Citation Nr: 1804913 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 17-06 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a broken right hip disability, to include as secondary to the service-connected low back disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Erin J. Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1964 to April 1966. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions in May 2014 and March 2015 from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2) (2012). FINDINGS OF FACT 1. The competent evidence does not demonstrate that the Veteran's currently diagnosed broken right hip disability is attributable to his active service or any incident of service, to include the service-connected low back disability. 2. The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a broken right hip disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection A. Applicable Law Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease 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 on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). B. Facts and Analysis The Veteran contends that his broken right hip disability is due to service, to include as a result of his service-connected low back disability. Service treatment records are silent as to any diagnosis or treatment of a right hip injury or disability, to include a broken right hip. Post-service treatment records demonstrate that the Veteran fractured his hip in May 2014. At the October 2017 Board hearing, he testified that the injury was the result of a fall while he was at home and that he believed it was due to his neuropathic leg symptoms, including foot drop. A January 2017 private medical opinion indicated that the Veteran had stenosis of the back that resulted in worsening foot drop. The treatment provider stated that the related nerve damage causes him to fall. The Veteran was afforded a VA examination for his right hip in March 2017. The examiner thoroughly noted the medical history related to the right hip disability and ultimately opined that the right hip fracture was not caused by or related to service, including as secondary to the service-connected low back disability. Specifically, the examiner reasoned that the cause of the fall was a mechanical trip and that the fracture itself was caused by the Veteran's metastatic multiple myeloma. Regarding aggravation, though the severity of the condition could not be determined due to insufficient medical evidence, the examiner determined that the right hip disability was not aggravated by the low back disability. He explained that medical literature did not support a causal relationship between arthritis of the lower back and arthritis of the hip. Based on the foregoing, the Board finds that the evidence does not show a nexus between the Veteran's current right hip condition and any in-service injury or disease. In assessing the medical opinions of record, the Board finds the private opinion to be of minimal probative value. The January 2017 private opinion did not directly address the May 2014 fall currently at issue, but instead referred to multiple falls with no specific resulting injury. Furthermore, the opinion contained no conclusions or supporting rationale as to whether the right hip disability was related to or aggravated by the service-connected low back disability. The treatment provider merely provided a bare conclusion that failed to directly address the Veteran's specific claim in this instance. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); See Stefl v. Nicholson, 21 Vet. App. 120 (2007). As noted above, the March 2017 VA examiner found no relation between the right hip disability and service, including the low back disability. The right hip fracture occurred almost 50 years after the Veteran left service and there is no medical or otherwise probative evidence showing causation or aggravation of his condition by his service-connected low back disability. As the opinion was based on a thorough review of the Veteran's medical history, was supported by medical literature, and contained a clear and detailed conclusion, the March 2017 opinion is considered to be credible and highly probative. As such, service connection for a broken right hip disability is not warranted on any basis. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2016). II. Entitlement to a TDIU A. Applicable Law Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that, permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. B. Facts and Analysis The Veteran is service-connected for bilateral hearing loss, rated as 60 percent disabling; low back disability, rated as 40 percent disabling; radiculopathy of the bilateral lower extremities, each rated as 20 percent disabling; and tinnitus, rated as 10 percent disabling. The service-connected disabilities combined to be 80 percent disabling from September 8, 2010 to April 27, 2015, and to be 90 percent thereafter. Thus, for the entire period on appeal, the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16 (a) are met. The record reflects that the Veteran received a Bachelor of Science degree in mathematics and was employed as a high school math teacher for 25 years, before retiring in May 1997. He then worked as a substitute teacher on a part time basis from 2009 to November 2011. See March 26, 2013 VA Form 21-8940, his application for TDIU benefits from which this appeal arose. At the October 2017 Board hearing, the Veteran testified that he was unable to continue teaching due to his back and hearing disabilities. Specifically, he stated that his back disability rendered him unable to stand for long periods of time, as a result of the pain radiating to his legs. He further explained that he was unable to distinguish voices while in a group of people due to the severity of his hearing loss, which made it difficult for him to interact with students. The medical evidence of record includes a December 2013 VA examination, in which the examiner indicated that the Veteran's low back disability resulted in limited spinal support in completing physical activities, which impacted his ability to work. Additionally, a December 2013 VA audiological examination report documented his hearing difficulties in multiple listening situations, which further impeded his ability to work. Again, during an April 2014 audiological examination, the Veteran described challenges hearing while in a group or from a distance, which the examiner found to hinder his ability to work. The Board also notes an August 2012 private medical opinion, submitted by the Veteran, in which a treatment provider indicated that his lower back disability limited his daily physical activities. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran's service-connected disabilities have prevented him from securing and following substantially gainful employment. The Board finds it significant that the Veteran's post-service work experience appears to be primarily as a teacher, on a full time basis for 25 years, and then on a part time basis for 3 years. Additionally, his educational background includes a bachelor's degree in mathematics. Moreover, the VA examination reports of record indicate that the Veteran lacks the ability to stand for extended periods of time or hear properly in groups of people, which would preclude the performance of a gainful job as a teacher. The pertinent question in this case is whether, based on the Veteran's particular level of education, special training, and previous work experience, he is unable to secure or follow a substantially gainful occupation as the result of his service-connected disabilities. Significantly, there is no evidence that the Veteran is capable of a substantially gainful occupation due to his service-connected disabilities, and particularly due to his low back disability and its associated impairments, as well as bilateral hearing loss. Thus, given the evidence regarding the severity of the Veteran's service-connected disabilities, and opinions and evidence indicating the Veteran's functional limitations due to his service-connected disabilities, and in light of his individual work experience, training and education, the Board finds that the evidence shows he is entitled to an award of TDIU benefits. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a broken right hip disability, to include as secondary to the service-connected low back disability, is denied. Entitlement to a TDIU is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs