Citation Nr: 21032300 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-12 685 DATE: May 26, 2021 ORDER Service connection for residuals of left hip injuries is granted. Service connection for residuals of left shoulder injuries is granted. Service connection for residuals of left knee injuries is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's residuals of left hip injuries had its onset in service. 2. The Veteran's residuals of left shoulder injuries had its onset in service. 3. The Veteran's residuals of left knee injuries had its onset in service. 4. It is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of left hip injuries have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for residuals of left shoulder injuries have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for residuals of left knee injuries have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1968 to August 1970, including service in Vietnam from January 1969 to August 1970. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. At the hearing the undersigned VLJ granted the Veteran's request to keep the record open for 60 days and the Board will consider the evidence submitted during that period in the adjudication of this appeal. The Veteran filed claims of service connection on February 28, 2012, which were denied in a September 2013 rating decision. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Here, because new and material evidence was received within a year of the September 2013 rating decision, the determinations did not become final and the Board will adjudicate the Veteran's left hip, left shoulder and left knee claims on a de novo basis. Id. Service Connection The Veteran filed claims of service connection on February 28, 2012, which were denied in a September 2013 rating decision. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Service connection for residuals of left hip injuries 2. Service connection for residuals of left shoulder injuries 3. Service connection for residuals of left knee injuries The Veteran contends that service connection is warranted for his residuals of left hip, left shoulder and left knee injuries as the onset of these conditions started while he was on active duty; the Veteran stated the injuries were a direct result of being involved in a helicopter crash that occurred on April 5, 1970, while he was stationed in Vietnam. See November 2013 & March 2014 Statement in Support of Claim. This helicopter crash was documented in an accident report; there were two passengers reported and four individuals were injured in the crash. See June 2017 Correspondence. The Veteran was afforded VA examinations for his left hip, left shoulder and left knee in July 2016. For his left shoulder, he was diagnosed with a labral tear, osteoarthritis and rheumatoid arthritis. Veteran underwent a shoulder replacement and reported experiencing periodic stiffness/soreness following separation from service. For his left knee, he was diagnosed with knee joint osteoarthritis and rheumatoid arthritis; the Veteran reported knee pain and limping symptoms following the helicopter crash and he underwent a left knee replacement complicated by pain and requiring arthroscopy approximately 1.5 years later. For his left hip, Veteran was diagnosed with osteoarthritis and rheumatoid arthritis and underwent a hip joint replacement; Veteran recalled in-service hip pain, significant bruising painful weight bearing and pain over the greater trochanter for several weeks after the initial injury. See July 2016 C&P Exams. The VA examiner opined that Veteran's history of progressive arthritic changes of multiple joints us documented many years after the in-service helicopter crash, and service treatment records and post-service treatment records are silent regarding left hip, left shoulder and left knee conditions until the mid-2000s. The VA examiner concluded that it would be resorting to mere speculation to attribute the residuals of these conditions to the in-service event in the setting of diffuse multiple joint arthritic involvement as well as the absence of chronic progressive complaints post-service rather than the result of aging and/or the physically demanding labor versus related to the non-service connected rheumatoid arthritis. See July 2016 VA Medical Opinion. The Veteran provided in support of his claims a private nexus opinion from an orthopedic doctor in October 2013. The doctor stated that he treated the Veteran for several years and due to the helicopter crash Veteran suffered in service, he has had significant left-sided problems, including the left shoulder, left hip and left knee, which required total joint replacements. The doctor opined that these injuries were most likely caused by the significant trauma he sustained in the Army, specifically due to the helicopter crash he was involved in while serving in Vietnam. See October 2013 Private Nexus Letter. The Veteran further submitted a private nexus letter from an orthopedic surgeon in February 2021 in support of his service connection claims. The surgeon provided an analysis on the Veteran's injuries and their relation to the helicopter crash Veteran suffered while serving in Vietnam. The doctor, after a review of medical records and the Veteran's symptomatology, opined that the Veteran suffered orthopedic trauma in the crash, developing degenerative osteoarthritis of his left shoulder, both hips and knees and has undergone total joint replacements. His subsequent impairments and residuals of his left hip, left shoulder and left knee conditions have a causal nexus to military service as the onset of the conditions are by reason of mechanical injury during the helicopter crash or continued effects of toxicant exposures while on active duty. See February 2021 Medical Treatment Record Non-Government Facility. At his January 2021 Board hearing, the Veteran testified that he was one of the crew members in the helicopter crash that occurred in April 1970 and he landed on his left side after being thrashed around in the helicopter while it was on its way down after the tail rotor was lost. The Veteran reported suffering trauma to his left shoulder, left hip and left knee but was given very little treatment save for a sling for his left shoulder. The Veteran reported that the residuals of his injuries have been recurrent ever since and as he became older the arthritis began to set into his left hip, left shoulder and left knee areas. See January 2021 Hearing Transcript. The Board finds that the Veteran is competent to report regarding the symptoms he experienced during and since service and finds his testimony credible. See also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board finds the lay and medical evidence shows that the Veteran's residuals of left hip, left shoulder and left knee injuries began during service and have been recurrent since then. Thus, service connection for residuals of left hip, left shoulder and left knee injures is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"). 4. Entitlement to a total disability rating due individual unemployability (TDIU) The Veteran contends that he is unable to work due to his service-connected heart condition, bilateral neuropathy, shoulder, hip and knee disabilities. See May 2017 and April 2020 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran noted he last worked as a pipe fitter for a construction company in February 2004, when he became too disabled to work due to his multiple service-connected conditions. See Id. In the Veteran's July 2016 VA examinations, it was noted that his shoulder disability impacted his ability to work as he exhibited difficulty performing tasks which required overhead motions due to pain and locking sensation, his left knee disabilities impacted his ability work as he is unable to kneel or sit on the floor and has issues lifting his legs to sit into vehicles due to his knee conditions; further, his left hip conditions impacted his ability to work as he is unable to get down into the floor to perform tasks. See July 2016 C&P Examinations. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran's service connected disabilities consist of the following: coronary artery disease at 60 percent disabling, diabetes mellitus type II at 20 percent disabling, bilateral lower extremity diabetic peripheral neuropathy at 20 percent disabling each, tinnitus at 10 percent disabling, neck surgical scar at 0 percent disabling and chest surgical scars at 0 percent disabling. The Veteran's combined evaluation for compensation for these disabilities is 80 percent. The Veteran has also been granted service connection for residuals of left hip, left shoulder and left knee injuries. Thus, the Veteran meets the threshold schedular requirements for an award of TDIU benefits under 38 C.F.R. § 4.16(a). At his January 2021 Board hearing, the Veteran testified that he began experiencing trouble completing task at his last job and his conditions began deteriorating to the point that he could not work anymore. He has had to get a shoulder replacement, hip replacements and knee replacements and his injured knee he began favoring "threw his whole body out of alignment." While he last worked in February 2004 as an HVAC technician, his lower extremity neuropathy conditions significantly impacted his ability to perform the job. Since he has been unable to work, the Veteran stated his heart condition has also deteriorated, resulting in four different bypass procedures and he experiences fatigue very easily. The Veteran added that he has a high school education, his disabilities render him unable to sit in a sedentary setting for long periods of time and his hearing "is totally shot." See January 2021 Hearing Transcript. In support of his claim to a TDIU, the Veteran also submitted a letter from a vocational consultant in February 2021. The consultant concluded that just based on Veteran's service-connected diabetic peripheral neuropathy conditions, heart conditions, tinnitus and diabetes, the Veteran suffers from ankle swelling, constant numbness and tingling in legs, feet swelling that requires elevation, tripping due to limited sensation in the feet, inability to sit longer than 30 minutes at a time, frequent fatigue, difficulty communicating and understanding speech, and disruptions in concentration. The consultant opined, based on a reasonable degree of vocational certainty, that the Veteran has been unable to secure and follow substantially gainful employment since at least 2015 due to the limitations from his service-connected disabilities. These limitations would preclude the Veteran from meeting the full range of physical requirements of even sedentary employment on a consistent and reliable basis. See February 2021 Medical Treatment Record. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports that the Veteran's service-connected disabilities prevents him from securing or following substantially gainful employment. As the Veteran meets the requirements under 38 C.F.R. § 4.16(a), is not currently working, and the evidence supports that the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment, the Board finds that entitlement to a TDIU is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.