Citation Nr: 21027634 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-36 232 DATE: May 6, 2021 ORDER Service connection for a right hip condition is denied. Service connection for a right ankle condition is denied. Service connection for a hernia condition is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has had, at any time during the appeal, a current diagnosis for a right hip condition. 2. The preponderance of the evidence is against a finding that the Veteran has had, at any time during the appeal, a current diagnosis for a right ankle condition. 3. The Veteran's hernia condition is not secondary to service-connected right knee condition, and is not otherwise related to an in-service injury or disease. 4. The Veteran's service-connected disabilities do not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right ankle condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a hernia condition due to service or service-connected right knee condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1960 to November 1963. In April 2019, the Board of Veterans' Appeals (Board) remanded this case to obtain a new VA examination to assess the nature and etiology of the Veteran's claimed right ankle, right hip, and hernia conditions. However, the Veteran failed to report to the scheduled VA examination. Prior to the return of the Veteran's case to the Board, his claim was readjudicated by the Agency of Original Jurisdiction (AOJ) in a March 2020 Supplemental Statement of the Case (SSOC), which advised the Veteran that he failed to report for the VA examination. He was provided the text to 38 C.F.R. § 3.655 in the "Pertinent Laws; Regulations; Rating Schedule Provisions" section of the SSOC. In May 2020, the Board again remanded this claim to obtain a new VA examination. Notably, the record shows that the Veteran failed to report to his examination, and when the AOJ attempted to reschedule the examination, the Veteran declined to do so. Specifically, he indicated he did not understand why more information was needed if it was already of record. Additionally, the Veteran stated it is very hard for him to attend examinations as he has an amputation. Despite being informed that additional examinations were needed as part of his appeal, the Veteran continued to decline to schedule examinations and asked that the Board adjudicate his claim based on the evidence of record. See January 2021 Report of General Information. Based on this evidentiary posture, the Board will presume the Veteran was informed of the consequences of his failing to report for an examination under 38 C.F.R. § 3.655. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially 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). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a current diagnosis, there may be no service connection for the claimed condition. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor. 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 a right hip and right ankle condition. The Veteran seeks service connection for a right hip and right ankle condition, which he asserts are related to his service-connected right knee disorder. See August 1987 Statement in Support of Claim. In that regard, the Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnoses related to any ankle or hip problems. See STR Medical. Moreover, in September 1983, when the Veteran was evaluated for separation from service, no problems with the right hip or right ankle were noted. In May 1988, the Veteran underwent a VA examination, in pertinent part, to evaluate his alleged hip condition. Specifically, the Veteran reported increasing "pulling" pain in the right hip, which he believed was related to his right knee condition. On examination, the examiner noted that the Veteran's gait was essentially normal, with toe and heel walking performed with some degree of effort. The right hip was found to be symmetrical to the left. Strength against resistance was indicated as normal and vigorous, and forced extension and flexion of the right hip was noted to produce some local pain and discomfort. Ultimately, the examiner diagnosed the Veteran with hip arthralgia, but noted that there was insufficient clinical evidence to warrant a diagnosis of any acute or chronic residuals thereof. Furthermore, the examiner held that the hip condition was clinically, and by X-ray without pathology, functionally intact. The examiner further opined that there was no relationship between the Veteran's right knee condition and his right hip arthralgia. See May 1988 VA Examination. Postservice treatment records reflect that in October 2014, a VA clinician noted that the Veteran's right hip flexion was limited by pain of the anterior groin. Notably, however, no diagnosis related to a hip condition was rendered. See VA Treatment Record received December 2014. The Board also notes the Veteran's VA treatment records show no complaints or diagnoses related to a right ankle condition. The Board acknowledges the Veteran's contention that he believes he suffers from right hip and right ankle conditions that are related to his service connected knee condition. See August 1987 Statement in Support of Claim; see also July 2018 VA Form-9. Specifically, he alleges that his ankle and hip started to collapse after suffering a gunshot wound in the right knee, for which he is now service-connected. See January 2017 Notice of Disagreement. However, to the extent that the Veteran's general claim for service connection implies that he has current diagnoses, the Board finds that he is not competent as a lay person to attest to such diagnoses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Board notes that the May 1988 VA examiner opined that the examination did not yield sufficient evidence to warrant a diagnosis of any acute or chronic disorder, or residuals thereof, with regard to the Veteran's hip. The Board also acknowledges that pain alone, without an identified underlying disease or pathology, may constitute a disability for VA compensation purposes if it produces financial impairment. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). In Saunders, the Federal Circuit held that the term "disability" in 38 U.S.C. § 1110 refers to functional impairment of earning capacity, not the underlying cause of that disability. Id. As indicated, in the Veteran's May 1988 VA examination, the Veteran indicated experiencing a "pulling" pain in his right hip. Notably, however, since that examination the Veteran has not reported experiencing right hip pain. Furthermore, the Board notes that while the Veteran has been found to have reduced flexion in his hip, this was attributed to groin pain from a hernia. See VA Treatment Record received October 2016. Additionally, the Board finds no evidence indicating that the Veteran suffers from right ankle pain. Rather, the record indicates that the Veteran has reported instability in his hip and ankle, noting that, "everything is collapsing due to the gunshot wound." The Board notes further that because the Veteran did not attend his more recently scheduled VA examinations, VA clinicians did not have an opportunity to evaluate his right ankle and right hip for disabilities, pain, and any potential functional impairment that may accompany the potential conditions. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current right hip or right ankle condition to support his claim for service connection. In the absence of proof of a current disability for which service connection may be granted, there is no valid claim. See Brammer, 3 Vet. App. at 225. Accordingly, the claims for service connection for a right hip and right ankle condition must be denied. 2. Entitlement to service connection for a hernia condition. The Veteran seeks service connection for a hernia condition that he claims is related to his service-connected right knee disorder. After a thorough review of the evidence, and based on the legal criteria above, the Board finds that service connection for a hernia condition is not warranted. In this regard, there is no medical opinion of record establishing a nexus between a currently diagnosed hernia condition and to an in-service event or to the Veteran's service-connected right knee condition. The Veteran's STRs are silent for any complaints or diagnoses related to a hernia condition. See STR Medical. While the Veteran's postservice treatment record shows a diagnosis for, and treatment of a right inguinal hernia, the record reflects that this was not until January 2014, more than 50 years after service. See VA Treatment Record received April 2018. Furthermore, while the Veteran reported that he underwent a hernia repair surgery in 1989, this was more than 25 years after service. See VA Treatment Record received October 2016. Additionally, there is no indication in the postservice treatment records that the Veteran's right inguinal hernia is related to his military service or service-connected right knee condition. The Board acknowledges the Veteran's belief that his current hernia condition is related to his service-connected right knee disorder. See July 2018 VA Form-9; see also January 2017 Notice of Disagreement. However, although the Veteran may believe that his current hernia condition is related to service or his service-connected right knee disorder, he is not competent to provide a nexus opinion regarding these issues. These questions are medically complex and require specialized medical education and knowledge. See Jandreau, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, they are outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such determinations. See id. at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In sum, the preponderance of the evidence is against a finding that the Veteran's current hernia condition is related to service, or to his service-connected right knee condition. Moreover, there is no evidence, beyond the Veteran's unsubstantiated statements, to establish a nexus between the Veteran's hernia condition and his military service and/or his service-connected right knee condition. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Accordingly, the Board finds that the preponderance of the evidence is against establishing a nexus between the Veteran's hernia condition and the Veteran's active duty service and/or his service-connected right knee condition. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply and service-connection for a hernia condition must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. 3. Entitlement to a TDIU. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Veteran meets the schedular requirements for the assignment of a TDIU. His service-connected disabilities consist of: status post right total knee replacement (60 percent); status post gunshot wound, right knee with patellectomy (30 percent); left knee arthritis associated with status post gun shot wound (10 percent); scars, right knee residuals of gunshot wound and total knee replacement associated with status post gunshot wound, right knee with patellectomy (10 percent). Thus, as the Veteran has one disability ratable at 60 percent, he has met the schedular requirements under 38 C.F.R. § 4.16(a). The record shows that the Veteran graduated high school and attended three years of college. In the Veteran's January 2017 Application for Increased Compensation Based on unemployability, he reported that he had not worked since 1982 due to his service-connected knee conditions. See January 2017 Application for Increased Compensation Based on Unemployability. However, the Board finds the Veteran's claim that he has not worked since 1982 not to be credible. Significantly, during the May 1988 VA examination, the Veteran reported being employed as a forklift operator. See May 1988 VA Examination. More recently, VA treatment records from October 2014 reveal that the Veteran had recently stopped working as an