Citation Nr: 21006996 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-52 194 DATE: February 8, 2021 ORDER Service connection for a left hip disability is denied. Service connection for a right knee disability is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. A left hip disability is not attributable to service, was not caused or aggravated by a service-connected disability, and arthritis of the left hip was not manifest within one year of separation from service. 2. A right knee disability is not attributable to service, was not caused or aggravated by a service-connected disability, and arthritis of the right knee was not manifest within one year of separation from service. 3. The Veteran’s service-connected disabilities do not render her unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1984 to December 1987 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2014 and January 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned during a hearing at the RO. A transcript of the hearing is included in the electronic claims file. In December 2019, the Board remanded the above claims for further development. As an initial matter of clarification, the Board acknowledges that subsequent to the last remand, in October 2020, the Veteran filed a statement expressing her concern that particular medical records had not been obtained. Specifically, she questioned whether the following treatment notes are of record: an October 2018 report of Dr. W., treatment records from VA facilities in Tuskegee, Alabama and Columbus, Georgia, and a March 2020 nerve test and magnetic resonance imaging (MRI) report. The Board has reviewed the claims file and identified the presence of all of these records the claims file. They were considered in rendering the decision below. 1. Service connection for a left hip disability is denied. 2. Service connection for a right knee disability is denied. VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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). Additionally, for certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The Veteran has current degenerative arthritis of the left hip and right knee, documented on VA examination in January 2020. At the hearing, the Veteran testified that her gait became altered after sustaining numerous ankle sprains in service. She reported that the altered gait eventually caused arthritis in both her left hip and right knee. At the hearing, and in written correspondence, she has consistently reported that her current disabilities developed as a result of the altered gait caused by her service-connected lumbar spine and bilateral ankle disabilities. She reports that the pain caused by the arthritis in her left hip and right knee significantly disrupts her performance of daily activities, including work. On her service entrance examination, no abnormalities of the lower extremities were noted and she raised no relevant complaints. Service treatment records (STRs) thereafter do not document complaints, treatment, or diagnoses pertaining to a right knee disability. In August 1987, the Veteran sought treatment for left hip pain after falling at work. The examiner noted that she had an antalgic gait and limited motion in the left hip. X-rays were taken, and the hips were found to be normal. On her November 1987 separation examination, no abnormalities of the hips or knees were found and the Veteran voiced no relevant complaints. On the matter of the etiology of the current lumbar spine disabilities, the record contains VA examination reports dated from December 2011, April 2014, December 2016, January 2020, and July 2020. On VA examination for the left hip in December 2011, the examiner diagnosed degenerative joint disease of the left hip. In response to the question of whether the disability was incurred in or caused by military service, the examiner responded that the question was not applicable because no leg or hip condition was noted during military service. On VA examination of the left hip in April 2014, the examiner found no current disability of the left hip. In the absence of a current diagnosis, he found it less likely than not that the claimed condition was secondary to another disability. On VA examination of the right knee in December 2016, the examiner noted that the Veteran’s right knee was not injured during service. She had arthritis of the knees bilaterally, worse on the right. The examiner opined that the right knee disability was likely related to natural age progression, and less likely than not related to the Veteran’s lumbar spine disability. In December 2019, the Board remanded the claims in order to obtain VA medical opinions more fully addressing the matters of both direct service connection, as well as secondary service connection based on both causation and aggravation. The Board specifically sought opinions addressing whether the current disabilities have been caused or aggravated by any service-connected disability as contended by the Veteran, which includes a lumbar spine disability, bilateral ankle disabilities, and bilateral radiculopathy of the legs. In January 2020, a VA examination was conducted. The examiner reviewed the claims file and examined the Veteran. On the matter of direct service connection for the left hip, the examiner opined that the current disability is less likely than not related to service as she did not sustain a pertinent injury in service. On the matter of secondary service connection based on causation for the left hip, the examiner opined that the disability was at least as likely as not proximately due to or the result of the service-connected bilateral ankle disabilities. The examiner found that the hip disability developed subsequent to the ankle disabilities, and directly resulted from the ankle problems. He stated that medical literature supported the conclusion. On the matter of secondary aggravation based on causation for the left hip, the examiner provided multiple opinions asserting that the left hip disability was aggravated by all of the service-connected disabilities, without rationale. On the matter of direct service connection for the right knee, the examiner did not provide clear findings. On the matter of secondary service connection based on causation for the right knee, the examiner opined that the right knee disability was less likely than not caused or aggravated by the service-connected lumbar spine disability. The rationale for this finding is unclear. On the matter of secondary aggravation based on causation for the right knee, the examiner did not provide clear findings. In July 2020, a VA addendum report was obtained in order to clarify the January 2020 findings and more fully respond to the Board’s inquiries. The examiner reviewed the claims file and summarized pertinent medical records. On the matter of direct service connection for both the left hip and right knee disabilities, she opined that the disabilities were less likely than not incurred in or caused by service. While the Veteran reported left hip pain in August 1987 after a fall, the examiner opined that this constituted an acute injury. Medical records thereafter are silent for documentation of any problem with either the left hip or the right knee until 2011, approximately 24 years after discharge. On the matter of secondary service connection based on causation for both the left hip and right knee disabilities, the examiner opined that the disabilities are less likely than not caused by the service-connected lumbar spine disability, bilateral ankle disabilities, or bilateral radiculopathy of the legs. There was no disruption to the articular surface of the service-connected joints at the time of injury. Medical literature does not support that an injury to the other joints would have a significant impact on an uninjured joint in the absence of major muscle or nerve damage causing partial or complete paralysis of the injured limb, or shortening of the limb resulting in a leg length discrepancy of more than five centimeters. Rather, the current arthritis of the left hip and right knee developed as a result of wear and tear of the joints themselves due to the natural aging process. The examiner stated that the current arthritis of the left hip and right knee is intrinsic to those joints themselves, and is unrelated to other joints. On the matter of secondary service connection based on aggravation for both the left hip and right knee disabilities, the examiner opined that the disabilities have less likely than not been aggravated by the service-connected lumbar spine disability, bilateral ankle disabilities, or bilateral radiculopathy of the legs. A review of the Veteran’s medical records contained no indication that these disabilities have aggravated the left hip or right knee; rather, the current arthritis of these joints has progressed in its normal course. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claims. The probative evidence does not show that these disabilities are related to the Veteran’s active military service, or that a chronic disability was incurred in service. The STRs are silent for documentation pertinent to the right knee. While the Veteran reported left hip pain in August 1987, x-rays were normal and the remaining service treatment records are silent for pertinent documentation. The lower extremities were found normal on her separation examination. The Board infers from this that the left hip condition documented in August 1987 was acute and transitory. Left hip and right knee disabilities were not found within one year of separation from service, nor is there x-ray evidence of arthritis from this time period; rather, the evidence reflects that the disabilities were not shown until many years after service discharge. The fact that she sought treatment for other conditions after service, but not a left hip or right knee disability, weighs against the credibility of any statements that her disabilities persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The claims file contains treatment records dating back to 2007 documenting other orthopedic complaints, without mention of the left hip or right knee in the earliest records. Because she described other orthopedic complaints but not a left hip or right knee condition, it is reasonable to conclude that none was present. Id.; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the Board emphasizes the multi-year gap between the Veteran’s discharge from active duty service in 1987 and her initial report of symptoms related to a left hip or right knee disability in 2011, as discussed by the July 2020 VA examiner. Maxson, 230 F.3d at 1333. The medical opinion evidence is also persuasive. The July 2020 VA examiner addressed the contentions of both direct and secondary service connection for each disability, but opined that the Veteran’s current disabilities are not related to military service, including the August 1987 incident, or secondary to any service-connected disability. She based her conclusions on an examination of the claims file, including the post-service treatment records and diagnostic reports. She reviewed and accepted the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusion reached. The opinions of the January 2020 VA examiner pertaining to the matter of secondary service connection for the left hip disability are of little persuasive value. The examiner provided no rationale for finding that the current left hip disability has been aggravated by all of the Veteran’s service connected disabilities. To the extent he additionally found that it has been caused by the bilateral ankle disabilities, his rationale was unclear. The temporal relationship of the disabilities alone does not explain how the left hip arthritis has been caused by the ankle disabilities, and his reference to medical literature was unexplained and unsupported. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The only other evidence to the contrary of the July 2020 VA examiner’s opinions is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities as degenerative arthritis of the left hip or right knee. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In reaching these decisions the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. 3. A TDIU is denied. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. As determined by the Board in December 2019, a TDIU claim, stemming from the underlying claim for a higher rating for the lumbar spine disability, has been raised in this case. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of her service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that 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, and sufficient additional disability must bring the combined rating to 70 percent or more. Here, the minimum schedular criteria have not been met. The Veteran is service-connected for the following disabilities: degenerative joint disease of the lumbar spine (with staged ratings of 10 and 20 percent assigned), radiculopathy of the right leg (with staged ratings of 10 and 20 percent assigned), radiculopathy of the left leg (with staged ratings of 10 and 20 percent assigned), left ankle sprain (10 percent disabling), and right ankle sprain (10 percent disabling). While her combined disability rating has been 60 percent since December 16, 2019, none of the exceptions for considering these disabilities as one has been met. 38 C.F.R. § 4.16(a). Prior to December 16, 2019, her combined disability ratings were 50 percent and 40 percent. See August 2020 rating decision codesheet (most recent codesheet). Nonetheless, it is VA's policy that all Veterans who are unable to secure a substantially gainful occupation by reason of service-connected disabilities “shall be rated totally disabled.” See 38 C.F.R. § 4.16(b). The Court has held that the Board has no power to award a TDIU under 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director, Compensation Service (Director) for consideration of an “extraschedular rating”. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). While there has been no referral to VA's Director, Compensation Service, the Board will consider whether a remand for such referral is warranted. The Board must determine whether the Veteran's service-connected disabilities have precluded her from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage.”) Moore v. Derwinski, 1 Vet. App. 356 (1991). The record shows that the Veteran completed high school and did not attend college. Following discharge, she worked predominantly in housekeeping for nursing homes and hospitals. Records from the SSA indicate that she last worked in approximately September 2013. On VA examination of the ankles in April 2014, the examiner found the disabilities had no impact on the Veteran’s ability to work. On VA lumbar spine examination in April 2014, the examiner found that the disability impacted work to the extent that the Veteran was limited in lifting and carrying. The examiner opined that while physical employment would be affected, non-physical employment would not. In December 2015, the Social Security Administration (SSA) reconsidered an earlier finding from 2011, and determined that the Veteran has been disabled since September 2013 due to osteoarthrosis and allied disorders, as well as disorders of the muscle, ligament, and fascia. An Explanation of Determination clarified that the Veteran’s disabilities included degenerative disc disease, an ankle sprain, right ankle spurs, low back pain, tenonitis bursitis of the left hip, and diabetes. On VA examination of the ankles in June 2018, the disabilities impacted work to the extent that significant physical labor was not recommended. The examiner opined that the Veteran had no restrictions on moderate physical work, such as in a grocery store or department store, or on non-physical work. On VA lumbar spine examination in June 2018, the disability impacted work to the extent that significant physical labor, such as construction work, as well as moderate physical work, such as in a grocery or department store, was not recommended. The examiner opined that the Veteran had no restrictions on non-physical work. In an October 2018 private medical record, Dr. W. noted the Veteran’s history of lumbar spine pain and bilateral hip problems. He noted that in 2012, “it was determined” that the Veteran was unable to continue regular activities such as work. At the October 2018 hearing, the Veteran testified that she has trouble with bending, stooping, and carrying objects. She has decreased strength in the left hand. She reported that these limitations would impact her ability to work. On VA examination in January 2020 for bilateral radiculopathy, the examiner found the disabilities had no impact on the Veteran’s ability to work. The Court has defined “substantially gainful employment” as encompassing both an economic and a noneconomic component. The economic component means “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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran’s history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Here, the economic component of Ray has been met throughout the appeal period. Specifically, the record indicates the Veteran stopped working in September 2013, prior to filing her underlying claim for a higher rating for the lumbar spine disability. As for the noneconomic component, the Veteran is vocationally-limited to the extent that she has not obtained a college degree. However, she does have many years of work experience in the hospital and nursing home industry. She does not have any service-connected disability causing a visual limitation. She does not have any service-connected disability causing an audiological limitation. While her service-connected orthopedic disabilities cause limitations in lifting, bending, standing, walking, and climbing, there have been no limitations shown in sitting, grasping, typing, or reaching. VA examiners have consistently determined that the Veteran does not have limitations on employment involving non-physical tasks. She does not have any service-connected disability causing a mental limitation. The Board has considered the private October 2018 record of Dr. W. stating that it was determined the Veteran has been unable to work since 2012. However, the foundation underlying this statement is entirely unknown. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Moreover, the statement does not appear to be an actual opinion of Dr. W. himself as to the Veteran’s ability to secure or follow substantially gainful employment. To the extent the Veteran has been awarded disability benefits from the SSA, the underlying SSA records indicate that the award is partially based on non-service connected disabilities, including diabetes and disabilities of the hip, rendering the finding of diminished persuasive value. (Continued on the next page)   In short, when assessing the Veteran’s service-connected disability picture as a whole, which includes no visual limitations, no audio limitations, partial physical limitations with no impact on sitting, grasping, typing, or reaching, and no mental limitations, the preponderance of the evidence is against a referral for an extraschedular TDIU. Rather, the ratings assigned for her disabilities are recognition of the occupational impairment they cause. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.