Citation Nr: 21004317 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-14 467 DATE: January 26, 2021 ORDER Entitlement to service connection for a left hip disability is denied. REMANDED Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT A left hip disability is not shown to be due to, etiologically related to, or aggravated by any event, disease, or injury incurred in service, or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1963 to September 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In February 2018 and November 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. The Board acknowledges that the Veteran is also seeking entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI) residuals with headaches and the loss of the senses of smell and taste. In November 2019, the appeal of an increased rating for TBI was remanded by the Board for additional development. In August 2020, the RO denied entitlement to a rating in excess of 10 percent for traumatic brain injury residuals with headaches and the loss of the senses of smell and taste. In August 2020, the Veteran, through his attorney, withdrew from the legacy appeals process, and opted into the Appeals Modernization Act (AMA) and submitted a Decision Review Request: Board Appeal (Notice of Disagreement) VA Form 10182 with respect to the TBI issue pursuant to the AMA. Therefore, that claim is not before the Board and is currently awaiting adjudication by the AOJ. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for a left hip disability. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran asserts that a currently diagnosed left hip disability is related to service or service-connected disabilities. Specifically, the Veteran asserts that a left hip disability is secondary to a service-connected total left knee arthroplasty. The service medical records do not show any complaints, findings, or diagnoses of any left hip disability. During VA examination in January 2020, the examiner noted review of the entire claims file and in-person examination. The examiner opined that the Veteran’s claimed left hip disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that, there was no evidence to support the claim. There was no evidence of any hip injuries in the active duty service records, and there was no evidence of chronic on-going hip complaints after 1966, the time of separation from service, throughout the remainder of the 1960s, 1970s, or the 1980s. The Veteran was 78 years old at the time of the examination, and was 70 at time of hip replacement. That was a common and normal expected finding in that age group. Regarding secondary service connection and aggravation, the examiner opined that the claimed left hip disability was less likely than not (less than 50 percent probability) proximately due to or the result of the service-connected disabilities and that the claimed left hip disability was not at least as likely as not aggravated beyond the natural progression by a service-connected disability. The examiner reasoned that there was no evidence to support the claim. There was no evidence of specific compensations in gait specifically due to the left knee disability. The Veteran was 78 years old at the time of the examination) and was 70 years old when he had the hip replacement, which was a very common and expected surgery for that age group, with normal age progression. Furthermore, the Veteran had numerous co-morbidities that could theoretically cause abnormal gait to include a right knee replacement, severe neck and back conditions to include radiculopathy, and heel pain and surgery. The Veteran overall had numerous diseases of advanced age. There was no way one could ever isolate the left knee as the cause of left hip disability. In support of the claim, in addition to several written statements, the Veteran also provided testimony before the undersigned Veterans Law Judge during a September 2017 Board hearing. At that hearing, the Veteran discussed what he believed to be the cause of the left hip disability and the effect it has had on his life. The Veteran also submitted a private hip examination received by VA in November 2012. In that examination report, the examiner stated that the Veteran’s left knee condition may have contributed to ambulation disruptions and wear to the left hip joint. The Board finds the November 2012 private medical opinion to be incomplete, as the examiner did not provide an adequate rationale to support the opinion.  A mere conclusion without an underlying rationale is of no probative value.  Miller v. West, 11 Vet. App. 345 (1998).  The examiner simply stated that the Veteran’s left hip issues may have been contributed to by the Veteran’s left knee disability.  However, the examiner did not provide any rationale for this opinion or explain how he arrived at this opinion.  The examiner did not properly explain what led to the opinion and cited no supporting evidence. Therefore, the Board finds the November 2012 private medical opinion to be less credible as it is speculative. A finding that one disability may cause another, also implies that it may not, and is speculative in nature.  Thus, the November 2012 private medical opinion does not establish that it is at least as likely as not that a left hip disability is caused or aggravated by a service-connected disability. The only evidence that provides a link between the Veteran’s service and a currently diagnosed left hip disability comes from the Veteran himself. The Board acknowledges the Veteran’s assertions that his current left hip disability is the result of a service-connected left knee disability. However, the Board finds that the Veteran, as a lay person without the appropriate medical training and expertise in diagnosing and treating musculoskeletal disabilities, is not competent to provide a probative opinion as to whether a musculoskeletal disability was either caused by or aggravated beyond the natural progression by any incident of active service, or by any service-connected disability. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran has not been shown to possess the adequate medical knowledge, education, or training, to competently opine to the diagnosis or etiology of any musculoskeletal disability. While the Veteran may state that he experienced fatigue or pain, he is not competent to provide a diagnosis of a specific disability, or to opine as to the etiology of any disability as those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That determination must be provided by a medical professional with the proper training, education and experience, in the appropriate fields. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is to be noted that the Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds the January 2020 VA examiner’s opinion to be competent, credible, and persuasive. The January 2020 VA examiner opined that it was less likely than not that the Veteran’s claimed left hip disability was related to an incident of service or service-connected disability. The Board finds the January 2020 VA examiner opinion to be more probative than the lay statements of record. The opinion of the January 2020 VA examiner is highly probative because it is supported by detailed rationale and provided by a trained medical professional. The VA examiner specifically identified and discussed the Veteran’s contentions and theory concerning service and the claimed disability. Accordingly, the January 2020 VA examiner VA opinion is found to carry significant weight and to be the most persuasive evidence of record. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). To the extent that the Veteran’s lay statements could be found to be competent and credible, the Board finds that they are outweighed by the January 2020 VA examination opinion because of the examiner’s medical training. The Veteran has not submitted any competent, probative medical evidence which supports a finding that a currently diagnosed left hip disability is related to service or a service-connected disability. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim and against a finding that a left hip disability was incurred in or is related to the Veteran’s honorable active service or a service-connected disability. The Board is sympathetic to the Veteran in that it is clear that the Veteran sincerely believes that a left hip disability is related to a service-connected total left knee arthroplasty. However, the most persuasive evidence of record does not support that contention. The Board is appreciative of the Veteran’s faithful and honorable service to our country. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a left hip disability, the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) 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); Mittleider v. West, 11 Vet. App. 181 (1998). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. 38 U.S.C. §1155; 38 C.F.R. §§3.340, 3.341, 4.16. I n reaching 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 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by nonservice- connected disabilities. 38 C.F.R. §§3.341, 4.16, 4.19. As the record currently stands, the Veteran's current service-connected disabilities are limitation of left knee extension; total left knee arthroplasty; tinnitus; TBI residuals to include headaches, and loss of sense of smell and taste; and bilateral hearing loss. Excluding periods of temporary total disability, the Veteran's combined service-connected disability rating was 60 percent from July 9, 2009, to February 10, 2010. Thus, the Veteran does not currently meet the schedular criteria for consideration of the assignment of TDIU at any point during the course of the appeal. However, the Board notes that the Veteran currently has a claim regarding entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI) residuals with headaches and the loss of the senses of smell and taste in appellate status that has not been adjudicated in this decision. That claim could significantly impact a decision on the issue of entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU), therefore, the Board finds that the issues are inextricably intertwined. Specifically, because the issue of entitlement to a rating in excess of 10 percent for traumatic brain injury residuals with headaches and the loss of the senses of smell and taste will have a substantial effect on the merits of a claim for TDIU, the claim for TDIU is inextricably intertwined. Since that TBI claim is in appellate status, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider that derivative claim of TDIU prior to the determination of the other claim (TBI). Therefore, the adjudication of the TDIU claim must be deferred pending resolution of that claim. Harris v. Derwinski, Vet. App.180 (1991). The matters are REMANDED for the following action: 1. After resolution of the pending claim for an increased rating for traumatic brain injury residuals with headaches and the loss of the senses of smell and taste, determine what further development is necessary to ensure that the record is adequate to decide whether the service-connected disabilities prevent the Veteran from obtaining and maintaining gainful employment, and arrange for any necessary development. If necessary, schedule a VA examination. If a medical examination is determined to be necessary and scheduled, the examiner must review the claims file and should note that review in the report. The examiner should examine the Veteran and describe the functional limitations and employability limitations caused by each service-connected disability. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service-connected disabilities alone. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. If the Veteran is found unemployable due to the service-connected disabilities, the examiner should opine when the Veteran became unemployable due to the service-connected disabilities. Then, readjudicate the claim for TDIU. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.