic, persistent, and active. He reported that he liked working as a trauma worker, but he had stopped working because it was too much stress for him. From October 23, 2020, the Board finds that the evidence is in approximate balance as to whether the Veteran's service-connected PTSD prevents him from obtaining and maintaining substantially gainful employment. The Veteran indicated that his most recent work experience was as a critical care tech. The November 2021 VA examiner indicated that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas. He had persistent difficulties with maintaining stamina and sustained attention and concentration throughout an eight-to-ten hour-workday due to anxiety. He also had irritability due to mood, memory lapses due to anxiety, fatigue, and somnolence, which would affect his ability to work as a critical care tech. The Veteran's PTSD symptoms would preclude him from obtaining and maintaining substantially gainful employment that is consistent with his educational and occupational background. Therefore, considering the totality of the relevant factors, the Board finds that entitlement to a TDIU is warranted from October 23, 2020. 38 C.F.R. § 4.16(a). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Marenna, 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.