Citation Nr: 1736569	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-29 352	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to an increased rating in excess of 20 percent for left knee tricompartmental osteoarthritis with instability.

2.  Entitlement to an increased rating in excess of 10 percent for left knee tricomparmental osteoarthritis with lost motion.

3.  Entitlement to a total disability rating for compensation purposes based upon unemployability due to service-connected disabilities (TDIU) prior to June 30, 2011.

4.  Entitlement to a TDIU effective from June 30, 2011.


ORDER

Entitlement to an increased rating of 40 percent, and no higher, for left knee tricompartmental osteoarthritis with instability is granted.

Entitlement to an increased rating of 30 percent and no higher for left knee tricomparmental osteoarthritis with lost motion is granted.

Entitlement to a TDIU prior to June 30, 2011 is denied.

Entitlement to a TDIU effective June 30, 2011 is granted.


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


FINDINGS OF FACT

1.  Throughout the period on appeal, the Veteran's service-connected left knee tricompartmental osteoarthritis with instability has been manifested by recurrent patellar dislocation requiring the use of a brace, which is comparable by analogy to the level of impairment of nonunion of the tibia and fibula with loose motion requiring brace.  

2.  Throughout the period on appeal, the Veteran's service-connected left knee tricompartmental osteoarthritis has been manifested by painful motion resulting in extension limited to 20 degrees.

3.  The most probative evidence of record demonstrates that the Veteran's service-connected disabilities did not preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience prior to June 30, 2011.

4.  The most probative evidence of record demonstrates that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience, effective June 30, 2011.


CONCLUSIONS OF LAW

1.  The criteria for a rating of 40 percent and no higher for left knee tricompartmental osteoarthritis with instability have been met throughout the period on appeal.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.71a, DC 5262 (2016).  

2.  The criteria for a rating of 30 percent and no higher for left knee tricompartmental osteoarthritis with lost motion have been met throughout the period on appeal.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.71a, DC 5261 (2016).  

3.  The criteria for a TDIU have not been met prior to June 30, 2011.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2016).    

4.  The criteria for a TDIU have been met effective as of June 30, 2011.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2016).    


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1979 to April 1988, and from May 1988 to November 1994.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision prepared by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, on behalf of the RO in Detroit, Michigan.  A May 2010 rating decision granted entitlement to a separate rating for left knee moderate tricompartmental osteoarthritis with lost motion.  The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2011.  A transcript of that hearing is of record.  These matters were previously remanded by the Board for additional development in November 2011 and May 2016.  

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  As to the VA examinations of the knee, the Board finds that the record, taken as a whole, contains the necessary information to rate the Veteran's left knee, including information regarding the state of the Veteran's left knee during a flare-up.  Concerning the range of motion findings of the joint at issue, the Board notes that the VA examination reports do not include passive range of motion and do not specify range of motion with and without weight-bearing.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain.  Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions.  Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating.  Additionally, there is no indication that range of motion testing was performed other than on weight-bearing.

1.  Left Knee Instability

The Veteran contends that his left knee instability merits a higher rating because of his left kneecap painfully shifting from left to right, affecting his ability to stand and work.

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4.  Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. §4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary.  

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  Id.; Esteban v. Brown, 6 Vet. App. 259 (1994).  

In VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997), VA's General Counsel determined that, when a claimant has arthritis and instability of the knee, multiple ratings may be assigned under Diagnostic Codes 5003 and 5257.  Also, separate ratings may be assigned under Diagnostic Code (DC) 5260 and DC 5261, if compensable limitation of leg flexion and extension are demonstrated.  

The Veteran's left knee instability has been rated under DC 5257, which applies to recurrent subluxation or lateral instability of the knee.  Moderate subluxation or instability results in a 20 percent rating, and severe subluxation or instability.  DC 5263 concerns impairment of the tibia and fibula.  Nonunion of the tibia and fibula with loose motion requiring a brace merits a 40 percent rating.  38 C.F.R. § 4.71a, DC 5262.  

The question before the Board is whether a rating in excess of 20 percent is warranted for the left knee instability.  The Board has determined that a rating of 40 percent is appropriate.

An August 2008 private treatment note discussed an incident where the Veteran fell down the stairs resulting in left patellar dislocation, as well as right quadriceps tendon rupture.  The note indicated that the Veteran was having trouble with ambulation since that event, and had started using his wife's walker.  Unfortunately, he fell once again later that month with bilateral lateral patellar dislocations.  

