Citation Nr: 0809941 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-01 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right leg disorder, claimed as secondary to service-connected lumbar myositis. 2. Entitlement to a total disability rating on the basis of individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The veteran served on active duty from January 1966 to January 1968, including various periods in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board notes that the veteran's January 2005 substantive appeal indicated that he wanted to appeal all issues listed on his October 2004 statement of the case, which included a claim for entitlement to service connection for neurodermatitis. However, in an attached statement received the same day, he indicated his intent to withdraw his neurodermatitis claim. Accordingly, the claim is considered withdrawn. FINDINGS OF FACT 1. There is no competent evidence of current right leg pathology, beyond that already service-connected. 2. The veteran's service-connected disabilities include lumbar myositis, currently rated as 40 percent disabling and right ankle crush injury with degenerative joint disease, currently rated as 20 percent disabling. The combined disability rating is 50 percent. 3. The veteran's service-connected disabilities do not meet the minimum percentage requirements for TDIU, and these disabilities alone are not shown to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. A right leg disorder was not incurred in or aggravated by active duty and is not proximately due to service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2007); Allen v. Brown, 7 Vet. App. 439 (1995). 2. The criteria for TDIU are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for a Right Leg Disorder, Claimed as Secondary to Service-Connected Lumbar Myositis Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2007). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service- connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Upon a review of the record, the Board finds that service connection for a right leg disability must be denied. Specifically, a claim for service connection requires evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Here, the evidence does not reflect underlying pathology affecting the right leg beyond that which is already service connected as a right ankle and low back disability. Specifically, the report of a December 2003 VA spine examination revealed no radiculopathies or neuropathies detected by nerve conduction study. Further, the May 2004 VA peripheral nerves examination revealed no evidence of nerve involvement, paralysis, neuritis, neuralgia, neuropathy, or radiculopathy. Although the veteran subjectively complained of weakness, pain, and lack of sensation in his right leg, the examiner found no electrodiagnostic evidence of a neuropathic origin. The examiner diagnosed the veteran with subjective complaints of paresthesia, pain, and weakness in the right lower extremity without reflex changes, atrophy, or electrodiagnostic evidence of a radiculopathy or a neuropathy. Similarly, a February 2005 VA spine examination report indicated that any right leg condition present would not be caused by his service-connected lumbar myositis because there are not any signs of radiculopathy, nerve damage, or muscle atrophy in his right leg that could be connected with any lumbar condition. Although VA outpatient treatment records reveal subjective complaints of right leg pain, they do not show objective evidence of a current right leg pathology. In summary, in the absence of competent evidence of a current right leg pathology, there is no basis to allow the veteran's claim. Accordingly, the Board finds that the preponderance of the evidence is against service connection for a right leg disability. 38 U.S.C.A. § 5107(b). II. TDIU Under the applicable criteria, a TDIU 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2007). A total disability rating may also be assigned on an extra- schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service- connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The veteran's service-connected disabilities consist of lumbar myositis, currently rated as 40 percent disabling and right ankle crush injury with degenerative joint disease, currently rated as 20 percent disabling. His combined disability rating is 50 percent. Hence, he does not meet the minimum percentage requirements of 38 C.F.R. § 4.16(a). However, as indicated above, a total rating, on an extra- schedular basis, may be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities (per 38 C.F.R. §§ 3.321(b) and 4.16(b)). If such is shown, then the case would be referred to the Director, Compensation and Pension Service for extra- schedular consideration. See 38 C.F.R. § 4.16(b). In determining whether the veteran is able to secure and follow a substantially gainful occupation, consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. The Board must determine if there is some service connected factor outside the norm which places the veteran in a different position than other veterans with a 50 percent combined disability rating. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The fact that the veteran is unemployed or has difficulty obtaining employment is not enough as a schedular rating provides recognition of such. Id. Rather, the veteran need only be capable of performing the physical and mental acts required by employment. Id. The schedular criteria contemplate compensating a veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. See 38 C.F.R. § 4.1 (2007). The veteran contends that he is entitled to a TDIU rating as a result of his service-connected low back and ankle disabilities. He feels that the pain associated with these service-connected disabilities renders him unemployable. The veteran's DD Form 214 indicated that he was a carpenter by trade. He testified at his January 2005 DRO hearing that he worked for his former employer for 30 years before deciding to retire with a severance package approximately seven years previously. He explained that he would have worked there a few more years, but felt he had to leave at that time due to his service-connected disabilities. Subsequently, the veteran became a self-employed woodworker to supplement his retirement income. His April 2004 claim for TDIU indicated that he earned $13,500 in the past year. However, he testified at his January 2005 hearing that he eventually had to stop his self-employed activities because he was unable to stand or sit for long periods of time due to his back. The veteran is currently 62 years old. His testimony suggests that he is willing to work again, but feels that he could not get hired with the current condition of his back and ankle disabilities. He has not applied for Social Security Administration (SSA) benefits. His file suggests that he has not attempted to seek outside employment since his retirement seven years ago. With respect to his educational background, his April 2004 TDIU claim indicated he completed 2 years of college. The threshold question is whether the veteran's service- connected disabilities preclude him from engaging in substantially gainful employment. That is to say, work which is more than marginal, and permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his or her case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). After a review of the entire record, the Board finds that the evidence does not show that the veteran's service-connected disabilities preclude more than marginal employment. While he testified that he has not worked for the past few years, the evidence does not show that he is unemployable due to his service-connected disabilities. While multiple medical treatment notes are of record, none of the treating or examining physicians has ever indicated that he is unemployable due to his service-connected disabilities. Specifically, the veteran testified that he voluntarily retired from his job of 30 years with a severance package. There is no indication that he has actively sought employment since then. In fact, his April 2004 claim for TDIU specifically indicates that he has not attempted to obtain employment since his retirement. His level of education, which includes two years of college, suggests that he could participate in some type of sedentary employment that does not require him to bend, sit, or stand for extended periods of time. The evidence indicates that the veteran is unemployed; however, it does not show that he is unemployable. Therefore, the evidence does not support the claim for TDIU and it is denied. With respect to both claims, the Board has considered the veteran's statements, particularly those made in his February 2004 correspondence and during his January 2005 DRO hearing. In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later 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); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu, 2 Vet. App. at 494. The veteran's personal statements or opinions that he suffers from a right leg disorder or that he cannot work because of his service-connected disabilities, without evidence showing that he has medical training or expertise, is not competent evidence required to grant the benefits on appeal. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. III. Duty to Notify and Duty to Assist Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in March 2004 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claims. Any questions as to the appropriate disability rating or effective date to be assigned are moot. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service records and VA treatment records. The veteran submitted additional medical records and several written statements, and was provided an opportunity to set forth his contentions during his January 2005 DRO hearing. In addition, he was afforded VA medical examinations in May 2004 and February 2005. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a right leg disorder, claimed as secondary to service-connected lumbar myositis, is denied. Entitlement to TDIU due to service-connected disabilities is denied. ___________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs