Citation Nr: 1317666 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 06-19 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for spinal stenosis status post lumbar laminectomy (low back disorder). 2. Entitlement to service connection for bilateral aseptic necrosis status post total hip arthroplasties (hip disorder). 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from August 1973 through August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. A timely Notice of Disagreement (NOD) was received from the Veteran in October 2004. After a Statement of the Case (SOC) was issued in April 2006, the Veteran perfected his appeal in June 2006, via VA Form 9 substantive appeal. The issues on appeal were remanded by the Board in June 2009 for further claims development, to include obtaining the Veteran's social security records and treatment records from the VA Medical Center in Iowa City, Iowa dated from 1977 through the present. After efforts were undertaken to comply with these remand actions, the matter was returned to the Board for its consideration. In April 2011, however, the Board remanded this matter again to afford the Veteran a VA examination of his low back and hips. After such an examination was conducted in May 2011, the matter was returned again to the Board. In October 2012, the Board was compelled to remand the matter again after determining that the May 2011 VA examination was incomplete. Namely, the Board noted that the examiner did not provide opinions as to whether the Veteran's hypertension aggravated the Veteran's claimed low back and hip disorders. Accordingly, the Board directed that, after the Veteran was given an opportunity to identify additional evidence, an addendum opinion be obtained from the same VA examiner who performed the May 2011 examination for her opinion as to the foregoing question. The Board is satisfied that the action directed in its October 2012 remand has been performed and is prepared to proceed with its de novo consideration of the issues on appeal. The Board notes that this appeal also initially included the issues of the Veteran's entitlement to compensable disability ratings for residuals of a fractured right fifth metatarsal and bilateral hearing loss, entitlement to a disability rating higher than 10 percent for tinnitus, and entitlement to an initial disability rating in excess of 10 percent for hypertension. These claims were denied in the Board's June 2009 and April 2011 decisions. As these Board decisions represent full adjudication of those issues, those issues do not remain in an appellate status before the Board. FINDINGS OF FACT 1. The degenerative disc disease and spinal stenosis in the Veteran's thoracolumbar spine and the degenerative joint disease in the Veteran's hips have not been shown to have been incurred during service, to have been manifest within one year from his separation from service, or to be related in any way to his active duty service or his service-connected disabilities. 2. The Veteran's claim for a TDIU was initially received in February 2004. 3. The Veteran's service-connected disabilities include tinnitus, rated as 10 percent disabling; hypertension, rated as 10 percent disabling; residuals of a fracture of the right fifth metatarsal, rated as noncompensable; and bilateral hearing loss, rated as noncompensable. 4. Throughout the course of this appeal, for the purposes of 38 C.F.R. § 4.16(a), the Veteran's combined disability rating has never exceeded 20 percent. 5. The evidence of record does not show that the Veteran's service-connected disabilities, in and of themselves, render him unable to secure or follow a substantially gainful occupation CONCLUSIONS OF LAW 1. The criteria for service connection for spinal stenosis status post lumbar laminectomy have not been met. 38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for bilateral aseptic necrosis status post total hip arthroplasties have not been met. 38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A pre-rating March 2004 letter notified the Veteran of the information and evidence needed to substantiate his claims for service connection for disabilities of the low back and hips and for a TDIU. After affording the Veteran reasonable opportunity to respond, his claims were adjudicated in the RO's September 2004 rating decision. A subsequent March 2006 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess. After issuance of the March 2006 letter, and opportunity for the Veteran to respond, the Veteran's claims were readjudicated in an April 2006 SOC. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records, claims submissions, social security records, and VA treatment records have been associated with the record. The Veteran was also afforded VA examinations of his spine and hips in July 2004 and May 2011. An addendum to the VA examiner's May 2011 opinion was also obtained in January 2013. VA examinations of his service-connected hearing loss, tinnitus, hypertension, and right foot disabilities were also performed in September 2010 to determine whether they precluded the Veteran from securing and following a substantially gainful occupation. These examinations, along with the other evidence of record, are fully adequate for the purpose of determining the nature and etiology of the Veteran's claimed disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. I. 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.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as arthritis, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). A. Spinal Stenosis Status Post Lumbar Laminectomy In support of his claim for service connection for the claimed low back condition, the Veteran has advanced various allegations. In his February 2004 claim, the Veteran alleged that he has current spinal stenosis that he believes was sustained during an incident in which he passed out and fell while serving on board the U.S.S. John F. Kennedy. In that regard, he expressed that he may have sustained a "hidden spine injury" in that incident. In a March 2004 statement, he elaborated that he sought treatment during service shortly after passing out and that he reported having generalized body aches. He also recalled that his watch partner, who apparently witnessed the incident, later told the Veteran that his upper body was "jerking all over." Based upon these recollections, the Veteran continued to allege that his lumbar stenosis was sustained during his in-service fall. In his October 2004 NOD, the Veteran reported that he had undergone a lumbar laminectomy to correct his spine condition and stated that the VA neurosurgeon who performed the procedure told him that his stenosis did not happen overnight, but rather, developed over a period of years. According to the Veteran, this information indicated that his stenosis must have started during his active duty service. In a March 2007 statement, the Veteran alternatively alleged that his low back problems were secondary to his service-connected hypertension. In a later July 2009 statement, he stated that it "has been documented" that longterm hypertension can cause lumbar stenosis. He does not, however, cite where this supposed link was documented, nor does he point to any medical opinions or findings in the record that would support such a theory. Upon careful and thorough review of the evidence in this case, the Board finds that the Veteran is not entitled to service connection for spinal stenosis status post lumbar laminectomy either on a direct basis, pursuant to the presumptions under 38 C.F.R. § 3.309(a); or, as secondary to his service-connected hypertension. Initially, the Board notes that the service treatment records confirm that the Veteran was treated in February 1976 after he passed out and fell on board the U.S.S. John F. Kennedy. The corresponding treatment records indicate that the Veteran's eyes were fixed and that his torso exhibited a "slow jerky motion." Nonetheless, there is no indication in those records of any back complaints, nor is there any indication of any objective findings or diagnoses related to the back. Similarly, the remaining service treatment records are also silent for any subjective complaints, objective findings, diagnoses, or treatment related to the Veteran's back. A clinical examination of the spine performed during the Veteran's July 1977 separation examination was normal. Also, no subjectively reported back complaints or symptoms were noted in the separation examination report. Post-service treatment records include private treatment records dated from March through August of 1981. These records are also entirely silent for any complaints or treatment related to the back. VA treatment records dated from December 1983 through November 2012 reflect that the Veteran sustained injuries following a workplace fall. In April 2002, the Veteran was apparently treated for the first time for progressive low back pain with associated burning sensation in his feet that had reportedly been present for the past year and a half. An examination of the back revealed marked pain, paravertebral spasms, and positive neurological findings in the lower extremities. An MRI revealed lumbar stenosis that was worst at L4-5. At that time, the Veteran reported that he was working as a bread delivery person. Based upon the Veteran' reported history and findings from the initial treatment, the treating VA physician diagnosed leg pain and weakness that was believed to be due to spinal stenosis that was aggravated by the Veteran's occupational duties. No opinion was given as to the cause or approximate time of onset of the noted stenosis. Subsequent VA treatment records through January 2003 document ongoing complaints of back pain with associated numbness of the lower extremities. In December 2012, the Veteran reported that he was only able to walk a distance of 100 feet before requiring rest. A lumbar spine MRI obtained in January 2003 revealed multi-level disc bulges and significant lumbar stenosis that was most severe at L3-4 and L4-5. Once again, no opinion was given as to what caused the conditions in the Veteran's back or when they began. The following month, in February 2003, the Veteran underwent an L3-4 lumbar laminectomy. Post-surgical VA treatment records through mid-2004 show that the Veteran experienced a good recovery from surgery; however, also show that the Veteran continued to experience low back pain with ongoing numbness and tingling in his lower extremities. An MRI performed in July 2004 revealed post-operative changes as well as an ongoing L4-5 stenosis. Again, no opinion was rendered as to the cause of the L4-5 stenosis. Also in July 2004, the Veteran underwent a VA spine examination to explore the nature and etiology of his back condition. Upon review of the claims file, and consistent with the Board's own review, the examiner noted that the service treatment records were silent for any back injuries. The examiner also noted that the initial diagnosis of spinal stenosis was given in April 2002. During the examination, the Veteran reported back pain and stiffness that had been ongoing since his February 2003 back surgery. Occupationally, the Veteran reported that he previously worked delivering 3000 to 5000 pounds of bread per day. Regarding his current occupation, he stated that he had not worked since February 2003 and that he was currently unable to find other work. Functionally, the Veteran reported that he was able to stand for periods of five to 10 minutes and sit for a maximum of 30 to 45 minutes. Regarding his activity level at home, he stated that he was able to wash the dishes and perform his own activities of daily living, however stated that he did not do any yard work or perform in recreational activities. During examination, the Veteran was able to demonstrate full motion of the hips without accompanying complaints of hip-related pain. Thoracolumbar motion was limited and productive of lumbar pain. Neurological examination revealed diminished sensation to pinprick from the toes to the mid-lower extremities bilaterally. The examiner noted that the Veteran's BMI was 33. Based upon the Veteran's reported medical history, claims file review, and findings from the examination, the examiner confirmed the previous diagnoses of spinal stenosis, status post lumbar laminectomy with residual chronic pain. The examiner opined that the diagnosed low back disorder was less likely than not related to the Veteran's fall during service. As rationale for this conclusion, the examiner noted that the Veteran had an increased BMI that was of such a level as to constitute an increased risk factor for degeneration of the back and hips. Accordingly, the examiner opined that it is more likely than not that the degenerative conditions in the back and hips were attributable to the Veteran's excess weight. Subsequent VA treatment records dated through 2011 show that the Veteran continued to experience low back pain. A repeat MRI performed in August 2010 revealed ongoing degenerative disc disease at multiple levels of the thoracolumbar spine. During a May 2011 VA spine examination, the Veteran again reported that the onset of his back problems was in the approximate timeframe of 2002 or 2003. Regarding his current symptoms, he reported ongoing pain, stiffness, weakness, spasms, decreased thoracolumbar motion, and flare-ups of symptoms occurring every two or three weeks. He stated that the pain symptoms radiated into his buttocks and hips. During examination, the Veteran ambulated with a cane and demonstrated an antalgic gait with poor propulsion. He stated that he was unable to walk distances of more than a few yards. During the physical examination, the Veteran demonstrated a stooped appearance with observable kyphosis and lumbar flattening. Spasm, guarding of motion, pain, and tenderness were also noted. Measured thoracolumbar motion was diminished. Previous radiological studies from 2010 and 2011 were reviewed and confirmed as showing objective findings at multiple levels of the thoracolumbar spine. The examiner diagnosed multi-level degenerative disc disease with neural foraminal narrowing, recurrent disc bulging at L3-4, multi-level stair step retrolisthesis of the lumbar spine, post-operative changes, and multi-level arthritis. Overall, the examiner determined that it was less likely as not that the Veteran's back disorder was related to an injury or illness incurred during his active duty service. In that regard, the examiner noted that the service treatment records were silent for any back complaints or findings, particularly in connection with the Veteran's fall. The examiner also concluded that it was less likely as not that the Veteran's current low back disorder is secondary to his service-connected hypertension. In support of that opinion, the examiner noted that the current medical research and literature did not suggest a link between spine degeneration and hypertension. In a January 2013 addendum opinion, the same VA examiner who performed the May 2011 VA examination reviewed the Veteran's claims file again and opined that it is less likely than not that the Veteran's low back condition was permanently aggravated by his hypertension. Once again, the examiner noted that the medical research and literature still does not indicate a relationship between low back degeneration and hypertension. The examiner also pointed out that the Veteran's degenerative arthritis is an age-related progression, as indicated by symmetrical and gradual moderate severity of his symptoms and the need for bilateral arthroplasty. The examiner noted further that the progression of the Veteran's degenerative conditions may have been impacted by his occupational history, which included lengthy periods of employment as a bread delivery person, corrections officer, and a wood lot/lumberyard foreperson. Social security records in the claims file show that the Veteran was awarded disability benefits in February 2005, based upon the Social Security Administration's determination that the Veteran was disabled from employment as a result of his low back and bilateral hip disorders. Indeed, a June 2003 medical evaluation performed by Dr. J.D.W. reflected that the Veteran experienced various functional and occupational impairment due to symptoms in his low back and hips. Nonetheless, the social security records do not contain any opinions as to the cause or origin of the Veteran's low back disorder. As shown by the evidence and as reported by the Veteran, the onset of the Veteran's back degeneration and spinal stenosis occurred in the timeframe of 2002 or 2003, at least 25 years after the Veteran's separation from service. This finding is consistent with the service treatment records, which show that the Veteran's spine was essentially normal during service and at the time of his separation, as well as the post-service treatment records, which show that the Veteran did not initially report any back complaints until April 2002. Given the length of time that passed from the Veteran's separation from service and the onset of his back degeneration and stenosis, the Board finds that service connection for the Veteran's low back disorder may not be presumed as a chronic disease under 38 C.F.R. § 3.309(a). Similarly, the evidence does not show that the Veteran's low back disorder is related in any way to his active duty service or to his service-connected hypertension. Although the service treatment records corroborate the Veteran's claim that he sustained a fall during service on the U.S.S. John F. Kennedy, there is no indication whatsoever in the service treatment records that the Veteran experienced any back symptoms, exhibited any objective back findings, or had any back problems during service as a result of this fall. As noted previously the evidence shows, and the Veteran acknowledges, that the onset of his back problems occurred at least 25 years after his separation from service. During the intervening period between the Veteran's separation from service and the reported onset of his back problems, and as reported by the Veteran during medical treatment and in his March 2004 TDIU application, the Veteran had a long history of strenuous employment which includes periods as a prison guard, lumber yard employee and foreperson, and bread delivery person. As reported in his May 2003 application for social security disability benefits, such employment entailed frequent lifting of loads up to 60 pounds and pulling loads of 300 pounds. Indeed, during his July 2004 VA examination, he estimated that as a bread delivery person, he was responsible for delivering up to 3000 to 5000 pounds of baked goods per day. Certainly, the period of time that passed between the Veteran's separation from service and the initial onset of back problems, combined with the Veteran's many years of strenuous employment, would appear to cast grave doubt upon any assertion that his current back degeneration and stenosis were sustained during or are related to his active duty service. Indeed, the only medical opinions concerning the cause and origin of the Veteran's low back disorder are the negative opinions provided by the VA examiners in their July 2004 and May 2011 VA examination reports and January 2013 addendum report. These opinions are supported by rationale that are based upon an accurate review and understanding of the Veteran's in-service and post-service medical history, both as reported by the Veteran and documented in the record. The only other evidence in the record concerning the etiology of the Veteran's low back disorder is the Veteran's lay assertions detailed above. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As to competency, 38 C.F.R. § 3.159(a)(2) reflects that "competent lay evidence" means any evidence not requiring that the proponent have specialized education training or experience; lay evidence is competent if provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. In view of this regulation, the Veteran is certainly competent to provide a probative statement as to the onset and duration of his right knee problems, including pain and other observable symptoms. Nonetheless, the Board notes that the Veteran does not report that he has experienced back symptoms either during or within a short period from his separation from service. Rather, he simply contends that there is some relationship between his active duty service, or alternatively his service-connected hypertension, and his back disorder. In that regard, he does not direct the Board's attention to any evidence that supports his baldly stated assertion of such a relationship. In the absence of any medical training or experience, the Veteran is not competent to render an opinion as to the complex question of whether the degenerative condition and stenosis in his spine are related to his active duty service. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010 (arthritis must be established or substantiated by x-ray). In that regard, the Board points out that spine degeneration and resulting stenosis are susceptible to a myriad of causes which may include age and non-service-related wear and trauma. This fact would appear to be complicated further by the fact that the Veteran has acknowledged an occupational history which includes lengthy periods of employment as a prison guard, lumberyard employee, and a bread delivery person. In view of these complicating factors, and as the Veteran is not competent to render an opinion as to the complex question of the cause of his low back disorder, the Board finds that the Veteran's assertions are entitled to far less probative weight than the VA examiners' negative opinions. See Woehlaert v. Nicholson, 21 Vet. App. at 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. As to the Veteran's assertion that his low back disorder may be related in some way to his service-connected hypertension, there is simply no probative evidence in the record to suggest such a relationship. The only medical evidence which addresses the possibility of such a relationship is the negative opinions expressed in the May 2011 and January 2013 VA examiner's opinions. As noted in those opinions, there is no current medical evidence in the existing literature and research that suggests the existence of a link between hypertension and degenerative conditions. Although the Veteran alleges that the existence of such a link "has been documented", he is unable to direct the Board's attention to any such documentation, either in the evidentiary record or in the current medical research. Under the same analysis undertaken above, the Board assigns far greater probative weight to the VA examiner's negative opinions than it does to the Veteran's assertions. Overall, the preponderance of the evidence is against the Veteran's claim of service connection for spinal stenosis status post lumbar laminectomy. As such, this claim must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). B. Bilateral Aseptic Necrosis Status Post Total Hip Arthroplasties In support of his claim for service connection for bilateral hip disabilities, the Veteran alleged generally in his February 2004 claim that he was service connected for an aseptic necrosis condition in his hips. In his July 2009 statement, he stated that he did not experience hip problems prior to having his back problems. Also, he alleged that improper positioning during convalescence and being under anesthesia for too long can cause aseptic necrosis. Thus, he appears to assert an etiological relationship between his back disorder and his hip disorder; namely, by asserting that his hip disorder was caused by complications resulting from his 2003 back surgery. Nonetheless, as noted above, service connection on a secondary basis is only awarded where the claimed disability is shown by the evidence as being proximately due to or the result of another service-connected disability. 38 C.F.R. § 3.310(a). Since service connection for the Veteran's low back disorder has been denied under the foregoing analysis, the Board will not endeavor to consider whether the Veteran's hip disorder is secondary to his non-service-connected low back disorder. However, the Veteran has also alleged that the degenerative condition in his hips has resulted from his service-connected hypertension. As such, the Board will consider whether service connection for the Veteran's bilateral hip disorder may be granted on a direct basis, or on a presumptive basis pursuant to 38 C.F.R. § 3.309(a), or on the basis that it is secondary to hypertension pursuant to 38 C.F.R. § 3.310. Here, the service treatment records are also silent as to any subjective complaints, objective findings, treatment, or diagnosis as to the Veteran's hips. A clinical examination of the lower extremities performed during the July 1977 separation examination did not reveal any abnormalities of the hips. Likewise, the Veteran did not report any prior or current history of hip problems. Post-service private treatment records dated from March through August of 1981 do not reflect any complaints, findings, or treatment relevant to the Veteran's hips. In fact, the earliest relevant post-service treatment record is a December 2002 VA treatment record which indicates complaints of pain in the hips which limited the Veteran's ability to walk. In February 2003, he reported that he was experiencing popping in his hips while getting out of bed. Following his back surgery in February 2003, x-rays revealed the presence of severe degenerative joint disease with complete joint space loss in both hips. During a follow-up VA treatment in May 2003, he acknowledged that he had been walking with a waddling gait for the past year and a half; however, did not state the reasons why he was walking with a waddling gait. During a physical examination at that time, the Veteran demonstrated a painful gait, diminished motion of the hips, and ambulated with a cane. The February 2003 x-rays were reviewed and the Veteran was diagnosed with severe bilateral hip degenerative joint disease. No opinion was given as to the cause or origin of the Veteran's degenerative hip condition. During a June 2003 VA orthopedic consultation, the Veteran continued to report bilateral hip pain. At that time, he stated that he was able to walk distances of only 30 feet before requiring rest. Once again, an examination of the hips revealed diminished hip motion that was productive of pain and caused the Veteran to experience difficulty in changing positions. The examining VA orthopedist concluded that the Veteran was experiencing "debilitating" hip osteoarthritis. In July 2003, the Veteran underwent a right total hip replacement surgery. Post-surgical records show that the Veteran did well following surgery, and overall, experienced a positive result. During follow-up treatment in August 2003, the Veteran reported that pain remained only in his left hip. During a November 2003 VA treatment, the Veteran was diagnosed with end stage left hip degenerative joint disease. Interestingly, the examining physician opined that the left hip condition was likely secondary to developmental hip dysplasia. In December 2003, the Veteran underwent total hip replacement surgery for his left hip. Once again, the post-surgical records do not indicate any complications and show that the Veteran did well. During a July 2004 VA examination of his hips, the VA examiner noted that previous hip x-rays apparently indicated aseptic necrosis of the femoral heads. During physical examination, the Veteran was able to demonstrate full motion of the hips without any accompanying complaints of hip-related pain. The examiner diagnosed bilateral aseptic necrosis, status post total hip arthroplasties; however, noted that the Veteran's increased BMI was of such a level as to constitute an increased risk factor for degeneration of the hips. Accordingly, the examiner opined that it is more likely than not that the degenerative conditions in the Veteran's hips were attributable to his excess weight. Subsequent VA treatment records through 2008 indicate that the Veteran's hips were generally doing well until February 2008, at which time, the Veteran reported that he had dislocated his hips twice that month. Nonetheless, x-rays of the hips were essentially normal. In May 2011, the Veteran was afforded another VA examination of his hips. At that time, the Veteran reported the onset of bilateral hip problems in 2003 and stated that he first noticed that it was harder to walk due to hip pain after being weaned off pain medications following his back surgery. An examination of the hips indicated pain, guarding of movement, and tenderness. The Veteran's gait was antalgic and demonstrative of poor propulsion. Range of motion of the hips was diminished. X-rays of the hips continued to reveal degeneration in both hips; although such findings were essentially unchanged in comparison to a prior 2004 study. The examiner confirmed the previous diagnoses of severe degenerative arthritis of both hips. She opined that it was less likely than not that the Veteran's bilateral hip conditions was related to his active duty service; however, did conclude that it was at least as likely as not that the bilateral hip disorder was related to the Veteran's back condition. Regarding the question of whether a relationship exists between the Veteran's hip condition and active duty service, the examiner noted that the service treatment records do not reflect any complaints or objective signs relating to the hips. The examiner opined further that the Veteran's hip condition was less likely as not secondary to the Veteran's service-connected hypertension. As also noted in connection with the Veteran's back, the examiner stated that medical research and literature does not indicate a relationship between hypertension and degenerative arthritis of the hips. In a January 2013 addendum opinion, the same VA examiner who performed the May 2011 VA examination reviewed the claims file again and added that it is less likely than not that the Veteran's hip condition was permanently aggravated by his hypertension. In that regard, the examiner noted again that the medical research and literature do not indicate a relationship between hip degeneration and hypertension. The examiner also stated that the Veteran's degenerative arthritis is an age-related progression, as indicated by symmetrical and gradual moderate severity of his symptoms and the need for bilateral arthroplasty. The examiner noted further that the progression of the Veteran's degenerative conditions may have been impacted by the Veteran's aforementioned history of strenuous employment. As noted above, social security records in the claims file show that the Social Security Administration has determined that the Veteran is disabled from employment due to his low back and bilateral hip disabilities. Again, however, the social security records do not contain any opinions as to the cause or origin of the Veteran's hip disorder. The evidence, which includes the Veteran's own statements, shows that the onset of the Veteran's hip problems was within the approximate timeframe of the Veteran's February 2003 back surgery. Indeed, such a finding is wholly consistent with the absence of any documented hip problems during service and the post-service treatment records, which indicate that the Veteran did not initially report hip complaints until December 2002, approximately 25 years after the Veteran was separated from service. Under the circumstances, the Board finds that service connection for the Veteran's bilateral hip disorder also may not be presumed as a chronic disease under 38 C.F.R. § 3.309(a). The evidence also does not show that the Veteran's bilateral hip disorder is related in any way to his active duty service or to his service-connected hypertension. As noted above, the service treatment records do not show that the Veteran experienced any hip symptoms, showed any objective hip findings, or had any diagnosed hip problems at any time during service. Again, the Board notes that the Veteran's hips were apparently normal at the time of his separation from service in 1977. As noted previously, the Veteran acknowledges that the onset of his hip problems did not occur until 2002. Again, the lengthy period of time between the Veteran's separation from service and the onset of his hip problems and the Veteran's lengthy history of strenuous employment calls into question the existence of an etiological relationship between the Veteran's hip disorder and his active duty service. Other than the Veteran's lay assertions, the only opinions as to the etiology of the Veteran's bilateral hip disorder are the negative opinions expressed in the July 2004 and May 2011 VA examination reports and January 2013 addendum report. Also in relation to the expressed opinions and discussion relating to the Veteran's hips, these opinions are supported by rationale that are based upon an accurate review and understanding of the Veteran's in-service and post-service medical history. Under similar analysis as that undertaken in relation to the Veteran's low back claim, the Board does not assign significant probative weight to the Veteran's lay assertion that his current hip disorder is related in some way to his active duty service. By contrast, where the negative opinions provided by the VA examiner are explained by adequate rationale that is based upon facts and evidence in the record and in the medical community, the Board is inclined to assign far greater probative weight to those opinions. See Woehlaert v. Nicholson, 21 Vet. App. at 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. Turning now to the Veteran's claim that his bilateral hip disorder may be attributed to his service-connected hypertension, there is also no probative evidence in the record that supports the existence of such a relationship. Once again, the only medical evidence which addresses the possibility of such a relationship are the negative opinions expressed in the May 2011 and January 2013 VA examiner's opinions. As noted in those opinions, there is simply no indication in the current medical literature and research that suggests the existence of a link between hypertension and degenerative conditions. Under the same analysis undertaken above, the Board assigns far greater probative weight to the VA examiner's negative opinions than it does to the Veteran's assertions as to the question of whether the Veteran's hip disorder is related to his service-connected hypertension. Overall, the preponderance of the evidence is against the Veteran's claim of service connection for bilateral aseptic necrosis status post total hip arthroplasties. As such, this claim must also be denied. Again, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. Nonetheless, where the preponderance of the evidence is against the Veteran's claim for service connection, that doctrine is also inapplicable in connection to the Board's adjudication of the Veteran's bilateral hip claims. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). II. TDIU Under VA laws and regulations, a TDIU may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In that vein, the Board notes that service connection is in effect for the Veteran for tinnitus, effective from July 28 1982; hypertension, effective from September 30, 2004; residuals of a fracture of the right fifth metatarsal, effective from August 9, 1978; and bilateral hearing loss, effective from July 28, 1982. Consideration may be given to a veteran's level of education, special training, and previous work experience, but age and the impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned even where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining the above, the following will be considered as one disability: 1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor set forth under 38 C.F.R. § 4.26, if applicable; 2) disabilities resulting from common etiology or a single accident; 3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; 4) multiple injuries incurred in action; or 5) multiple disabilities incurred as a prisoner of war. In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). Such cases are referred to the Director of the Compensation and Pension Service for extra-schedular consideration. At no time during the course of this appeal have the disability ratings assigned for the Veteran's service-connected disabilities resulted in a combined disability rating that meets the regulatory requirements for a schedular TDIU under 38 C.F.R. § 4.16(a). In that regard, the Veteran's service-connected disabilities have been rated as follows: 10 percent for tinnitus, 10 percent for hypertension, and noncompensable disability ratings assigned for the residuals of the fracture of the right fifth metatarsal and for bilateral hearing loss. Based upon those disability ratings, and after treating the Veteran's service-connected tinnitus and bilateral hearing loss as arising from common etiology, the Veteran's combined disability rating has been no higher than 20 percent. 38 C.F.R. §§ 4.16(a), 4.25, Table I. Accordingly, the Veteran's appeal turns upon the question of whether the extent of the Veteran's disabilities are so exceptional as to warrant consideration of a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b) . The Veteran's informal claim for a TDIU was received by VA in February 2004. A formal VA Form 21-8940 application for a TDIU was received in March 2004. In support of his claim for a TDIU, the Veteran has asserted through his claims submissions and various written statements that his low back and bilateral hip disorder have rendered him unable to obtain and maintain substantially gainful employment. As noted above, however, TDIU is awarded only upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. Under the foregoing analysis, the Board has determined that service-connected may not be granted for the Veteran's low back and bilateral hip disorders. Accordingly, any award of TDIU in this case may not be predicated upon the impact that his low back and bilateral hip disorders have upon his employability. Notwithstanding the foregoing, the Board is compelled to consider whether the Veteran's service-connected disabilities (i.e., tinnitus, hypertension, residuals of the fractured right fifth metatarsal, and bilateral hearing loss) have rendered the Veteran unable to secure or follow a substantially gainful occupation. The Veteran does not expressly allege that his service-connected tinnitus, hypertension, right fifth metatarsal, or bilateral hearing loss have prevented him from seeking and maintaining employment. The post-service VA treatment records over the relevant appeal period show that the Veteran was followed for management of hypertension. Nonetheless, there is no indication in those records that the Veteran's hypertension interfered in any way with the Veteran's employability. Similarly, there is no indication in the VA treatment records that the Veteran has received regular treatment for residuals from his fractured right fifth metatarsal, or for his tinnitus or bilateral hearing loss. Accordingly, there is also no indication in the service treatment records that those disabilities have affected the Veteran's employability. As noted previously, social security records show that the Veteran was determined by the Social Security Administration as being disabled from employment from February 2003 as a result of his non-service-connected low back and bilateral hip disorders. There is no indication in the social security records that the awarded disability benefits were predicated on a finding of any other disabilities. In September 2010, the Veteran was afforded a series of VA examinations of his feet, hypertension, and hearing to determine their impact on the Veteran's employability. During the examination of his feet, the Veteran reported that he was having pins and needles sensations, swelling, and discoloration in both feet. He also reported symptoms of stiffness, pain, and fatigability while standing or walking. Overall, he stated that he was unable to stand for more than a few minutes or walk more than a few yards; although it is unclear as to whether he attributed these symptoms to his service-connected right foot disability or to symptoms related to his non-service-connected low back and hip disorders. During physical examination, there was no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weightbearing in either foot. There was no evidence of hammertoes, hallux valgus or rigidus, skin or vascular abnormalities, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, flat feet, muscle atrophy, or other deformities in either foot. X-rays indicated degenerative changes in the ankles and toes of both feet. Overall, the examiner concluded that reported pain in the feet was neurogenic and a manifestation of degenerative arthritis. Functionally, the examiner determined that the Veteran's foot disorder was productive of mild impairment of shopping, moderate impairment of exercise and travel, severe impairment of recreation, and prevented participation in sports. Other activities such as chores, feeding, bathing, dressing, toileting, grooming, and driving were not affected. The examiner did not find any occupational impairment resulting from the Veteran's feet. During the September 2010 VA examination of the Veteran's hypertension, the Veteran denied having any history of renal disease, stroke, nosebleeds, or headaches associated with hypertension. He also denied any history of cardiac involvement such as myocardial infarction, rheumatic fever, hypertensive heart disease, disturbance of heart rhythm, valvular heart disease, heart failure, angina, dizziness, syncope, or fatigue. He stated that his hypertension was controlled by medication. During the examination, the Veteran's blood pressure was measured at 139/79, 127/83, and 128/84 mmHg. A cardiac examination did not reveal any signs of congestive heart failure or pulmonary hypertension and observed heart size was normal. Overall, the examiner determined that the Veteran's hypertension did not present any occupational impairment or otherwise affect his activities of daily living. Audiometric testing performed during the VA audiometric examination revealed the following puretone results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 30 55 80 LEFT 10 10 30 50 60 Demonstrated speech recognition according to Maryland CNC word list testing was 94 percent for both ears, which the examiner interpreted as being excellent. Based upon the demonstrated audiometry, the examiner diagnosed normal to moderately severe hearing loss in the right ear and normal to severe hearing loss in the left ear. Nonetheless, the examiner opined that the Veteran's hearing loss did not significantly affect his employability or his activities of daily living. Here, the weight of the evidence of record does not support a finding that the Veteran's service-connected disabilities, in and of themselves, render him unable to secure and follow a substantially gainful occupation. As such, the evidence does not show any basis upon which to refer this matter to the Director, Compensation and Pension Service, for consideration of a TDIU on an extra-schedular basis. Accordingly, the preponderance of the evidence is against his claim of entitlement to TDIU, and that claim must be denied. Once again, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for a TDIU. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for spinal stenosis status post lumbar laminectomy (low back disorder) is denied. Entitlement to service connection for bilateral aseptic necrosis status post total hip arthroplasties (hip disorder) is denied. Entitlement to a TDIU is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs