Citation Nr: 21007931 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-24 177 DATE: February 11, 2021 ORDER Service connection for a right total knee replacement (TKR) as secondary to service-connected hysterectomy is granted. Service connection for a left hip strain, to include as secondary to service-connected hysterectomy, is denied. Service connection for salpingo-oophorectomy, ovaries removed, to include as secondary to service-connected hysterectomy, is denied. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is granted effective from the date of receipt of the claim for this benefit, June 30, 2015, thru July 18, 2016. FINDINGS OF FACT 1. There is medical analysis of record attributing a right TKR to the Veteran’s hysterectomy. 2. The most probative evidence of record weighs against a conclusion that the Veteran has a left hip strain or had to go undergo a salpingo-oophorectomy with the ovaries removed due to service. 3. The most probative evidence of record weighs against a conclusion that a left hip strain or salpingo-oophorectomy with the ovaries removed are proximately due to or a result of a hysterectomy, to include with consideration of aggravation. 4. From the date of receipt of the Veteran’s claim for TDIU, it is at least as likely as not that her service-connected psychiatric disability precluded her from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Revolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a right TKR as secondary to a hysterectomy are met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 2. The criteria for service connection for a left hip strain and a salpingo-oophorectomy with the ovaries removed, to include as secondary to a hysterectomy, are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for TDIU for the period from June 30, 2015, to July 18, 2016, are met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December1987to June 1991. In November 2019, the Board of Veterans’ Appeals (Board) remanded the claims that are the subject of this decision for additional development. As the requested development has been substantially accomplished, this case is now ready for appellate review.   I. Service Connection Claims A. Legal Criteria It is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). B. Analysis The Veteran contends that she developed a right knee disability that ultimately necessitated a TKR due to a fall from a generator during service. See July 2019 Board Hearing Transcript (T.) at page 28. Alternatively, she has asserted that she developed osteoporosis in her right knee due to a lack of hormones as a result of her service-connected hysterectomy which led to wear and tear on her knee. T. at Page 28. She has also contended that if she had not incurred fibroid issues which required a hysterectomy, she would not have developed bone issues. T. at Pages page 15-16. As such, she also contends that service connection for a right TKR is warranted as secondary to her hysterectomy. With respect to a left hip strain, the Veteran assert that this disability is also due to the fall in service from the generator, thereby warranting service connection for this disability on a direct basis. Alternatively, she asserts that her left hip strain is a result of osteoporosis from her hysterectomy, thus warranting service connection on a secondary basis. Finally with respect to the Veteran’s salpingo-oophorectomy with the removal of the ovaries, she asserts that direct service connection is warranted for such as being related to her military service or, in the alternative, that service-connection for this disability is warranted as secondary to her hysterectomy. In this regard, at a February 2016 Decision Review Officer hearing, the Veteran asserted that she had fibroids during active duty service which resulted in the hysterectomy and that her fibroids continued despite this procedure. The service treatment reports (STRs), in pertinent part, do reflect treatment, although limited to back pain, from a fall from a generator in May 1989. No complaints relating to the right knee or left hip from this fall were related by the Veteran at that time. There is an STR dated from August 1988 that indicates the Veteran fell two weeks earlier and landed on her knees and elbows. The STRs are silent for any disability related to the ovaries but fibroids were shown in service, to include in August 1989. The Veteran also underwent a laparoscopy for endometriosis in April 1991. The remaining STRs, to include the reports from the May 1991 separation examination, are silent for the disabilities at issue. After service, the Veteran underwent a right TKR in February 2009. Following an April 2013 VA examination of the right knee, a May 2013 opinion found that it was less likely as not that the Veteran’s right TKR was proximately due to or the result of her osteoporosis. The rationale for this opinion was that there was no physiological basis upon which to support the assertion that the right TKR was caused by osteoporosis of the [non-service connected] lumbar spine or the Veteran’s hysterectomy. The November 2019 Board remand found that the rationale for this opinion was inadequate and also noted that the Veteran had not been provided an opinion as to direct service connection as a result of the in-service fall from a generator and that she had also not been provided an opinion as to whether the right TKR was the result of aggravation by the Veteran’s hysterectomy. As such, the November 2019 Board remand directed that the Veteran be afforded another VA opinion addressing the claim for service connection for a right TKR that addressed these matters. With respect to left hip strain, following an April 2013 VA examination of the left hip, a May 2013 opinion found that a left hip condition was less likely as not proximately due to or the result of the service-connected hysterectomy. The rationale for the opinion was as follows: TAH (total abdominal for hysterectomy) [in] 1995 for fibroids at Boston VA, pathology report confirms uterus and cervix removed, no ovarian tissue noted on pathology report. Laparoscopic BSO (bilateral salpingo-oophorectomy) performed July 2012 oophorectomy, onset of osteoporosis/osteopenia prior to oophorectomy. Hysterectomy (removal of the uterus) alone is not a risk factor for osteopenia or osteoporosis.” The November 2019 Board remand found this opinion to be inadequate, and also noted that the Veteran had not been provided an opinion addressing the matter of service connection for a left hip strain on a direct basis. As such, the November 2019 Board remand directed that the Veteran be afforded another VA opinion addressing the claim for service connection for a left hip strain on a direct basis or a secondary basis, to include with consideration of aggravation. With respect to a salpingo-oophorectomy with removal of the ovaries removed, the Veteran underwent a bilateral salpingo-oophorectomy in July 2012. Prior to that time, an April 2012 VA treatment record shows that the Veteran had a family history of breast and ovarian cancer. Based on the results of this consult, the Veteran’s oophorectomy was scheduled given this increased risk of ovarian cancer. Following an April 2013 VA examination, a May 2013 opinion found that the Veteran’s salpingo-oophorectomy surgery was less likely as not proximately due to or the result of her service-connected hysterectomy. The rationale the VA examiner provided was that “genetics” and a gynecologic oncologist agreed with the plan for prophylactics with the laparoscopic BOS performed in conjunction with the July 2012 oophorectomy. The VA examiner stated that a hysterectomy alone is not a risk factor for osteopenia or osteoporosis and that the removal of the ovaries is a risk factor for the development of osteopenia or osteoporosis. The November 2019 Board remand found the May 2013 opinion to be inadequate because the relationship between the fibroids found on active duty and the eventual removal of the ovaries was not discussed. The remand also found that the May 2013 opinion did not provide a thorough explanation as to why the salpingo-oophorectomy was not secondary to the service-connected hysterectomy. As such, the November 2019 Board remand directed that the Veteran be afforded another VA opinion addressing the claim for service connection for a salpingo-oophorectomy with ovaries on a direct basis and a secondary basis, to include with consideration of aggravation. The opinions requested in the November 2019 remand were accomplished in December 2019, with addendum opinions completed in August 2020. First with respect to the right knee, a VA nurse practitioner rendered a positive nexus opinion in early December 2019, although such was based in part on the inaccurate factual premise that the STRs documented the onset of a right knee disability. While the nurse practitioner did not at that time provide an opinion with respect to secondary service connection, she included a positive rationale for such as follows: According to one study by Watson, Studd, Garnett, Savvas, and Milligan (1995), “Premenopausal women who have hysterectomy will have significantly lower bone density than controls, despite conservation of both ovaries at the time of surgery.” [The] Veteran had an MRI done in 1997 showing osteoporosis. She underwent a hysterectomy in 1995 which could have contributed to her getting osteoporosis and osteoarthritis at an early age of 38. Watson NR, Studd JW, Garnett T, Savvas M, Milligan P. Bone loss after hysterectomy with ovarian conservation. Obstet. Gynecol. 1995 Jul;86(1):72-7. doi: 10.1016/0029-7844(95)00100-6. PubMed PMID: 7784026. Later in December 2019, this same nurse practitioner rendered a negative opinion with respect to direct service connection for the right knee and provided the following rationale: During service, condition was acute only. There is no evidence of chronicity of care. A nexus has not been established. [The] Veteran does not appear to have medical records for the right knee pain after falling off the generator. There is no chronicity of care established. In conjunction with this opinion, the clinician also found that a right knee disability was not aggravated by the Veteran’s hysterectomy. However, in providing the rationale for this opinion, she stated that the Veteran’s “knee pain can be contributed by her hysterectomy [sic].” Moreover, she copied the same positive rationale with respect to secondary service connection that she rendered for her positive opinion earlier that month and rendered no argument to support her negative opinion with respect to aggravation by the Veteran’s hysterectomy. With respect to a left hip strain, the VA nurse practitioner concluded in December 2019 that it was less likely than not that such was incurred or caused by service. The rationale for this opinion was as follows: During service, condition was acute only. There is no evidence of chronicity of care. A nexus has not been established. [The] Veteran does not appear to have medical records for [in service treatment] for the left hip pain after falling off the generator. No opinion with regard to secondary service connection for a left hip disability was rendered at that time. Finally, with respect to a salpingo-oophorectomy with the ovaries removed, the December 2019 VA nurse practitioner found that it was less likely than not that such was incurred or caused by service. The rationale for the opinion was as follows: According to the American College of Obstetricians and Gynecologists [,] [w]omen at risk of ovarian cancer or breast cancer can choose to have both ovaries removed even if these organs are healthy in order to reduce their risk of cancer. This is called a risk-reducing bilateral salpingo-oophorectomy. Removal of the ovaries can increase the risk for heart disease and osteoporosis. Veteran did receive a hysterectomy for her fibroids however the notes indicate that the salpingo-oophorectomy was deemed a prophylactic procedure. The December 2019 VA nurse practitioner also found that the salpingo-oophorectomy with the ovaries removed was not at least as likely as not aggravated by the Veteran’s hysterectomy. This opinion was supported by the same rationale set forth above with respect to direct service connection. Turning to the August 2020 addendum opinions—which were rendered by a physician’s assistant—the opinion with regard to a right TKR noted that the prior rationale with respect to this disability should be “disregarded.” The August 2020 clinician found that it was not at least as likely as not that the Veteran had a right knee disability that had its onset in service, with the rationale provided as follows: [The] Veteran’s separation exam is silent for [a] right knee condition. Complaints of right knee pain and diagnosis began after service as evidenced by [a] 1997 MRI noting early osteoarthritis grade II/III chondromalacia patellae. Subsequent care included right knee arthroscopy 2001 with post-operative diagnosis of right knee chondromalacia, Osteoarthritis, ACL injury. [In] 2003[,] the Veteran underwent right knee replacements. There is insufficient evidence of [a] right knee condition manifesting while in service, [and the] diagnosis and treatment [was] post service. A nexus is not established. The VA clinician also concluded in August 2020 that it was not at least as likely as not that a right knee condition was caused or aggravated by the service connected hysterectomy, finding in this regard that regard that “[t]here is no credible medical evidence to support the notion that [a] hysterectomy can have any effect on any lower extremity joints. A nexus is not established.” With respect to a left hip strain, the VA physician’s assistant concluded in August 2020 that it was less likely than not that such was incurred in service, and provided the following rationale for this opinion: [The] Veteran’s separation exam dated 1991 is silent for [a] chronic left hip condition, which is subsequent to the reported 1989 injury [the fall from the generator]. Complaints/diagnoses/treatment for left hip occurred years after separation. Bilateral sclerosis [of the] SI (sacroiliac) joints noted per imaging post-service. A nexus is not established. The August 2020 clinician also found that it was less likely as not that the Veteran’s left hip strain was caused or aggravated the service connected hysterectomy, finding that there was no credible medical evidence or pathophysiology to support aggravation of a lower extremity condition by a hysterectomy. Finally, with respect to the salpingo-oophorectomy with the removal of the ovaries, the August 2020 clinician found that it was less likely than not that such was related to service or aggravated or caused by the Veteran’s hysterectomy. The rationale for the opinion as follows: The salpingo-oophorectomy is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected hysterectomy. 2012 documentation shows consult and recommendations for prophylactic bilateral salpingo-oophorectomy due to strong family history of ovarian cancer. There is no evidence of permanent worsening of salpingo-oophorectomy. A plausible relationship or aggravation of condition is not established. Applying the pertinent legal criteria and standard of review to the facts set forth above, the undersigned finds there to be sufficient positive evidence of record—in the form of the positive rationale for such rendered initially by the VA nurse practitioner in December 2019; the same conclusion by this individual later in that month essentially attributing right knee pain to a hysterectomy; and the reference in the December 2019 VA opinion addressing the claim for service connection for salpingo-oophorectomy with the ovaries removed with regard to removal of the ovaries being risk factor for osteoporosis —to raise a reasonable doubt as to whether the disability in the right knee that necessitated a right TKR was proximately due to or aggravated by the Veteran’s hysterectomy. In making the above, determination, the fact that the rationale for the negative August 2020 opinion with respect to secondary service connection for a right TKR consisted solely of the cursory statement that there was “no credible medical evidence or pathophysiology” to support a connection between a hysterectomy and the right TKR, and that it contained no discussion refuting the December 2019 positive rationale with regard to the risk of osteoporosis post hysterectomy does not reasonably lead to a conclusion that the medical evidence preponderates against a claim for secondary service connection for a right TKR. In short therefore and after resolving all reasonable doubt in this regard in favor of the Veterans, the Board concludes that service connection for a right TKR as secondary to the Veteran’s hysterectomy is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. As for the claims for service connection for a left hip strain and a salpingo-oophorectomy with the ovaries removed, the undersigned finds that in their totality, the negative opinions with respect to these disabilities set forth above—which are not contradicted by any positive opinion to the contrary—to be definitive as to the these claims as they are documented to be based on thorough review of the clinical history and history provided by the Veteran and are supported by adequate rationale. To the extent the assertions of the Veteran and her representative are advanced in an attempt to establish that a left hip strain or a salpingo-oophorectomy with the ovaries removed were the result of service or the Veteran’s hysterectomy, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the neither the Veteran nor her representative are shown to have the appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. While the Veteran is competent to describe any lay observable symptoms associated with a left hip strain or the disability that necessitated the salpingo-oophorectomy with the ovaries removed, the undersigned finds the silent STRs for these conditions and the negative opinions with respect to direct service connection for such set forth above to be more probative than any lay assertions made in connection with the claims for service connection for these disabilities, and that these facts weigh against a finding of continuity of relevant symptoms associated with these conditions since service. Given all of the above, the Board finds that the preponderance of the evidence is against the claims for service connection for a left hip strain and a salpingo-oophorectomy with the ovaries removed. As such, these claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. II. TDIU A. Legal Criteria When the schedular rating is less than total, TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. For the purpose of determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities resulting from a common etiology and disabilities affecting a single body system are considered to be one disability. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether Unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is “that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests “a living wage.” Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined “substantially gainful employment” as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) (“marginal employment shall not be considered substantially gainful employment”). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to her service-connected disabilities, but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). B. Analysis The Veteran submitted a VA Form 21-8940 “Veteran’s Application for Increased Compensation Based on Unemployability” that was received on June 30, 2015. Subsequent rating action increased the rating for the service connected post-traumatic stress disorder (PTSD) disorder from 50 to 100 percent effective from July 19, 2016; as such, the matter of entitlement to TDIU for the period from receipt of the June 30, 2015, claim for TDIU and July 18, 2016, is for consideration. 38 C.F.R. § 4.16(a). Harper v. Wilkie, 30 Vet. App. 356 (2018). As of June 30, 2015, service connection was in effect for PTSD, rated as 50 percent disabling and a hysterectomy, rated as 30 percent disabling. The service-connected disabilities combined to be 70 percent disabling as of June 30, 2015; therefore, the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) were met at the time of the June 30, 2015, receipt of the claim for TDIU. The 100 percent rating for PTSD was based on the reports from a November 2016 VA examination that noted that the Veteran had total social and occupational impairment due to her PTSD. The examiner at that time stated that the Veteran’s PTSD disrupted the Veteran’s ability to relate to superiors, co-workers and the public in any workplace and impaired her ability to accomplish the tasks of employment. These reports indicated the Veteran last worked in 2009. Reports from the Social Security Administration (SSA) indicate the Veteran has been unemployed since October 2010 and the Veteran stated in her VA Form 21-8940 that her last period of full employment ended in June 2009. In a response to a request in the November 2019 Board remand to provide IRS tax returns for the years she claims unemployment, the Veteran reported in a statement received in December 2019 that she had not filed taxes snice 2011 when the SSA declared her to be totally and permanently disabled. From the above, it is reasonable to infer from the record that for some time prior to the November 2016 VA PTSD examination—and at least from June 30, 2015—that the psychiatric symptoms found to have resulted in total occupational impairment at the November 2016 examination were present rather than only being first manifest on the particular date of this examination. Therefore, the undersigned concludes that the Veteran could not secure and follow substantially gainful employment due to her service-connected psychiatric disability since at least June 30, 2015, thereby warranting entitlement to TDIU for the period from June 30, 2015, to July 18, 2016. 38 C.F.R. § 4.16(a). All reasonable doubt in this regard has been resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Andrew Ahlberg, 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.