Citation Nr: 21009012 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-18 155 DATE: February 18, 2021 ORDER Service connection for a right hip disorder is denied. Service connection for a left hip disorder is denied. REMANDED Entitlement to a total disability based on individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran had active duty from September 1962 to December 1966. 2. A bilateral hip disorder, diagnosed variously as strain and arthritis, was not shown to be chronic in service, not continuous since service, not shown to a compensable degree within one year of service, is not causally or etiologically related to service, and has not been medically associated with a service connected disability. CONCLUSIONS OF LAW 1. A right hip disorder was not incurred in service, is not presumed to have been incurred in service, and is not caused or aggravated by a service connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. A left hip disorder was not incurred in service, is not presumed to have been incurred in service, and is not caused or aggravated by a service connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In October 2017, the Board denied the appeal for a right hip disorder and remanded the left hip and TDIU claims. In July 2018, the Board denied the left hip and TDIU. The Veteran appealed to the Veterans Claims Court. In December 2018, the Court issues a Memorandum Decision as to the right hip. In March 2019, the Court Clerk issued a Joint Motion for Remand regarding the left hip and TDIU. In June 2019, the Board remanded the three claims. These actions stem the basis for the current appeals. The issue of entitlement to TDIU is addressed in the Remand portion of the decision. Turning to the law and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 U.S.C. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As an initial matter, arthritis is a chronic disease under 38 C.F.R. § 3.309; therefore, both direct and presumptive service connection will be addressed. Further, the Veteran contends that a bilateral hip disorder is related to a service connected lumbar spine disability. Therefore, secondary service connection is also for application. Turning first to direct service connection, a 1976 clinical record showed that the Veteran’s hips were normal; however, in 1998, he was diagnosed with right hip pain and a 1998 X-ray showed minimal degenerative changes in the right hip. Nonetheless, X-rays in 2000, 2010, and 2013 were normal. Further, in 2013, the Veteran was diagnosed with a left hip strain; however, in a 2017 VA examination, the examiner wrote that the hips were normal. In addition, he was diagnosed with bilateral hip arthritis in 2019. Therefore, as he has been diagnosed with bilateral hip disorders, the first element of direct service connection is met. As to an in-service incurrence, service treatment records (STR) are absent of any complaints, diagnoses, or treatment for a bilateral hip disorder. Specifically, in September 1965, the Veteran reported back pain but was noted to have full range of motion in the hips. Further, hips were normal at separation. Therefore, an in-service incurrence has not been shown and the medical evidence does not support service connection on a direct basis. To the extent that the Veteran asserts that a bilateral hip disorder began in service, in a December 2010 clinical record, the clinician wrote that the Veteran’s hips were normal and that the pain was coming from his back. Further, in an April 2014 clinical record, the clinician wrote that hip X-rays were negative and that the hip pain was due to the Veteran’s back disability. In a November 2017 VA examination, the Veteran reported hip pain beginning in 1994. Upon examination, the examiner stated that the Veteran’s hips were normal. Instead, she explained that the pain he was experiencing was lumbar radiculopathy that radiated from his back to his hips and not a separate hip disorder. In addition, in an August 2019 VA examination, the Veteran complained of hip pain beginning in 2016 that radiated from the back to the hips. Upon examination, the examiner diagnosed the Veteran with bilateral hip arthritis and noted that a diagnosis of a left hip strain was not present. Instead, he attributed the Veteran’s subjective symptoms of hip pain to radiculopathy, for which he was already service connected. Further, the examiner opined that bilateral hip arthritis was less likely than not incurred in service. He reasoned that STRs were absent of symptoms which might reasonably be concluded to represent degenerative changes in the hips. In a November 2020 VA opinion, the clinician opined that a bilateral hip disorder was less likely than not incurred in service. He reasoned that STRs were silent for a bilateral hip disorder and that there was no evidence of hip conditions until at least 1998. Based on the above, the medical evidence does not support the claim of direct service connection for a bilateral hip disorder. In this regard, the medical evidence showed that STRs were absent of complaints, diagnoses, or treatment for a bilateral hip disorder as well as that the Veteran’s symptoms of hip pain were due to lumbar radiculopathy of the lower extremities, for which he was already service connected. Therefore, the medical evidence does not support the appeal on a direct service connection basis. Turning to presumption service connection, arthritis did not manifest to a compensable degree within one year of separation from service. Specifically, it was not diagnosed until 2019. As arthritis was not shown until 2019, over 50 years after separation, this is well outside the one-year legal presumption for chronic diseases such as arthritis. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). Specifically, the Veteran did not complain of right hip pain until 1998 and left hip pain until 2010. Therefore, symptoms of right hip pain did not begin until over 30 years after separation and symptoms of left hip pain did not begin until over 40 years after separation. Therefore, the medical evidence does not support presumptive service connection based on chronicity/continuity. As to secondary service connection, the Veteran has been diagnosed with bilateral hip disorders and is service connected for a lumbar spine disability. Therefore, the first two element of secondary service connection, a current disorder and a service connected disability, are met. As to nexus, the Veteran has submitted medical articles and medical opinions in support of the claim. Specifically, an article from Medline Plus Medical Encyclopedia stated that a slipped disc in one’s back could cause hip pain. Further, he stated that an article from the European Spine Journal showed that degenerative disc disease (DDD) of the lumbar spine was associated with hip pain. While this article has been mentioned throughout the record, it is not currently associated with the claims file. Further, in a July 2014 clinical record, the clinician wrote that he had been treating the Veteran for hip pain and that a bilateral hip disorder had been complicated by DDD. On the other hand, in an October 2013 VA examination, the Veteran stated that he was told that a left hip disorder was due to lumbar DDD. Upon examination, the examiner wrote that the Veteran had been diagnosed with a left hip strain which was a separate condition from a lumbar spine disability. Further, in an August 2019 VA examination, the examiner opined that a bilateral hip disorder was not caused or aggravated by a service connected lumbar spine disability. He reasoned that while degenerative arthritis had no specific cause, certain factors made a patient more likely to develop the disease including increasing age, family history, prior injury, and obesity. He also noted that there was no generally accepted physiologic mechanism whereby DDD of the lumbar spine might be the primary causal etiology for degenerative changes in the hip. In a November 2020 VA opinion, the clinician opined that a bilateral hip disorder was not caused or aggravated by a service connected lumbar spine disability. He reasoned that there was no evidence of hip conditions until at least 1998. Moreover, a lumbar spine disability would not cause degenerative changes in the hips, as degenerative changes of the spine do not transfer to other joints. Rather, the examiner noted that degenerative hip disease was considered an aging process and was age-consistent at time of Veteran's diagnosis, as the Veteran was diagnosed with degenerative hip disease when he was about 77 years old. Further, the examiner noted that the Veteran did not have diagnosed degenerative hip disease until 2019. While X-rays from 1998 showed minimal degenerative changes in the right hip, degenerative changes were not shown on X-rays conducted in 2000 and 2010. Therefore, the examiner opined that the natural course of degenerative hip disease was a progression of the disorder. Based on the above, the medical evidence weighs in favor of a finding that a bilateral hip disorder was not caused or aggravated by a service connected lumbar spine disability. While the Veteran submitted a positive opinion from a clinician that had been treating him for hip pain, the clinician provided an opinion with no rationale. As to the articles submitted in support of the claim, they noted that back pain was “associated with” hip pain and “could cause” hip pain. However, the law is well established that service connection cannot be based on resort to speculation or remote possibility. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). A possibility that a bilateral hip disorder was caused by a back disability does not meet the standard of “at least as likely as not” that is needed for a grant of service connection. Therefore, these articles are assigned lesser probative value. Moreover, the VA examiners and VA clinicians provided detailed rationales as to why a bilateral hip disorder was not caused or aggravated by a service connected disability. Specifically, the VA clinicians noted that degenerative hip arthritis was caused by risk factors including age and that the Veteran had been diagnosed with degenerative hip arthritis around age 77. Further, the clinicians noted that there was no accepted medical evidence that degenerative arthritis of the spine would cause or aggravate degenerative changes in another joint. Therefore, the medical evidence weighs against a finding that a bilateral hip disorder was caused or aggravated by a lumbar spine disability. The Board has considered the Veteran’s lay statements that a bilateral hip disorder began in service and/or was caused or aggravated by a service connected disability. While he is competent to report symptoms because this requires only personal knowledge as it came to him through his senses, he is not competent to offer an etiology of these disorders. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND The Veteran is service connected for a lumbar spine disability at 40 percent, radiculopathy of the right lower extremity and left lower extremity at 10 percent, respectively, and a lumbar spine scar at 0 percent. His combined rating is 50 percent; therefore, he does not meet the schedular requirement for TDIU. Accordingly, TDIU may only be granted on an extraschedular basis. The record reflects that the Veteran has a high school education and last worked in 1994 as a truck mechanic at a bakery. As to the back disability, in 1995, he reported being unable to return to work due to back pain. The clinician wrote that he would be referred for a Functional Capacity Evaluation. Further in an April 1996 clinical record, the clinician wrote that it was questionable whether or not the Veteran would be able to return to any useful employment. The record reflects that the Veteran underwent vocational rehabilitation from December 1995 to September 1996. In a December 1995 assessment, the examiner wrote that the Veteran could not climb, lift objects over 10 pounds, stoop, stand, or sit for long periods of time, walk long distances, kneel, push or pull. In May 1996, he was working; however, he was unable to work a full day to the back disability. The counselor wrote that while the Veteran had shown marked improvement in his work skills and speed, physical difficulties remained a primary impediment to overall job readiness. Upon discharge from vocational rehabilitation, the counselor wrote that the Veteran had worked at several jobs but reported that he would work one day and then need two to three days to recover from the pain. Further, in a September 1996 Social Security determination, the administrative law judge (ALJ) wrote that a vocational evaluation done in 1995 showed that the Veteran was not able to return to work as a mechanic due to the heavy lifting involved. The ALJ also stated that the Veteran could perform past relevant work and did not have transferable skills to perform other work within his residual functional capacity. The ALJ then concluded that the Veteran’s impairments prevented him from engaging in any substantial gainful activity. In a 1997 rehabilitation assessment, the clinician marked that the Veteran should avoid bending, squatting, carrying, stooping, climbing, pushing, overhead reaching, pulling, and kneeling. Further, in a September 1999 statement, the Veteran reported using a walker and cane to ambulate. In a December 1999 VA examination, he reported that he could only walk two or three blocks before he had to sit down. Further, in a February 2000 statement, he reported being unable to drive due to a back disability. In an October 2013 VA examination, the examiner wrote that the Veteran’s back disability impacted his ability to work, as he stated he had not worked since 1994 due to back pain. Further, in an April 2015 VA examination, the examiner marked that the back disability did not impact his ability to work. However, no supporting rationale was provided. In a July 2019 statement, the Veteran reported that he walked with a cane unless going a short distance. Further, in a January 2020 clinical record, he stated that his back would get stiff if he sat for a long period of time. As to lumbar radiculopathy of the lower extremities, in an October 2019 VA examination, the examiner opined that this disability impacted the Veteran’s ability to work, as it hurt for him to stand, walk, or climb. As the Board cannot consider extraschedular TDIU in the first instance, referral to the Director of Compensation and Pension Service for consideration of entitlement to TDIU on an extraschedular basis is warranted. The matter is REMANDED for the following action: Refer the case to the Director of Compensation and Pension Service for consideration of whether entitlement to an extraschedular TDIU is warranted pursuant to 38 C.F.R. § 4.16(b). Thereafter, implement the determinations of the Director, if so warranted. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.