Citation Nr: 1454030 Decision Date: 12/08/14 Archive Date: 12/16/14 DOCKET NO. 10-27 431A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right hip disability, to include as secondary to service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities. 2. Entitlement to service connection for a left hip disability, to include as secondary to service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from November 1976 to October 1979 and from January 1980 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a December 2012 decision, the Board remanded these issues for additional development. The issues were again remanded in May 2014. FINDINGS OF FACT 1. A right hip disability did not have its onset during and is not otherwise related to active military service; and is not proximately due to, or aggravated by, service-connected disability. 2. A left hip disability did not have its onset during and is not otherwise related to active military service; and is not proximately due to, or aggravated by, service-connected disability. 3. The Veteran's service-connected disabilities do not prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2014). 2. The criteria for service connection for a left hip disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2014). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159 (2014). VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A letter dated in May 2008 satisfied the duty to notify provisions. The Veteran was informed of the information and evidence necessary to substantiate a claim of service connection as well as a claim for TDIU. The letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Thus, VA's duty to notify has been met. The Veteran's service treatment records and VA and private medical treatment records have been obtained. VA examinations were afforded the Veteran in August 2007, February 2009, January 2013, and June 2014. The June 2014 examination was conducted pursuant to the Board's May 2014 remand. Taken together, the examination reports and accompanying medical opinions are adequate for deciding the claims. Thus, VA's duty to assist has been met. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless. Service Connection The Veteran is seeking entitlement to service connection for disabilities involving his left and right hip, which he believes are secondary to his service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2014). Generally, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). Service connection may also be granted for disability that is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310 (2014). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A layperson is competent to report on the onset and continuity of current symptomatology that is observable to the senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (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, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The service treatment records do not show any complaints or findings related to the Veteran's left or right hip. In March 1984, the Veteran was noted to have a lumbosacral strain after unloading a canvas; no hip complaints were noted. After service, on a VA examination in February 2009, the Veteran reported constant right hip pain. The examiner diagnosed right hip trochanteric bursitis and degenerative joint disease. The examiner opined that the Veteran's right hip disability was related to an aging process and was less likely as not caused by or a result of the service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities. The examiner did not address the Veteran's claimed left hip disability. A private physician's statement dated in July 2009 noted that the Veteran had problems of bad posture, loss of correct alignment, and loss of curvature of the cervical, thoracic, and lumbar spine, and that these "bring problems at neck, hips, knees, and ankles." She noted his complaints of right hip pain and locking, with limitation of movements and pain with range of movements. She also stated that the Veteran was injured in service when a canvas fell on him; she stated that "after evaluation of records it is more probable than not, that his back, right hip, neck and ankle problems are service connected secondary to his incident while in service." A VA examination in January 2013 diagnosed mild degenerative changes of both hips. The Veteran reported that he had been feeling bilateral hip pain since 2009. Examination showed normal ranges of motion of both hips, with complaints of pain with motion. The examiner concluded that the Veteran's current bilateral hip disability was less likely as not secondary to service-connected lumbar degenerative disc disease and bilateral lower extremities radiculopathy; the current bilateral hip condition was due to normal progression of aging process. On VA examination in June 2014, the Veteran reported that he believed his bilateral hip pain began in 2008 or 2009; he denied any trauma to the hips. The examiner stated that the Veteran's bilateral hip condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected conditions. The examiner noted that the Veteran had a normal gait, and that while he brought a cane he placed no weight on it. The examiner stated that the Veteran's degenerative changes were at least as likely related to the natural aging process. Further, the examiner stated that there was no evidence of aggravation of the hips condition; hip strength and ranges of motion were normal, and the radiating pain to the right hip was likely part and parcel of the service-connected radiculopathy and not related to degenerative changes of the hip. The evidence does not show that any of the claimed disabilities of the hips began or had onset during active military service, and they are not shown to be otherwise related to active military service. While the July 2009 private physician indicated that the Veteran's hip disabilities could be related to an in-service injury, there is no support for that statement in the service treatment records (which note only a lumbosacral strain related to the incident) and the Veteran himself has indicated that his hip pains began many years after service. Further, the evidence does not show that any arthritis manifested to a compensable degree within the first one year period following service. While the Veteran is competent to report symptoms such as pain, he does not have the requisite training to diagnose whether he has a chronic condition of the bilateral hips that are linked to a service-connected disability. Such diagnosis is not a simple condition and, in this case, such opinion as to etiology is not a simple medical question susceptible to lay diagnosis and opinion. See Jandreau, 492 F.3d at 1376-77. The Veteran's opinion as to any etiology related to service or to service-connected disability has not been supported by an opinion by a medical professional other than to the extent that the private physician in July 2009 offers an opinion in support of the Veteran's claim. That physician stated that the Veteran's bad posture, loss of correct alignment, and loss of curvature of the cervical, thoracic, and lumbar spine "bring problems at neck, hips, knees, and ankles." However, it does not appear that this opinion was based on a review of the Veteran's clinical record history. Moreover, as the record subsequently shows that