Citation Nr: 1324706 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 08-35 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a right hip disability, status-port total right hip arthroplasty. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to December 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. The Veteran had a hearing before the Board in March 2010 and the transcript is of record. The April 2008 rating decision did not directly address the TDIU issue. Rather, in March 2013 the Board determined that TDIU was inferred as part of an increased rating claim before the Board at that time. Cf. Rice v. Shinseki, 22 Vet. App. 447 (2009). While the Board rendered a decision with regard to the increased rating claim, the TDIU issue was remanded along with the right hip issue to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims. The requested development having been completed, the case is once again before the Board for appellate consideration of the issues on appeal. FINDINGS OF FACT 1. The Veteran's right hip degenerative joint disease and other residuals post-total hip arthroplasty (THA) were not manifested during service and are not otherwise attributable to service. 2. Service connection is currently in effect in this case for bilateral pes planus, rated 30 percent disabling, bilateral hearing loss, rated 10 percent disabling, bilateral tinnitus, rated 10 percent disabling, and post-traumatic arthritis of the right thumb, rated 10 percent disabling; the combined rating for these service-connected disabilities is 50 percent disabling. 3. The Veteran's service-connected disabilities either taken alone or in the aggregate do not preclude substantial, gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip disability, status-port total right hip arthroplasty have not been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155(a), 3.157, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Assist and Notify Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to the right hip claim, the Board finds that the duty to notify was satisfied by a pre-adjudication letter sent to the Veteran in November 2007. With regard to the TDIU claim, after the Board inferred the claim within a March 2013 Remand, the Veteran was sent a letter addressing the TDIU claim in March 2013, to include an attached VA Form 21-4192, Request for Employment information. The letters sent in this case addressed all of the notice elements and the issues have since been readjudicated, most recently in a May 2013 Supplemental Statement of the Case (SSOC). The duty to assist was also met in this case. The Veteran's service treatment records are in the claims folder. All pertinent VA treatment records have been obtained and associated with the file to the extent possible. A VA examination with respect to the right hip issue on appeal was obtained in February 2012. 38 C.F.R. § 3.159(c)(4). 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). In March 2013, the Board found the VA examination complete but the opinion rendered incomplete. That is, the examiner did not specifically address whether the Veteran's MOS as an assistant door gunner and the Veteran's contentions of being "banged around" inside tanks during service could be responsible for any current right hip disorder. As such, the claim was remanded in part to afford the Veteran a new VA examination. The Veteran was afforded a new VA examination in April 2013 but failed to report for this examination despite notification being sent to his last known address. With regard to the TDIU claim, the Veteran has received numerous examinations with regard to his service-connected disabilities, most recently in February 2012. Similar to the right hip claim, the Veteran was afforded new VA examinations in April 2013 to ensure the file accurately reflected the current severity of his service-connected disabilities. Despite notification being sent to his last known address, the Veteran failed to report to these scheduled VA examinations. The Veteran has not, since that time, indicated any good cause for his failure to report to these examinations, nor has he requested that the examinations be rescheduled. The Board emphasizes that the duty to assist is not a one-way street. If a veteran wishes to help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Consequently, the Board will decide the claims without the benefit of more current VA examinations. Thus, the Board finds that VA has satisfied the duty to assist the Veteran and may proceed to consider the merits of the claims. Service Connection (Right Hip) Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); 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)). Service connection may also be granted for chronic disorders, such as arthritis, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Here, no legal presumption is applicable because the earliest evidence of the Veteran's right hip arthritis is decades after service. 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). The Veteran claims he first noticed right hip pain in service as a result of being "banged around" inside a tank. He recalls seeing a corpsman on one occasion for right hip pain, but in general did not seek any ongoing treatment while on active duty. After service, he recalls having right hip pain "for many years," but did not seek treatment until decades later. The Veteran's service treatment records are silent as to any complaints, treatment, or diagnoses related to the right hip. The Board notes the Veteran was treated in January 1973 for an abscess in the buttocks area with no residuals. Although there is no record of in-service treatment or complaints of right hip pain in service, the Veteran's military records do confirm he served as a cannoneer and a missile handler. His statements and description of in-service injury inside a tank is consistent with the circumstances of his service. The Veteran, moreover, is competent to report his right hip pain first began in service. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding service connection can be established by continuity of symptomatology for conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), such as arthritis). After service, the Veteran testified he had hip pain "for years," but did not seek out any treatment for a long time. In fact, the claims folder does not contain evidence of any right hip post-service treatment until 2005, over two decades after service. At that time, the diagnosis was degenerative joint disease (DJD) of the right hip, confirmed by x-ray. In 2007, the Veteran underwent a total hip arthroplasty (THA). Recent VA outpatient treatment records reflect treatment largely for other conditions but do not reflect the Veteran's history of a THA. The records do not indicate any medical professional ever relating his right hip DJD or THA to any incident of his military service. The Veteran was afforded a VA examination in February 2012 where the examiner diagnosed DJD of the right hip and status-post THA of the right hip. With regard to etiology, the examiner merely opined that the Veteran's right hip disorder was less likely than not related to his in-service perianal abscess/injury in military service because he got over the abscess and was asymptomatic until 2005. The examiner did not address whether the Veteran's diagnoses could be etiologically related to his in-service MOS or described injury of being "banged around" in a tank. As noted above, the Board attempted to afford the Veteran a new VA examination asking an examiner to specifically address the Veteran's described in-service injury and symptomatology since the injury. An examination was scheduled for April 2013, but the Veteran failed to appear despite notification being sent to his last known address. As such, the record will be considered without the benefit of additional examination and opinion. The Board has no reason to doubt the Veteran's credibility, but despite his description of in-service injury and symptoms thereafter, his service treatment records are silent as to an actual diagnosed right hip disability at that time or for decades thereafter. In fact, after service the Veteran was first diagnosed with DJD of the right hip and ultimately underwent a THA over two decades after service. No medical professional has ever linked any current diagnosis to an in-service injury or his description of hip symptoms since service. The VA attempted to afford the Veteran an additional VA examination to address whether an association could be made, but the Veteran did not report for this examination. He also has not submitted any medical evidence or opinions supporting his claim. While the Veteran's lay statements were considered, the Board finds the medical evidence in this case more persuasive. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to...."). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for the Veteran's claimed right hip disorder is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). TDIU In various statements, to include his testimony before the Board in a March 2010 hearing, the Veteran has indicated his service-connected disabilities, especially his pes planus, has significantly interfered with his ability to perform his job. The Board has inferred a TDIU claim based on these statements. Rice, 22 Vet. App. 447. A Veteran may be awarded a TDIU rating upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). Here, service connection is in effect for bilateral pes planus, rated 30 percent disabling, bilateral hearing loss, rated 10 percent disabling, bilateral tinnitus, rated 10 percent disabling, and post-traumatic arthritis of the right thumb, rated 10 percent disabling. His combined total disability rating is 50 percent, and therefore, the percentage requirement for TDIU under section 4.16(a) of VA regulations has not been met. Even so, the Veteran indicates his disabilities, particularly his pes planus, affect his ability to perform his job. In that regard, the Veteran testified before the Board that he completed 12th grade as well as technical education in building maintenance, heating ventilation, and air conditioning. His occupational and educational background lends itself solely to jobs requiring him to be on his feet all day. He claims his ability to stand for prolonged periods is significantly impacted by his service-connected pes planus. If the required percentage requirements are not met, as is the case here, but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disorders, the Director of VA Compensation and Pension Service (C&P) should consider whether TDIU may be awarded on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board may not award TDIU on this basis in the first instance. Where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary, the claimant's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Director of VA C&P. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, the Board does not find referral for extraschedular consideration warranted. Medical records indicate the Veteran currently works in housekeeping and does go to "employee health" frequently for his foot problems. Even so, medical records also indicate the Veteran is able to do his job and, in fact, is still currently working. The Veteran was afforded VA examinations related to his feet in January 2008, June 2009 and June 2010. In the reports of those examinations, the examiners noted the Veteran's job in housekeeping and his discomfort standing or walking for prolonged periods. No examiner, however, opined the Veteran was "unemployable" due to his pes planus. The 2010 VA examiner noted the Veteran was placed on "light duty" following a March 2010 surgery, but he did not stop working altogether. With regard to his hearing loss and tinnitus, an October 2009 VA examiner noted the Veteran must turn a certain way to hear clearly; his tinnitus is constant and most bothersome at night when he is trying to sleep. The disabilities were not thought to preclude employment altogether. VA outpatient treatment records through March 2013 indicate that the Veteran is still working in housekeeping. The Veteran was placed on light duty following a work-related back injury in October 2012 but was back to full time work as of March 2013. The Veteran was scheduled for VA examinations in April 2013 to ascertain the current severity of all service-connected disabilities and to obtain medical opinions whether any of his disabilities, alone or in the aggregate, precluded substantial gainful employment, but the Veteran failed to appear to these examinations. Thus, based on the evidence of record, to include the Veteran's testimony, the Board concludes that the Veteran's service-connected disabilities cause some occupational problems, but do not preclude employment. In fact, the Veteran is currently employed full-time and has been during the pendency of this appeal. The Veteran does not meet the schedular criteria for the grant of TDIU, and the Board finds no plausible evidence to warrant TDIU. Thus, referral to the Director of VA C&P for extraschedular consideration is not warranted. 38 C.F.R. § 4.16(b). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and a total disability rating for compensation purposes based on individual unemployability is not warranted in this case. ORDER Entitlement to service connection for a right hip disability, status-port total right hip arthroplasty is denied. Entitlement to a TDIU is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs