Citation Nr: 0812564 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 03-25 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for degenerative disease of the lumbar spine. 2. Entitlement to an award of a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Van Stewart, Counsel INTRODUCTION The veteran had active military service from December 1958 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDINGS OF FACT 1. The veteran does not have degenerative disease of the lumbar spine that is related to his military service. 2. The veteran's service-connected disabilities (right shoulder arthritis and right shoulder scar) do not combine to preclude substantially gainful employment; the evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. CONCLUSIONS OF LAW 1. The veteran does not have degenerative disease of the lumbar spine that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2007). 2. The criteria for an award of TDIU have been not been met. 38 U.S.C.A. § 1155 (2002); 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.15, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and 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 his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, subsequent RO actions may "essentially cure[] the error in the timing of notice"). The Board notes that the veteran was apprised of VA's duties to both notify and assist in correspondence dated in April and November 2001, May and September 2005, and January 2006. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claim, "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Consequently, the Board does not find that the late notice under the VCAA requires remand to the RO. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.) Specifically regarding VA's duty to notify, the notifications to the veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the veteran's behalf. The RO specifically requested that the veteran submit any evidence he had pertaining to his claims. The RO also provided a statement of the case (SOC) and two supplemental statements of the case (SSOCs) reporting the results of its reviews of issues on appeal and the text of the relevant portions of the VA regulations. While the notifications did not include the criteria for assigning disability ratings or for award of an effective date, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), because the veteran's service connection claim will be denied, these questions are not now before the Board. Consequently, a remand of the service connection question is not necessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Regarding VA's duty to assist, the RO obtained the veteran's service medical records (SMRs), and post-service medical records, Social Security Administration (SSA) records, and secured examinations in furtherance of his claims. The AOJ and the veteran have both expended significant efforts to obtain evidence in support of the veteran's claimed in- service motor vehicle accidents and associated injuries, as well as averred post-service treatment at VA medical facilities. All these efforts have been without success. The veteran avers that he was involved as a passenger in a bus accident in Germany in 1960 or 1961, and that he was taken to the Army hospital in Frankfurt, where, he contends, he was treated for back, thigh, and knee injuries. The veteran's SMRs contain no record of this accident or injuries, and the veteran's own attempts to obtain related records have been fruitless. In any event, at a July 2005 hearing before the undersigned Veterans Law Judge, the veteran testified that the onset of his claimed spine disability was related to a 1978 motor vehicle accident in Florida, not to the averred bus accident. He mentioned the bus accident, but attributed his shoulder injury to that, though the SMRs do not indicate that his March 1965 shoulder surgery was related to any specific trauma. In a October 2002 statement related to his Social Security Administration (SSA) disability claim, he also expressed belief that the bus accident had nothing to do with his current disabilities. With the single exception of a handwritten notice of an orthopedic appointment in July 1988, VA records of treatment described by the veteran in the 1980s are not to be found. An August 2002 letter to the veteran indicates that a search of both the Nashville and Murfreesboro, Tennessee, VA Medical Centers found no records from the 1980s. The U.S. Army and Joint Services Records Research Center (JSRRC) has indicated that it can find no evidence of a Jeep accident said to have occurred in Korea in which the veteran avers he was injured, and there were no relevant records found in a search of inpatient records at the hospital at Osan Air Force Base in the Republic of Korea for the time period in which the veteran believed he was treated there following the averred Jeep accident. The veteran avers that his two claimed motor vehicle accidents, one in Florida in 1978, and a Jeep accident in Korea in 1980, both occurred while he was on temporary duty (TDY) orders, suggesting that might be a reason they are not documented in the veteran's records. Of record is a May 1979 authorization for six TDY trips from Osan AB to either Kansan AB or Taegu AB during the period from late May 1979 through the end of August 1979. The U.S. Air Force Personnel Center could not provide records of the veteran's claimed TDY orders because they are not kept in the Air Force's