At an October 2008 VA examination, the Veteran reported constant pain, and requiring the assistance of a walker to walk.  He was only able to walk five to six yards and then needed to sit.  His reported that his left knee gives way, and that he wears a knee brace.  When attempting to stand he appeared very unstable, and his left knee appeared to be giving way.  His gait was described as severely antalgic.  

A November 2008 VA treatment note reported that the Veteran wore a knee brace on the left knee, and utilized a wheelchair and walker to assist with mobility.  An April 2009 VA examination noted that the Veteran used knee braces on both sides and sometimes used a walker.  The anterior posterior movement was loose, but medial lateral ligament was stable.  The examiner noted minor instability of the knee joint, and moderate impairment.  

In a January 2012 VA examination, the Veteran reported that his left kneecap "moves around" and that he had worn a knee brace since November 2008.  There was slight patellar dislocation with constant use of a brace, and regular use of a cane and walker.  

A June 2016 VA examination also noted moderate recurrent left patellar dislocation, and an inability to ambulate for longer than 10 minutes.  The Veteran reported constant use of a brace, cane, and motorized scooter.  Throughout the period on appeal, the Veteran regularly reported use of knee braces in VA treatment notes and requested new braces when the old ones wore out.  

The Board finds that the Veteran's left knee instability is most closely approximated by the application of DC 5262.  Although there is no indication of nonunion of the Veteran's tibia and fibula, the Veteran's left knee patellar dislocation requires the use of a brace to walk.  Ambulation also requires the use of a walker, and towards the end of the claim period the Veteran made us of a mechanized scooter.  Although the Board acknowledges that it is unclear that the left knee alone, rather than the left and right knee in combination, require the use of a walker, the record clearly reflects an ongoing problem with left patella dislocation causing falls and requiring the use of a brace for simple mobility.  It appears that the examiners' assessment that the Veteran's instability is mild or moderate are based upon testing that do not take all of the Veteran's into account.  Therefore, the instability of the left knee is best rated by analogy under DC 5262, as this diagnostic code most closely describes the Veteran's symptom of requiring the constant use of a brace to walk.  The Veteran's symptoms thus warrant a rating of 40 percent, which is the highest rating available under DC 5262.  A higher rating is not warranted as the other Diagnostic Codes pertaining to the knees are DC 5256, which relates to ankylosis of the knees and thus does not describe the Veteran's symptoms, and DC 5261, which relates to limitation of extension of the leg and is addressed later in this decision.   

2.  Extension of the Left Knee

The Veteran contends that a rating higher than 10 percent is warranted due to extreme pain every day.

The following paragraphs specifically apply to claims in which evaluating joint disabilities are rated on the basis of limitation of motion.  VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.  Application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis and when raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  

More recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. 
§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  

Degenerative arthritis is governed by DC 5003, and instructs that evaluation shall be on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved.  If noncompensable limitation of motion is demonstrated, a 10 percent evaluation is assigned for each major joint or group of minor joints affected.  In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups warrants a 10 percent evaluation, and the same with occasional incapacitating exacerbations warrants a 20 percent evaluation.  38 C.F.R. § 4.71a, DC 5003.  

For the purpose of rating disability from arthritis, the knee is considered a major joint.  38 C.F.R. § 4.45.  

Under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5260, a noncompensable rating is warranted if flexion of the knee is limited to 60 degrees.  A 10 percent rating is in order if flexion of the knee is limited to 45 degrees.  A 20 percent rating is in order if flexion of the knee is limited to 30 degrees.  A 30 percent rating is in order if flexion of the knee is limited to 15 degrees.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, a noncompensable rating is warranted if extension of the knee is limited to 5 degrees.  A 10 percent rating is in order if extension of the knee is limited to 10 degrees.  A 20 percent rating is in order if extension is limited to 15 degrees.  A 30 percent rating is in order if extension is limited to 20 degrees.  A 40 percent rating is in in order if extension is limited to 30 degrees, and a 50 percent rating is warranted if extension is limited to 45 degrees.  

Normal range of motion of the knee is 0-degree extension to 140 degrees flexion.  See 38 C.F.R. § 4.71a, Plate II.  

The question before the Board is whether a rating in excess of 10 percent is warranted for the left knee due to limitation of motion in flexion or extension.  The Board has determined that a rating of 30 percent is appropriate for limitation of extension.

The October 2008 VA examination noted that the Veteran's range of motion was from 0 to 90 degrees with pain beginning immediately.  Repetitive movement was not possible due to pain.  However, repetitive motion readings were obtained at other examinations, meaning that appropriate range of motion measurements are of record.

A December 2008 VA treatment record indicated the Veteran's range of motion for the left knee was flexion to 110 degrees and extension within normal limits (0 degrees).  However, a March 2009 treatment note found that the Veteran's left knee range of motion was more limited.  This treatment note recorded extension limited to 25 degrees and flexion limited to 105 degrees.  

An April 2009 VA examination noted active and passive range of motion of 0 to 110 degrees.  The Veteran did not report flare-ups.  The examiner described the Veteran as having moderate degree of left knee functional impairment.

Another VA examination was conducted in January 2012.  The Veteran reported constant pain.  The Veteran reported left knee flare-ups with activity such that it will swell up.  Range of motion testing revealed flexion to 95 degrees and extension to 10 degrees.  Repetitive motion testing was performed with no additional limitation.  Although this examination did not describe limitation of motion during flare-ups, another examination of record does do so. 

A June 2016 VA examination was performed during a flare-up of the left knee, which meets the requirement of range of motion testing during flare-ups.  The Veteran reported constant pain, and described his flare-ups as brought about by weather change or walking.  His functional impairment was generally described as weakness and inability to ambulate, and his functional loss during this flare-up was described as pain and fatigue.  His left knee flexion was measured to 100 degrees, and he had full extension (0 degrees).  

The March 2009 treatment note recorded a limitation of extension to 25 degrees.  DC 5261 states that extension limited to 20 degrees merits a 30 percent rating.  The record does not reflect that the Veteran's left knee extension is limited to 30 degrees, meaning that a rating of 40 percent is not warranted.  The record similarly does not reflect limitation of flexion to 45 degrees or worse, meaning that a compensable rating for limitation of flexion is not warranted.  Therefore, the Veteran's left knee disability is assigned a rating of 30 percent for loss of movement.

Neither the Veteran nor his representative has raised any other issue, nor have any other issues been reasonably raised by the record with regards to the rating of his left knee disability.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

3. TDIU prior to June 30, 2011

The Veteran contends that he has not been able to work throughout the period on appeal because of his service-connected disabilities, particularly his knee disabilities.  

A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.  

The Veteran is service-connected for left knee disability with instability rated 40 percent effective August 26, 2008; left knee disability with loss of motion rated 30 percent effective August 26, 2008; right knee disability with limited extension rated 30 percent effective June 30, 2011; major depressive disorder rated 30 percent effective August 29, 2011; right knee disability with instability rated 10 percent effective June 30, 2011; tinnitus rated 10 percent effective June 30, 2011; micro laryngoscopy with vocal cord shaving rated as noncompensable effective December 1, 1994; and right ear hearing loss, rated as noncompensable effective June 30, 2011.  The combined evaluation is 60 percent effective August 26, 2008, and 80 percent effective June 30, 2011.  Therefore, the schedular criteria for TDIU are met effective June 30, 2011, but are not met prior to that date.  Because the Veteran's claim for a higher evaluation for his left knee, of which the TDIU claim is part and parcel, was received on August 26, 2008, the Board must consider an extraschedular TDIU for the period when the schedular requirements are not met.

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Factors such as employment history, as well as educational and vocational attainments, are for consideration.  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 word "substantially" suggests an intent to impart flexibility into a determination of a veteran's overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  

Pursuant to 38 C.F.R. § 4.16(b) , when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted to the Director, Compensation and Pension Service, for extraschedular consideration

The question before the Board is whether the Veteran is unable to obtain and maintain substantially gainful employment because of his service-connected disabilities prior to June 30, 2008.  

The Board finds that the record does not reflect that the Veteran was unemployable due solely to his service-connected disabilities prior to June 30, 2011.  Although the October 2008 VA examination contains a history in which the Veteran reported that he had been unable to work since August 2008 because of his service-connected left knee disability, the examination itself did not make such a determination.  The April 2009 VA examination found only moderate impairment of physical and sedentary employment due to the service-connected left knee disability alone.  Moderate impairment does not support a finding of inability to obtain or maintain substantially gainful employment.  Although a May 2009 letter from a physician in the Veteran's treatment records found that the Veteran was unable to work due to his severe bilateral knee pains, this letter considered both of the Veteran's knees, not the left knee alone.  Prior to June 30, 2011, the Veteran was not service-connected for his right knee disability.  Therefore, opinions that consider the non-service-connected right knee disability - including the Social Security Association (SSA) determination finding the Veteran to be unemployable due to disability - are of limited value to the Veteran's TDIU claim for this period of time.  Although the Board concedes that the Veteran was unemployable at this point due to all of his disabilities in combination, the Board can only consider service-connected disabilities in a TDIU claim.  The April 2009 examination indicates that the Veteran's left knee disability taken on its own, without the additional pain and functional impairment from the non-service-connected right knee disability, would result in only moderate impairment, including in physical employment.  

The Veteran's other service-connected disability, micro laryngoscopy with vocal cord shaving, is rated as noncompensable, and a March 2012 VA examination found that it had no impact on the Veteran's ability to work.  The Board concludes that this disability would not impact the Veteran's ability to obtain and maintain substantially gainful employment prior to June 30, 2011.

The Board must conclude, therefore, that the Veteran's service-connected disabilities alone did not preclude him from obtaining or maintaining substantially gainful employment prior to June 30, 2011.  As such, referral of the TDIU claim to the Director, Compensation and Pension service for extraschedular consideration, pursuant to 38 C.F.R. § 4.16(b), is not warranted.  The Veteran's claim for entitlement to a TDIU prior to June 30, 2011 must be denied.

4. TDIU From June 30, 2011

The Veteran's contentions and the applicable law are laid out in the section above concerning TDIU from prior to June 30, 2011.  The Veteran meets the schedular criteria for a TDIU beginning on June 30, 2011, due to the service connection of his right knee disability.  The Board finds that, when considering both of the Veteran's knee disabilities, the Veteran is unable to obtain or maintain substantially gainful employment.  

A VA examination from January 2012 found that the Veteran's hearing loss does not impact the Veteran's work, and an examination from March 2012 found that the Veteran's service-connected micro laryngoscopy with vocal cord shaving also had no impact on his ability to work.  A  March 2012 examination found that the Veteran's major depressive disorder was characterized by mild or transient symptoms which decrease work efficiency and ability to perform occupational takes only during periods of significant stress.  A September 2016 medical opinion concluded that the Veteran's service-connected medical conditions are not likely to impact the Veteran's ability to obtain and maintain substantially gainful fulltime sedentary employment.  October, November, and December 2016 medical opinions found that the Veteran's micro laryngoscopy, as well as major depressive disorder, hearing loss and tinnitus did not render him unable to secure and maintain substantially gainful employment.  

There are several letters from the Veteran's treating physician indicating that he is unemployable because of his knee disabilities.  These letters have considerably greater probative value from June 30, 2011, the effective date of service connection for a right knee disability.  Specifically, a November 2013 letter states that the Veteran has chronic pain in both knees from severe arthritis, and is unable to work due to severe bilateral knee pain.  This sentiment was reiterated in letters from November 2014, October 2015, and August 2016

A June 2016 VA examination found that the Veteran's knee disability made him not employable for any heavy labor or active duty jobs.  Although the Veteran was capable of any jobs that allow him to consistently sit, the examiner felt that based upon the Veteran's education and low level of computer training, this would be difficult when faced with younger, healthier, and more computer savvy individuals.  The Board acknowledges that it was not proper for the June 2016 examiner to consider the Veteran's age, which limits the probative value of the opinion.  However, the Veteran's occupational history and training is relevant to this question, and the evidence shows that the Veteran's occupational and training history does not make him suited for sedentary occupation.

An SSA decision found that the Veteran was unemployable beginning in August 2008 due to osteoarthritis and allied disorders, with secondary diagnoses of obesity and other hyperalimentation.  Although the SSA disability determination was based primarily upon osteoarthritis, which includes the Veteran's knee disabilities, it also considered non-service-connected disabilities, which limits its probative value.  However, the Board notes that the disabilities named in the SSA determination are all physical disabilities, meaning that the SSA essentially agrees with the June 2016 examiner that sedentary employment is not consistent with the Veteran's occupational and educational background.  Additionally, the April 2009 case analysis focuses on the Veteran's bilateral knee disabilities, which are service-connected effective June 30, 2011.  The SSA case analysis thus supports the letters from the Veteran's primary physician stating that he is unemployable because of his knee disabilities.  The Veteran's March 2009 work history report indicates that the Veteran's occupational history is exclusively physical work, as a custodian or mechanic from 1995 to 2009, as a boiler technician in service, and briefly as a security guard in 1995.  Speculation that the Veteran might be able to find sedentary employment in a field for which he has no training, education, or experience is not sufficient to deny the TDIU claim in the face of the evidence finding the Veteran unemployable due to his service-connected knee disabilities.  Allowing the Veteran the benefit of the doubt, the evidence is at least in equipoise that he is unable to obtain or maintain substantially gainful employment consistent with his occupational experience due to his service-connected disabilities effective June 30, 2011.  Therefore, the Veteran's claim is granted effective June 30, 2011.  



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


ATTORNEY FOR THE BOARD	A. Budd, Associate Counsel

Copy mailed to: Disabled American Veterans
Department of Veterans Affairs

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