Citation Nr: 21074021 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 11-31 191 DATE: December 14, 2021 ORDER Entitlement to service connection for avascular necrosis of the left hip (left hip disability), to include as secondary to a service-connected disability, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The probative medical evidence of record does not show that the Veteran's left hip disability was the result of military service, to include any service-connected disabilities. 2. Throughout the period of appeal, the Veteran's service-connected disabilities have not been shown to render the Veteran unable to obtain or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. A left hip disability was not proximately due to military service or service-connected disabilities. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for a total disability rating based on individual unemployability due to service-connected disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Houston Regional Office (RO) in Texas. In December 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a travel Board hearing. A transcript of the proceeding has been associated with the claims file. This matter was remanded for further development by the Board in February 2017, September 2020, and July 2021. 1. Left Hip Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be granted on a presumptive basis for diseases associated with herbicide agent exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. However, avascular necrosis is not one of the listed disabilities presumed due to herbicide agent exposure. See 38 C.F.R. §§ 3.307 and 3.309. Therefore, service connection on a presumptive basis would not be available, although the Veteran did serve in Vietnam and is presumed to have been exposed to an herbicide agent. Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran claimed that he had a left hip disability, diagnosed as avascular necrosis, because of herbicide agent exposure during service. Alternatively, he has indicated that he believes his condition may have been caused or aggravated by his service-connected coronary artery disease. The greater weight of the evidence is against the Veteran's contentions. In this case, the Veteran was diagnosed to have left hip avascular necrosis in 2011, approximately 40 years after service, with no record of any relevant complaints in service or for many years thereafter. There is no probative evidence that links this disability to service, and VA examiners in December 2020, and July 2021, found that the existing medical research and literature do not support any relationship between herbicide exposure and the development of avascular necrosis. Rather, the most likely causes of the Veteran's condition is his age, longstanding high cholesterol, and prior alcohol usage. Service connection on a direct basis is denied. Regarding secondary service connection, the VA examinations in February 2012, March 2017, June 2017, December 2020, February 2021, and July 2021, all confirmed that the Veteran's left hip disability was not caused by or aggravated beyond its natural progression by coronary artery disease. They indicated that avascular necrosis is separate and distinct from coronary artery disease and there is no effect of the former on the latter. No evidence suggests any relationship between the Veteran's claimed disability and his service connected tinnitus and hearing loss. However, the record shows the Veteran was service connected for diabetes mellitus, type 2, effective from August 2021, and the July 2021 VA opinion provider included diabetes among the diseases considered to be a risk factor for avascular necrosis. However, since in this case the Veteran's hip disability preceded the onset of his diabetes, there is no reasonable basis for associating the claimed disability with the Veteran's diabetes for purposes of establishing service connection. (As indicated above avascular necrosis was diagnosed in 2011, and diabetes was not diagnosed until 2021, with it noted its duration had been less than one year.) Accordingly, secondary service connection is denied. In reaching this conclusion the Board notes a March 2017 VA examiner considered CAD to have cause or aggravated the Veteran's avascular necrosis. Since the examiner was unable to distinguish causation from aggravation, and the explanation for the conclusion seemed to equate CAD with peripheral vascular disease with avascular necrosis, a concept not otherwise seen in the record, this opinion is afforded little weight. Additionally, the Board has considered the Veteran's statements as to what he believes to be the cause of his hip disability. However, the available facts do not show that he is medically trained or otherwise competent to make any such finding and, therefore, his statements are not afforded any probative value. 2. TDIU Following a careful review of the record, the Board finds that the preponderance of the evidence is against the claim for a TDIU. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. At the outset, it is noted that the Veteran's TDIU claim was initially inferred in conjunction with a now resolved appeal for an initial increased rating for coronary artery disease by the Board in a February 2017 decision. This was in accordance with the United States Court of Appeals for Veterans Claims (Court ) holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). The effective date of the coronary artery disease claim was February 17, 2009, which is also the earliest date of record for any of the Veteran's service-connected disabilities. Thus, consideration of the appeal for TDIU includes the entire period back to February 17, 2009. During the period on appeal, the Veteran's service-connected disabilities included coronary artery disease (rated 30 percent from February 17, 2009; 60 percent from May 27, 2016; and 100 percent from June 25, 2018), diabetes mellitus type II (rated at 20 percent from August 25, 2021), tinnitus (10 percent from February 17, 2009), and bilateral hearing loss (rated noncompensable). Thus, prior to May 27, 2016, the Veteran does not meet the TDIU criteria pursuant to 38 C.F.R. § 4.16 (a), but it is met thereafter. In an April 2017 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran said that he became too disabled to work in August 2008, due to a heart attack caused by his coronary artery disease. He said he worked as a letter carrier for the United States Postal Service for over 30 years. He reported that he completed high school and had some college. The Veteran has made no specific allegations regarding the impact of his tinnitus or diabetes mellitus type II on employability. In regard to the period from June 25, 2018, the Board notes that the Veteran was already in receipt of a total combined evaluation. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley v. Peake recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). Bradley v. Peake, 22 Vet. App. 280 (2008). Here, if one of the Veteran's disabilities other than coronary artery disease were determined to qualify for TDIU, an award of SMC may be available during this time period. However, the Board finds this is not applicable under the current facts. It is noted that the Veteran has not claimed an inability to work due to his bilateral hearing loss, tinnitus, or diabetes mellitus type II, but rather he attributes it to his coronary artery disease. In this regard, it is noted that the remaining combined evaluation for the Veteran's other disabilities from June 25, 2018 is only 10 percent and 30 percent respectively and, as such, does not meet the schedular criteria. Nonetheless, the Board may still consider whether these disabilities may render the Veteran unemployable and determine whether to forward the Veteran's claims file to the Director of Compensation Service for a finding on extraschedular TDIU. From February 2009 to May 2016 During this period, the Veteran's outpatient treatment records generally indicate that the Veteran's service-connected disabilities warranted regular treatment, but there were no findings suggestive that the Veteran was not employable due to these conditions either individually or collectively. A June 2009 VA examination for the Veteran's bilateral hearing loss and tinnitus found that these conditions did not affect occupation and activities of daily living. A June 2010 VA examination for the Veteran's coronary artery disease indicated that there would only be mild limitations on activities, in that the Veteran was shown as being able to jog about 5 miles per hour, bicycle 12 miles per hour, and carry objects from 60 to 90 pounds. A November 2014 VA examination for the Veteran's bilateral hearing loss and tinnitus found that these conditions affected occupation and activities of daily living in that he had to wear hearing aids and/or ask people to repeat themselves. There was no indication that this would lessen the Veteran's employability in his usual occupation. During this time period, the medical evidence of record has not shown that the Veteran's bilateral hearing loss, tinnitus and/or coronary artery disease taken singularly or together would cause unemployability. In this regard, as discussed above, there was no indication that any of these conditions would altogether prevent work or that reasonable accommodations would not be available to counter this. Here, as noted above, the Veteran is not shown to meet the schedular requirements for entitlement to a TDIU. Nonetheless, the Board must still consider whether the Veteran's disabilities rendered him unemployable for the purposes of forwarding the claim to the Director of Compensation Service for consideration of an extraschedular assignment. In this regard, the Board finds that the preponderance of the evidence does not show that his service-connected disabilities have rendered him unemployable from February 17, 2009 to May 27, 2016. Rather, he appeared to be fully capable of both physical and sedentary labor, with some potential minor accommodations for his audiological disabilities and heart disability. In support of this finding, the Board has considered VA medical records and private medical records. In light of the foregoing evidence, which does not show that the Veteran is unemployable as a result of his service-connected disabilities during the period from February 17, 2009 to May 27, 2016, the Board finds that extraschedular referral under 38 C.F.R. § 4.16 (b) is not warranted. From May 2016 to June 2018 During this period, the Veteran's outpatient treatment records again generally indicate that the Veteran's service-connected disabilities warranted regular treatment, but there were no findings suggestive that the Veteran was not employable due to these conditions either individually or collectively. A June 2017 VA examination for the Veteran's coronary artery disease found that this condition did not affect occupation and activities of daily living. A June 2017 VA examination for the Veteran's bilateral hearing loss and tinnitus found that these conditions affected occupation and activities of daily living in that he had to wear hearing aids and/or ask people to repeat themselves. There was no indication that this would lessen the Veteran's employability in his usual occupation. The Board concludes that the most probative evidence of record weighs against finding that the Veteran's service-connected disabilities precluded him from obtaining or engaging in substantially gainful employment. Evidence shows the Veteran was unemployed during this period, but there is no indication that this was due to his service-connected disabilities. While the Board does not doubt that the Veteran's service-connected disabilities have an effect on his employability, the weight of the evidence does not present an exceptional or unusual disability picture such that the symptomatology associated with these disabilities, alone or in combination, is not contemplated within the relevant rating criteria. While VA examinations held for the Veteran's disabilities noted that the audiological disabilities and heart disability could make his work difficult, they did not reveal gainful employment was precluded. The Board does not doubt that the Veteran's disabilities cause him pain and inconvenience as described in the examinations. However, it is clear that these disabilities are not so severe as to preclude all forms of gainful employment. For his part, the Veteran has not identified or submitted any other evidence demonstrating his entitlement to a TDIU or why specifically he would be no longer suited to work in a similar employment setting. Loss of industrial capacity is the principal factor in assigning schedular disability ratings, and the Board believes that the symptomatology associated with the Veteran's service-connected disabilities are appropriately compensated at the levels currently assigned. As the Veteran has not otherwise identified or submitted any evidence demonstrating his entitlement to a TDIU from May 27, 2016 to June 25, 2018 under the circumstances of this case, entitlement to TDIU benefits is not shown during this time period. From June 25, 2018 As discussed above, in accordance with the Court's holding in Bradley, the Board must consider whether bilateral hearing loss, tinnitus, or diabetes mellitus type II, apart from his coronary artery disease, precluded gainful employment and, thus, warranted consideration by the Director of Compensation Service for extraschedular consideration. During this period, the Veteran's outpatient treatment records again generally indicate that the Veteran's service-connected disabilities warranted regular treatment, but there were no findings suggestive that the Veteran was not employable due to these conditions either individually or collectively. A September 2018 VA examination for the Veteran's bilateral hearing loss and tinnitus found that these conditions affected occupation and activities of daily living in that he had to wear hearing aids and/or ask people to repeat themselves. There was no indication that this would lessen the Veteran's employability in his usual occupation. A September 2021 VA examination for the Veteran's diabetes found that this condition did not affect occupation and activities of daily living. During this time period, the medical evidence of record has not shown that the Veteran's bilateral hearing loss, tinnitus and/or diabetes taken singularly or together would cause unemployability. In this regard, as discussed above, there was no indication that any of these conditions would altogether prevent work or that reasonable accommodations would not be available to counter this. Here, as noted above, the Veteran is not shown to meet the schedular requirements for entitlement to a TDIU. Nonetheless, the Board must still consider whether the Veteran's disabilities rendered him unemployable for the purposes of forwarding the claim to the Director of Compensation Service for consideration of an extraschedular assignment. In this regard, the Board finds that the preponderance of the evidence does not show that his service-connected disabilities have rendered him unemployable from June 25, 2018 to present. Rather, notwithstanding his coronary artery disease, he appeared to be fully capable of both physical and sedentary labor, with some potential minor accommodations for his audiological disabilities. In support of this finding, the Board has considered VA medical records and private medical records. In light of the foregoing evidence, which does not show that the Veteran is unemployable as a result of the relevant service-connected disabilities during the period from June 25, 2018 to present, the Board finds that extraschedular referral under 38 C.F.R. § 4.16 (b) is not warranted. Accordingly, the claim for entitlement to a TDIU is denied. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.