Citation Nr: 1620547	
Decision Date: 05/19/16    Archive Date: 05/27/16

DOCKET NO.  10-08 186	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an increased rating for a low back injury with degenerative disc disease (DDD), currently evaluated at 40 percent disabling. 
 
2.  Entitlement to service connection for a right hip disability, to include as secondary to a service-connected low back injury with degenerative disc disease.

3.  Entitlement to a separate compensable evaluation for erectile dysfunction.

4.  Entitlement to a total disability rating based on individual unemployability as due to service connected disability (TDIU) prior to November 05, 2013.


REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

E.I. Velez, Counsel


INTRODUCTION

The Veteran had active service from June 1962 to May 1964.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The claim was previously remanded by the Board in July 2013.  The requested development has been substantially complied with and the claim is ready for appellate review.  

In an April 2014 rating decision, the RO granted entitlement to TDIU effective November 5, 2013.  In the June 2013 Board remand it was determined that pursuant to Rice v Shinseki, 22 Vet App 447 451 (2009), the matter of entitlement to a TDIU was a component of the claim for an increased disability rating for a lumbar spine disability.  The Board notes that the Veteran had argued that he had been unemployable due to his back since the appeal.  The Veteran filed a claim for an increased disability rating in August 2008.  Therefore, while TDIU has been granted effective November 5, 2013, there remains the issue of entitlement to a TDIU prior to November 5, 2013.  

This appeal was processed using the Veterans Benefits Management System (VBMS).  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

The issues of entitlement to a separate compensable evaluation for erectile dysfunction and entitlement to a TDIU prior to November 05, 2013 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Ankylosis of the thoracolumbar has not been demonstrated.  Neurologic impairment outside of lumbar radiculopathy of the right and left leg has not been demonstrated.  Incapacitating episodes greater than two weeks in duration have not been demonstrated.

2.  A right hip disability, to include degenerative changes, was not manifest during service or within one year of separation; and such disability is not part of or otherwise due to or aggravated by service-connected degenerative lumbar spine injury with disc disease.


CONCLUSIONS OF LAW

1.  Low back injury with degenerative disc disease of the lumbar spine is no more than 40 percent disabling.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5242 (2015).

2.  A right hip disability was not incurred in or aggravated by service and right hip arthritis may not be presumed to have been incurred therein.  U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015).

3. Right hip disability is not proximately due to the result of or aggravated by to service-connected disease or injury.  38 C.F.R. §  3.310 (2015)





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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).

In an August 2008 pre- rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for increased rating and service connection.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The Veteran has substantiated his status as a veteran.  The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claims, in the August 2008 letter. 

The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence.  In this case, VA obtained the Veteran's service treatment records and all of the identified post-service VA treatment records.

The Veteran has also been afforded various VA examinations with respect to the issues on appeal.  As these examinations were based on review of the Veteran's symptoms and complaints, and discuss his disabilities in relation to the pertinent rating criteria, they are adequate for adjudication purposes

For these reasons, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claims herein decided on appeal are thus ready to be considered on the merits.

II. Legal Criteria and Analysis

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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.  See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

A. Low Back Injury with Degenerative Disc Disease of the Lumbar Spine

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Although the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of a claimant's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999).  Here, the Board finds that the disability picture has not significantly changed during the appeal period and a uniform rating is warranted.  

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one Diagnostic Code is duplicative of or overlapping with the symptomatology justifying an evaluation under another Diagnostic Code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased.

Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).

The Veteran's DDD of the lumbar spine is rated as 40 percent under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5242.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine.

Note 1 to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note 2 states that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.

A 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, with higher evaluations for incapacitating episodes of increased duration.

Note 1 states that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

Note 2 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.

On VA examination of October 2008, the Veteran reported constant low back pain for the past few years at a level of 7/10 which can rise to an 8 or 9 out of 10.  He reported that any movement of his hip aggravates his low back.  He further reported difficulty sleeping due to his low back pain.  The Veteran denied urinary or fecal incontinence, and leg weakness, but endorsed erectile dysfunction, numbness paresthesias and unsteadiness.  He reported constant daily pain which radiates down his right leg and buttocks.  He endorsed flare-ups about four times a week of severe level lasting hours.  However, no additional limitation of motion was reported during flare-ups.  He uses a cane to ambulate and can walk up to a quarter of a mile.  Gait was abnormal with a slight limp.  Lumbar flattening was noted with no other curvature abnormality of the back to include no ankyloses.  There was pain and tenderness of the spine, but no atrophy, guarding or spasm.  Motor exam showed muscle strength of 4/5 in all planes.  Sensory examination of the lower extremities was normal as was reflex examination.  Flexion was to 30 degrees with pain on motion but no additional limitation of motion on repetitive use.  

Private treatment records of March 2012 note that the Veteran reported interspersed exacerbation of the back throughout the years.  The Veteran reported he cannot walk more than 50 feet.  Forward flexion was noted to be to 30 degrees.  There was diminished perception in all sensory modalities.  

The veteran was afforded another VA examination in March 2014.  At the time, the Veteran reported the back pain has gotten worse, and he has more frequent spasms of his back with a frequency of four times a day to 35 times a week.  Spasms last 1-1.5 minutes but incapacitating during the spasm, he gets frozen, unable to move at all, until the spasms decrease with use of ice application, or just goes away with time.  He wears a back brace all the time, except while going to bed.  He reported he uses a cane, or the wheelchair, pushed by the wife, or he rolls himself for short distance in his house.  He also reported that his wife puts on his socks and shoes for him as he cannot bend down due the pain, assists him in getting in and out of the tub, with his back cleaning, and in his dressing.  He further reported the low back pain radiates upward to the upper back and occasional severe pain down to the testicular area.  He also endorsed tingling in the left calf upon prolonged sitting in the recliner.  He endorsed flare-ups on bending and with back spasms.  

Upon physical examination range of motion was flexion to 30 degrees, extension to 5 degrees, and, bilateral rotation and lateral flexion to 10 degrees, all with pain.  Upon repetitive movement, range of motion decreased to flexion to 20 degrees, extension to 0 degrees.  Bilateral lateral flexion and rotation remained the same.  Functional loss in the form of less movement, pain on motion, interference with sitting or standing, and lack of endurance was noted.  There was lumbar spine and paralumbar muscle tenderness.  Sensory exam was normal except for decreased sensation in the bilateral feet/toes.  Muscle exam showed 5/5 strength on knee extension and ankle dorsiflexion, and 4/5 on hip flexion and great toes extension.  Reflex examination showed hypoactive reflexes on the hip and normal reflexes at the ankle.  There was paresthesias in the right lower extremity and numbness in the bilateral lower extremities.  Radiculopathy was noted to be mild.  The examiner noted there was unfavorable ankyloses of the entire lumbar spine.  Moreover, the examiner noted intervertebral disc syndrome; but, noted that the Veteran had not had any incapacitating episodes over the past 12 months.  

Finally, the examiner noted that the Veteran has a very limited motion of his spine due to increase in the severity of the pain with little movement of the spine.  He frequently gets back spasms at least 4 times a day which are disabling at the moment of spasms lasting 1-1.5 minutes but had caused him to fall.  He was a truck driver for 51 years, that was the job he was trained to do, and as a truck driver he had to check each wheel for the brakes and tighten them with a wrench before going on each trip, a job he reported he could no longer do.

The Veteran's DDD is currently rated as 40 percent disabling.  In order to warrant a higher rating for limitation of motion, there must ankylosis of the thoracolumbar spine or ankylosis of the entire spine.  Specifically, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure."  Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)).  Based on the aforementioned range of motion findings, it is apparent that the Veteran's lumbar spine is not fixated or immobile.  In fact, range of motion findings consistently reflected forward flexion to at a minimum of 20 degrees on repetitive motion.  Such findings are consistent with the 40 percent rating currently assigned for limitation of motion.

The Board acknowledges that at the March 2014 VA examination, the examiner noted the Veteran had unfavorable ankyloses of the entire thoracolumbar spine.  However, range of motion testing showed forward flexion to 20 degrees with repetitive motion.  Moreover, the examiner noted that the Veteran retained motion of the thoracolumbar spine, albeit limited.  Thus, while ankyloses was noted in the report, the fact that the examiner recorded ranges of motion of the lumbar spine means it is not possible that the Veteran's thoracolumbar spine is ankylosed.  WE find that the actual physical findings are more probative than an unsupported notation in the record.

In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination.  See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59.  Here, the Veteran is in receipt of the maximum evaluation for limitation of motion.  Consequently, a higher rating is not warranted on this basis.  Johnston v. Brown, 10 Vet. App. 80 (1997). 

Separate ratings for associated objective neurologic abnormalities or chronic neurologic manifestations are not warranted because neurologic findings and symptoms warranting separate ratings have not been demonstrated.  The Veteran is already service-connected for right and left leg radiculopathy with a 10 percent disability rating for mild impairment, and the Veteran has not disagreed with the assigned disability rating.  Thus, the rating assigned for these disabilities is not currently before the Board.  

The Board acknowledges that at the October 2008 VA examination, it was noted the Veteran had erectile dysfunction which appeared to have been related to the lumbar spine disability.  However, the record as it stands is insufficient to properly determine if a separate rating is warranted for erectile dysfunction.  Therefore, the issue is being remanded below for further development. 

The Board has considered other appropriate diagnostic codes, particularly Diagnostic Code 5243 Intervertebral Disc Syndrome (IVDS).  However, there is no evidence of incapacitating episodes as contemplated by the regulation.  Indeed, the Veteran has not reported, and the treatment records do not show that he has been prescribed bedrest at any time during the appeal period.  In fact, at the most recent VA examination of March 2014, it was noted he had not had any incapacitating episodes in the las 12 months due to IVDS.  As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran experiences incapacitating episodes as contemplated by the regulation.  Accordingly, a higher rating under the formula for rating IVDS based on incapacitating episodes is not warranted.

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom.  Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating adequately contemplates the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the symptomatology associated with the Veteran's disabilities is fully contemplated by the applicable rating criteria.  The symptomatology reported by the Veteran and shown on examination is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria in applicable.  All potentially relevant rating codes have been considered and evaluated.  Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards.  The evidence of record shows that the Veteran's disabilities have impacted his ability to work.  However, the level of interference shown is contemplated by the numerous disability evaluations already assigned to the Veteran's disorders.  Moreover, and significantly, the Veteran has been awarded TDIU.  Johnson v. McDonald, 762 F.3d 1362  (Fed. Cir. 2014).  Therefore, referral for consideration of an extraschedular rating for any of the disabilities on appeal is not warranted.  38 C.F.R. § 3.321(b)(1). 

The Board notes that the Veteran is competent to report that his low back disability is worse.  As such, he is competent to report that he has pain on motion and restricted movement.  However, the controlling evidence is the official testing as to the range of motion.  We have considered each part of the evidence but place greater probative value on the results prepared by a skilled neutral professional and such evidence demonstrates that an evaluation in excess of 40 percent for DDD of the lumbar spine is not warranted.  

In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102 , 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

B. Right Hip Disorder

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id.  38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) 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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 

Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  The regulation pertaining to secondary service connection was amended effective October 10, 2006 and under the revised regulation, the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR  Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.  38 C.F.R. § 3.310(b). 

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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2015).

The Veteran is seeking service connection for a right hip disability, to include as due to the service connected lumbar spine disability with DDD.  After a review of the claim file, the Board finds that the preponderance of the evidence is against the claim for service connection for a right hip disability.  

At the outset, the Board notes that the Veteran has not claimed and the evidence does not otherwise shows that a right hip disability was incurred in service.  Rather, the Veteran has specifically argued that his right hip disability has been caused by and/or aggravated by his service connected lumbar spine disability.  

Private treatment records of June 2007 note that the Veteran sought treatment for pain in the right groin and right hip area for the past six months which has become increasingly severe.  An MRI of Oct 2006 of the right hip showed right hip effusion with joint space narrowing and marginal osteophytes.  X-rays revealed advanced osteoarthritis of the right hip.  The Veteran had a hip replacement in June 2007.

The Veteran underwent a VA examination in October 2008.  X-rays showed a total hip prosthesis on the right hip.  The Veteran was diagnosed with right hip prosthesis hip replacement done due to symptomatic severe degenerative arthritis of the right hip.  The examiner opined that the right hip disability was less likely than not caused by the lumbar spine injury with DDD.  The examiner reasoned that both the lumbar spine and the right hip have degenerative arthritis however the lumbar spine arthritis did not cause the right hip arthritis.  The symptoms of his lumbar degenerative arthritis include a radiation of the pain down the posterolateral aspect of the right thigh following the dermatome distribution of the nerve roots between L5-S1 thus in spite of the right hip prosthesis he continues to have a pain in the area of the right hip.  The association of the two conditions is not in causality of pathology but in symptomatology.

A second VA examination was conducted in March 2014.  At the time, the Veteran reported that in 1978 or 1980 he fell off a truck while standing on the running board.  At another time, he had also fallen while getting off the truck.  The Veteran's wife said he had a right hip injury from the fall while getting off the truck, and over the years developed arthritis.  The Veteran further reported that he had a right hip prosthesis surgery in 2007.  Nowadays, the right hip is not as painful as before the surgery, but he said he gets sharp pain in the right hip at an 8/10 when pressing on the lateral area of the right hip.  He said his doctor told him it is because of bursitis.  The right hip pain is 7/10 while going up and down the stairs.  The left hip feels fine.  After a physical examination of the Veteran, the examiner opined that the right hip disability was less likely than not the result of a low back injury with DDD.  The examiner reasoned that the lumbar spine has advanced degenerative arthritis and the right hip had degenerative arthritis, however the lumbar spine arthritis did not cause the right hip arthritis.  The right hip now has no more arthritis because the right hip joint was replaced with the prosthesis.  The examiner noted that service treatment records were silent for any complaints associated with the right hip.  As to aggravation, the examiner opined that there is no clinical evidence that the right hip prosthesis has gotten worse, thus it is not possible to state that the condition of the right hip replacement is permanently aggravated by the low back injury.  The examiner further stated that it is at least as likely as not that the current pain in the lateral area of the right hip is related to the lumbar spine condition, and as likely as not causing his persistent symptom.  The examiner explained that there is a local tenderness in the lateral area of the right hip and this area corresponds to the proximal area of the dermatome distribution of L2 L3 L4, and thus it is as likely as not a referred pain from the lumbar radiculopathy.

Upon review of the evidence above, the Board finds that service connection for a right hip disability is not warranted.  The evidence does not show arthritis of the right hip during service or in the one-year period following separation from service or for many years thereafter.  Arthritis of the hip was not "noted" during service and he did not have characteristic manifestations sufficient to identify arthritis at that time.  Nothing in the record suggests continuity of symptomatology. 

In regards to whether the right hip disability is related to the service connected lumbar spine injury with DDD the record contains two VA opinions, one from October 2008 as to direct causation and a second opinion of March 2014 as to aggravation.  The opinions are considered highly probative.  The opinions were based on a thorough review of the claims folder and supported by adequate rationale. 

As set forth, the examiners opined that the right hip disability was neither caused by or, or proximately due to or aggravated by the service connected lumbar spine disability.  These medical opinions stand uncontradicted by any other opinion of record.  

The Board has considered the Veteran's contentions to the contrary.  Questions of competency notwithstanding, the Veteran's unsubstantiated lay assertions simply do not outweigh the probative VA opinions. 

In summary, the preponderance of the evidence is against a finding that right hip disability had its onset during service or was manifested to a compensable degree within one year following discharge.  Additionally, the more probative evidence establishes that the claimed disability is not part of the already service-connected lumbar spine injury with DDD, nor is it proximately due to or aggravated by lumbar spine injury with DDD. 

The doctrine of reasonable doubt is not for application.  See 38 C.F.R. § 3.102.



ORDER

Entitlement to a rating in excess of 40 percent for low back injury with DDD of the lumbar spine is denied.

Service connection for a right hip disability, to include as secondary to service-connected disease or injury, is denied.


REMAND

The Board finds that additional development is needed as it pertains to the erectile dysfunction.  On VA examination of October 2008, the Veteran reported constant erectile dysfunction which the examiner appeared to attribute to the service connected lumbar spine disability.  While erectile dysfunction has not been mentioned in any other record or VA examination, the notation at the October 2008 is sufficient to raise the existence of erectile dysfunction as an associated neurological deficit and thus, the Veteran may be entitled to a separate disability rating/smc for erectile dysfunction.  Therefore, an examination is needed to determine the severity of the erectile dysfunction.  

Further, as noted in the introduction section of the decision above, in an April 2014 rating decision, the RO granted entitlement to TDIU effective November 5, 2013.  In the June 2013 Board remand it was determined that pursuant to Rice v Shinseki, 22 Vet App 447 451 (2009), the matter of entitlement to a TDIU was a component of the claim for an increased disability rating for a lumbar spine disability.  The Board notes that the Veteran had argued that he had been unemployable due to his back since the appeal.  The Veteran filed a claim for an increased disability rating in August 2008.  Therefore, while TDIU has been granted effective November 5, 2013, there remains the issue of entitlement to a TDIU prior to November 5, 2013.  However, the Board notes that the issue of entitlement to a TDIU prior to November 5, 2013 is inextricably intertwined with the issue being remanded herein.  Therefore, on remand, the RO should specifically adjudicate entitlement to a TDIU prior to November 5, 2013, after the issue of entitlement to a separate disability rating for erectile dysfunction has been adjudicated.  

Accordingly, the case is REMANDED for the following action:
 
1.  Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the noted erectile dysfunction.  After a full examination of the Veteran a review of the entire record, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's erectile dysfunction was caused or aggravated by service-connected lumbar spine disability with DDD.

The examiner should discuss the October 2008 VA examination report which listed erectile dysfunction as an associated feature or symptom of the Veteran's lumbar spine disability.

A complete rationale should accompany any opinion provided and should be based on examination findings, historical records, and medical principles.

2.  After the above development has been completed, readjudicate the issues on appeal, to include the entitlement for a TDIU prior to November 5, 2013.  If any benefit sought remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case.  Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals  or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B , 7112 (West 2014). 



____________________________________________
H.N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs