Citation Nr: 21001028 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-30 225 DATE: January 6, 2021 ORDER Entitlement to service connection for a bilateral hip disability, to include degenerative joint disease, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s current bilateral hip disability is related to his active service or was caused or aggravated by any service-connected disability; arthritis of the hips has been shown to be specifically attributed to the natural progression of the aging process, and is not related to or aggravated by any service-connected disabilities or to the Veteran’s service. 2. The Veteran meets the schedular criteria for TDIU and his service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hip disability, to include degenerative joint disease, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 2. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to August 1982. This matter arose to the Board of Veterans’ Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In January 2018 and May 2020, the Board remanded these matters for further evidentiary development. In a September 2020 rating decision, the RO granted service connection for a back disability (which was previously on appeal) and, relatedly, service connection for radiculopathy. Accordingly, as that is a full grant of the benefit sought as to that claim, it is no longer on appeal before the Board. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2019). On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159. The October 2020 Informal Hearing Presentation submitted by the Veteran’s representative does not contain any arguments regarding VA’s duties to notify and assist. Indeed, neither the Veteran nor his representative have raised any other issues pertaining to the duties to notify and 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). 1. Entitlement to service connection for a bilateral hip disability, to include degenerative joint disease The Veteran contends he is entitled to service connection for a bilateral hip disability, related to an altered gait due to his service-connected knees, ankles, feet, and back. Although the record indicates the Veteran suffers from a bilateral hip disability during the pendency of the appeal, to include degenerative joint disease (arthritis), for the following reasons, the Board finds service connection not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also 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 addition, for veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), with an enumerated “chronic disease” such as arthritis shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran’s service treatment records do not reflect that he suffered a bilateral hip disability in service, nor is there any mention of hip problems at the Veteran’s initial December 1982 Compensation and Pension (C&P) examination (that examination did reveal osteoarthritis in the Veteran’s ankles and feet as well as spondylosis of the lumbar spine). Furthermore, there are no complaints in his service treatment records of bilateral hip symptoms. A December 2011 C&P report revealed a diagnosis of osteoarthritis in both hips. This diagnosis was affirmed in a February 2019 C&P report; at that time, the Veteran stated his hips “have hurt for the last 50 years or so but that the last few years have been worse.” The Veteran was afforded another C&P examination in July 2020. According to the report, the examiner determined, first, that there was no evidence of any hip condition based on a review of the service treatment records, nor was there any mention of hip symptoms at the initial 1982 C&P examination. The examiner then found the Veteran’s bilateral hip disability was less likely than not aggravated by any of the Veteran’s service-connected joint disabilities. Specifically, the Veteran argued that his hip symptoms were causally related to altered gait, which in turn was due to service-connected musculoskeletal disabilities; the examiner, however, reviewed the pertinent imaging (done in 2009 and 2019) and determined that the Veteran’s degenerative joint disease was symmetrical and in the superior and peripheral hips, which is a pattern consistent with aging. The examiner reasoned that had the Veteran’s disability been due to an altered gait, his degenerative joint disease would appear in a drastically asymmetric distribution. This, however, was not the case. Accordingly, the examiner found the Veteran’s disease had progressed in a normal pattern due to aging. There are no medical opinions of record demonstrating a nexus between the Veteran’s current bilateral hip disability and his service, or to any other service-connected disease or injury. (As noted above, the Veteran received C&P examinations in December 2011 and February 2019; these reports included negative nexus opinions. However, the Board previously determined these opinions were inadequate because they did not meaningfully address whether or not the Veteran’s disability was aggravated by his service-connected joint disabilities, to include as due to altered gait.) After carefully reviewing the record, the Board finds the preponderance of the evidence is against the Veteran’s claim for service connection for a bilateral hip disability, to include degenerative joint disease. Initially, there is no probative evidence of record to suggest his current hip disability was incurred in active service or is otherwise related to active service. The most recent C&P opinion noted the Veteran’s current disability reflected a pattern consistent with aging, citing the fact the Veteran denied any hip problems at his 1982 C&P examination. The Board acknowledges the Veteran has reported hip problems since service, for example during his February 2019 C&P examination. The Board also acknowledges the Veteran’s contentions of hip disability related to altered gait. The Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by a medical professional. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the question of whether his current disability was incurred in service or is otherwise related to service, or to a service-connected disability, is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (2007). Here, the evidence does not indicate the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning the etiology of his hip disability. Thus, he is not competent to comment on its etiology. Moreover, the record contains a determination by a medical professional that the Veteran’s current hip disability did not originate in service and is not related to or aggravated by any service-connected disease or injury. This opinion included an acknowledgement of the Veteran’s specific statements regarding the nature of his injury; the examiner found that the Veteran’s disability was not due to an altered gait following a thorough review of all the diagnostic imagining. In short, the opinion is well-reasoned, fact-based, and responsive to the Veteran’s specific contentions, and is therefore considered highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (medical opinions are regarded as more probative when they include clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions). The Veteran has not rebutted this medical opinion. Indeed, he has provided no objective evidence in support of his claim. The Board is aware the Veteran has been service-connected for arthritis of multiple joints under Diagnostic Code 5003, applicable to degenerative arthritis. As noted above, under 38 C.F.R. § 3.303(b), with an enumerated “chronic disease” such as arthritis shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves, 524 F.3d at 1309. Here, the July 2020 C&P opinion clearly finds such an intercurrent cause in the case—i.e., the natural aging process. As a result, the most probative evidence reflects the Veteran’s hip arthritis is not a subsequent manifestation of service-connected arthritis or osteoarthritis in other joints, but rather is attributable to a nonservice-connected cause. Unfortunately, the Veteran has not put forth sufficient competent evidence to warrant a grant of service connection in this matter. He is not competent to substantiate his contentions, and there is no other credible evidence substantiating the claim. To reiterate, the Veteran has credibly reported hip pain, which he contends is due to his altered gait; however, these symptoms were determined by a VA medical professional to unrelated to the Veteran’s service or to his current service-connected musculoskeletal disabilities. The most probative evidence further shows the Veteran’s hip disability has not been aggravated by any service-connected disability. The Veteran has not presented or identified any competent evidence to support his contentions. There is, finally, no probative evidence that arthritis developed within one year of the Veteran’s separation from service, nor is there is competent evidence, particularly in light of the January 2020 VA examiner’s opinion, of continuous symptoms since service. See 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1331. As such, the preponderance of the evidence weighs against finding in favor of service connection. For the reasons stated above, service connection for a bilateral hip disability, to include degenerative joint disease, must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a TDIU The Veteran has argued the collective impact of his service-connected disabilities, particularly his musculoskeletal disabilities, have rendered him unable to secure or follow a substantially gainful occupation. For the following reasons, the Board agrees a TDIU is warranted. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more; or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran is service connected for right foot osteoarthritis (rated as 30 percent disabling); left foot osteoarthritis (30 percent disabling); lumbosacral strain with degenerative arthritis and spondylosis (20 percent disabling); left shoulder dislocation (10 percent disabling prior to February 2, 2011, 20 percent disabling thereafter); prostate cancer (20 percent disabling from January 10, 2012); radiculopathy of the right lower extremity (20 percent disabling from February 4, 2019); osteoarthritis of both knees (10 percent disabling in each knee); osteoarthritis of both ankles (10 percent disabling in each ankle); instability in both knees (10 percent disabling in each knee); radiculopathy of the left lower extremity (10 percent disabling from February 4, 2019); and hypertension (noncompensable). During the appeal period, the Veteran’s combined rating for all disabilities was 90 percent. The schedular criteria for TDIU have therefore been satisfied. The Veteran reports he retired from work due to medical and physical problems in 2009. See VA Form 21-8940 (February 2018). He specifically stated he left his job due to the “mounting disabilities effect on my performance of job duties to include standing for prolonged periods of time, heavy lifting and climbing steps and constant walking.” The record shows the Veteran worked as a security inspector. He reported receiving a BS from Troy University. On review, the Board concludes that when resolving all reasonable doubt in the Veteran’s favor, he has been rendered unemployable by his service-connected disabilities, particularly the collective impact of his musculoskeletal disabilities. See 38 C.F.R. § 4.16. As shown above, the record reflects the Veteran has not been employed at any time during the appeal period, and he has credibly reported that his physical disabilities, which includes constant pain, effectively prevents him from functioning in a work environment. The VA C&P reports of record consistently show the Veteran would be precluded from any sort of physically demanding employment—the type of employment the Veteran was engaged in for years prior to his retirement. Furthermore, the record shows the Veteran has suffered from voiding dysfunction due to his service-connected prostate cancer since the effective date of that award; a February 2020 letter from a private doctor indicates the Veteran experienced a daytime voiding interval of less than one hour, with urinary leakage upon waiting longer than one hour. The Board acknowledges many C&P reports of record indicate examiners’ opinions that the Veteran would be able to function in a sedentary work environment. However, the appropriate TDIU standard is not whether a Veteran is able to obtain any employment, or to maintain marginal employment. See Moore, 1 Vet. App. at 358. Rather, the standard is whether a veteran can obtain and maintain substantially gainful employment. Moreover, the issue of entitlement to a TDIU is ultimately a legal question, not a medical one. Given the Veteran’s employment history and the collective impact of his various musculoskeletal disabilities (the C&P reports of record do not include such a collective analysis), the Board is not able to define the type of substantially gainful employment this Veteran would be able to secure consistent with his symptoms and in light of his education and employment experience. As a result, the Board finds that when resolving reasonable doubt in the Veteran favor, his service-connected disabilities can fairly be said to prevent him from securing or following substantially gainful employment. Thus, entitlement to a TDIU is granted. The Board has also considered whether the Veteran is entitled to special monthly compensation (SMC). Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC is warranted if a veteran has a service-connected disability rated as total and has additional service-connected disabilities independently rated as 60 percent or more, or by reason of such service-connected disabilities is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Here, the Board finds that that TDIU is warranted due to the collective impact of the Veteran’s service-connected disabilities. He does not have a single disability rated as total. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). Further, there is no lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, entitlement to SMC is not warranted at this juncture. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.