Citation Nr: 21075157 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 11-21 303A DATE: December 17, 2021 ORDER Entitlement to service connection for a bilateral hip disorder, to include as secondary to service-connected disabilities is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's bilateral hip disorder had its onset in service or was proximately caused or aggravated by service-connected disabilities. 2. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a bilateral hip disorder, to include as secondary to service-connected disabilities have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1983 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before two different Veterans Law Judges at Board hearings in August 2017 and in January 2021 for the issues listed above. Transcripts of the hearings are in the Veteran's file. The Veteran declined a third hearing with a different Veterans Law Judge. As an initial matter, the Board notes that at the January 2021 hearing, it mistakenly took testimony on the issue of entitlement to an increase rating for a bladder disorder. This issue however, had been addressed in the Board's October 2017 decision. In that decision, the Board awarded an initial 10 percent evaluation for the period prior to July 2017, which was a complete grant of the benefit sought since the Veteran had limited his appeal to that rating. To the extent there was any ambiguity in that decision, the Veteran explicitly withdrew the appeal of this issue in an April 2018 statement before a member of the Board. As the Veteran has not perfected another appeal of this issue, the Board lacks jurisdiction over it and the matter will not be further addressed. Entitlement to service connection for a bilateral hip disorder The Veteran contends his bilateral hip condition is due to an injury sustained during service. In the alternative, he contends it is due to his service-connected disabilities, to include his lumbar spine, cervical spine, and right knee disabilities. 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 also be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310(b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). At the August 2017 Board hearing, the Veteran testified that his hip pain began shortly after the same fall during training that caused his lumbar spine disability, (for which he is service connected), and it has existed ever since. He stated it began as a shooting pain from the spine down to his foot. The Veteran claims he received adjustments while in service. A review of the Veteran's service treatment records (STRs) shows they document a variety of complaints, but are silent for any complaints, diagnosis, or treatment of bilateral hip pain. Post service treatment records dated in the 1990s make no mention of any hip complaints, and a diagnosis of hip bursitis first appears in 2006. In this regard, private physical therapy notes from January 2007, show the Veteran reported bilateral hip pain with an onset in 2006, after trying to increase time on his exercise bicycle. At that time, the Veteran's gait was described as normal, and x-rays were negative. He was diagnosed to have bilateral hip bursitis. The Veteran's spouse submitted a statement in September 2009, stating she met the Veteran in 1986 when he was released from the Marine Corps due to a medical issue with his back. She also stated that he has extensive pain in his back and hips, although from the overall context, it appears the hip pain had a more recent onset than problems with the back. The Veteran submitted a private Hip and Thigh Conditions Disability Benefits Questionnaire (DBQ) in May 2012. The examiner diagnosed him with bilateral hip and sacroiliac pain and indicated the date of diagnosis was in 2009. The Veteran, however, reported he had hip discomfort since 1985. In any case, the examiner did not address whether there was a nexus linking the Veteran's hip condition to his reported in-service hip pain. The Veteran was afforded a Hip and Thigh Conditions VA examination in July 2012. It was recorded the Veteran claimed his left posterior hip pain started shortly after he injured his spine in boot camp, when he fell approximately two stories onto his back. He also reported another fall in 1984 and that he received adjustments during service. He stated his pain starts near the sacroiliac joint and radiates into the posterolateral aspect. The examiner did not find a diagnosable hip condition based on normal x-rays and that a previous trochanteric bursitis in the left hip had resolved. The examiner noted there may be some radicular symptoms, however, it was considered unlikely given that the pain does not radiate past the knees and the Veteran did not have numbness or tingling in his legs. The examiner also noted that the Veteran demonstrated exaggeration of pain symptoms and range of motion limitations not expected based on his normal x-ray. On this presentation, the examiner opined the Veteran's hip pain is less likely than not related to his service-connected back condition. The Veteran also submitted various medical articles and studies documenting the relationship between lumbar spine diseases and trochanteric bursitis. However, the Board notes that a lumbar spine condition was just one of many risk factors/contributing factors for trochanteric bursitis; and the articles do not address the Veteran's specific case. The Veteran was afforded another VA examination in April 2014. He was diagnosed to have moderate right hip degenerative joint disease (DJD) and very mild left hip DJD. The Veteran reported to the examiner that he never had a problem with the right hip and his left hip condition was due to a hypermobile L4-L5. During examination, the Veteran stated that movement of the right hip caused pain in the left hip. The examiner opined that the Veteran's bilateral hip condition is less likely than not proximately due to his service-connected conditions. She noted that the Veteran has an abnormally shaped right femoral head on x-ray which can cause early arthritis, which appeared to be the case for the Veteran since there was more severe arthritis on the right than on the left. She considered it less likely than not that the Veteran's low back condition caused his hip pain and more likely that his right hip pain resulted from a cam-type of right femoral head impingement; and his left hip arthritis is due to normal aging and years of working on his feet. Although the examiner did not provide an opinion on whether service connected disability aggravated the hip disorders, what was addressed, and the conclusion expressed was based on a review of the claims file and supported by an articulated medical explanation for the findings. In July 2018, the Board remanded the issue to obtain an opinion on whether service connected disabilities aggravated the claimed disability. In a May 2019 medical opinion, a VA examiner opined that the Veteran's hip disorder was less likely than not proximately due to or aggravated beyond natural progression by his cervical spine disability, low back condition or right knee conditions, including DJD and instability. He found the Veteran's bilateral hip DJD is secondary to joint aging and chronic usage of his bilateral hip joint for a duration of many years and is independent from his cervical spine condition, his low back condition and right knee conditions. The Board finds the weight of the evidence is against a finding that the Veteran's bilateral hip condition was incurred in or caused by service. The more probative evidence of record fails to show a causal relationship between the Veteran's bilateral hip disorder and his military service. No medical opinion makes a connection between military service and current disability, and there is no record of any hip complaints until many years after service. When it does appear, it is linked with post service activities, or aging, or the particular configuration of the Veteran's femur and hip socket. Although the Veteran believes his bilateral hip condition is related to service, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). With respect to the Veteran's account that he suffered bilateral hip pain since service, the Board notes his service treatment records reflect various medical complaints for other ailments, but no complaints of hip pain. Further, his private treatment records show an onset of hip pain after 2000. In view of this, the Board finds the contention that the Veteran sustained but did not report an in-service hip injury with on-going pain is not credible. Accordingly, that evidence is not accorded any probative value. Absent an in-service incurrence of hip injury and the failure of any medical opinion to link current disability to service, direct service connection must be denied. Further, there is no indication in the record that the Veteran's bilateral hip condition manifested to a compensable degree within one year of leaving service nor is there credible evidence of continuity of symptoms from the time of service. Presumptive service connection is not warranted. The Board finds secondary service connection also is not established for the Veteran's bilateral hip condition. The 2019 VA examiner found that the Veteran's bilateral hip condition was due to chronic usage and joint aging, and entirely independent from service connected disabilities. Further, the medical articles provided by the Veteran simply identify various risk factors/causes for bursitis. While these include some low back symptoms or disabilities, the articles do not relate to the Veteran's specific case and merely provide a basis for obtaining an opinion on the matter. This was accomplished and those opinions do not link the Veteran's hip disability to his service connected disorders. With respect to the Veteran's suggestion in his notice of disagreement the claim be considered one for service connection for radiculopathy or sciatica, the Board notes the Veteran has actual joint impairment with pain in the socket itself. In addition, the claim has been consistently understood as a hip disability claim rather than as a radicular condition claim. As such the appeal appropriately concerns the hips. The Veteran may make a claim for service connection for radiculopathy or sciatica if he chooses. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not applicable, and the Board must deny the claim for service connection for a bilateral hip disorder. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran satisfies the criteria for consideration of TDIU on a schedular basis. He is currently assigned a 40 percent rating for a low back condition, a 20 percent rating for a cervical spine condition, a 20 percent rating for urinary incontinence, a 10 percent rating for right knee instability, a 10 percent rating for right knee DJD, a 10 percent rating for tinnitus and a noncompensable rating for erectile dysfunction. The combined rating of the Veteran's disabilities is 70 percent. In his application for TDIU, dated in July 2017, the Veteran indicated his low back pain and right knee prevent employment. He indicated that his highest education level was three years of college, and was last employed in November 2006 as a machinist. He stated he missed three weeks of time lost due to his illnesses between August 2006 and November 2006, and that his highest monthly earnings since February 2006, was $2000. The Veteran noted that he left his last position because of his disability. In a September 2009 lay statement from the Veteran's mother, she offered the Veteran had not been able to hold down a full-time job for a long time. She said every time he would go out at work, he would fall down with pain going down his leg, and his employers would send him home. She also stated his injuries have worsened over the years and his doctor told him he was completely disabled. The Veteran submitted letters from private physicians, Dr. D. in April 2011, and Dr. R. in September 2009. Dr. R indicated the Veteran's symptoms were aching pain in the neck, thoracic area, right flank area and across the low back into the left buttock with limited flexibility. He also mentioned shooting pain down the left lower limb. The diagnoses Dr. R identified were T-11 fracture with scoliosis; cervical and lumbar degenerative disk disease; postural dysfunction with poor flexibility; and a mood disorder. Without distinguishing between service connected and non-service connected disabilities, although indicating many date to service, Dr. R wrote the Veteran was "unable to participate in gainful employment; i.e. totally disabled." Dr. D opined that the Veteran is totally and permanently disabled due to his neck, back and left knee (non-service connected) problems. At a May 2011 Back and Neck VA examination, the examiner, an orthopedist, found the Veteran employable. He considered the opinions of Drs. R and D, but from his perspective as an orthopedist, he found it less likely than not that the Veteran is unemployable. He noted the Veteran worked as a machinist and stopped due to medical reasons, but from a purely musculoskeletal standpoint in regard to the Veteran's x-rays and physical findings, the examiner did not consider them severe. He noted there are many patients with these imaging findings, who have some degree of pain, but are certainly employable, even in labor jobs or jobs that require significant standing. Thus, the VA examiner stated he did not agree with the opinions of Veteran's private providers. The claims file also shows the Veteran submitted an application for disability benefits with the Social Security Administration (SSA) in 2010. Records from this organization show the Veteran worked each year since his discharged from service, with yearly earnings over $20,000 when he last was employed in 2005. (As previously mentioned, on his 2017 VA Form 21-8940, Application for increased Compensation Based on Unemployability, the Veteran reported he worked through most of 2006, with the last reported date of employment in November 2006. He reported earning as much as $2000 per month that year.) With the SSA, the Veteran initially contended he was unable to work due to back pain, thyroid tumors, and early onset dementia. His SSA claim was denied in April 2010, and after the Veteran requested a reconsideration of the decision, it was denied again in August 2010. A further appeal ensued, and the record shows a hearing on the matter was to be held before an Administrative Law Judge in September 2011. A document from the Veteran's attorney at that time indicated the Veteran's severe impairments included chronic back pain with lumbar radiculopathy; chronic neck pain with degenerative disc disease; bilateral knee pain secondary to abnormal lateral meniscus with secondary osteoarthritis; postural dysfunction with multiple muscle imbalances; multinodular goiter; hyperthyroidism; chronic left hip pain; hypertension; major depressive disorder; and mood disorder. The claims file does not reflect whether that 2011 hearing occurred, but the Veteran testified at his hearing before VA that he was denied Social Security Administration benefits. VA outpatient records show that in 2013 the Veteran presented himself for treatment with VA. He indicated he had only compensation and pension examinations with VA prior to this time. The outpatient records date through 2019, but do not particularly address employability. The medical problem list, however, includes diagnoses of low back pain; anxiety; insomnia; chronic pain syndrome; and multinodular goiter. With regard to the Veteran's other service-connected disabilities, in a July 2017 Urinary Tract Conditions VA examination, the examiner noted the Veteran's urinary condition increases urinary infrequency to daytime voiding intervals of 1 to 2 hours, however, his does not impact his ability to work. Further, in an August 2017 Knee Conditions VA examination, the examiner noted the Veteran is unable to stand or walk for prolonged periods of time, however, his right knee condition was not considered to impact his ability to perform any type of occupational tasks. In an August 2017 Back Conditions VA examination, the examiner noted the Veteran is unable to stand or walk for prolonged periods of time, to lift heavy objects and has difficulty bending, and climbing ladders, however, he opined that his thoracolumbar spine condition does not impact his ability to work. Private treatment records from March 2017 show the Veteran had been engaged with an exercise program and while the Veteran expressed dissatisfaction with it, his pain level had been reduced from a 5/10 to a 3/10, and he had been able to increase the distance he walked to 2 miles. While the treatment and any complaints appear to have been focused on the left knee, (non-service connected), knee range of motion on that occasion was described as full in extension and flexion with no swelling. Also, the Veteran's gait was described as normal. At the August 2017 Board hearing, the Veteran stated that when his capacity to lift was below 20 pounds, he could no longer keep up his job because he could not set up machinery. He also stated he could not do a desk job because getting in and out of his chair was difficult. Further, he could not do computer-aided drafting (CAD) because using his hands became difficult. After he left his last job, he repaired motorcycles, but he could only work for 20 to 30 minutes at a time. He also indicated that he can be on his feet for 20 minutes before symptoms begin and he can focus for about 40 minutes. The Board finds that although the Veteran meets the schedular requirements for TDIU and he is currently unemployed, the evidence does not indicate that his service-connected disabilities preclude employment. The record shows the Veteran worked steadily from his service discharge, throughout the 1990s, until November 2006. Three years after he stopped working, the Veteran submitted an informal claim for an increased rating for his service connected lumbar spine disability, which came to be considered to include this claim for TDIU benefits. At about this time the Veteran also sought to establish his disabled status with the Social Security Administration. In addition to his service connected disabilities, the Veteran identified thyroid tumors, with early onset dementia, and later bilateral knee pain secondary to abnormal lateral meniscus with secondary osteoarthritis; postural dysfunction with multiple muscle imbalances; multinodular goiter; hyperthyroidism; chronic left hip pain; hypertension; major depressive disorder; and mood disorder as causing his disability status for SSA purposes. In connection with this, the record shows two private medical providers considered the Veteran unemployable, but informed their conclusion with impairment arising from both service-connected, and non-service connected disabilities. A VA examiner in 2011, however, did not consider the Veteran's service connected disorders rendered him unemployable, explaining that in his medical judgement the diagnostic images of the Veteran's disabilities did not show such a severe impairment. Similarly, the SSA did not find the Veteran disabled for SSA purposes, even when considering impairment arising from all of the Veteran's medical conditions, service-connected and non-service connected alike. As indicated above, after this time the record does not show the Veteran to have been employed, but the medical records that speak to employability, reflect the Veteran was not considered unemployable due to his service connected disabilities. This conclusion was set out in VA examination reports dated in 2017, and his treatment records show the Veteran could walk up to 2 miles. For his part, the Veteran has described limitations he considers imposed by his service connected disabilities, but he does not actually have the medical expertise to establish the causes for the limitations he describes. Notably, the Veteran offers an alternative (computer aided drafting/design) to the employment he formerly held (setting up machine operations), but rules out the drafting position because of difficulty using his hands. Difficulty using his hands, however, is an impairment that has not been service connected, suggesting the Veteran himself does not link his inability to engage in employment solely with his service connected disabilities. Here, the medical providers that offer the conclusion the Veteran is totally disabled have included non-service connected disabilities in their calculation. The Social Security Administration does not consider the Veteran disabled; and VA examiners have offered the conclusion that service connected disabilities do not render the Veteran incapable of gainful employment, a conclusion the Veteran himself appears to share given his reference to computer aided drafting and design as an option only ruled out by non-service connected disabilities. The record shows the Veteran's service connected disabilities produce pain, limited motion and preclude prolonged standing or walking or lifting heavy objects, but only difficulties in performing some other activities such as bending and climbing ladders. This does not show those activities (bending, climbing ladders) are precluded, or that service connected disabilities preclude acts of employment for which the Veteran has had training and some experience, (e.g. computer assisted design/drafting). Accordingly, the greater weight of the evidence in this case is against the conclusion that service-connected disabilities have rendered the Veteran unable to secure and follow a substantially gainful occupation. Entitlement to TDIU is not established. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals TBD To Be Determined Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.