Citation Nr: 21016193 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 19-36 500 DATE: March 22, 2021 ORDER Entitlement to service connection for residuals of right hip joint replacement (right hip disability), secondary to service-connected knee disability on a causation basis, is granted. Entitlement to service connection for residuals of left hip joint replacement (left hip disability), secondary to service-connected knee disability on a causation basis, is granted. Entitlement to a separate rating for service-connected left wrist ulnar nerve compression neuropathy (left ulnar nerve neuropathy) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from December 2015 is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The preponderance of the evidence is in favor of a finding that the Veteran’s residuals of right and left hip joint replacement are related to his service-connected knee disability. 2. The symptoms of the Veteran’s service-connected left ulnar nerve neuropathy and his service-connected left cervical radiculopathy are duplicative. 3. The evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities have rendered him unable to secure or follow substantially gainful employment from December 2015. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of right hip replacement, secondary to service-connected knee disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310(b). 2. The criteria for service connection for residuals of left hip replacement, secondary to service-connected knee disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310(b). 3. The criteria for entitlement to a separate rating for service-connected left ulnar nerve neuropathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code (DC) 8516-8511. 4. Beginning December 2015, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1966 to April 1992, including service in Vietnam. The Veteran is highly decorated, receiving a Silver Star, Bronze Star Medal with “V” device, a Combat Infantryman Badge, and Purple Heart, among other awards. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision that consolidated the Veteran’s ratings for his service-connected left ulnar nerve and his service-connected left cervical radiculopathy, and an April 2017 rating decision that denied service connection for bilateral hips and TDIU. All issues were timely appealed and are now before the Board for adjudication. The Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge (VLJ) in October 2020. The transcript of the hearing is of record. The case has been advanced on the docket pursuant to 38 U.S.C. § 7107 and 38 C.F.R. § 20.900(c). Bilateral Hips Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after 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). The Veteran contends that his bilateral hip condition is due to his service-connected bilateral knee condition. In that regard, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). An October 2017 radiologist diagnosed the Veteran with severe bilateral hip degenerative arthrosis, which is consistent with a December 2015 orthopedic surgeon’s note of bilateral hip arthritis. The Veteran underwent a left total hip arthroplasty in June 2018 and a right total hip arthroplasty in September 2018. Following the surgery, the Veteran described daily pain on a level of five out of ten, prolonged sitting or standing or prolonged inactivity is aggravating, he can’t sleep on his back and has to sleep with a foam wedge between his knees, and the pain affects his ability to sleep and walk up and down stairs. This is sufficient to establish current residuals of bilateral hip joint replacement, thereby satisfying the current disability element. Additionally, the Veteran was service-connected for bilateral knee degenerative osteoarthritis in a September 2007 rating decision (which subsequently lead to bilateral total knee replacement), thereby satisfying the service-connected disability element. Therefore, the remaining issue is whether the Veteran’s bilateral hip disability is related to his service-connected bilateral knee disability. To that end, the February 2018 VA examiner provided a negative medical opinion, concluding that the Veteran’s severe end-stage bilateral hip osteoarthritis is not caused by degenerative changes of the lumbar spine. The examiner relied on peer reviewed scientific literature in his rationale. However, the February 2018 examiner’s opinion does not discuss aggravation, nor does he offer an opinion on whether the Veteran’s bilateral hip condition was related to his service-connected knee condition. As such, the February 2018 VA examiner’s opinion is afforded no probative weight. A July 2020 private examiner provided a positive medical opinion, concluding that it is more likely than not that the Veteran’s bilateral hip disabilities are secondary or related to his service-connected knee disability. The private examiner reviewed the Veteran’s claims file and based his opinion on the nature and extent of the Veteran’s service in the Vietnam War, noting that the mechanical forces that led to the Veteran’s knee issues were transmitted to his hip joints and to his spine. While the examiner did not provide a thorough rationale to accompany his opinion, the examiner need not explicitly lay out their journey from the facts to a conclusion in order for an opinion to be considered probative. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate). Reading the July 2020 private examiner’s opinion as a whole and in context of the evidence of record, the conclusion that the Veteran’s bilateral hip disabilities are caused by his service-connected bilateral knee disability is entitled to substantial probative weight. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The above evidence reflects that there is a competent, probative medical opinion that weighs in favor of service connection for the Veteran’s bilateral hip disabilities secondary to his service-connected bilateral knee disability, and no probative evidence against. The preponderance of the evidence is therefore in support of the claim for entitlement to service connection for residuals of bilateral hip joint replacement secondary to the service-connected knee disability, on a causation basis, and the claims must be granted. Separate Rating for Service-Connected Left Ulnar Nerve Neuropathy The Veteran’s service-connected cervical radiculopathy and left ulnar nerve neuropathy are currently evaluated, collectively, as “cervical radiculopathy, left, middle and lower radicular group (nondominant) and left wrist ulnar nerve compression neuropathy associated with cervical strain with degenerative changes” at 30 percent disabling under DC 8511. The Veteran’s left ulnar nerve neuropathy was previously evaluated as 10 percent disabling from March 12, 2012, to September 23, 2016, under DC 8516. For historical reference, a November 2016 rating decision granted the 30 percent disability rating for the Veteran’s left cervical radiculopathy with left ulnar nerve, and noted that the Veteran’s left wrist ulnar nerve compression neuropathy, which was previously separately rated as 10 percent disabling, was reduced to noncompensable coinciding with the date of the grant of the 30 percent for the left cervical radiculopathy. The Veteran’s left ulnar nerve neuropathy was previously service connected under 38 U.S.C. § 1151 after the disability arose during his left knee replacement surgery. The RO later clarified in a November 2019 rating decision that their November 2016 rating decision’s use of the word “reduced” was a clear and unmistakable error and clarified that the November 2016 rating decision should have noted it was combining the Veteran’s evaluation for his left wrist ulnar nerve neuropathy with the evaluation for his left cervical radiculopathy, leading to a single evaluation due to overlapping symptomatology. The Veteran has contended that his service-connected left ulnar nerve neuropathy should, in effect, be given a rating separate from his service-connected left cervical radiculopathy due to the origins of the disabilities, separate and distinct diagnoses, and their differing functions. As such, the Board has recharacterized the claim as a request for a separate rating for the Veteran’s service-connected left ulnar nerve neuropathy. The rule against pyramiding prevents Veterans from being compensated twice for the same symptomatology “as such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). Because both the Veteran’s left ulnar nerve neuropathy and left cervical radiculopathy affect the same group of nerves in his upper left extremity, their symptoms overlap to a great extent and providing separate ratings would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. Moreover, the Veteran’s left ulnar nerve neuropathy is being compensated as it is contemplated in his 30 percent disability rating for his left cervical radiculopathy. Alternatively, even if construed as a reduction governed by 38 C.F.R. § 3.105(e), the Veteran’s combined rating was not decreased by the combination. The procedural requirements of 38 C.F.R. § 3.105(e) do not apply in cases where a reduction did not reduce the amount of compensation payable to the Veteran. See VAOPGCPREC 71-91 (November 7, 1991). Regarding whether the Veteran’s original 10 percent disability rating for his service-connected left ulnar nerve neuropathy was a protected rating, the Board has also considered whether its selection of DC 8511 in place of DC 8516 is contrary to any regulatory prohibitions against changes in protected ratings or other reductions in ratings. The Board finds that its decision is not contrary to any such regulations. The 10 percent rating was in effect from March 2012 to September 2016, fewer than 20 years, and therefore was not protected under 38 C.F.R. § 3.951(b). See Murray v. Shinseki, 24 Vet. App. 420 (2011). In addition, because the rating was in effect for fewer than 10 years, there is no issue as to whether the Board’s decision effectively severed service connection under 38 U.S.C. § 1159. See Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011). Moreover, the Board’s action results in the same combined rating rather than a reduction in the rating, and the regulations relating to rating reductions are therefore not for application. 38 C.F.R. §§ 3.105(e), 3.344. Finally, the selection of a particular DC “is a determination that is completely dependent upon the facts of a particular case,” and the Board has discretion in determining the appropriate DC. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (applying the more deferential “arbitrary, capricious” standard, rather than de novo review, to the Board’s determination of the appropriate diagnostic code). Based on the foregoing, the Board concludes that the Veteran’s left ulnar nerve neuropathy does not warrant a separate and distinct rating. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. TDIU A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § § 4.16(a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose v. Brown, 4 Vet. App. 363 (1993). “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. The Veteran meets the schedular requirements for the assignment of a TDIU. He is currently in receipt of 30 percent ratings for his service-connected posttraumatic stress disorder (PTSD), left knee degenerative osteoarthritis status post total left knee replacement, right knee degenerative osteoarthritis status post total right knee replacement, and cervical radiculopathy (including left wrist ulnar nerve compression neuropathy); 20 percent ratings for each of his advanced degenerative conditions in the thoracic and lumbar spine as well as his cervical strain with degenerative changes; and noncompensable ratings for left ear hearing loss, right knee residual scar post total right knee replacement, and left knee residual scar post total left knee replacement. Pursuant to 38 C.F.R. § 4.16(a), disabilities of one or both lower extremities, to include the bilateral factor, may be combined to comprise of one disability for the purposes the schedular TDIU criteria. Here, the Veteran is service-connected for both of his knees with a combined rating higher than 40 percent, and the totality of his service-connected disabilities combine to a 90 percent. Thus, the Veteran has at least one disability rated at 40 percent or more, and sufficient additional disabilities with a combined rating greater than 70 percent, and he therefore meets the schedular requirements under 38 C.F.R. § 4.16(a). The record shows the Veteran has an MBA and owns a company that produces forest products, which he has owned since the 1990s. On his