Citation Nr: 21068209 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-44 188 DATE: November 9, 2021 ORDER Entitlement to service connection for a left hip condition, to include as secondary service-connected disabilities, is dismissed. Entitlement to service connection for degenerative arthritis of the spine (low back disability), to include as secondary to service-connected disabilities, is denied. Entitlement to a rating in excess of 10 percent for residuals of removal of osteochondroma from the left femur (other than a surgical scar) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective October 24, 2017 (rather than just as of October 19, 2018, so as of an earlier effective date). FINDINGS OF FACT 1. The claim of entitlement to service connection for a left hip condition was granted in a September 2021 rating decision during the pendency of this appeal; therefore, there is no longer any case or issue in controversy concerning this claim. 2. The Veteran's low back disability was not caused and is not aggravated by his service-connected disabilities or otherwise the result of his military service. 3. The residuals of the removal of the osteochondroma from his left femur do not result in flexion limited to 30 degrees or less. 4. But it is as likely as not that, since October 24, 2017, his service-connected disabilities have rendered him incapable of obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. As there is no case or controversy still within the Board's jurisdiction, the claim for service connection for a left hip disability is summarily dismissed. 38 U.S.C. § 7105(d)(5). 2. The criteria are not met for entitlement to service connection for a low back disability, including secondary to already determined to be service-connected disabilities. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria are not met for entitlement to a rating higher than 10 percent for the residuals of removal of osteochondroma from the left femur. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs/Codes) 5255-5015, 5252. 4. However, the criteria are met for entitlement to a TDIU as of October 24, 2017 (rather than just as of October 19, 2018, so as of an earlier effective date). 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1983 to May 1987. This appeal to the Board of Veterans' Appeals (Board) is from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a March 2021 "virtual" teleconference hearing before this undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. The Board subsequently, in July 2021, remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration. Service Connection 1. Entitlement to service connection for a left hip condition, to include as secondary service-connected disabilities. The Board's jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101. In August 2021, on remand, a VA examiner concluded that during a flareup the Veteran would have reduced extension and abduction of his left hip. Based on that favorable opinion, a September 2019 rating decision also on remand, granted service connection for limited extension and left abduction of the left hip, each retroactively effective from January 14, 2014. Therefore, that rating decision favorably resolved this claim in full. Because there is no longer a case or controversy to resolve regarding this claim, it has been rendered moot and is no longer in appellate status. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. If the Veteran disagrees with the initial 0 percent (noncompensable) ratings and/or effective date assigned for this now service-connected left hip disability, he must separately appeal these "downstream" issues. Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). There is no indication he has, so the Board is summarily dismissing the preceding issue of entitlement to service connection for this disability because of the granting of this benefit during the pendency of this appeal. 2. Entitlement to service connection for degenerative arthritis of the spine (low back disability), to include as secondary to service-connected disabilities The Veteran contends that the service-connected residuals of removal of osteochondroma from his left femur and/or left knee disability caused or aggravate his low back disability therefore, his low back disability also is attributable in this way to his military service. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct or presumptive service connection for his low back disability, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). However, the preponderance of the evidence is against finding that the Veteran's low back disability was caused or is aggravated by his service-connected disabilities. In April 2017, the Veteran was afforded a VA examination for a medical opinion concerning the nature and etiology of this claimed condition including in terms of whether attributable to the service-connected removal of osteochondroma from his left femur, either by causation or aggravation. The VA examiner opined that the Veteran's low back disability was less likely than not caused or aggravated by the service-connected removal of the osteochondroma from his left femur. The rationale was that the degenerative arthritis of his lumbar spine, instead, is due to simple aging, lifestyle, and employment. Pursuant to the Board's more recent July 2021 remand directive, the Veteran was afforded another VA examination for a medical opinion additionally addressing whether his low back disability alternatively was caused or is aggravated by his service-connected left knee disability. The September 2021 VA examiner opined that the Veteran's low back disability was less likely than not caused or aggravated by his service-connected left knee disability. In making this critical determination, the VA examiner reviewed the relevant treatment records and concluded (just as the prior VA examiner had) that the degenerative arthritis of the Veteran's lumbar spine is due, instead, to other factors including heavy lifting and general wear and tear on his lumbar spine. Thus, neither VA compensation examiner attributed the Veteran's low back disability to his service-connected disabilities including especially to either the removal of the osteochondroma from his left femur or left knee disability. Since the Veteran is a layman, he cannot refute that VA examiners' unfavorable opinions because this issue is medically complex, not instead merely simple, as it requires knowledge of anatomical relationships and pathology. Therefore, it is beyond the Veteran's lay competence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24. Vet. App. 428 (2011). See also 38 C.F.R. § 3.159(a)(1) and (a)(2). Consequently, the Board gives more probative weight to the VA examiner's unfavorable opinions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The opinions were based on comprehensive review of the record and included the required rationale, which is where most of the probative value of a medical opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The examiners considered the Veteran's contentions that his service-connected disabilities caused or are aggravating his low back disability. However, the treatment records and medical literature did not support this claim by tending to substantiate this posited correlation. There is no other competent medical evidence in the file tending to support the Veteran's assertion of a relationship between his low back disability and service-connected removal of the osteochondroma from his left femur and/or left knee disability. Accordingly, the weight of the evidence is against this claim for the low back disability, so it must be denied. 3. Entitlement to a rating higher than 10 percent for residuals of the removal of the osteochondroma from the left femur (other than the surgical scar). The Veteran's disability is rated as 10-percent disabling under DC 5252. He would be entitled to a higher evaluation if he had thigh flexion limited to 30 degrees (20 percent), limited to 20 degrees (30 percent), or limited to 10 degrees (40 percent). An August 2014 VA hip and thigh conditions examination reflects that the Veteran denied flare-ups. Upon examination, he had flexion from 0 to 125 degrees or greater with no pain noted upon examination and during range-of-motion testing. There was no additional loss of function or range of motion with repetitive-use testing, and no additional functional limitations during a flare-up. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). A January 2014 private DBQ reflects that the Veteran reported flareups referable to his left thigh described as constant pain. But he had flexion from 0 to 95 degrees, albeit with pain beginning at just 20 degrees. The examiner noted that contributing factors of functional impairment included less movement than normal, weakened movement, excess fatigability, pain on movement, instability of station, disturbance of locomotion and interference with sitting, standing, and/or weight-bearing. On July 2017 VA hip and thigh conditions examination, the Veteran reported flareups and functional loss described as increased pain with extended weight bearing. Upon examination, he had flexion from 0 to 125 degrees or greater. There was evidence of pain on weight bearing and localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner surmised that pain would limit functional ability during flare-ups, but also that range of motion would remain unchanged. On August 2018 VA examination, the Veteran reported daily left thigh pain and flare-ups with weightbearing. Upon examination, he had flexion from 0 to 125 degrees or greater with pain. Pain was noted on examination and caused functional loss. There was also pain on weight bearing and localized tenderness. There was no additional loss of function or range of motion after repetitive-use testing. A September 2021 VA examination, pursuant the Board's remand directives, indicates the Veteran had flexion from 0 to 110 degrees on active and passive range of motion testing. Repetitive use testing revealed additional loss of motion, with flexion instead to 100 degrees. The examiner noted that pain significantly limited functional ability during flare ups, when the estimated range of motion was flexion of 80 degrees. But that notwithstanding, there is no competent and credible evidence of record that the Veteran's disability even during a flare-up, is tantamount to flexion limited to 30 degrees or less. Far more often, his flexion still has far exceeded that level of restriction. In Mitchell v. Shinseki, 24 Vet. App. 32 (2011), the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (meaning 0-percent disabling) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis (and even when the disability does not involve arthritis according to Burton v. Shinseki, 25 Vet. App. 1 (2011)), it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Consider also that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). For these reasons and bases, no higher rating is warranted. 4. Entitlement to a TDIU prior to October 19, 2018 The Veteran has been granted a TDIU as of October 19, 2018. The question remaining is whether he was entitled to a TDIU even prior to that date. The Board ultimately finds that he is, in fact, entitled to a TDIU even earlier as of October 24, 2017. The Veteran has the following service-connected disabilities and corresponding ratings for them: posttraumatic stress disorder (PTSD) at 70 percent, residuals of removal of osteochondroma, left femur, at 10 percent, muscle injury, residual of removal of left femur osteochondroma at 10 percent, hearing loss at 10 percent, tinnitus at 10 percent, left knee arthritis at 10 percent and 0 percent (noncompensable) ratings for limited extension of the left hip, limited abduction of the left hip and left anterior medial distal femur scar for a combined disability rating of 80 percent. See 38 C.F.R. § 4.25. Thus, he meets the schedular rating requirements for a TDIU, as defined in 38 C.F.R. § 4.16(a). Additionally, he has had a combined rating of 80 percent or more with at least one disability rated at 40 percent or more disabling since October 24, 2017, so he has met the schedular rating requirements even since that earlier point in time. The Veteran's September 2019 application for a TDIU (VA Form 21-8940) reflects that he completed four years of high school and had last worked full time as a truck driving in August 2015. On September 2019 VA PTSD examination, the Veteran reported losing that last job due to his leg pain and compromised functionality of his leg. The examiner noted that the Veteran's irritability and perceived lack of adequate care appear to significantly affect his ability to establish and maintain relationships. He also indicated the Veteran's chronic sleep impairment (due to nightmares and pain) is assumed to exacerbate all areas of functioning. Additionally, VA examiners have determined that the removal of the osteochondroma from the Veteran's left femur, also his left knee and muscle injury disabilities, impact his ability to work in that they prevent prolonged driving, sitting and standing, lifting, squatting, bending and climbing. The Court has held that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities that is part of a pending claim for increased compensation benefits. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As such, the effective date for a TDIU could be as early as the date of claim for the underlying increased rating or the date of claim of entitlement to service connection if entitlement to a TDIU due to that claimed disability arises during the course of the claim and appeal. Id. Here, no "retrospective" medical opinion is needed of the type contemplated in Chotta v. Peake, 22 Vet. App. 80 (2008), because it is apparent from the medical evidence already of record that the Veteran has experienced essentially the same impairments owing to his service-connected disabilities since October 24, 2017. Consequently, the Board finds this earlier effective is warranted for his TDIU because it is as likely as not that he was unemployable even then owing to his service-connected disabilities. Their functional impact was such that he could not work in any substantially gainful capacity. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board therefore is resolving all reasonable doubt in the Veteran's favor and finding that he has been unable to secure and maintain substantially gainful employment since October 24, 2017 and, thus, is entitled to a TDIU as of this earlier effective date. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.