Citation Nr: 21014207 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-07 279A DATE: March 11, 2021 ORDER Service connection for a back disability is denied. Service connection for a bilateral hip disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to May 10, 2017 is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a low back disability began during active service, or is otherwise related to an in-service event, injury or disease; arthritis of the lumbar spine was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; and is not caused or aggravated by a service-connected disability. 2. The preponderance of the evidence is against finding that a bilateral hip disability began during active service, or is otherwise related to an in-service event, injury or disease; arthritis of the lumbar spine was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; and is not caused or aggravated by a service-connected disability. 3. The evidence is against a finding that the Veteran’s service-connected disabilities prevented him from securing or following substantially gainful employment considering his education and experience for the period prior to May 10, 2017. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a bilateral hip disability have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to a TDIU for the period prior to May 10, 2017 have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to July 1970, to include service in the Republic of Vietnam. He was awarded a Purple Heart, among other decorations. The Veteran died in September 2017. The Appellant is the Veteran’s widow and was substituted into his appeals. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2017. These matters were remanded by the Board in November 2017, May 2018, and December 2019. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In his initial claim for service connection made in May 2011, the Veteran asserted that he warranted service connection on a direct basis because he had “sore hips and back, mainly from dropping off helicopters at 10-feet with a full pack.” Subsequently, the Veteran asserted that service connection for his claimed hip and back disabilities is warranted on a secondary basis because he asserted that his service-connected right knee and right ankle disabilities cause a disturbance of his gait which caused or aggravated the claimed conditions. The Veteran served in combat in Vietnam and incurred shrapnel wounds to his right knee and ankle; he was service connected for residual scars and muscle injury to both areas. However, on separation examination in July 1970,, clinical evaluation of the Veteran’s spine and lower extremities was normal. In December 2013, VA examinations of the Veteran were conducted. With respect to the Veteran’s back claim, he reported that he had lumbar back pain during service and that he received medication from a medic. He also reported that he had back pain with repetitive activities following service and sought treatment with a chiropractor but stopped around 2011 because it was not helping. He also reported being in a motor vehicle accident with broken ribs after service. The diagnosis was degenerative joint disease of the lumbar spine. The examining physician’s medical opinion was the disability was less likely than not related to service or the rigors of combat during service and was more likely related to post-service occupational stress and the aging process. With respect to the hips, the diagnosis was bilateral degenerative joint disease (arthritis) of the hips. The Veteran reported “multiple jumps from helicopter in service carrying 60-80 pounds pack” he also reported having occasional hip pain following service with more bilateral hip pain within the past few years, including soreness walking 110 yards to his mailbox. No injury following service was reported. The Veteran did report that he used a walking stick because of his knee condition. The examining physician’s medical opinion was that it was less likely than not that “degenerative joint disease of the hips is related to rigors of combat service. By history Veteran has had onset of bilateral hip pain within the past few years approximate age 60 years without injury which is consistent with arthritis related to aging.” The Veteran died in September 2017. The evidence of record was reviewed by a VA physician who issued a January 2018 medical opinion which indicated that the claimed low back and bilateral hip conditions were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The physician indicated that there “is no treatment for a back or hip condition in STRs. 1970 separation examination marked normal lower extremities and spine. 1972 examination marked no to arthritis and no to recurrent back pain. Earliest evidence of degenerative disease of the thoracolumbar spine and hips is 2/2013 x-ray, and in my opinion mild degenerative disease/arthritis reported on x-ray at the Veteran's age of 65 years is likely related to the aging process.” In August 2019, another VA medical opinion was issued which stated that it is “less likely than not that the lumbar spine condition arthritis/degenerative disease and bilateral hip condition arthritis were either caused by or permanently aggravated beyond natural progression by the service connected fragment wounds of the right knee and ankle to include as due to an altered gait.” The physician stated that the Veteran’s low back and hip arthritis were consistent with the aging process noting that the first objective evidence of arthritis was on x-ray examination at the 2013 VA examination. Moreover, the physician specifically noted that the Veteran’s hips showed degenerative joint disease which was equal in both hips and that if arthritis had been caused by an altered gait it would be more severe in one hip. The August 2019 VA medical opinion indicated that the Veteran was not service connected for right knee arthritis. While technically true, the Veteran was service connected for the residuals of a fragment wound to the right knee with scars and muscle injury. Another medical opinion was obtained from a different VA physician in November 2020 to account for the Veteran’s service-connected right knee disability. Again, after full review, the physician indicated that the claimed bilateral hip and low back conditions were not related to service and were not caused or aggravated by the Veteran’s service-connected residuals of fragment wounds to the right ankle and knee. The physician provided full rational that the asserted gait abnormality was not of the quality or severity to cause or aggravate the claimed disabilities. The preponderance of the evidence is against the claims for service connection for a back disability and a bilateral hip disability. Despite the Veteran’s assertions of back pain during service, clinical evaluation of his spine and lower extremities was normal on separation examination. There is no evidence that arthritis of the lumbar spine or the hips was present during service or within a year of separation from service. Rather, the initial diagnosis of arthritis was made in 2013, over four decades after separation from service. While the Veteran was service-connected for the residuals of fragment wounds to the right knee and ankle, all of the medical opinions of record have indicated that the Veteran’s claimed back and hip disorders were not caused or aggravated by the service-connected disabilities and are in fact consistent with aging. Accordingly, service connection for a back disability and bilateral hip disabilities is not warranted and the appeals are denied. TDIU During the pendency of the appeal, the issue of entitlement to TDIU was raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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. 38 C.F.R. § 4.16(a). The Veteran’s combined service-connected disability rating is 70 percent from May 6, 2011 to December 3, 2013; 80 percent from December 3, 2013 to May 10, 2017 and at a 100 percent combined disability rating thereafter. The Veteran did meet the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). Accordingly, the Board must address entitlement to TDIU for the period prior to May 10, 2017. During that period, Veteran’s service-connected disabilities were: posttraumatic stress disorder (PTSD), tinnitus, painful scars of the right ankle and knee from a shell fragment wound (SFW), muscle injury to the right knee from a SFW, and muscle injury to the right ankle from a SFW, along with five other disabilities each rated at a noncompensable (0%) disability rating. In his April 2012 Notice of Disagreement, the Veteran stated that his service-connected psychiatric disorder, then diagnosed as an anxiety disorder, “caused me to be fired from my past three jobs, and more or less makes me unemployable now.” In March 2014, the RO provided the Veteran with the appropriate forms to claim TDIU, and requested that he complete and return them. He did not do so. These forms provide occupational and educational history information which is critical for VA to assess a claim of TDIU. Without this information the Board is left to attempt to coble this information together from the record. At an October 2011 VA PTSD examination the Veteran reported he graduated high school and that “currently is retired, lives in the country, does household and outdoor chores, feeds the animals (horses and dogs), and has several set of friends, he reported his hobbies in his lifetime have included fixing cars, raising Labrador dogs, and hunting.” He further reported “he has had 40-50 jobs, mostly through temporary agencies. He reported his longest time at one job was 17 years working as a machinist and tool maker; however, he reported he was fired related to an accusation of theft. He reported he was fired from approximately 10 jobs due to productivity. Additionally, [he] reported he left ‘many jobs’ because he ‘hated where [he] was.’ He reported he retired in 2010.” The October 2011 examiner, as well as an October 2013 VA examiner, found the Veteran’s anxiety disorder was not severe enough to interfere with occupational functioning. The November 2015 VA mental disorder examination noted that the “Veteran remains retired” for relevant occupational and educational history. The examiner felt the previous examinations underestimated the Veteran’s impairment as due to his avoidance and discomfort he was not comfortable in the last examinations. The examiner indicated that while retired, the Veteran’s PTSD seriously impaired his occupational functioning. A November 2011 VA examiner determined the Veteran’s right ankle and right knee disabilities would not impact his ability to work. A December 2013 VA examiner determined the Veteran’s scars and muscle injuries would not impact his ability to work. Simply put, during this period, the Veteran’s PTSD is the only service-connected disability that is shown to have had a significant impact on employment. Taken as a whole, the Veteran’s symptoms do not suggest he was unable to obtain and maintain employment because of his service-connected disabilities for the period prior to May 10, 2017. The Board acknowledges the VA examiner’s opinion in November 2015 that the Veteran’s PTSD seriously impaired his occupational functioning, but notes such is recognized in the 70 percent rating assigned for that disability. There is no doubt that the Veteran’s PTSD affected employment, the question here, however, is if it precluded employment prior to May 10, 2017. Given the Veteran’s education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers, the Board does not consider this level of impairment as one that would preclude employment. Again, employment and educational information was not provided when requested by VA. The record indicates the Veteran had experience in positions where he could be isolated from others with little supervision, such as fixing cars, caring for animals, or working as a machinist or tool maker. Such positions would have had a controlled amount of stress and would have allowed the Veteran the space and flexibility to cope with his PTSD symptoms. With little interaction with others, his difficulties with relationships would not have had such a significant impact and he would be able to manage his depression, anxiety, and disturbances of motivation and mood much as he would have been doing while retired and performing household and outdoor chores. While work may have been difficult, it would not have been precluded for this Veteran. Based on all the evidence, the Board finds that the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities for the period prior to May 10, 2017. Thus, entitlement to a TDIU for that period is not warranted and the appeal is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Havelka, 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.