Citation Nr: 21004486 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 11-26 343 DATE: January 27, 2021 ORDER Service connection for left hip disability is granted. Service connection for right hip disability is granted. Service connection for left knee disability is granted. Service connection for right knee disability is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hip and knee disabilities are caused by his service-connected disabilities. 2. By an April 2019 letter, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940; more than a year has lapsed since the initial request, and she has not submitted the requested evidence and information. CONCLUSIONS OF LAW 1. The criteria for service connection for left hip disability have been met. 38 U.S.C. §§ 1110, 1131,5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for right hip disability have been met. 38 U.S.C. §§ 1110, 1131,5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for left knee disability have been met. 38 U.S.C. §§ 1110, 1131,5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for right knee disability have been met. 38 U.S.C. §§ 1110, 1131,5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. By failing to submit requested information and/or forms for critical evidence needed to properly adjudicate her claim of TDIU, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C. §§ 5107, 7105(d)(5); 38 C.F.R. § 3.158(a)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marines Corps from September 1973 to October 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in June 2018 and remanded for additional development. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). Also, service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service connected disability; or, aggravated by a service connected disability. See 38 C.F.R. § 3.310 (2018); see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. See Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Bilateral hips and knees The Veteran seeks service connection or secondary service connection for his bilateral hip and knee conditions. In support, he reported at his BVA hearing that due to the pain he experienced at the bottom of his feet due to his service-connected plantar warts he walked with a limp, which resulted in his current disabilities of both hips and knees. See BVA hearing transcript (April 2018). The Veteran has a diagnosis of degenerative arthritis in both hips, left knee strain and arthritis in both knees. See VA medical examinations (June 2019, June 2020 and July 2020). In June 2018, the Board remanded these issues with instructions for the examiner to consider the Veteran’s bilateral hips and knees contentions, including secondary aggravation. Subsequently, in June 2019, the Veteran was provided a VA examination and in June 2020 and July 2020 addendums with medical opinions were submitted. See VA medical examinations (June 2019, June 2020 and July 2020). The Board acknowledges that the examiner stated that the Veteran’s bilateral hip and knee conditions were less likely related to service or his service-connected conditions. The rationale was that the medical records are very clear that the Veteran has numerous orthopedic conditions of the lower limbs that may alter gait pattern over time that are not service connected. Additionally, the examiner noted that plantar warts (synonym= keratoma) are the least of these issues and are not considered likely to alter gait to the point of causing, accelerating, aggravating, or otherwise having any kind of causal relationship with the Veteran's bilateral hip degenerative arthritis (ie less than 50% probability). Further, the more significant conditions likely to affect weight bearing status, endurance, and gait over time, include his history of obesity, non-service connected conditions including foot surgery/bunionectomy and pes planus, chronic low back pain with DDD/DJD, peripheral edema, and peripheral neuropathy. Id. However, the examiner’s rationale noted that his service-connected disabilities do play a role in his current bilateral hip and knee conditions. Id. Thus, relating his service-connected disabilities with his current bilateral hip and knee conditions. Therefore, the Board finds that the competent and credible evidence shows that the Veteran’s bilateral knee and hip problems are caused by his service-connected disabilities. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Thus, service connection is warranted for his bilateral knee and hip problems. In light of the competent lay and medical evidence linking the Veteran’s bilateral knee and hip disabilities to his service-connected disabilities, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's bilateral knee and hip disabilities is warranted because these disabilities were caused by his service-connected disability. As such, service connection is warranted. TDIU When evidence is requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. See 38 C.F.R. § 3.158 (a). On June 2018, the Board included entitlement of TDIU on the record and remanded the issue under Rice. Additionally, the Board issued a remand for additional evidentiary development regarding the claim for TDIU, including a request by the Veteran to complete VA Form 21-8940 in support of a claim for TDIU, and to obtain appropriate VA examinations to assess the manifestations and severity of his service-connected disabilities. The RO notified the Veteran on April and May 2019, requesting him to complete such form, and to date the Veteran has failed to do so. VA Form 21-8940 requests information regarding the Veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the Veteran left his last job, and whether the Veteran has attempted to obtain employment since he became too disabled to work. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158 (a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158 (a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). In making the above determination, the Board acknowledges that the Veteran has submitted statements and describing problems related to work due to his service-connected disabilities but does not include all the information noted above from the VA Form 21-8940. A grant of a TDIU cannot be made without the completion of this form. As such, the Board cannot make a finding of entitlement to a TDIU solely due to his service-connected disabilities. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.