Citation Nr: 18150389 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-33 693 DATE: November 15, 2018 ORDER Entitlement to service connection for the residuals of a total right hip replacement, to include as secondary to service-connected chondromalacia, right patella, and degenerative joint disease (DJD), is granted. Entitlement to compensation under 38 U.S.C. § 1151 for a right hip replacement is dismissed. Entitlement to compensation under 38 U.S.C. § 1151 for the residuals of a right hip replacement, to include abnormal gait residuals, is dismissed. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia patella and DJD with limited flexion is remanded. Entitlement to a disability rating in excess of 10 percent prior to March 16, 2017 and in excess of 20 percent thereafter for right knee chondromalacia patella and DJD with instability is remanded. Entitlement to a disability rating in excess of 30 percent for right knee chondromalacia patella and DJD with limited extension is remanded. Entitlement to an initial disability rating in excess of 20 percent for a right knee scar is remanded. Entitlement to an initial compensable rating for pseudofolliculitis is remanded. FINDINGS OF FACT 1. The Veteran’s residuals of a total right hip replacement are etiologically related to service and his service-connected right knee chondromalacia patella and DJD. 2. The grant of entitlement to service connection for the residuals of a total right hip replacement renders moot the claim for compensation for a right hip replacement under the provisions of 38 U.S.C. § 1151. 3. The grant of entitlement to service connection for the residuals of a total right hip replacement renders moot the claim for compensation for the residuals of a right hip replacement, to include an abnormal gait, under the provisions of 38 U.S.C. § 1151. 4. The Veteran’s service-connected disabilities preclude gainful employment. CONCLUSIONS OF LAW 1. The criteria for status post total right hip replacement and associated residuals, have been satisfied. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303, 3.310 (2018). 2. The Veteran’s claim for compensation for a right hip replacement under the provisions of 38 U.S.C. § 1151 is moot. 38 U.S.C. §§ 1131, 1151 (2012); 38 C.F.R. § 20.101 (2018). 3. The Veteran’s claim for compensation for the residuals of a right hip replacement, to include an abnormal gait, under the provisions of 38 U.S.C. § 1151, is moot. 38 U.S.C. §§ 1131, 1151 (2012); 38 C.F.R. § 20.101 (2018). 4. The criteria for TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from November 1976 to May 1978. In December 2011, he testified before a Decision Review Officer; a transcript of that hearing is of record. The Veteran withdrew a request for a hearing before the Board of Veterans’ Appeals (Board) in September 2018 Correspondence. The Board has recharacterized the Veteran’s claim as one for entitlement to service connection for residuals of a total right hip replacement, to better reflect the medical and lay evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). For clarity, the Board has also separated the claims for right knee increase. Initially these matters were appealed as entitlement to a rating in excess of 10 percent for chondromalacia, right patella, and DJD with limited flexion and instability and entitlement to a rating in excess of 30 percent for chondromalacia, right patella, and DJD with limited extension. See July 2016 Form 9. However, during the pendency of the appeal, the Veteran received three separate ratings for the right knee. See September 2014, March 2017, and April 2018 Rating Decisions. As a result, the claims are listed as: entitlement to a disability rating in excess of 10 percent for right knee chondromalacia patella and DJD with limited flexion; entitlement to a disability rating in excess of 10 percent prior to March 16, 2017 and in excess of 20 percent thereafter for right knee chondromalacia patella and DJD with instability; and entitlement to a disability rating in excess of 30 percent for right knee chondromalacia patella and DJD with limited extension. Finally, in April 2017, the Veteran, by way of his representative, asserted continued dissatisfaction with these ratings. Thus, the Board maintains jurisdiction. AB v. Brown, 6 Vet. App. 35, 38 (1993). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Finally, as discussed below all pending claims are considered granted herein; thus, any procedural error is moot. 1. Service connection for the residuals of a total right hip replacement, to include as secondary to service-connected right knee chondromalacia patella and DJD The Veteran seeks service connection for a right hip disability which he asserts is related to service, to include as secondary to his service-connected right knee disability. The Board clarifies that although the RO has at times construed this as a claim to reopen, it is not. See September 2014 Rating Decision. Rather, the record supports that the claim for service connection was timely appealed to the Board in an April 2008 VA Form 9 and has remained pending since that date. See generally, January 2009 Supplemental Statement of the Case and July 2014 VA Form 21-4138. An April 2014 VA examination documents diagnosed osteoarthritis status post total arthroplasty of the right hip and associated right leg shortening. See also April 2013 VA Examination Report. The Veteran is also in receipt of service connection for right knee chondromalacia patella and DJD. Finally, May 1977 service treatment records (STRs) confirm that the Veteran suffered a fall down a flight of stairs. The Veteran is found competent and credible to report hip pain since this fall. Therefore, the first and second elements of Shedden and Wallin are met. What remains is nexus. In June 2018, A. A., M.D. opined that the Veteran’s hip disability manifested as a result of in-service injury as well as his service-connected right knee. Dr. A. A. explained that injury to the right hip, was almost guaranteed, given the height from which the Veteran fell down the stairs and weight already placed on his body from wearing full gear at the time of injury. Further, Dr. A. A. opined that this initial injury was worsened by his service-connected right knee disability and associated surgery, which caused decreased movement and pain. Finally, Dr. A. A. stated that the progression of the Veteran’s disability did not support age-related degeneration, as the Veteran needed a hip replacement at the age of 48. Per medical literature, typical hip replacement occurs between age 60 and 80. In rationalizing this opinion, Dr. A. A. cited to clinical and lay evidence from and since service. Dr. A. A. also spoke directly to the assertions made by previous VA examiners. The Board finds this opinion, and the adjoining clinical literature cited to therein, to be the most probative evidence of record. The Board acknowledges that there are negative opinions of record. However, these opinions do not address the well rationalized determinations of Dr. A. A., which were predicated on in-person examination, review of the record, and diagnostic testing. Additionally, these opinions do not address Dr. A. A.’s opinion in conjunction with the other positive evidence of record, including other opinions. Accordingly, service connection is warranted under either theory of entitlement. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.310. 2. Entitlement to compensation under 38 U.S.C. § 1151 The Veteran has submitted a claim based on 38 U.S.C. § 1151, as an alternative theory of entitlement to related VA compensation benefits for a right hip replacement and medically associated residuals of said replacement, to include shortened leg length. See April 2013 VA Examination Report and Dr. A. A.’s June 2018 Opinion. In light of the grant of benefits described above, the Board concludes that the Veteran’s 38 U.S.C. § 1151 claims are rendered moot. Entitlement to VA compensation under 38 U.S.C. § 1110 or § 1131, based on service connection, is the greater benefit, and it is granted in full. No additional benefit (monetary or otherwise) can be gained under 38 C.F.R. § 1151, nor does any controversy remain. See Hornick v. Shinseki, 24 Vet. App. 50, 53-57 (2010). VA is only required to consider an appellant’s claim under the provisions of 38 U.S.C. § 1151, if the Veteran’s claim for service connection is denied under 38 U.S.C. § 1110. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Considering the grant of service connection for residuals of a total right hip replacement, the claims for entitlement to VA compensation under 38 U.S.C. § 1151 are moot and are dismissed. TDIU 3. Entitlement to TDIU VA will grant TDIU when the evidence shows that a veteran is precluded, because of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, to qualify for individual unemployability, 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). For determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities resulting from a common etiology or a single incident, and disabilities affecting a single body system, such as orthopedic system, are considered one disability. Id. The Veteran has the following right knee disability ratings: a 10 percent rating for flexion, 20 percent rating for instability, and a 30 percent rating for extension. He is also in receipt of 20 percent rating for his right knee scar, a noncompensable rating for his pseudofolliculitis, and a 10 percent rating for major depressive disorder. Although the Veteran does not have a single disability rated as 60 percent, the Board finds that schedular consideration of TDIU is warranted. 38 C.F.R. § 4.16 (a). Here, his right knee musculoskeletal conditions and scar can favorably be considered as one, based on etiology or as disabilities effecting the right lower extremity. Together these ratings equate to 60 percent under the 38 C.F.R. § 4.25 Combined Ratings Table. Additionally, though not currently rated, the Veteran’s now service-connected right hip condition, is also a part of the lower extremity classification and is likely to increase his overall rating. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. § 3.341 (a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Turning to the record, the Veteran filed an application for TDIU on August 28, 2013. At that time, he reported his full-time employment concluded in February 2006 and his highest level of education was one year of college. In March 2014, the Veteran’s primary care provider Dr. S. S., M.D. opined that his combined disabilities precluded employment. As rationale, Dr. S. S. cited to his hip and knee disabilities causing severe limitations that prohibited prolonged standing or bending. Dr. S. S. also noted that his significant leg length discrepancy made ambulation painful. In March 2016 correspondence, a VA Rehabilitation Counselor denied the Veteran acceptance into the Vocational Rehabilitation program as his service-connected disabilities permanently precluded employment. Of note, the Counselor specified that upon review of the record, the Veteran’s disabilities made “it unreasonable to expect that [he] could use [the VA] program to obtain and maintain competitive employment...” The Counselor also found it unlikely that, with the Veteran’s numerous limitations, any employer would hire him. Beyond these records are notations from VA examiners and physicians indicating pain present with movement and in sedentary position. See VAMC Treatment Medical Records and VA Examination Reports. Considering this collective positive evidence, the Board finds it highly unlikely that the Veteran would be able to obtain or maintain substantially gainful employment. Accordingly, TDIU is granted. The issuance of a TDIU in turn raises the issue of entitlement to special monthly compensation (SMC). However, here application is not warranted as the Veteran does not meet the disability percentage requirements and the record does not establish housebound status. See Bradley v. Peake, 22 Vet. App. 280 (2008) and see also 38 U.S.C. §1114 (s). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for chondromalacia, right patella, and DJD with limited flexion is remanded. 2. Entitlement to a rating in excess of 10 percent prior to March 16, 2017 and in excess of 20 percent thereafter for chondromalacia, right patella, and DJD with instability is remanded. 3. Entitlement to a rating in excess of 30 percent for chondromalacia, right patella, and DJD with limited extension is remanded. 4. Entitlement to an initial rating in excess of 20 percent for a right knee scar is remanded. 5. Entitlement to an initial compensable rating for pseudofolliculitis is remanded. The Veteran seeks increased ratings for the above listed claims. The claims file is highly suggestive that potentially relevant treatment records are not in evidence. Specifically, in June 2018 correspondence, the Veteran’s attorney noted Dr. S. S. as his current primary care physician for his orthopedic conditions. However, the claims file is negative for treatment records dated after 2014 from Dr. S. S. The record is also negative for any VA treatment records dated after 2014. Importantly, on the March 2018 VA psychiatric examination, the examiner noted that the Veteran was still receiving treatment for depression caused by his right knee disabilities from the Central Alabama Veterans Health Care System. Considering the strong indications of outstanding potentially relevant evidence, a remand is required. The matters are REMANDED for the following action: 1. Contact the Veteran and provide him with a VA Form 21-4142, Authorization and Consent to Release Information to VA, to obtain any private treatment records. Advise the Veteran that he may submit his private treatment records if he so chooses. If a negative response is received from the Veteran, or any private treatment provider, the claims file should be properly documented in this regard. The Board is particularly interested in all treatment records from 2014 forward from Dr. S. S., M.D. Associate all outstanding records of the Veteran’s VA and private treatment medical records with his electronic claims file (VBMS). If a review of these records discloses the existence of other pertinent records under federal control (i.e., VA or military facility as a retiree), such records should be obtained as well. The Board is specifically interested in all VA treatment records dated from 2014 forward, to include records from the Central Alabama Veterans Health Care System. 2. If VA determines that additional VA examinations are necessary to reflect the current levels of severity of the Veteran’s service-connected right knee, right knee scar, and pseudofolliculitis, they should be so ordered. 3. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Continued on Next Page These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 38 U.S.C. §§ 5109B, 7112 (2012). K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel