Citation Nr: 25003385 Decision Date: 03/11/25 Archive Date: 03/11/25 DOCKET NO. 10-00 473 DATE: March 11, 2025 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected bilateral knee disabilities from December 21, 2006, is granted, subject to the laws and regulations governing payment of monetary benefits. FINDING OF FACT Resolving all doubt in the Veteran's favor, from December 21, 2006, his service-connected bilateral knee disabilities prevented him from securing and following substantial gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected bilateral knee disabilities from December 21, 2006, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1987 to February 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2008 by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a Board hearing in August 2010 before a Veterans Law Judge who is no longer with the Board, a transcript of which is associated with the record. The Veteran declined another hearing before a different judge in March 2023. This matter was previously before the Board in April 2024, at which time it was remanded for further development. It now returns to the Board for further appellate review. Entitlement to a total disability rating based on individual unemployability due to service-connected disability prior to February 6, 2015. The Veteran contends entitlement to a total disability rating based on individual unemployability due to service-connected disability prior to February 6, 2015. The period on appeal starts on December 21, 2006, the date VA received the Veteran's informal claim for increased rating for bilateral knee disabilities. Total disability will be considered to exist 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. 38 C.F.R. § 3.340. Said another way, a total disability rating 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 disability or disabilities. 38 C.F.R. § 4.16. In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. §§ 4.1, 4.15, 4.16(a). Age or impairments caused by nonservice-connected disabilities may not be considered when determining whether such a total disability rating is warranted. 38 C.F.R. §§ 3.341, 4.16, 4.19. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The benefit-of-the-doubt rule applies when the evidence is in approximate balance or nearly equal. Lynch v. McDonough, 21 F.4th 776 (2021). For the entire period on appeal, the Veteran was in receipt of service connection for bilateral knee disabilities: left knee limitation of flexion rated as 10 percent disabling, left knee para patellar pain syndrome rated as 20 percent disabling, right knee instability rated as 10 percent disabling, and right knee chondromalacia patella rated as 10 percent disabling. The Veteran's combined disability rating during the entire period on appeal was 50 percent. The record reflects the Veteran applied for Social Security disability in 2005 alleging disability in 2002 due to several medical conditions, including his service-connected bilateral knee disabilities. In June 2005, the Veteran reported he had stopped working in March 2003 because he was laid off due to a felony conviction. He provided a work history that included work as a corrections officer, laborer, office clerk, stock clerk, and plumbing helper, and stated he had a high school education. In August 2005, he reported that it took him a lot of time to get things done, there were a lot of things he could not do, and that he did not walk far due to pain and shortness of breath. The Veteran was eventually awarded Social Security disability benefits due to the combination of his several medical conditions, including nonservice-connected conditions, meeting the equivalent of a particular medical definition of disability within the Social Security disability system. Consequently, this evidence provides little insight as to the severity of the Veteran's service-connected knee disabilities and their impact on his ability to work. The Veteran saw his VA primary care provider in April 2007 and around that time his opioid prescription for knee and back pain was renewed for one dose every six hours. They did not discuss his knees in detail at the visit, but the provider prescribed a non-narcotic pain medication. The Veteran underwent a VA examination of his knees in August 2007. He reported that he was a construction worker since 2003. He said his bilateral knee pain had worsened over the years and described it as being at a nine on a pain scale to ten. He said his knees gave out on him and swelled on occasion. He reported he could walk about two blocks with difficulty, but that this was also affected by his heart condition. He stated he could stand for five minutes. He explained that his sleep was interrupted nightly by knee pain. He said he took three to four narcotic pain medication doses a day and four non-narcotic pain medication doses a day. On exam, the Veteran's knees were boggy, without fluid or effusion. His gait was normal. Special testing was negative, and his range of motion was reduced. X-rays of his knees showed some slight irregularity of the patellar surface but there was no joint narrowing or evidence of subluxation. The VA examiner diagnosed chronic knee pain and swelling and noted the Veteran had chronic knee pain, stiffness, and swelling. There was no degenerative arthritis or instability. The Veteran saw his VA primary care provider again in October 2007 reporting that the non-narcotic pain medication was not working to control his pain, so it was discontinued. In July 2008, the Veteran reported that he could not walk far enough to complete lab work at a different location within the VA medical center after a doctor's visit at the VA medical center. He also underwent magnetic resonance imaging in 2008 of his bilateral knees which did not show any meniscus tear or ligamental injuries. VA medical records show the Veteran's continued to be prescribed narcotic pain medication allowing for several doses per day during the period on appeal. They also show he received periodic treatment for his bilateral knees, including visits for acute increases in pain and swelling after minor injuries like twisting his knee or falling on it. At one such visit in April 2009, the Veteran was instructed to use a cane, ice and elevate his knee, and wrap his knee. In December 2009, he reported to a VA nutritionist that he could not exercise due to knee and back pain and swelling. In August 2010 the Veteran testified at a Board hearing that his knees swelled and his legs collapsed at times. He said his knees gave out when he walked and he was in pain, using pain medication constantly. He said his knees stayed swollen and sometimes they would get even bigger than normal. He described wearing bilateral knee braces. He also said he used to work as a laborer. He reported that all of his medical conditions were the reason he was not working and why he was receiving Social Security disability. In May 2013 and March 2014, the Veteran's VA provider wrote letters stating they were treating the Veteran for a number of medical conditions, listing his several diagnoses, and stating that due to his chronic medical conditions the Veteran was not a candidate for gainful employment and was unable to engage in gainful employment. These letters provide little insight as to whether the Veteran was unable to engage in gainful employment due to his service-connected bilateral knee disabilities only. He underwent another VA examination in July 2014. While this examination has previously been found to be inadequate upon appellate review, the Veteran's lay statements during the examination are relevant to the current issue. He reported bilateral knee pain left worse than right. He said he could not bend or squat and that he had such difficulty getting up after squatting he avoided it at all costs. He explained he had problems with prolonged walking, stair climbing, and pain at night. He described his bilateral knee pain as a nine on a pain scale to ten and escalating to a ten with flare ups. He reported taking approximately 150 narcotic pain medication doses per month, which averaged to approximately five per day. In July 2016, a non-VA doctor reviewed the Veteran's claims file and interviewed him. The non-VA doctor opined that the Veteran's service-connected bilateral knee disabilities and nonservice-connected hidradenitis were more likely than not preventing him from maintaining substantially gainful employment. In April 2018, the Veteran reported that he last worked in 2002 and that all of his service-connected disabilities at that time, which included disabilities other than his bilateral knee disabilities, prevented him from working. In September 2021, the Veteran reported that he has last worked in 2004 for about eight months to a year as a laborer on construction sites. He said he struggled with pain due to the amount of standing and walking required. He explained he had only taken the job for financial survival, even though it was difficult. He said he was limited back then due to knee pain, and he would take time off and use sick days back-to-back due to pain. He said it was difficult for him to focus due to pain and this frustrated him. He reported that he was not able to work, and his employer was trying to get rid of him. He stated that his employer would kick him off worksites when he was unable to do the work and that they knew the issues he had. He said he worked as hard as he could until he could not work anymore and had to stop. In October 2021, a non-VA doctor reviewed the Veteran's claims file and interviewed him. The non-VA doctor opined that the Veteran's service-connected bilateral knee disabilities alone prevented him from being able to work since at least December 2006. They stated that the Veteran's use of opioid pain medication also impacted his functional ability and unemployability. The non-VA doctor said the Veteran was unable to transition to sedentary employment and that his knee pain alone made him unable to work. In December 2024, Executive Director for VA's Compensation Service reviewed the Veteran's claims file for extraschedular consideration of a total disability rating based on individual unemployability prior to February 6, 2015. They determined that the overall evidence failed to support the contention that the Veteran's service-connected conditions support an exceptional situation that prevented gainful employment prior to February 6, 2015. Upon review, and resolving all reasonable doubt in the Veteran's favor, the Board finds from December 21, 2006, his service-connected bilateral knee disabilities prevented him from securing and following substantial gainful employment. While other evidence of record not reviewed above shows the Veteran's nonservice-connected disabilities had a significant impact on his ability to function and secure and follow substantial gainful employment during the period on appeal, the Board finds this evidence against the Veteran's claim to be approximately equal to the evidence for the Veteran's claim which is generally outlined above. (Continued on the next page) ? Therefore, the benefit-of-the-doubt rule applies and entitlement to a total disability rating based on individual unemployability due to service-connected bilateral knee disabilities from December 21, 2006, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Lynch, 21 F.4th 776. Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sasha Larie Boersma 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.