Citation Nr: 18149597 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-10 724 DATE: November 9, 2018 ORDER Entitlement to service connection for a left hip condition is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence does not show that the Veteran’s left hip condition was incurred in or is otherwise related to service or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a left hip condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision that denied service connection for a left hip condition. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred in or aggravated during active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. In general, service connection requires: (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When a disability is initially diagnosed after separation from service and not within any applicable presumptive period, service connection may be granted if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases may be service connected on a presumptive basis if they manifested during service or to a compensable degree within a specified period of time post-service. In such cases, evidence of a medical nexus is not required. Arthritis is one such disease, and it may be service connected if it manifested during service or to a degree of at least 10 percent within one year following service. 38 U.S.C. §§ 1101(B)(3), 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Isolated findings or a diagnosis including the word “chronic” do not establish chronicity. 38 C.F.R. §§ 3.303(b), 3.307. If chronicity is not established in service or in the presumptive period, a continuity of symptoms after discharge can support a claim where a disability was otherwise noted in service. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir 2013). If a chronic disease is diagnosed after separation from service and not within any applicable presumptive period, service connection may still be granted if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In that case, the Veteran is compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. See 38 C.F.R. § 3.310(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the veteran. 38 U.S.C. § 5107; 28 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that he currently suffers from a left hip condition that was incurred in service or is secondary to his service-connected chondromalacia patella of the left knee. At a January 2015 VA examination, the Veteran was diagnosed with degenerative joint disease, or osteoarthritis, in his left hip. However, a thorough review of the Veteran’s service records does not reveal any evidence of a left hip condition during service. Rather, they indicate that, during service, the Veteran injured his right knee and underwent an arthroscopy and complete meniscectomy. He was also diagnosed with chondromalacia in both knees and, ultimately, separated from service on the recommendation of a Physical Evaluation Board. There is no indication that he suffered from any hip pain related to these to these injuries, or at all, during service. At his July 2018 hearing before the Board, the Veteran asserted that he hurt his hip in service when he was thrown approximately sixty feet down a flight ramp, which caused the aforementioned injuries to his knees and resulted in severe burns to his body. He suggested that he did not seek treatment for his hip because the injury was “minor” compared to the injury to his knees. Moreover, since he was consistently prescribed pain medication for his knees over the years, this masked any pain from his hips until recently. Indeed, there is no evidence that the Veteran experienced hip pain until June 2012, thirty-five years after the Veteran’s separation from service in July 1977. Although he was treated repeatedly throughout the 1980s and 1990s for back pain and knee pain, there is no evidence that the Veteran complained of pain in his hips during that time. Additionally, in February 1996, when the Veteran underwent a VA orthopedic examination in relation to his service-connected knee disabilities, he made no mention of any pain related to his hips. Well into the 2000s, the Veteran did not complain of hip pain, although he continued to be seen by various doctors. In June 2005 and September 2005, the Veteran underwent additional VA examinations in conjunction with his claims for increased disability ratings for his service-connected knee disabilities, but there was no mention in the examination reports of any hip pain. In conjunction with later claims for increased disability ratings for his knees, the Veteran submitted a November 2010 lay statement setting out that his knee disabilities had gotten worse over the years, to the point that he falls frequently and he cannot walk long distances, climb stairs, kneel down, dance, or stand for too long. He made no mention of any hip pain at that time. Also, in January 2010 and August 2010, when the Veteran was seen by a doctor for chronic left knee pain, he once again made no mention of any hip pain. Significantly, the January examination of the left hip revealed good flexion and extension, approximately ten degrees of internal rotation, forty degrees of external rotation, and no groin tenderness. Indeed, the record also shows that the Veteran suffered repeated injuries to his back and knees since service. In April 1988, while he was working as a building inspector, he fell into a deep hole and twisted his left leg which resulted in knee pain and back pain. There was no mention of any hip pain. Moreover, the Veteran experienced back pain and leg pain following construction work that involved lifting heavy furnaces and, consequently, he underwent an operation on his low back that did not alleviate the aches and pains. Later, in July 1982, the Veteran fell off a truck, resulting in back pain and pain in both legs that was not cured by an additional operation. Finally, in April 1983, the Veteran fell on his buttocks while on a fishing trip and this resulted in a great deal of pain. As stated above, and despite repeated accidents and multiple visits to the doctor, treatment records indicate that the Veteran did not complain of hip pain until June 2012, and it was at that point that he brought his claim for service-connection for a left hip condition. In September 2012, the Veteran underwent a VA examination for his knees, during which he noted experiencing hip pain as well as knee and back pain. However, contemporaneous imaging of the Veteran’s hips revealed no acute fractures, no dislocation, and no significant degenerative changes. Similarly, there was no evidence to suggest osteonecrosis, and the Veteran’s soft tissues were unremarkable. In January 2015, the Veteran underwent a VA examination specifically for his hips. However, after diagnosing the Veteran with degenerative joint disease, or osteoarthritis, in both hips, the examiner concluded that the Veteran’s left hip condition was less likely than not due to or the result of the Veteran’s service-connected chondromalacia patella of the left knee. She explained that, while the Veteran’s x-rays document moderate degenerative joint disease of the left hip, these degenerative changes are also documented in the right hip and they are symmetrical. Clinically, the Veteran’s arthritis is worse in his right hip, which is not consistent with a compensatory condition for his left knee. In addition, the Veteran had several other risk factors for arthritis, such as obesity and gout. Gout, she noted, is a metabolic condition that causes inflammation and joint arthritis; and the Veteran was previously noted to have an elevated SED rate and C-reactive protein, which are systemic inflammatory markers consistent with multiple joint arthritis. Moreover, the Veteran, in fact, has severe degenerative arthritis in multiple joints, including his cervical and lumbar spine, which are not service-connected and cannot be related to his service connected knee conditions. The examiner concluded that the Veteran most likely has arthritis in his hips for the same reason that he has degenerative changes in his spine and, thus, the arthritis in his left hip is not related to service. The examiner also found that the Veteran’s left hip condition was less likely than not aggravated beyond its natural progression by his service-connected chondromalacia patella of the left knee. The Veteran’s knee condition predated his left hip condition by approximately twenty-three years and, for the same reasons that his knee condition was not likely to “cause” his left hip condition, as explained above, it is unlikely to have aggravated his left hip condition. Moreover, since the Veteran’s arthritis is worse in his right hip, his left hip arthritis cannot have been aggravated by his left knee condition. In assigning probative weight to a medical opinion, the Board must consider whether it is: (1) based on sufficient facts or data, (2) the product of reliable principles and methods, and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). It may also consider whether the examiner had access to the claims file, reviewed prior clinical records and pertinent evidence, and provided a thorough, detailed and definitive opinion supported by a detailed rationale. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The January 2015 examination is adequate to address the Veteran’s claim. The examiner specifically notes that her opinion is predicated on a review of the claims file, as well as a physical examination of the Veteran and consideration of his medical history. In addition, it contains adequate medical opinions along with reasons and bases for the opinions rendered. Accordingly, it is entitled to great probative weight. Based on the foregoing, the Board finds that service connection for a left hip condition as secondary to the Veteran’s service-connected chondromalacia patella of the left knee is not warranted in this case. The competent medical evidence of record indicates that the Veteran’s left hip condition is less likely than not caused by or aggravated beyond its natural progression by his service-connected disability. Furthermore, service connection is not warranted on a direct basis because there is no evidence that the Veteran suffered from a hip condition or experienced pain in his hips during service. The record also lacks evidence that there was a continuity of symptoms of a left hip condition after discharge from service. As mentioned above, the Veteran did not seek treatment for hip pain until June 2012, thirty-five years after separation from service. Without evidence of an in-service injury to his hip or complaints of hip pain during service or in the year following service, service connection cannot be granted on this basis. 38 C.F.R § 3.303(b); Walker, 708 F.3d at 1338. The claim must, therefore, be denied. REASONS FOR REMAND This matter comes to the Board on appeal from the September 2012 rating decision mentioned above. The Veteran filed his claim for a TDIU in May 2012. Although the Board sincerely regrets the additional delay, this matter must be remanded for additional development. VA regulations allow for the assignment of a TDIU when a veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities and when the veteran has certain combinations of ratings for his service-connected disabilities. If the veteran has only one such disability, that disability must be ratable at 60 percent or more. If he has two or more disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A finding of entitlement to a TDIU depends on the impact of a veteran’s service-connected disabilities on his ability to work in light of factors such as his work history, education, and vocational training. 38 C.F.R. § 4.16. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran can perform the physical and mental acts required by employment, not whether he can actually find employment. For the purposes of evaluating whether a TDIU is warranted, marginal employment, or employment provided on account of disability or special accommodation, is not considered substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The Veteran is service-connected for post-operative residuals of a meniscectomy of the right knee with chondromalacia with a disability rating of 60 percent. He is also service-connected for chondromalacia patella of the left knee, status-post arthroscopic surgery with scar, with a disability rating of 30 percent. His combined evaluation is 80 percent. The Veteran, therefore, meets the rating criteria for a TDIU. However, VA examinations from September 2012 and January 2015 concluded that, while the Veteran is unable to do physical work, he remains capable of sedentary work. The Veteran took issue with this determination in his March 2015 appeal to the Board, stating that that the pain caused by bending his knees renders him unable to sit long enough to perform a sedentary job. In addition, at his July 2018 hearing before the Board, the Veteran asserted that he is now immobile without a scooter. Given that the Veteran’s service-connected conditions were last assessed by VA nearly four years ago, and in light of the Veteran’s assertion that his conditions have worsened, the Board finds that a remand for a new VA examination is warranted. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition, on remand, updated VA treatment records should be obtained and associated with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA and, as such, should be obtained and included in the record). The matter is REMANDED for the following action: 1. Obtain copies of any outstanding VA treatment records pertaining to the Veteran’s service-connected disabilities since September 2016 and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected post-operative residuals of a meniscectomy of the right knee with chondromalacia and his chondromalacia patella of the left knee, status-post arthroscopic surgery with scar. The examiner should consider and discuss the functional effects resulting from those service-connected disabilities (i.e., considered jointly) that could impact either daily living or industrial capacity. (continued on next page) The examination report must include a complete rationale for all opinions and conclusions reached. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel