HIP IMPAIRMENT OF

MATTHEW W. BLACKWELDER · 2020 · Case ID: 20034577

DENIED

Summary

The veteran, who served in the U.S. Army from September 1968 to August 1970, appeals the denial of service connection for a bilateral hip condition and a bilateral foot condition, both claimed as secondary to his service-connected knee disabilities. He also appeals the denial of a total disability rating based on individual unemployability (TDIU), including on an extra-schedular basis. The Board reviewed multiple VA examinations and private medical opinions concerning the hip and foot claims. For the bilateral hip condition, the Board found the most probative evidence in a May 2012 VA examination, which diagnosed degenerative arthritis but opined it was less likely than not related to the service-connected knee condition, citing a lack of evidence for an altered gait causing hip arthritis. A private orthopedist's opinion was given limited probative value due to a lack of detailed rationale. For the bilateral foot condition, the Board found probative value in a July 2006 VA examination, which diagnosed bilateral osteoarthritis but found no etiological connection to the service-connected knee condition beyond age and obesity. A September 2017 VA examination also diagnosed bilateral degenerative arthritis but found no clear evidence linking it to service or the knee condition. The Board denied both secondary claims, finding the evidence did not establish the necessary nexus. Regarding TDIU, the Board noted the veteran's combined rating was 60%, not meeting the schedular requirements. While the veteran claimed unemployability due to his knees and past work in asbestos removal, VA examinations and private opinions did not fully support this, with one VA examiner finding he could return to gainful employment given his ability to perform some physical labor and sit for extended periods. The Board denied TDIU, finding his service-connected disabilities did not preclude him from substantially gainful occupation.

Rationale

No complaints, treatments, or diagnosis for bilateral hip condition in STRs.; Earliest diagnosis of degenerative arthritis of hips was May 2012 VA exam, over 41 years post-service.; May 2012 VA exam diagnosed bilateral degenerative arthritis of hips, opined less likely than not related to service-connected knee condition.; Examiner stated no creditable medical evidence supports altered gait from knee disease causing degenerative changes in hips.; October 2017 VA exam diagnosed bilateral osteoarthritis of hips but provided no opinion on etiology.; September 2019 VA exam diagnosed bilateral hip strain, opined less likely than not related to service and knee condition due to age and obesity.; Private orthopedist's October 2016 letter opined hip condition believed related to knee disease but provided little rationale.; Veteran's testimony regarding hip pain secondary to knee replacements and altered gait lacked probative value as it was outside common knowledge.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

13-04 093

Full Decision Text

Citation Nr: 20034577
Decision Date: 05/18/20 Archive Date: 05/18/20

DOCKET NO. 13-04 093
DATE: May 18, 2020

ORDER

Service connection for a bilateral hip condition is denied.

Service connection for a bilateral foot condition is denied.

A total disability rating due to individual unemployability (TDIU), to include on an extra-schedular basis, is denied.

FINDINGS OF FACT

1. The weight of the evidence is against a finding that the Veteran’s bilateral hip condition is secondary to his service-connected knee conditions.

2. The weight of the evidence is against a finding that the Veteran’s bilateral foot condition is secondary to his service-connected knee conditions.

3. For the period on appeal, the Veteran’s service-connected disabilities have not precluded him from securing or following a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for service connection for a bilateral hip condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for service connection for a bilateral foot condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for a TDIU, to include on an extra-schedular basis, have not 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 in the U.S. Army from September 1968 to August 1970. The Board notes, that the matter is on appeal before the Board from a November 2012 rating decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2016. A copy of the transcript is of record.

Additionally, the Board notes that the issues on appeal pertaining to service connection have returned to the Board after they were remanded by the Board in August 2017 for further development, including referral to the Director of VA’s Compensation Service for extra-schedular consideration under 38 C.F.R. § 4.16(b). In January 2020, the Director denied the claim for a TDIU on an extra-schedular basis.

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303.

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established with certain chronic diseases, based upon a legal presumption, which occurs by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Additionally, service connection may be established under 38 C.F.R. § 3.303(b), when a symptom or symptoms of a chronic disease are noted in service, or within a year of the date of separation from service, and when chronicity is established through a continuity of symptomatology after service. The continuity of symptomatology provision is an alternative method to establishing service connection for the specific chronic diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability.

In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of
atology provision is an alternative method to establishing service connection for the specific chronic diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998).

Bilateral hip condition

The Veteran asserts that he has a bilateral hip condition that is secondary to his service-connected knee disabilities. A review of the Veteran’s STRs does not show any complaints, treatments, or a diagnosis for a bilateral hip condition. A review of the Veteran’s VA treatment records and private treatment records reflects the earliest noted diagnosis for a bilateral hip condition of degenerative arthritis to be from a May 2012 VA examination, which is a little over 41 years after his separation from active military service. As such, since the Veteran has not raised, and the record does not reasonably raise entitlement to direct service connection, the Board’s adjudication will only consider entitlement to secondary service connection.

Thus, the question for the Board is whether the Veteran has a bilateral hip condition that is proximately due to, or aggravated by, his service-connected knee disability.

The Veteran first underwent a VA examination in July 2006, which pertained to only his right hip. The Veteran reported that he had developed pain in his right hip secondary to his knee arthroplasty, but that he had not been seen or treated for the condition. The findings from an X-ray of the right hip showed no bony or articular abnormality, and found the soft tissues to be unremarkable. Hence, a notation reflects that the examiner did not provide a medical opinion because the Veteran’s right hip was normal and thus a right hip condition did not exist. The Board finds little to no probative value in the VA examination, as at the time a diagnosis was not found and therefore an opinion was not provided.

The Veteran underwent a VA examination in May 2012, in which the Veteran reported that he began having problems with his left hip in 2009, and that his knees had caused his hip condition by creating an altered gait. The Veteran was diagnosed with bilateral degenerative arthritis of the hips during the examination. The examiner found the Veteran’s bilateral hip condition to be less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected knee condition. The examiner opined that there was no creditable medical evidence that supports that having degenerative arthritis of the knee would cause degenerative arthritis in the hips. The only time that one joint will affect another is when there is a leg length discrepancy, and degenerative arthritis of the knees will not cause a leg length discrepancy. Thus, the examiner found that there was no creditable medical evidence that supported that an altered gait would result in generative changes in other joints of the lower extremities. The Board finds great probative value in the VA examination, as the examiner provided a thorough well-reasoned opinion with rationale.

The Veteran underwent a second VA examination in October 2017, at which he reported being under the care of a private orthopedist, and stated that his hips “just hurt.” The examiner found the Veteran to have a diagnosis of bilateral osteoarthritis of the hips, however, the examiner did not provide an opinion as to the etiology of the Veteran’s hip condition. The examiner reported that they could not provide an opinion without resorting to mere speculation, and that an orthopedist should be the one to provide an opinion, as the Veteran had brought an opinion from his private orthopedist to the examination. The Board finds little to no probative value in the VA examination, as no opinion was provided by the examiner.

The Veteran underwent a third VA examination in September 2019, at which he was diagnosed with a bilateral hip strain. The examiner noted that in reviewing the Veteran’s record there were several notations of a diagnosis for bilateral degenerative arthritis of the hips, however, the examiner only found X-ray reports in the Veteran’s file from 2017, which revealed two stable views of the right and left hip. The examiner opined that there were no clear sound evidence-based studies to correlate arthritis occurring in one joint predisposing one to have arthritis in another joint. The examiner commented that it may predispose an individual to be at risk, but furthered the comment by stating that it was speculation. Thus, the examiner found that the Veteran’s bilateral hip condition was less likely than not (less than 50 percent probability) incurred in or caused by military service. The opinion was furthered by stating there was no known etiological condition between the Veteran’s bilateral hip condition and his knee condition other than that which is expected by virtue of the Veteran’s age and his obesity. The Board finds great probative value in the VA examination, as the examiner provided a thorough examination with a well-reasoned opinion and rationale.

The Veteran submitted private treatment records in December 2017, which contained a letter from October 2016 written by his private orthopedist, who reported that the Veteran has had degenerative changes to his knees. It was noted that those changes had modified the Veteran’s ability and ambulatory status, which he had in turn compensated for in his hips by trying to modify his gait to accommodate the knee disease. However, records were not submitted showing that an altered gait resulted from the Veteran’s total knee replacement surgeries. In addition, the orthopedist noted that it was believed that they were related, but provided little rationale for such a conclusion. As such, a VA opinion was sought. The VA examiner reviewed the private medical opinion but ultimately found that it was less likely than not that the Veteran’s hip disabilities were the result of his service connected knee disabilities. The Board finds limited probative value in the letter from the Veteran’s private orthopedist, because the opinion did not provide a well-reasoned rationale for the orthopedist’s belief that the Veteran’s knee disease and bilateral hip condition were related. Of note, the private medical opinion did not address the Veteran’s career in construction prior to the total knee replacement surgeries.

The Veteran testified at a Board hearing in October 2016, where he stated that his private doctor had told him that his bilateral hip condition was due to his knee replacements, which had affected his gait and ability to walk around. The Veteran noted that he was eventually going to require hip replacement. He relayed that he had first started noticing problems with his hips after his first knee replacement, and that after the second one he had really started to notice problems. He stated that his doctor had told him the pain in his hips was to be expected after the knee replacements because he had been walking incorrectly for so many years.

The Veteran submitted a personal statement in December 2017, in which he reported that his hip pain started after his knee replacements in 2003 and 2005. He stated that his private doctor had attributed the pain in his hips to his newly straightened out walk, and reported that his hips would eventually have to be replaced.

Consideration is given to the Veteran’s contentions that his bilateral hip condition is secondary to his service-connected knee disability. While lay persons are competent to provide opinions pertaining to certain medical issues, the etiology of a bilateral hip condition, as is specific to this case, is outside the realm of common knowledge for someone, such as the Veteran, who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Board finds little to no probative value in the Veteran’s assertions.

A review of the Veteran’s record does not provide any further findings than those relayed above.

When all the evidence is taken together, the Board finds that service connection for a bilateral hip condition, secondary to the Veteran’s service-connected knee disabilities is not warranted.

Accordingly, the claim for service connection for a bilateral hip condition is denied.

Bilateral foot condition

The Veteran asserts that he has a bilateral foot condition that is secondary to his service-connected knee disability. A review of the
au v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Board finds little to no probative value in the Veteran’s assertions.

A review of the Veteran’s record does not provide any further findings than those relayed above.

When all the evidence is taken together, the Board finds that service connection for a bilateral hip condition, secondary to the Veteran’s service-connected knee disabilities is not warranted.

Accordingly, the claim for service connection for a bilateral hip condition is denied.

Bilateral foot condition

The Veteran asserts that he has a bilateral foot condition that is secondary to his service-connected knee disability. A review of the Veteran’s STRs does not show any complaints, treatments, or a diagnosis for a bilateral foot condition. A review of the Veteran’s VA treatment records and private treatment records reflects the Veteran to first be diagnosed with bilateral osteoarthritis of his feet in 2006, which is about 36 years after his separation from active military service. As such, since the Veteran has not raised, and the record does not reasonably raise entitlement to direct service connection, the Board’s adjudication will only consider entitlement to service connection on a secondary basis.

The Veteran underwent a VA examination in July 2006, in which he reported having pain in the dorsal surface of his bilateral feet and toes. He stated that the pain was constant, and had been progressively increasing for the previous eight to ten years, with a significant increase in the previous two years. The examiner diagnosed the Veteran with bilateral osteoarthritis of the feet. The examiner found that the Veteran’s bilateral foot condition is not caused by or a result of his right knee condition. The examiner rationalized that there was no etiological connection between the Veteran’s bilateral degenerative arthritis of the feet and his right knee condition other than that expected by virtue of the Veteran’s age and his obesity. The Board finds probative value in the VA examination, as a thorough examination with an opinion and rationale were provided.

The Veteran underwent a VA examination in October 2017, in which the Veteran reported that he had arthritis in his feet. The examiner provided a diagnosis of bilateral degenerative arthritis of the feet, but found that an opinion could not be provided without resorting to mere speculation. The Board finds little to no probative value in the VA examination, as no opinion was provided by the examiner.

Accordingly, the Veteran underwent a VA examination in September 2017, in which the examiner diagnosed the Veteran with bilateral degenerative arthritis of the feet. The examiner reviewed the Veteran’s X-rays from 2006, and reported that there was prominent hypertrophic spurring in the os calcis by the posterior and plantar aspects, that there was joint space narrowing in the left foot second metatarsophalangeal joint, and that there was no other bony or articular abnormality. The examiner relayed that based upon the Veteran’s records in service and his X-rays from 30 plus years, that medically they were unable to bridge the gap as a service-connected injury. The examiner opined that there were no clear sound evidence-based studies to correlate arthritis occurring in one joint predisposing one to have arthritis in another joint. The examiner commented that it may predispose an individual to be at risk, but furthered the comment by stating that it was speculation. Thus, the examiner found that the Veteran’s bilateral foot condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s military service. In addition, the examiner found the Veteran’s bilateral foot condition to be less likely than not (less than 50 percent probability) aggravated beyond its natural progression by the Veteran’s service-connected bilateral knee disability. The Board finds great probative value in the VA examination, as the examiner provided a thorough examination with a well-reasoned opinion and rationale.

The Veteran submitted private treatment records in December 2017, which contained two letters from his private orthopedist. One of the letters was from June 2006, in which the Veteran’s physician stated that the Veteran had degenerative joint disease in his feet, and that the physician felt the degenerative joint disease was secondary to the Veteran’s knees. A letter from the Veteran’s physician in October 2016, relayed that the Veteran has had degenerative changes in his knees, which had modified his ability and ambulatory status. In turn the Veteran had compensated for his feet by trying to modify his gait to accommodate the knee disease. In addition, the orthopedist noted that it was believed that they were related. The Board finds limited probative value in the letter from the Veteran’s private orthopedist, because the opinion did not provide a
was from June 2006, in which the Veteran’s physician stated that the Veteran had degenerative joint disease in his feet, and that the physician felt the degenerative joint disease was secondary to the Veteran’s knees. A letter from the Veteran’s physician in October 2016, relayed that the Veteran has had degenerative changes in his knees, which had modified his ability and ambulatory status. In turn the Veteran had compensated for his feet by trying to modify his gait to accommodate the knee disease. In addition, the orthopedist noted that it was believed that they were related. The Board finds limited probative value in the letter from the Veteran’s private orthopedist, because the opinion did not provide a well-reasoned rationale for the orthopedist’s belief that the Veteran’s knee disease and bilateral foot condition were related.

The Veteran testified at a Board hearing in October 2016, in which he relayed that his private doctor had told him that his bilateral foot condition was due to his knee replacements, which had affected his gait and ability to walk around. He reported that the pain in his feet started after his first knee operation, and kept getting progressively worse. He stated that the pain was predominantly in the tops of his feet, and that he also has had problems in his toes. He noted that there had been an option to have surgery on his toes, but he had opted not to have the surgery.

The Veteran submitted a personal statement in December 2017, in which he reported that after having knee replacements in 2003 and 2005 he started to feel pain in his feet, which his doctor had attributed to his newly straightened out walk.

Consideration is given to the Veteran’s contention that his bilateral foot condition is secondary to his service-connected knee disabilities. While lay persons are competent to provide opinions pertaining to certain medical issues, the etiology of a bilateral foot condition, as is specific to this case, is outside the realm of common knowledge for someone, such as the Veteran, who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the medical evidence of record is critical in resolving this matter.

A review of the Veteran’s record does not provide any further findings than those relayed above.

When all the evidence is taken together, the Board finds that service connection for a bilateral foot condition, secondary to the Veteran’s service-connected knee disabilities is not warranted. The VA opinions

Accordingly, the claim for service connection for a bilateral foot condition is denied.

TDIU

A review of the Veteran’s record, reflects that in his application for social security benefits he reported being unable to function and/or work as of June 23, 2011 due to his knee replacements and other disabilities, which raised entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran filed a formal claim for a TDIU in October 2011, in which he noted that his service-connected knees prevent him from securing or following any substantially gainful occupation.

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, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a).

Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001).

Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental
251 F.3d 1378 (Fed Cir. 2001).

A review of the Veteran’s record reflects differing reports on when the Veteran last worked. The Veteran’s record from the Social Security Administration, reflects that he reported still working as of June 23, 2011. In the Veteran’s application for a TDIU, he reported that he had last worked in 2009. In a VA examination from May 2012, the Veteran reported that he had retired from work in 2011.

The Veteran is currently service-connected for a total right knee arthroplasty with a 30 percent rating, a left knee arthroplasty associated with total right knee arthroplasty with a 30 percent rating, tinnitus with a 10 percent rating, and degenerative arthritis of the left ring finger as noncompensable. The Veteran’s combined disability rating is 60 percent. The Veteran does not meet the schedular rating criteria for a TDIU. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26.

However, when the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability(ies). See 38 C.F.R. § 4.16(b). The primary 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 Veteran underwent VA examinations in relation to his service-connected left and right knee conditions, his tinnitus, and his left ring finger condition in May 2012. The Veteran reported that he had retired from work in October 2011 because of an inability to perform the functions of his job due to his knees, and because he was no longer being called in to work. The Veteran reported that he worked as a laborer removing asbestos, and that he was no longer able to crawl and work as a laborer.

Pertaining to his knees, the Veteran reported that after having had knee surgery he now has intermittent pain in his knees that occurs four to five times per week, and is not related to any particular activity. It was noted that the Veteran was not currently taking any medications for his knees. The Veteran reported that his knees prevented him from working, because he was not given work since he could no longer crawl or kneel for a long period of time, and his previous occupation required that he be able to kneel or crawl to perform his essential function. The examiner found that the Veteran’s knee conditions did not impact his ability to work, and remarked that while the Veteran had difficulty crawling or kneeling, it had not prevented him from working at his chosen occupation. The examiner noted that the Veteran had worked as a laborer all of his life after his military service, and that after his knee replacements he had been able to return to work. The examiner therefore found that the Veteran could return to gainful employment based on the fact that he had continued to work after both knees had been replaced at his previous level of occupation without work restrictions.

Pertaining to his left ring finger, the Veteran reported that since the surgery on his finger he has had limited range of motion in his hand, and that he has daily pain in his left ring finger. He noted that he does not take any specific medications for the condition, but that the Advil he takes for his hip relieves the pain in his finger. The examiner found that the Veteran’s left ring finger condition did not impact his ability to work.

Pertaining to the Veteran’s tinnitus, the examiner found that it impacted the ordinary conditions of daily life, to include the ability to work. The Veteran reported the impact of the
work after both knees had been replaced at his previous level of occupation without work restrictions.

Pertaining to the Veteran’s tinnitus, the examiner found that it impacted the ordinary conditions of daily life, to include the ability to work. The Veteran reported the impact of the tinnitus by stating that it “drives me up a wall.”

The Veteran submitted private treatment records in December 2017, in which a private physician for a disability consultant service provided an examination of the Veteran in September 2011. The Veteran reported that he had right and left knee replacements five and six years prior, and that the surgeries had helped with his knee pain. He noted that he is able to walk up to six blocks, but that it would be difficult to walk that far, he is able to stand for ten minutes, and that he is able to sit forever. The Veteran reported that out of necessity he had been able to lift 65 pounds the prior day, but that he normally would not lift that much weight. He also stated that he is able to deal with stairs one step at a time, but that he would probably avoid a ladder, as he might be one rung at a time. In addition, he noted that he could not squat very well, that it would hurt to get on his knees, that he cannot shovel snow and uses a snow blower, that he cuts his lawn with a self-propelled mower, and that he is able to drive a car.

The physician noted that upon examination the Veteran had marked loss of flexion of the knees, but no significant pain, had full use of the hands, had severe difficulty with heel and toe walking, severe difficulty squatting where he could only do so half way, and was unable to hop. The physician in providing an opinion on the Veteran’s degenerative arthritis, took into account the Veteran’s knees, hips, and feet/toes. The physician found that the Veteran’s conditions make it difficult for him to stand, and to go on stairs or attempt a ladder. In addition, it was noted that he could not do the heavy work which was required in construction. The physician reported that the Veteran should avoid heights, inclines, and uneven surfaces. It was also noted that the Veteran should not do heavy lifting, but that he could occasionally lift 20 pounds and frequently lift 10 pounds. The physician noted as well, that the Veteran could not stand for long periods of time, and that 10 minutes was reasonable at one time.

The Veteran submitted records from the Social Security Administration, in which he was found to be disabled as of June 23, 2011 due to osteoarthritis and allied disorders. In filing his claim for social security disability, the Veteran reported having bad knees and feet, severe arthritis, and heart problems, being in remission from prostate cancer, having degenerative joint disease in the feet, having had two knee replacements, and he noted that his right hip needed replacement. The Veteran reported that his conditions made it very uncomfortable to walk, and made it so that he could not crawl or kneel which was essential in his line of work of asbestos abatement. The Veteran reported that while it may take him all day, he is able to help to do household chores around the house to include dishes, laundry, house cleaning, planting flowers and taking care of them, cutting and edging the grass, and cleaning the pool.

At a Board hearing in October 2016, the Veteran testified that he was no longer working due to his disability. He reported that he had retired five years prior because his work in asbestos removal required kneeling, crawling, as well as climbing, and that “there is no kneeling when you have knee replacements.”

The Veteran submitted a personal statement in December 2017, in which he reported that he had worked in asbestos removal, and that his work had required mostly climbing, crawling in boilers, lifting, and lots of kneeling to build containments to be able to do the asbestos removal. He noted that the requirements of his work were not allowed with knee replacements.

Pertaining to the Veteran’s education, a review of the record reflects that the Veteran attained at least a high school education. While the record is not completely clear, it appears that the Veteran attended two semesters of college as well, and a vocational training course in relation to construction. At a minimum, the record contains enrollment certifications for two semesters of college and an application for a vocational construction course. In addition, the record reflects that the Veteran’s work in asbestos removal required training and certification to be able to perform.

When the evidence is taken as a whole, the Board finds that a TDIU on an extra-schedular basis is not warranted. The Veteran’s service-connected disabilities in relation to both of his knees, his left ring finger, and his tinnitus do not make him unable to secure or follow a substantially gainful occupation. The record reflects that the Veteran returned to his lifelong occupation of asbestos removal after undergoing knee replacements for both knees, and that he continued in his work for about five to six years before retiring. In addition, while the Veteran submitted an opinion from a private physician in which his physical limitations were noted, those limitations included conditions outside of his service-connected disabilities. The Board notes that the Veteran’s knee replacements would create some limitations in his physical abilities, which would remove some possible avenues for employment. However, it would not remove all avenues for physical employment, as the record has shown the Veteran to have continued working after his knee replacements, and in addition currently shows him capable of performing some physical labor, such as doing chores around his home, and taking care of his yardwork, albeit to include breaks for rest. In addition, non-manual labor would not be precluded from the Veteran’s possibilities, as he has stated he can sit forever. His level of education, whether or not any education was attained above a high school education, would limit some of his choices for employment, but it would not preclude him to an extent that he would be unable to procure and follow a substantially gainful occupation.

Accordingly, a TDIU is denied.

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board S. Lutgens-Staley, 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.

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