Citation Nr: 21031492 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-16 961 DATE: May 24, 2021 ORDER Entitlement to service connection for a bilateral hip disability is denied. Entitlement to service connection for dementia is denied. Entitlement to service connection for a bilateral lower extremity disability is denied. Entitlement to a total disability rating based on individual unemployability is denied. FINDINGS OF FACT 1. A bilateral hip disability was not manifest in service or within one year. The disability is not otherwise related to service. 2. The Veteran does not have dementia. 3. A bilateral lower extremity disability was not manifest in service and is not otherwise attributable to service. 4. The Veteran is not unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. A bilateral hip disability was not incurred in or aggravated by active service, nor may arthritis be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Dementia (organic disease of the nervous system) was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. A bilateral lower extremity disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a total disability rating based on individual unemployability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to January 1966. This case was previously before the Board in October 2020, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection To establish service connection a Veteran must generally show: "(1) the existence of a present disability; (2) 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). 1. Entitlement to service connection for a bilateral hip disability The Veteran seeks service connection for a bilateral hip disability. He has stated that he believes his current disabilities are due to his exposure to Agent Orange during service. The issue for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to service. Service treatment records do not show complaint or treatment for a hip injury or disability. The separation examination indicated that the lower extremities and musculoskeletal system were normal. Post service medical treatment records note complaints of hip pain. In August 2014 the Veteran submitted a letter from his private physician indicating a diagnosis of chronic myositis of the hips and stating that the Veteran's musculoskeletal diseases were "more probable than not secondary to his military service." No rationale was provided. The Veteran received a VA examination in December 2020. He reported having episodes of pain in the bilateral hips starting 8 to 9 months prior. The examiner diagnosed bilateral hip degenerative arthritis. With regard to nexus, the examiner opined that the Veteran's bilateral hip degenerative changes were less likely than not related to his service. The stated rationale was that there was no injury to the hips during service, and the first manifestations were over 50 years after separation. The opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the preponderance of the evidence weighs against a finding that the Veteran's current bilateral hip degenerative arthritis is related to his service. To the extent that the Veteran believes his hip disability is the result of exposure to Agent Orange, the Board notes that degenerative arthritis is not a disease subject to the presumption regarding exposure to herbicide agents. 38 C.F.R. § 3.307, 3.309. While the Veteran's private physician has submitted a statement that the Veteran's hip disability is related to his service, there was no rationale provided and no indication of any in-service injury or disease. Therefore, it is of no probative value. Accordingly, the Board finds the most probative opinion to be that of the December 2020 VA examiner and the separation examination disclosing that the lower extremities were normal. Here, arthritis of the hips was not noted, manifest or diagnosed during service or within one year of separation. Rather, when examined during such time period, the lower extremities were normal. In other words, chronic disease was not manifest during the critical time period. Furthermore, since there was no evidence of in-service pathology, any assertion of continuity fails. In sum, the Veteran's bilateral hip arthritis/myositis was not manifest in service or within one year, and there is no evidence of an injury or disease in service to which it may be attributed. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 2. Entitlement to service connection for dementia The Veteran seeks service connection for Alzheimer's/dementia. The issue for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to service. The Board concludes that the Veteran does not have a current diagnosis of Alzheimer's or dementia and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). An August 2014 note from the Veteran's private physician indicates that the Veteran had Alzheimer's which was related to service. However, other VA treatment records contain no mention of dementia or diagnosis of Alzheimer's. The Veteran received a VA examination in December 2020. Upon examination the Veteran was logical, relevant and coherent. The examiner determined that the Veteran did not meet the criteria for Alzheimer's, and that there was no evidence of any type of dementia. While the Veteran's private practitioner stated in an August 2014 letter that the Veteran had Alzheimer's, there is no record of diagnostic testing or other basis for this diagnosis. Consequently, the Board gives more probative weight to the December 2020 VA examiner's findings, which are based upon examination of the Veteran. Therefore, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran has Alzheimer's or any type of dementia. Since we conclude that he does not have dementia, it follows that he did not have such disease during service or within one year of separation. Service connection for Alzheimer's/dementia is denied. We note that the private examiner is competent to enter diagnoses and the Veteran is competent to relate that which he has been told. However, the private opinions are lacking in detail, refuted by the more probative VA opinions, and such private and lay evidence is not credible. 3. Entitlement to service connection for a bilateral lower extremity disability The Veteran seeks service connection for a bilateral lower extremity disability. As an initial matter, Board notes that the Veteran is now service-connected for diabetic peripheral neuropathy of the upper and lower extremities. The evidence weighs against a finding that the Veteran has another bilateral lower extremity disability that is related to his service. Service treatment records do not contain complaints or treatment for any leg disability. At separation the lower extremities were marked normal. The Veteran has not reported an injury or disease during service. The Veteran has reported numbness and tingling in the lower extremities. He received a VA examination in December 2020. The Veteran reported episodes of painful inflammation of the left lower extremity. Imaging was noted to be "grossly unremarkable." The examiner stated that there was no diagnosis of the lower extremities. To the extent that the Veteran reported pain and numbness in the lower extremities, there is no indication of any injury or disease in service to which such pain may be attributed (other than the already service-connected disease). While the Veteran's private physician has submitted a statement that the Veteran's bilateral lower extremity disability is related to his service, there was no rationale provided and no indication of any in-service injury or disease. Therefore, it is of no probative value. Service connection for a bilateral lower extremity disability (other than that already granted) is therefore denied. 4. Entitlement to a total disability rating based on individual unemployability It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body 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), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). Here, the Veteran has a combined rating of 50 percent. This does not meet the schedular requirements for TDIU. He does not warrant extraschedular consideration, as the record does not suggest that the Veteran is unable to work due to service-connected disabilities. An October 2020 VA examination indicated there was no functional impact from the Veteran's diabetes or peripheral neuropathy. Entitlement to TDIU is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Creegan 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.