Citation Nr: 21024301 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-19 568 DATE: April 22, 2021 ORDER Entitlement to service connection for right hip disability secondary to lumbar spine disability is denied. Entitlement to service connection for left hip disability secondary to lumbar spine disability is denied. Entitlement to service connection for right foot disability secondary to lumbar spine disability is denied. Entitlement to service connection for left foot disability secondary to lumbar spine disability is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right hip disability was not caused or aggravated by his service connected lumbar spine disability. 2. The Veteran’s left hip disability was not caused or aggravated by his service connected lumbar spine disability. 3. The Veteran’s right foot disability was not caused or aggravated by his service connected lumbar spine disability. 4. The Veteran’s left foot disability was not caused or aggravated by his service connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for right foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for left foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to December 1978. These matters initially came to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon which, inter alia, denied service connection for sciatica, bilateral lower extremity neuropathy, left leg condition, left and right hip condition, bilateral feet condition, and denied TDIU. In January 2020, the Veteran testified before the undersigned Veterans Law Judge at a videoconference Board Hearing. A copy of the transcript is of record. In March 2020, the Board, among other things, remanded the Veteran’s claims for VA medical opinions and examinations. In a November 2020 rating decision, the RO granted service connection for right and left lower extremity sciatic radiculopathy, evaluating each as 20 percent disabling. Thus, there is no issue remaining on appeal as to the claims for service connection for bilateral lower extremity radiculopathy, sciatica, and left leg pain which were previously before the Board, as these grants of service connection encompassed all symptoms for which service connection was claimed in connection of those disabilities. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). Service Connection 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. §§ 1110, 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). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § § 3.310 (b). 1. Right and left hip condition The Veteran stated that he suffers from bilateral hip disability secondary to his low back disability. March 1993 post-service treatment notes indicate the Veteran complained of a “painful” left hip. April 2018 VA treatment records indicate the Veteran suffered from bilateral hip pain since 2015 or 2016, and the x-ray reflected minimal loss of bilateral hip joint spaces and superior acetabular osteophytes. The Veteran was diagnosed with bilateral greater trochanter bursitis. June 2018 VA treatment records reflect right and left hip pain. February 2019 VA treatment records indicate the Veteran complained of hip pain which was getting worse. In a November 2020 DBQ, the examining physician opined that the Veteran’s right and left hip disabilities are less likely than not (less than a 50 percent probability) due to or the result of the Veteran’s service connected low back disability, noting that in the presence of objective findings of degenerative changes of the right and left hips, failure to respond to local injections from presumed bursitis in 2018, and ongoing right and left hip pain and decreased range of motion, it is more likely that right and left hip disability is related to the degenerative process rather than a low back disability. He concluded that the Veteran’s current hip condition is a separate entity not related to the back condition, but related to the natural age-related degenerative changes. The physician noted that the Veteran had a diagnosis of bilateral greater trochanter bursitis which was treated with injections as reflected by his August 2018 VA treatment records. In separate November 2020 DBQs, the physician also opined that the Veteran’s right and left hip disabilities were less likely than not (less than a 50 percent probability) the result of the service connected low back disability, and less likely than not (less than a 50 percent probability) aggravated beyond their natural progression by the service connected low back disability. The issue of establishing a nexus to a service connected disease or injury such as lumbar spine disability is a complex medical question since it is beyond any readily observable cause and effect relationship. Jandreau, 492 F.3d at 1377, n. 4. Thus, to the extent the Veteran asserts a nexus for bilateral hip bursitis, his statements in this regard are not competent. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The record contains a negative nexus opinion provided by the November 2020 physician who stated that the Veteran’s bilateral hip disabilities were less likely than not the result of, or aggravated by the Veteran’s service connected lumbar spine disability and there is no positive nexus opinion of record. As the physician provided a thorough rationale to support his conclusion that the Veteran’s bilateral hip disabilities are not related to his service connected lumbar spine disability based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008). Weighing this opinion against the Veteran’s contentions, the physician’s opinion specifically indicating a lack of causation or aggravation in this case is of greater probative weight than the Veteran’s contentions that the lumbar spine disability caused his bilateral hip disabilities. For the above stated reasons, the preponderance of the evidence weighs against a relationship between the bilateral hip disabilities and a service connected lumbar spine disability. Therefore, service connection for right and left hip disabilities is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As the above evidence reflects, the issue of entitlement to service connection for right and left hip disabilities on a direct basis has not been raised by the Veteran or reasonably raised by the evidence of record, and the Board therefore need not address this theory of entitlement. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (“Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory”). 2. Right and left foot condition The Veteran stated that he suffers from a bilateral foot disability secondary to his low back disability. September 1992 post-service treatment records reflect complaints of swelling, numbness, and tingling of the Veteran’s feet for a few months. October 2016 VA treatment records indicate the Veteran complained of chronic neuropathy in both feet. In a November 2020 DBQ, the examining physician opined that the Veteran’s left foot disability was less likely than not (less than a 50 percent probability) due to, or a result of his service connected low back disability, stating that after the initial low back injury, the Veteran developed progressive degenerative disease of the lumbar spine that required 4 surgeries and caused severe bilateral lower leg neuropathy with mild weakness and severe sensory loss, but noted that there was no pathology to render a musculoskeletal foot diagnosis. The physician opined that the Veteran’s left foot disability was less likely than not aggravated beyond its natural progression by the lumbar spine disability. The November 2020 DBQ reflected that the physician found that there was no diagnosis of right or left foot disability because there were no findings, signs, or symptoms to support a diagnosis, noting no pain on active or passive range of motion testing, or with weight bearing or non-weight bearing. The physician also noted that there was no pathology to render a musculoskeletal foot diagnosis. The November 2020 DBQ indicated that the Veteran’s right foot disability was less likely than not proximately due to or the result of the Veteran’s service connected lumbar spine disability, and the examiner opined that the Veterans right foot disability was not at least as likely as not (at least a 50 percent probability) aggravated beyond its natural progression by his low back disability, noting no pathology to render a musculoskeletal foot diagnosis, hence the musculoskeletal foot condition did not exist prior to the low back condition. With regard to whether the current disability requirement has been met, the Federal Circuit held that pain alone can constitute disability if it causes impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). In this case, the evidence shows that the Veteran’s bilateral foot disability impacts his ability to work due to swelling and numbness. Thus, the Veteran’s bilateral foot pain causes impairment such that the symptom would constitute disability, to include impairment of a similar severity, frequency and duration contemplated by the rating schedule. See also Wait v. Wilkie, 33 Vet. App. 8, (2020) (indicating that the Board must make the factual determination as to whether manifestations rise to a level of functional impairment in earning capacity with consideration of the Rating Schedule, but the presence of a symptoms or manifestation in the Rating Schedule is not dispositive). The record contains a negative nexus opinion provided by the November 2020 physician who stated that the Veteran’s right and left foot disabilities were less likely than not the result of, or aggravated by the Veteran’s service connected lumbar spine disability, and there is no positive nexus opinion of record. As the physician provided a thorough rationale to support his conclusion that the Veteran’s right and left foot disabilities are not related to his service connected lumbar spine disability based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008). While the Veteran contends that his right and left foot disabilities are due to his service connected lumbar spine disability, the issue of establishing a nexus to a service connected disease or injury such as lumbar spine disability is a complex medical question since it is beyond any readily observable cause and effect relationship. Jandreau, 492 F.3d at 1377, n. 4. Thus, to the extent the Veteran asserts a nexus for right and left foot disabilities, his statements in this regard are not competent. Woehlaert, 21 Vet. App. at 462. Weighing the November 2020 physician’s opinion against the Veteran’s contentions, the physician’s opinion specifically indicating a lack of causation or aggravation in this case is of greater probative weight than the Veteran’s contentions that the lumbar spine disability caused his right and left foot disabilities. For the above stated reasons, the preponderance of the evidence weighs against a relationship between the right and left foot disabilities and a service connected lumbar spine disability. Therefore, service connection for right and left foot disabilities is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As the above evidence reflects, the issue of entitlement to service connection for right and left foot disabilities on a direct basis has not been raised by the Veteran or reasonably raised by the evidence of record, and the Board therefore need not address this theory of entitlement. Robinson, 557 F.3d at 1361. REASONS FOR REMAND TDIU The Veteran contends that due to the severity of his back pain, he is unable to work any full-time job. The Veteran testified that he is not currently employed and is on social security disability due to not being able to work as he could not stand up or walk far enough to do anything. He reported last working in 2011 as a fire equipment watchman. The Veteran stated that he cannot lift anything or his back goes out, and that the jobs he has had in the past involved doing physical things. The Veteran’s VA Form 21-8940 reflects that the Veteran completed 4 years of high school, worked as maintenance technician, warehouse manager, and fire and equipment watchmen, and became too disabled to work in October 2011 as a result of his lumbar spine disability. In a December 2011 statement, the Veteran reported that he is numb to his knees, and unable to work as he is in pain all of the time and cannot walk 100 yards. January 2012 medical treatment records furnished by the Social Security Administration (SSA) reflect that the Veteran reported difficulty with most every physical movement and with his activities of daily living due to his lumbar spine disability. The Veteran stated that he is capable of driving, but not for a long period of time, can sit for no more than 30 minutes, and is unable to stand for long periods of time. In a November 2020 DBQ, the Veteran’s examining physician reported that the Veteran’s lumbar spine disability impacted his ability to work as he is unable to sufficiently flex, extend or rotate his lumbar spine, and has an unsteady gait with fall risk. 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). However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by VA’s Director of Compensation Service when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § § 4.16 (b). The Veteran is currently in receipt of service connection for: right lower extremity radiculopathy, evaluated as 20 percent disabling; left lower extremity radiculopathy, evaluated as 20 percent disabling; lumbar spine disability, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss; evaluated as 10 percent disabling. The Veteran has a combined 60 percent disability and therefore does not meet the requirements for a TDIU on a schedular basis under 38 C.F.R. § 4.16 (a), to include any of the exceptions in 38 C.F.R. § 4.16(a)(1)-(5). However, under 38 C.F.R. § 4.16 (b), all cases where the veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability should be referred to the Director of Compensation Service. In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” The November 2020 medical opinion that the Veteran’s lumbar spine disability impacts his ability to work due to his limited flexion and extension of his lumbar spine, and the physical limitations due to his lumbar spine disability reported in his January 2012 medical treatment records, substantiates a reasonable possibility that the Veteran is unemployable by reason of his service connected lumbar spine disability. The standard for remand for referral to the Director under 38 C.F.R. § 4.16(b) has thus been met. The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) to the Director of Compensation Service. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.