Citation Nr: 21022791 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-10 625 DATE: April 19, 2021 ORDER Entitlement to service connection for stasis ulcer of the right lower extremity, claimed as secondary to service-connected disability of status post total right knee arthoplasty, is denied. Entitlement to service connection for left hip replacement, claimed as secondary to disability of status post total right knee arthoplasty, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s stasis ulcer of the right lower extremity is not related to any injury, disease, or event incurred in service, or to a service-connected disability. 2. The Veteran’s left hip replacement is not related to any injury, disease, or event incurred in service, or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for stasis ulcer of the right lower extremity, claimed as secondary to service-connected disability of status post total right knee arthoplasty, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for left hip replacement, claimed as secondary to disability of status post total right knee arthoplasty, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from May 1966 to May 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in January 2019, at which time it was remanded for further development. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for stasis ulcer of the right lower extremity Private treatment records reflect that the Veteran has been diagnosed with a right calf ulcer. See May 2014 Medical Records Report by Dr. G. S. The Veteran submitted correspondence in July 2014 indicating that he lightly hit his shin in 2010. As a result, he developed an open, festering wound and was diagnosed with venous insufficiency due to multiple knee surgeries. Dr. K.O. treated the Veteran in May 2013 for a right lower calf wound at the request of Dr. G. S. and noted an open wound that was shallow but big. An ultrasound was completed, and no abnormal venous problems were identified. From a non-invasive work-up standpoint, Dr. K. O. did not identify anything abnormal. However, the Veteran had a wound on his left leg that healed quickly, and the physician noted that “[t]here is obviously something going on in the right leg that is impeding healing.” The Veteran submitted his Substantive Appeal, VA Form 9, in February 2017 and stated that he had poor circulation in his legs. His right leg had a wound that would not heal, and he had to go to a wound care center weekly. The Veteran further stated that he had been told numerous times that, because of the number of surgeries on his right knee, the veins in his lower knee had been compromised to the point that the wound would never heal. Pursuant to the January 2019 Board remand, a VA medical addendum was submitted in October 2019 and the physician found that the Veteran’s stasis ulcers of the right lower extremity were less likely as not related to or aggravated by his right knee conditions. The physician found that, based on review, the medical evidence did not create a nexus and the condition suggested an etiology that was not chronic right knee degenerative joint disease or right knee replacement surgery. Rather, poor lower extremity circulation with venous stasis may be correlated with morbid obesity, excessive alcohol and cigarette use, hypertension and high cholesterol. Medical literature did not support the contention that “something [was] going on in the right leg impeding healing.” As such, the physician concluded that poor circulation was less likely due to knee surgery than the other factors noted. The Board finds the October 2019 VA medical addendum to be the most probative evidence of record. The examiner’s findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran’s stasis ulcer of the right lower extremity and its lack of connection to his service-connected right knee replacement. The examiner provided a thorough opinion explaining why it was less likely than not that it was the result his service-connected disability, instead linking the poor circulation that lead to ulcer to other factors including the Veteran’s obesity, hypertension, and high cholesterol. As a result of the competent medical opinions regarding causation and aggravation based on an accurate interpretation of the record, the Board finds that the claim is not in equipoise and that service connection for stasis ulcer of the right lower extremity is therefore not warranted. 2. Entitlement to service connection for left hip replacement, claimed as secondary to disability of status post total right knee arthoplasty The Veteran submitted lay evidence in July 2014 suggesting a connection between knee surgery and hip pain. Specifically, he submitted an article from eHow.com authored by an “eHow Contributor” which stated that “[w]hen a patient experiences hip pain, it is most often on the opposite side of the injured knee.” The article also noted that shifting weight to the healthy side causes the hip to “slide” up on that side, which is a misalignment. After several days, a patient was likely to suffer hip pain. The Veteran also submitted a paper authored by Dr. I. H., an orthopedic surgeon, titled “Symptoms in the Opposite or Uninjured Leg.” The physician argued that “an injury in one extremity rarely causes a major problem in the opposite or uninjured extremity except when damage to the leg results in a major displacement of the centre of gravity of the body while walking, significant shortening of the injured limb and the abnormal gait pattern has been present for an extended period of time.” Pursuant to the January 2019 Board remand, a VA medical addendum was submitted in October 2019 and the physician found that the Veteran’s left hip disability was less likely as not related to or aggravated by his right knee conditions. According to medical literature, vascular necrosis causing degenerative joint disease of the hip was primarily caused by metabolic factors and aging. With regards to aggravation, the physician noted that the Veteran had a total knee replacement in 2005 which would have greatly reduced the stress to his left hip over the decade preceding his hip surgery. Finally, the physician noted the literature submitted in 2014 that found that degeneration can occur following contralateral knee surgery, but found it was inaccurate in terms of primary causes of hip avascular necrosis etiologies. The Board finds the October 2019 VA medical addendum to be the most probative evidence of record. The examiner’s findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran’s left hip disability and its lack of connection to his service-connected right knee. The examiner provided a thorough opinion explaining why it was less likely than not that it was the result of his service-connected disability. While the examiner relied on his medical expertise to offer his opinion with regards to the etiology of the Veteran’s left hip replacement, he also relied on medical literature to support his conclusion and diminish the probative value of the articles submitted by the Veteran. As a result of the competent medical opinions regarding causation and aggravation based on an accurate interpretation of the record, the Board finds that the claim is not in equipoise and that service connection for left hip replacement is therefore not warranted. REASONS FOR REMAND Entitlement to TDIU The Veteran has essentially contended that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is considered to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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 the process of determining whether unemployability exists for TDIU, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by any non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes her case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran’s service-connected disabilities include: (i) total right knee replacement (30 percent); and (ii) right knee surgical scars (0 percent). Based upon the above, the Veteran’s combined disability rating does not meet the schedular criteria for a TDIU rating for any period on appeal. See 38 C.F.R. § 4.16(a). There is, however, plausible evidence of record that suggests the Veteran may be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, such that referral to the Director of Compensation Service for a possible extraschedular evaluation for TDIU under 38 C.F.R. § 4.16(b) is warranted. The evidence indicates that the Veteran worked as a self-employed contractor but had to stop working because of the problems with his knees. He was unable to do ladder work, had difficulty bending down, and could not bend his legs while going downstairs. While these findings do not preclude the possibility of any employment, they do show that the Veteran’s service-connected disabilities significantly impair his employability. Since there is probative evidence of record that the Veteran may be unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, the Board therefore finds that consideration of this TDIU claim for extra-schedular consideration is appropriate under 38 C.F.R. § 4.16(b). In light of this evidence, the Board finds the issue of entitlement to TDIU benefits under 38 C.F.R. § 4.16(b) should be referred to the Director of Compensation and Pension Service for adjudication. For these reasons, the Board finds that a remand for this referral is warranted. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and advise the Veteran to complete and return the form to support his claim for a TDIU. 2. Upon completion of the first remand directive, refer the case to the Director of Compensation for an opinion with respect to whether the Veteran is unemployable due to his service-connected disabilities under 38 C.F.R. § 4.16(b). Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.