the Veteran's gait and ranges of hip motion are normal, the July 2009 opinion appears to be based on a premise not shown in the record evidence. That opinion is not consistent with findings and opinions contained in the reports of a number of VA examinations on file since February 2009. For these reasons the July 2009 opinion is not persuasive on the matter of the etiology of the claimed hip disabilities and is accorded little probative value. The opinions of the VA examiners in February 2009, January 2013, and June 2014 are generally in agreement and consistent with the remainder of the clinical evidence. The opinions against the Veteran's claims contained in the VA examination reports are persuasive evidence as they are consistent with the remainder of the medical evidence on file, and they contain explanations attributing the current hip findings, which were first shown many years after service, to the aging process and not to the service-connected disabilities even on the basis of secondary aggravation. Thus, they are accorded significant probative value as to the possible relationship between the claimed hip disabilities and the Veteran's service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities. Based on the above, the preponderance of the evidence is against the claims of service connection for a right hip disability and a left hip disability on a direct and secondary basis. There is no doubt to be resolved; therefore, service connection is not warranted for these conditions. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. TDIU Total disability will be considered to exist when any impairment of mind or body is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2014). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2014). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2014). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2014). Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The Veteran's service-connected disabilities are lumbar paravertebral muscle spasm; intervertebral osteochondral changes and spondylosis from L4 to S1; and lumbar disc herniation with status post lumbar surgery (rated as 40 percent from June 9, 2006, and 20 percent from August 9, 2007); and right lumbar radiculopathy (rated as 20 percent from June 19, 2007); and left lumbar radiculopathy (rated as 20 percent from June 19, 2007). His combined service-connected disability rating was 40 percent from June 9, 2006; 60 percent from June 19, 2007; and 50 percent from August 9, 2007. On VA examination in July 2006, the Veteran reported that he worked as an English teacher and military coordinator at a military school. He stated that he had stayed at home two or three times per semester due to back pain and had limited ability to do physical activities with students. The examiner stated that the Veteran's service-connected back disability would have significant effects on his occupational activities; problems with lifting and carrying, difficulty reaching, decreased strength, and lower extremity pain would result in increased absenteeism. On VA examination in August 2007, the examiner noted that the Veteran was employed as a school teacher. The Veteran reported having missed time from work on three or four occasions in the past 12 months from low back pain. The examiner stated that the Veteran's service connected back disability would have significant effects on his occupational activities. A VA examiner in February 2009 noted that the Veteran had not worked for 1-2 years due to his back pain. With respect to the Veteran's daily activities, the examiner characterized the effect of the Veteran's service-connected disabilities as follows: chores, moderate; shopping, moderate; exercise, prevents; sports, prevents; recreation, moderate; traveling, moderate; feeding, moderate; bathing, moderate; dressing, moderate; toileting, moderate; and grooming, mild. A private physician in July 2009 noted the Veteran had physical disabilities related to his back, cervical spine, hips, knees, and ankles. She stated that the Veteran had had to "abandon his job because of its physical demand, part of it as a sport teacher." The July 2014 VA examiner noted that the Veteran was difficult to examine; overreacted during range of motion examination; walked unassisted with a normal gait; and changed position without complaints. The Board notes that the Veteran met the schedular criteria from June 19, 2007, to August 8, 2007, when his combined rating was 60 percent. However, as the evidence of record shows that he was employed during that time and had missed relatively little time from work due to his service-connected disabilities (see July 2006 and August 2007 VA examinations), a TDIU is not warranted during that period. Since August 9, 2007 his combined service connected disability rating has been 50 percent. Thus, he has not met the minimum schedular requirement, i.e., a single disability rating of 60 percent or more or a combined rating of 70 percent or more, to be considered for a TDIU rating. 38 C.F.R. § 4.16(a). The question that remains is whether the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Here, the record does not show that Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. As noted above, the Veteran was noted to be working full time as a teacher and/or military coordinator at a military school at the time of the July 2006 and August 2007 examinations. At the time of the February 2009 VA examination, the Veteran was noted to have stopped working one to two years earlier due to back pain. The February 2009 examiner did not opine that the Veteran would be unable to work due to his service connected disabilities. While the July 2009 private physician noted that the Veteran had had to abandon his job because of its physical demands, she referred to nonservice-connected disabilities of the knees, ankles, cervical spine, and hips, as well as the service-connected disabilities. The Board does not find that the Veteran's report of leaving a job due to back pain is persuasive evidence that his service-connected disabilities of lumbar spine and bilateral lower extremity radiculopathy are sufficient to preclude him from following a substantially gainful occupation. The Veteran has been able to maintain many years of employment as a school teacher, thus his physical disabilities should not preclude any type of employment that would rely on his intellectual abilities. There are many types of jobs for someone that has the intellect to enable a teaching position that would require minimal physical activities. As such, the Board finds that the Veteran is able to secure or follow a substantially gainful occupation despite his service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities. In sum, the Board finds that the preponderance of the evidence is against a finding that Veteran's service-connected disabilities preclude him from securing and maintaining substantially gainful employment. Thus, entitlement to a TDIU must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a left hip disability, to include as secondary to service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities, is denied. Service connection for a right hip disability, to include as secondary to service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities, is denied. A TDIU is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs