Citation Nr: 21076719 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 09-46 685 DATE: December 27, 2021 ORDER Entitlement to service connection for bilateral total hip replacement, to include as secondary to medication taken for a service-connected disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's bilateral hip conditions are not secondary to service-connected medications and are not otherwise related to an in-service injury or disease. 2. The evidence does not indicate that the Veteran is unable to secure or follow substantially gainful employment as a result of her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hip replacement due to service or medications related to service-connected conditions are not met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2020). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1966 to August 1969. Unfortunately, the Veteran passed away in February 2019. The Veteran's surviving spouse has been substituted as the appellant for purposes of processing the claim to completion. See 38 U.S.C. § 5121A. These issues came before the Board from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board remanded these claims on appeal for further development of the record. Additional medical records were to be requested and new VA opinions were ordered. Records from the social security administration were also to be obtained. Thus the requested development has been completed and this case has now been returned to the Board for further appellate action. Service Connection - Bilateral Total Hip Replacement Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). The Veteran claimed that the bilateral hip replacement surgeries were caused by medication that he was prescribed for his service-connected illnesses. On his VA Form 21-8940 the Veteran indicated he was taking Hydrocodone/Acetaminophen, Glucophage, Lovastatin, and Acyclovir. The Veteran has undergone various bilateral hip surgeries. In 1980 he underwent a bilateral total hip replacement. A revision surgery was completed in 1984. He had additional bilateral hip replacement in 2017 and 2018. The Veteran has complained of pain in the hips throughout the time from the 1980s onward. However, no medical records from the 1980 or 1984 surgeries are in the Veteran's file. Requests were made to various medical facilities with numerous being returned as records no longer being kept. It was indicated by some establishments that since these records are older than 10 years they would no longer be kept. The April 2018 remand required a search for social security administration records. An inquiry was made in March 2020 to obtain and verify benefits. A second request was made in May 2020. No records were received. An August 2020 letter was sent to the appellant to confirm that the records could not be received and were therefore unable to be reviewed. With numerous attempts made to obtain these records the Board considers this to be substantial compliance with the prior remand. Per the April 2018 remand the Veteran was to be afforded a new VA examination. Since the Veteran passed away before this could be completed a new VA opinion was provided instead. In October 2021 the VA examiner provided a negative nexus opinion for both direct and secondary service-connection. Both opinions had similar rationales. The examiner noted that treatment records, including a November 2001 record, show that the Veteran's hip replacements were directly due to aseptic necrosis. While not mentioned by the examiner there are also records from November 1999 indicating that the Veteran has a history of aseptic necrosis in both hips. Based on this finding the examiner found that it less likely than not that any medication would have caused the Veteran to need a bilateral hip replacement. The examiner again noted the finding of aseptic necrosis. There was also no indication of any aggravation as the Veteran noted no hip issues on separation from service. Neither the Veteran nor appellant are competent to link the Veteran's bilateral hip disability to service or a service-connected disability. 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). The Veteran and appellant are lay people and are not competent to establish that his bilateral hip disability was caused or aggravated by a service-connected disability or offer an opinion as to etiology of any bilateral hip disability. The question regarding the etiology of such a disability is a complex medical issue that cannot be addressed by a layperson. For these reasons, the allegations are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection for a bilateral hip replacement must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). TDIU The Veteran claims that his various service-connected ailments prevented him from being able to obtain and maintain employment. The Veteran's March 2005 VA Form 21-8940 noted that the Veteran became too disabled to work beginning in June 1980. The Veteran indicates his knees and back problems are to blame. The Veteran tried to seek employment as a custodian but was not successful. No reasoning or explanation was given. The Veteran's education was noted as two years of college. He also had training as a machinist and a chemical dependency counselor. TDIU may be assigned 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. 38 C.F.R. § 4.16 (a). Entitlement to a total rating must be based solely on the impact of a veteran's service-connected disabilities on her ability to secure and follow substantially gainful employment. See 38 C.F.R. § 4.16 (a). In reaching such 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, 529 (1993). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to show unemployability. A high rating in and of itself is recognition that the impairment makes it difficult to secure or follow employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether she can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran's case, apart from any nonservice-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. § § 3.341 (a), 4.16, 4.19. Van Hoose, 4 Vet. App. at 363. A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The Veteran was service connected for right arm carpal tunnel syndrome (30 percent disabling); left arm carpal tunnel syndrome (20 percent disabling); a right knee injury (20 percent disabling); degenerative joint disease of the right knee (10 percent disabling); the left wrist (10 percent disabling); and, the right wrist (10 percent disabling). This combined rating is 70 percent rating. None of these individual ratings satisfy the 40 percent or more rating required under the TDIU regulations. However, under 38 C.F.R. § 4.16 one disability has a special definition which includes disabilities of both upper extremities. With the Veteran having carpal tunnel syndrome in both upper extremities, they can be combined into one disability. This gives them a 50 percent rating and therefore the Veteran meets the eligibility requirements for a TDIU. As part of the April 2018 remand new VA examinations were requested in order to obtain a better idea of the functional impact of his various service-connected disabilities. These opinions were obtained in October 2021. The examiner of the Veteran's carpal tunnel and wrist issues found that there would be a difficulty with repetitive bending motions and repetitive motions of the wrists. It was also noted that the Veteran may have issues lifting heavy equipment. The knee examinations found that the Veteran would have a decreased tolerance for prolonged sitting/standing/walking. While the Board has no doubt that these limitations would make it more difficult to obtain and maintain substantially gainful employment there is no evidence to suggest that the Veteran was unemployable based only on his service-connected disabilities. The Veteran had training as a chemical dependency counselor which would likely fall under sedentary employment. Sedentary employment is the common meaning in society of non-physical, white collar, office-type work. None of the functional limitations would seem to have prevented the Veteran from obtaining and maintaining employment in this field. Also, the symptoms of the Veteran's disabilities as well as their impact on his ability to obtain and maintain employment are reasonably considered by the rating schedule. (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU is not warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). G. Jackson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.