aerator at Carstar due to a workplace accident wherein he injured his knee. Moreover, the record reflects that, due to the injury, the Veteran was involved in workman's compensation litigation. See VA Treatment Record received December 2016. In Rucker v. Brown, 10 Vet. App. 67, 73 (1997), it was held that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate. Specifically, it was observed that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Thus, it would appear logical that had the Veteran been unable to work since 1982, he would have reported this to his treating health care provider. Based on the foregoing, the Board finds the Veteran's contention that he has been unable to work since 1982 to not be credible. Nonetheless, the Board will still consider whether the evidence of record indicates that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. In the Veteran's May 1988 VA examination, the Veteran reported experiencing persistent right knee pain. Additionally, the examiner noted that the Veteran reported experiencing progressive stiffness in the right knee that was aggravated by weather, lifting, excessive standing, and activity of the right knee. The Board notes, as indicated above, that the Veteran was employed at the time of his May 1988 VA examination. See May 1988 VA Examination. In the Veteran's September 1988 VA Form-9, he indicated that as a result of his service-connected disability, he was forced to abandon completely, or almost completely water skiing, snow skiing, ice skating, roller skating, bowling, hiking, dancing, hunting, and fishing. See September 1988 VA Form-9. In December 2016, the Veteran underwent a VA examination to evaluate his service-connected scars. During the examination, the examiner noted that the Veteran had scars on the right knee from a gunshot wound and a total knee replacement. The Veteran reported that the scars were not painful or unstable. Additionally, the examiner opined that the scars would not impact the Veteran's ability to work. See December 2016 VA Examination. In December 2016, the Veteran also underwent a VA examination to evaluate his service-connected knee conditions. The examiner diagnosed the Veteran with a gunshot wound of the right knee with patellectomy in soft tissue, partial ankylosis, scars and a left knee condition. The Veteran reported flare-ups of the right knee, which he described as a dullness and throbbing pain with a level of 6-7/10. Additionally, he reported flare-ups in the left knee, which he indicated caused pain with a level of 5-6/10 that increased to 7-8/10 when it is cold. Due to the pain from his scarring, the Veteran reported experiencing a limited range of motion in his knees. The Veteran reported using a right knee brace at times for support and stability. Ultimately, however, the examiner opined that the Veteran's knee conditions did not impact his ability to perform any occupational tasks. See December 2016 VA Examination. In February 2017, the Veteran underwent a VA examination to evaluate his service-connected knee conditions. The examiner diagnosed the Veteran with status post gun shot wound, right knee with patellectomy, arthritis and limitation of flexion, and left knee arthritis. During the examination, the Veteran reported that his knee condition had gotten progressively worse and that the scars on his right knee caused him a lot of pain. Similarly, he indicated that his left knee pain had also gotten worse. Due to his condition, the Veteran reported facing limitations in how much he could walk and his ability to climb stairs. Notably, the examiner opined that the Veteran's condition would not impact his ability to perform any type of occupational task, such as standing, walking, lifting, and sitting. See February 2017 VA Examination. In February 2017, the Veteran also underwent a VA examination to evaluate his service-connected scars. The examiner diagnosed the Veteran with scars on the right knee related to a total knee replacement and to a gunshot wound. The Veteran indicated that he suffered from stabbing pain related to the scars, which he rated at 2/5. Notably, however, the examiner opined that the Veteran's scars did not impact his ability to work. See February 2017 VA Examination. A December 2014 VA treatment note indicated that the Veteran was limited to walking a quarter mile and climbing two flights of stairs due to his knee condition. Additionally, a February 2016 VA treatment note reveals that the Veteran underwent a total knee replacement after suffering an injury at work; however, he had a good surgical result and suffers minimal pain as a result. No other significant physical limitations were noted in the Veteran's VA treatment records. See VA Treatment Record received October 2016. In light of the foregoing, the Board finds that, while the Veteran has physical limitations that affect his ability to walk long distances and use stairs, the evidence of record does not show that his service-connected disabilities render him unable to secure or follow a substantially gainful employment. Rather, the Board finds that while the Veteran has physical restrictions, he can perform non-physically demanding work. It is noted that the record shows the Veteran has three years of college education and recent work experience. Additionally, the Board emphasizes that the assigned disability rating is already meant to compensate the Veteran for the average impairment of earning capacity from his service-connected knee conditions. 38 U.S.C. § 1155; 38 C.F.R. Part 4. (Continued on the next page) Accordingly, the weight of the evidence does not indicate that the Veteran is rendered unable to obtain and maintain substantially gainful employment due to the effects of his service-connected disabilities alone, so as to warrant an award of a TDIU. Thus, as a preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable, and his claim of entitlement to a TDIU must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.