October 2016 Application for Increased Compensation Based on Unemployability (via VA Form 21-8940), the Veteran noted that he was too disabled to work as of April 24, 2012, as illustrated by the fact that he applied for three jobs in 2013 to no avail. However, in his October 2020 Board Hearing, the Veteran noted that he was last employed in December 2015. He indicated that due to his service-connected disabilities, he was using two canes, had trouble getting in and out of his vehicle, made noise when he walked, and was unable to move at a normal pace around forklifts and heavy machinery, therefore preventing him from continuing to obtain gainful occupation. The record contains numerous evaluations, examinations, and lay evidence that evaluates the severity and functional impact of his service-connected disabilities. A 2013 lay statement from a military colleague who worked for the VA as counselor in retirement indicated that he had treated very few Veterans who were affected by PTSD to the extent the Veteran was, noting the dissolution of his marriage of over 20 years, avoidance of work in group settings, and his immersion into his work as a private individual. An April 2014 VA examination reflected that in December 2013 the Veteran began transferring much of the manufacturing of his business to a sheltered workshop because of his increasing physical disabilities, with additional psychiatric symptoms of depressed mood and chronic sleep impairment. In an October 2014 VA examination, the Veteran noted that he continued to work as a manager in his lumber business, impaired only by his physical disabilities but explicitly not his PTSD. The Veteran was reduced to sedentary work only following his bilateral knee replacements. However, following his bilateral hip replacements, any prolonged sitting, standing, or prolonged activity would aggravate his pain, which was described as daily, in a February 2018 VA examination. As noted in the prior section, he could no longer sleep on his back and the pain made ambulation up and down stairs difficult. Following the surgery, the Veteran used a wheeled walker on flat surfaces and canes to go up and down stairs. The February 2018 VA examiner noted the Veteran would not be well suited for physically demanding work but would be capable of sedentary work, despite reports of the Veteran’s difficulty sitting for long periods of time. In his October 2020 Board hearing, the Veteran testified that as the manager of his company, he would spend a lot of time on the floor supervising production. He noted that his service-connected disabilities prevented him from doing his work and he was explicitly asked to not return to the plant. The Veteran further testified that he now has to change positions on a regular basis, whether sitting or standing, needs a workout to get him moving in the mornings after getting out of bed, and has trouble walking. He described two incidents where he couldn’t lift his feet, suffered a fall and broke his ribs. The Veteran also described a time when he fell going up the stairs and cracked another rib. Weighing all the evidence and resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation since he last worked in December 2015. While the Veteran was self-employed as a manager and owner of his own company, the record makes clear he took an active role in the day-to-day operations of his lumber business, to include significant time on the floor of the plant to supervise and assist his employees with manual labor. As his service-connected disabilities increased in severity over time, his ability to continue his daily job activities became significantly inhibited to the point where he was restricted to sedentary work. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). Regarding the use of the phrase sedentary employment or a similar description, VA adjudicators and examiners (medical expert witnesses) sometimes use the term “sedentary” work or employment in discussions of ability to secure and follow a substantially gainful occupation. The phrases “sedentary work” or “sedentary employment” are not included in the current statutes or regulations concerning VA benefits. Withers v. Wilkie, 30 Vet. App. 139, 142 (2018). In Withers, the Court of Appeals for Veterans Claims (Court) rejected “ordinary-meaning canon,” and held that when a VA examiner describes certain types of functional limitations and still opines that a veteran is capable of sedentary work, the Board may need to determine whether a common-sense inference can be drawn that the concept of sedentary work, as understood by the examiner, does not encompass the physical or mental acts that a veteran is incapable of performing. Id. at 147-148. The ability to perform various forms of work can be a relevant consideration, but the Board must explain how an examiner’s description of a veteran’s specific functional limitations supports a conclusion that a veteran is able to secure or follow a substantially gainful occupation consistent with his education, training, and work history. Id. at 142. (Continued on the next page)   While he is capable of sedentary work, the Veteran’s work history clearly shows he was not sedentary in his daily work activities. Since he was last employed in December 2015, the Veteran’s service-connected disabilities have impaired his ability to sit, lift heavy objects, effectively ambulate without assistance or rest, or otherwise operate or work in a physical capacity. Although the Veteran has an educational background, he still experiences discomfort with sitting for prolonged periods, psychiatric symptoms that decrease his work efficiency with intermittent periods of inability to perform tasks, and decreased sensation in his left hand. The combined effect of his multiple service-connected disability symptoms and the overall constant nature and increasing severity of them would likely preclude the Veteran from securing and following substantially gainful employment. See Withers, supra. The evidence is thus at least evenly balanced as to whether the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment since December 2015. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted from December 2015. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board JR Cummings, Associate 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.