Master Personnel Record. Similarly, records of the averred 1978 accident in Florida are not available, nor are there any treatment records from the Tampa General Hospital showing post-accident treatment of the veteran. VA has no duty to inform or assist that was unmet. II. Lumbar Spine The veteran has a currently diagnosed back disorder that he contends is related to one or more of the motor vehicle accidents he says he was involved in while in military service. The veteran's SMRs show an April 1965 entry characterized as a back pain complaint, which resulted in an osteotomy of the head of the right humerus. (The veteran has been service connected since 1984 for a right shoulder disability arising from residuals of his in-service shoulder surgery, currently characterized by VA as arthritis.) There is, however, no history of any complaint of or treatment for any spine injury in the veteran's SMRs, and none of the reports of his in-service examinations contains either complaints or clinical findings of a spine disability. Moreover, the record contains no medical evidence of complaint or treatment related to the spine until nearly 20 years after the veteran's retirement from service. Of record is a June 1999 letter from the chief executive officer of a towing company for whom the veteran had worked in Tampa, Florida. The gist of the letter is that the company was being bought out, that the veteran's employment contract was not going to be renewed by the new owner, and that the CEO could not, in good conscience, recommend the veteran for employment because the veteran's back problems "have gotten worse," impeding his ability to inspect wreckers in a timely fashion. Records from the Social Security Administration (SSA) show that the veteran was granted SSA disability benefits effective from December 1999. Those records contain findings that the veteran is disabled according to SSA standards due to right shoulder disability and degenerative disc disease of the lumbar spine with mild narrowing at L5-S1. The SSA records include the report of an evaluation conducted in February 2001 for the Tennessee Disability Determination Service by T. Fisher, D.O. Dr. Fisher noted that the veteran told him that he had been employed as an office manager for 20 years by a towing firm in Florida, but had left due to lay-off; the reason for the lay-off was not specified in Dr. Fisher's report. The veteran complained to Dr. Fisher of "long-standing low back pain during the last two years." Dr. Fisher determined that there were no neurological deficits noted on examination, and that the veteran should be able to perform jobs that require standing and ambulating, lifting objects weighing 10-15 pounds. A February 2001 letter from the veteran describes treatment given by chiropractor Victory Palffy over a six-week period beginning in June 2000. The letter also contains an endorsement by Dr. Palffy expressing an opinion that the deterioration of the veteran's disc more likely than not started over twenty-five years previously. No rationale or explanation was provided in support of this opinion. Also of record are treatment records from Robert Canon, M.D., documenting treatment in June and July 2003. Relying on the veteran's report of an automobile accident in 1978 and of multiple treatments in "military clinics concerning back pain over the years since 1980," Dr. Canon opined that it is reasonable to assume that the condition of his back is now a result of the cumulative trauma over the past 25 years, and that it would therefore be military related. Dr. Canon did not explain his term "cumulative trauma," other than to note that the current degenerative changes in the veteran's spine are the result of the cumulative effect of "all traumas that he has been involved in his lifetime," including injuries sustained in the averred 1978 motor vehicle accident. The veteran has been afforded two VA examinations in connection with his spine claim. A May 2001 examiner noted that the veteran had mild scoliosis curvature towards the right on the lower part of the thoracic spine, and that the muscles palpated in that area were tense. The veteran could flex forward to 112 degrees, limited by pain. X-ray examination revealed spurs from vertebrae and mild disc narrowing at L5-S1; there was degenerative joint disease in the lumbosacral spine area. The examination request did not specifically ask the examiner for an opinion as to whether the veteran's spine disability was related to his military service, and no opinion was expressed. The veteran was also examined in November 2007, with a request to provide a medical opinion as to the probabilities that any degenerative process of the lumbar spine was due to or a result of the veteran's period of military service. The examiner noted that the veteran's claims file had been reviewed. The veteran reported that he injured his back in a motor vehicle accident while in service and was treated at a civilian hospital. He reported that he could not remember if he ever reported the incident to, or was treated by, the military coincident to this reported accident. He also reported the averred Jeep accident in Korea, and treatment at the Army hospital in Seoul, Korea. Review of CT examination in 2002 revealed degenerative disc disease at L5-S1, with chronic compression deformity superior endplate of L1. November 2007 X-rays revealed mild degenerative change involving articulate facet joints at L4- L5, and L5-S1, with no evidence of the compression fracture noted in the CT report. The examiner diagnosed degenerative disc disease of the lumbar spine. The examiner's opinion was that it was less likely as not that the veteran's degenerative disc disease of the lumbar spine was related to his military service. In support of this opinion, she noted that there was no record of the veteran's averred motor vehicle accidents and also noted that there is no record of treatment for back complaints in the 1980s. Notwithstanding that he told her that he had complained of back pain as early as 1961, the examiner noted that the veteran's SMRs contain no spine-related complaints, and, significantly, none of his periodic physical examinations showed either back-related complaints from the veteran, or clinical findings of any back-related abnormality. The examiner also cited medical literature that concluded that degenerative arthritis affecting the spine typically affects individuals over the age of 60 years, and that, as of 2001, the date of the earliest back treatment records on file, the veteran was 60 years old. The examiner additionally noted that advanced age is one of the strongest risk factors associated with osteoarthritis, and reported that the National Health and Nutrition Examination Survey found the prevalence of osteoarthritis was less than 0.1 percent in those aged 25 to 34 years old, versus a rate of over 80 percent in people over the age of 55, which findings were consistent with earlier studies. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, 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). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Caluza v. Brown, 7 Vet. App. 498 (1995). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Here, there is medical evidence of a current disability, degenerative disc disease of the lumbar spine and arthritis. However, there is no medical evidence of any related in- service injury or disease, and no persuasive medical evidence of a nexus between any current disability and any in-service disease or injury. As noted, the veteran's SMRs are completely silent regarding any complaint or treatment of the spine. Also as noted, extensive efforts to obtain supporting medical documentation of treatment related to the veteran's averred in-service motor vehicle accidents have been fruitless. Even if it were conceded that the veteran was involved in both the 1978 accident in Florida and the 1980 Jeep accident in Korea, there is no medical evidence of any injury related to either accident. Most telling is the complete absence of complaint in the veteran's SMRs, including the absence of any spine- related complaints or clinical findings on any of his several in-service medical examinations. The Board also finds that there is no continuity of symptomatology after service, which supports the conclusion reached by the VA reviewer that current disability is not traceable to service. As noted, the first objective evidence of a back disability does not appear in the record until about 2001. In this regard, the Board notes that the veteran told Dr. Fisher in February 2001 that his lumbar pain had been ongoing for only two years. Equally significant is the fact that, when the veteran submitted his initial disability claim to VA in October 1984, the claim was only related to his right shoulder disability-he did not mention any spine complaint or disability at all, strongly suggesting the absence of any chronic problem due to in-service accident. The Board acknowledges that the veteran's private medical care providers, Drs. Palffy and Canon, have expressed opinions that the veteran's spine disability is related to his military service, but finds that neither opinion, individually or collectively, is as convincing as that provided by the VA examiner who had access to the veteran's complete file, and provided a detailed rationale for her opinion. First, the Board finds that these private opinions are not helpful medical opinions because they rely not only on the veteran's reports of in-service motor vehicle accidents, but also on his reports of unspecified back injuries incurred or aggravated in those accidents, and reported but undocumented treatment in the years immediately after service. The absence of problems for so many years and the veteran's failure to mention such a problem when he first filed a claim make the information on which these opinions are predicated inaccurate. While the veteran is competent as a layperson to describe events such as motor vehicle accidents, there is no evidence of record showing that the veteran has the specialized medical education, training, and experience necessary to render competent medical opinion as to the injuries he avers resulted from these accidents. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1). See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (discussing competency of lay observations of obvious medical conditions such as varicose veins); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Here, the veteran has asserted that he was in motor vehicle accidents that are not documented, and that he received treatment for unspecified back complaints, also not documented. He is not competent to identify degenerative disc disease or arthritis, he has not reported a contemporaneous medical diagnosis, and he has not described any symptoms following his averred motor vehicle accidents that support his later diagnosis of degenerative disc disease. As noted above, the absence of evidence for so many years and the veterans failure to mention such a problem when he filed his 1984 claim tends to refute the veteran's version of events, at least as to his having had continued problems after the in-service accidents. This part of the veteran's version of events is not supported and therefore not believable. Because the VA examiner's opinion is supported by this absence of continued problems, it is more persuasive than the other opinions. Moreover, the Board notes that Dr. Palffy offered no rationale or explanation whatsoever in support of his opinion that the deterioration of the veteran's disc more likely than not started over twenty-five years previously. As for Dr. Canon's opinion, the Board notes that he specifically relied on the veteran's reports of multiple treatments over the years since 1980, which averment is not supported by the medical evidence of record. Moreover, Dr. Canon's statement that the veteran's current back disability would be military- related because it is reasonable to assume that his current back condition is now a result of the cumulative trauma over the past 25 years, does not attempt to either identify "all traumas that he has been involved in his lifetime" or to even speculate as to what part of "all the traumas," the reported in-service motor vehicle accidents played in causing the veteran's current degenerative disc disease. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this service connection claim. The veteran's current degenerative disc disease is not traceable to disease or injury incurred in or aggravated during active military service. III. TDIU The veteran contends that he is unemployable as a result of his service-connected disabilities. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2007). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any non-service-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (2007) (age may not be a factor in evaluating service- connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the veteran is currently service connected for a single disability, degenerative arthritis of the right shoulder, currently evaluated as 30 percent disabling. Award of TDIU therefore is not warranted based on disability percentages. 38 C.F.R. § 4.16(a). It is also the policy of the VA, however, 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(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, 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 total rating, based on unemployability. Van Hoose, 4 Vet. App. at 363; see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability(ies), is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, supra. Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. In this regard, the Board notes that the veteran has averred that he did not work for the first eight years after leaving service because of his back disability. In support of this contention, he has supplied SSA records showing no reported income in the seven years after service. However, there is no evidence showing that the veteran's not working during these years is in any way related to any disability, service- related or not. As noted, there are no records of medical treatment, other than his service-connected right shoulder disability, during those years. As noted, in his February 2001 report, Dr. Fisher opined that there were no neurological deficits noted on examination, no restrictions to gripping or manipulating objects, and that the veteran should be able to perform jobs that require standing and ambulating, lifting objects weighing 10-15 pounds. Included in the records is a May 2002 physical capacities evaluation showing that the veteran has some physical limitations consisting of limits in the weight he can lift, much of which appears to be related to his service-connected right shoulder disability, which affects movement of the right arm. There are additional limitations in movements related to twisting, bending at the waist, crouching, and climbing ladders. The report notes, however, that the restrictions to working eight hours per day, five days per week, are imposed by pain in the back, knees, and hips, none of which is service connected. There are limits to neck movement as well, but the veteran is not service connected for any neck disability. The evaluation also noted limitations involving standing, sitting, and walking around. This evaluation also contains attached daily progress notes indicating that the bulk of the veteran's complaints were related to his back, with some related to his knee, hip and, occasionally, his legs, with little mention made of his service-connected right shoulder disability. Nowhere in the evaluation is there an opinion that the veteran is unemployable, let alone unemployable due to his service- connected right shoulder disability. It is undisputed that, if he were working, the veteran's right shoulder disability would have an adverse effect on employment, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2007). Given the lack of evidence showing unusual disability with respect to the right shoulder that is not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. ORDER Entitlement to service connection for degenerative disease of the lumbar spine is denied. Entitlement to an award of a total disability evaluation based on individual unemployability (TDIU) is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs