Citation Nr: 1304703	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  08-00 358	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for avascular necrosis (AVN) of the hips, to include as a result of service exposure to herbicides.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. W. Loeb



INTRODUCTION

The Veteran served on active duty from November 1966 to August 1969, including service in Vietnam.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

When this case was previously before the Board in March 2010, it was remanded for additional development.  Most recently, in June 2011, the Board of Veterans' Appeals (Board) remanded the issues on appeal to the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio to obtain the Veteran's Social Security Administration (SSA) records and to obtain a nexus opinion with rationale on whether the Veteran's bilateral AVN of the hips is causally related to service exposure to herbicides.   

As the Veteran's SSA records and an August 2011 nexus opinion with rationale were obtained and added to the claims files, there has been substantial compliance with the June 2011 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) ((Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives)). 


FINDINGS OF FACT

1.  The most probative evidence fails to demonstsrate that the Veteran's AVN of the hips began in service or is the result of a disease or injury in service, to include exposure to herbicides.  

2.  The Veteran is not service connected for any disability.

CONCLUSIONS OF LAW

1.  AVN of the hips was not incurred during active military service, to include as a result of service exposure to herbicides, nor may it be presumed to have been so incurred.  38 U.S.C.A. §§ 1110, 1116, 5103A, 5107 (West 2002); 38 C.F.R. 
§§ 3.303, 3.307, 3.309 (2012).  
2.  The criteria for the assignment of TDIU are not met.  38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16, 4.19 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. 

The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  A letter was sent to the Veteran in December 2005, prior to adjudication, informing him of the requirements needed to establish entitlement to service connection.  A letter was sent to him in March 2006, prior to adjudication, informing him of the requirements needed to establish entitlement to TDIU.

In accordance with the requirements of VCAA, the letters informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain.  Additional private medical evidence was subsequently added to the claims files after the letter.  In compliance with the duty to notify, the Veteran also was informed in the March 2006 letter on disability ratings and effective dates.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  A VA examination of the hips was conducted in April 2010, with a supplemental opinion obtained in August 2011.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination and opinions obtained in this case are adequate, as they are predicated on a reading of the service and 
post-service medical records in the Veteran's claims files and on other relevant medical information.  There is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist in obtaining a VA examination or opinion with respect to the service connection issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).   

The Board concludes that all available evidence that is pertinent to the claims decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on the claims.  The Veteran has been given ample opportunity to present evidence and argument in support of his claims.  The Board additionally finds that general due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012).


Analyses of the Claims

Service Connection Claim

The Veteran contends that he has AVN of the hips due to his service exposure to herbicides.  

Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). 

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f) (West 2002 and Supp. 2012). 

A disease associated with exposure to herbicide agents listed 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during service, provided that the disease listed shall have become manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. § 3.307(a)(6)(ii). 

The Veteran in this case had service in Vietnam during the Vietnam Era and is therefore presumed to have been exposed to Agent Orange.  See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. 

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

 (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file.  Prejean v. West, 13 Vet. App. 444 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998).  See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345 (1998).

In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see  D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history).

The Veteran's service treatment records do not reveal any complaints or findings of a hip disability, including on his August 1969 discharge medical history and examination reports.  

Private medical reports dated from March 2005 to April 2006 reveal that a November 2005 MRI of the left hip from Lima Memorial Hospital showed AVN of the femoral heads.  The Veteran underwent a total left hip arthroplasty at Grandview/Southview Hospitals in March 2006.  

An April 2006 VA report reveals that the Veteran complained of left hip pain beginning during the summer of 2005; he denied any prior injury.  Also noted were minimal symptoms of right hip pain.  The impressions were left hip AVN, status post recent total hip replacement; and right hip pain, which will likely progress over time given his history of AVN.

Also on file is a May 2006 grant of SSA disability benefits, effective August 1, 2005, along with multiple medical records, due to osteoarthritis and allied disorders.

AVN of the right hip was diagnosed in Lima Memorial Hospital records dated in November 2006.

According to a January 2007 statement from P. V. Bonetzky, D.O., the Veteran was unable to work due to bilateral AVN.

According to a March 2007 statement from J. E. Saunders, D.O., the possibility of a causal relationship between the Veteran's AVN of the hips and exposure to Agent Orange in service is more than reasonable.

The Veteran underwent a right total hip arthroplasty for advanced osteoarthritis at Grandview/Southview Hospitals in August 2008.

According to a March 2010 statement from Dr. Bonetzky, the evidence showed that the toxic effects of AVN on the Veteran's body are systemic, and not localized to the knees and hips, and that the toxicity is progressive.

A VA evaluation of the Veteran's hips, which included review of the claims files, was conducted in April 2010.  It was reported that X-rays showed that the status post bilateral total hip arthroplasty and prosthesis were in fairly good position.  The diagnosis was bilateral hip AVN, status post arthroplasty.  The examiner concluded that the condition was not caused by or related to military service, to include exposure to herbicides.  The examiner noted that AVN was not currently recognized as a condition due to herbicide exposure under the current VA guidelines.

In response to the June 2011 VA remand, an August 2011 VA opinion was obtained.  After review of the claims files, textbooks, medical journals, and the Internet, the reviewer, who was not the VA examiner who saw the Veteran in April 2010, concluded that it would be mere speculation to causally connect the Veteran's AVN of the hips to exposure to herbicides in service until a reputable researcher, recognized medical authority, or VA itself decided that AVN could result from AO exposure.  The rationale for this conclusion was that the currently recognized causes of AVN of the hips were cancer chemotherapy, alcoholism, excessive steroid use, trauma, decompression sickness, vasculitis, vascular compression, bisphosphonates, sickle-cell anemia, Gaucher's disease, osteoarthritis, rheumatoid arthritis, and arterial obstruction.

Also on file is evidence related to herbicide spraying during the Vietnam War, including a Herbicide Spray Map of Vietnam.

The evidence noted above reveals that there were no complaints or findings of a hip problem in service, including on separation evaluation in August 1969, or for many years after service discharge.  The initial post-service evidence of AVN was not until 2005, which is more than 35 years after service discharge.  Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  In fact, the Veteran has not contended that he had AVN in service or for many years thereafter.  Rather, he contends that his post-service AVN is due to service exposure to herbicides.  However, AVN is not listed as a presumptive disorder in 38 C.F.R. § 3.309(e).  Consequently, there would need to be evidence of a nexus between service exposure to herbicides and AVN.  Although Dr. Saunders notes that the possibility of a causal connection is more than reasonable, this opinion does not provide a rationale.  Moreover, the possibility of a causal connection is not sufficient to warrant entitlement to service connection.  Medical opinions that are speculative, general or inconclusive in nature cannot support a claim. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).  See also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to a veteran's claim that does little more than suggest a possibility that an illness might have been caused by service is insufficient to establish service connection).  

On the other hand, the VA opinions in April 2010 and August 2011 against the claim are based on a review of the claims files; and the August 2011 opinion provides a rationale.  After review of the claims files and review of relevant medical literature, the reviewer in August 2011 listed the conditions that are recognized causes of AVN of the hips and noted that AVN was not included in this list.  Consequently, the probative evidence is against the claim, and service connection for AVN due to exposure to herbicides is not warranted.

Due consideration has been given to the written statements on file in support of the Veteran's claim.  Although the Veteran can provide competent evidence as to his subjective symptoms of hip pain, he cannot provide competent evidence to establish the etiology of a medically complex condition such as AVN of the hips.  

In reaching the above decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

TDIU Claim

The Veteran also contends that he unable to work due to his AVN of the hips.  Thus, he believes that TDIU benefits are warranted. 

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of 
service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience.  See 38 C.F.R. §§ 3.340, 3.341, 4.16.  Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment.  Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability.  If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  

Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the Veteran's background including his or her employment and educational history.  See 38 C.F.R. § 4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  See Bowling v. Principi, 15 Vet. App. 1 (2001).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19. 

The Veteran is not service connected for any disabilities.  As discussed above, his claim for service connection for AVN of the hips has been denied.  Accordingly, the Veteran does not meet the criteria for entitlement to TDIU on either a schedular or extraschedular basis.  The regulations specify that a TDIU is warranted where a veteran is unable to work due to his service-connected disabilities.  Further, consideration may not be given to any impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.340, 3.341, 4.16.  As the Veteran is not service connected for any disability, any impairment in employability cannot be attributed to a service-connected disability.  Without at least one service-connected disability, all of his impairment in employability must be attributed to nonservice-connected disabilities.  Accordingly, the criteria for entitlement to TDIU cannot be met.  As the Veteran has no service-connected disabilities, the Board finds that any further discussion of his actual employability or impairments is irrelevant.  As such, the claim for TDIU must be denied.  



ORDER

Service connection for AVN of the hips is denied.

TDIU is denied.


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


Department of Veterans Affairs