Citation Nr: 1007463 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-09 915A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bipolar disorder, to include as secondary to a service-connected low back disability. 2. Entitlement to service connection for osteoarthritis of the first metatarsophalangeal joint of the right foot, to include as secondary to a service-connected low back disability. 3. Entitlement to service connection for bursitis of the right shoulder, to include as secondary to service-connected left shoulder and low back disabilities. 4. Entitlement to service connection for sinusitis. 5. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 6. Entitlement to service connection for degenerative disc disease of the thoracic spine. 7. Entitlement to service connection for a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. McGuire, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1982 to October 1984. This matter is before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran participated in a Travel Board hearing before the undersigned Veterans Law Judge in July 2009. A transcript of the hearing is of record and has been reviewed. The Veteran has submitted additional evidence consisting of service treatment records, lay statements, and VA medical records. The Veteran waived initial RO consideration of this evidence. In light of the waiver, the Board may properly consider the evidence in this decision without the necessity for a remand. See 38 C.F.R. § 20.1304 (2009). The Board notes that the Veteran has had appeals before the Board previously. The Board issued decisions or remands in July 1986, February 1998, June 1999, January 2004, and March 2006. In its March 2006 panel decision, after three remands, the Board granted an increased rating of 40 percent for the Veteran's low back disability prior to June 21, 2005 and continued the established 40 percent rating from that date. In May 2006, the Veteran requested reconsideration of that decision, and in an August 2006 determination, the Board denied reconsideration because it found no obvious error in its decision. The RO sent the Veteran correspondence in June 2007 explaining what to do if the Veteran wished to appeal the determination of August 2006. The Veteran did not respond, but he had initiated a new claim for an increased rating for the low back disability in May 2006, which the RO denied in a March 2007 rating decision. The Veteran did not file a notice of disagreement. Accordingly, the issue of entitlement to an increased rating for a low back disability is not in appellate status, and the Board will not discuss it further. The issues of entitlement to service connection for sinusitis, and degenerative disc disease of the thoracic spine are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence is against finding that bipolar disorder was present in service, is related to service, or was caused or aggravated by a service connected disability. 2. The preponderance of the competent and credible evidence is against finding that a right foot disorder was present in service, arthritis of the right foot manifested itself to a compensable degree in the first post-service year, that a right foot disorder is related to service, or that a right foot disorder was caused or aggravated by a service connected disability. 3. The preponderance of the competent and credible evidence is against finding that a right shoulder disorder was present in service, arthritis of the right shoulder manifested itself to a compensable degree in the first post-service year, that a right shoulder disorder is related to service, or that a right shoulder disorder was caused or aggravated by a service-connected disability. 4. The preponderance of the competent and credible evidence is against a finding that COPD was present in service or is otherwise related to service. 5. The Veteran meets the schedular requirements for a TDIU based on his service-connected disabilities. 6. The evidence is at least in equipoise as to whether his service-connected disabilities render him incapable of performing the physical and mental acts required by employment. CONCLUSIONS OF LAW 1. Bipolar disorder was not incurred in or aggravated by military service, and it was not caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 2. A right foot disorder was not incurred in or aggravated by military service, arthritis of the right foot may not be presumed to have been so incurred, and a right foot disability was not caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 3. A right shoulder disorder was not incurred in or aggravated by military service, arthritis of the right shoulder may not be presumed to have been so incurred, and a right shoulder disability was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 4. COPD was not incurred in or aggravated by military service. 38 U.S.C.A. § 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 5. The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.341, 4.15, 4.16(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA with respect to its duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. The United States Court of Appeals for Veterans Claims (Court) has held that these notice requirements apply to all five elements of a service connection claim, which include: (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). VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(a)-(c). VCAA notice must 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, 120 (2004). The Board finds that the requirements of the VCAA have been met and that VA has no further duty prior to Board adjudication. The RO originally provided VCAA notice to the Veteran in July 2006. In that letter, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits on a direct and secondary basis. The RO advised the Veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the Veteran in procuring the evidence relevant to the claim, including which portion of the information and evidence necessary to substantiate the claim was to be provided by the Veteran and which portion VA would attempt to obtain on behalf of the Veteran. The RO sent similar VCAA-compliant notice in November 2006. In the correspondence dated in July 2006, prior to the March 2007 rating decision, the RO also informed the Veteran that when service connection is granted, a disability rating and effective date of the award is assigned. The RO explained how the disability rating and effective date are determined. The Board finds that in issuing this letter, the RO has satisfied the requirements of Dingess/Hartman. The November 2006 notice also contained information regarding disability ratings and effective dates. Moreover, the Board finds that even if the above letters failed to provide the Veteran with adequate 38 U.S.C.A. § 5103(a) notice, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letters as well as the March 2007 rating decision, the October 2007 statement of the case, and the February 2008 supplemental statement of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Furthermore, there can be no prejudice to the Veteran due to a lack of adequate 38 U.S.C.A. § 5103(a) notice where, as here, none has been specifically alleged. Id. The scope of VA's duty to assist will depend on the facts and circumstances of an individual case, but typically, the duty to assist requires VA to obtain relevant records from federal agencies, to make reasonable efforts to obtain relevant records not in the custody of federal agencies, and in certain circumstances, to provide a medical examination or obtain a medical opinion. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has satisfied VA's duty to assist. The RO obtained the Veteran's service treatment records, VA medical center (VAMC) treatment records, records from the Social Security Administration (SSA), and private treatment records. The Veteran received an examination with regard to his foot claim in January 2007. In that regard, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination obtained in this case is adequate because the examiner considered all of the pertinent evidence of record and the statements of the Veteran and provided a rationale for the opinion stated. The Board finds that the opinion addresses service connection on both a secondary and aggravation basis, as required by Barr and Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). See 38 C.F.R. § 3.310. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board notes that the Veteran has not received a VA examination with regard to his bipolar disorder, right shoulder disorder or COPD claims. The Board's duty to obtain a medical opinion arises only if, among other things, the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but establishes that the Veteran suffered an event, injury, or disease in service or that certain diseases manifested during an applicable presumptive period. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4), see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed below, the Board finds that a remand for a VA examination is not required when, as in this appeal, the service and the post- service treatment records are negative for the diagnosed disorder at all or for a decade after the Veteran's separation from active duty. See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334, 1356 Cir. 2003) (holding that if the evidence of record does not establish that the Veteran suffered an event, injury, or disease in service, no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim and therefore VA does not have an obligation to provide the claimant with such an examination or obtain an opinion because "a medical examination or opinion generally could not fill the gap left by the other evidence in establishing a service connection."); Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (holding that the Board is not required to accept a medical opinion that is based on the Veteran's recitation of medical history). The Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal, and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Accordingly, the Board finds that there is no identified, available, and pertinent evidence which is not currently part of the claims files. Hence, VA has fulfilled its duty to assist the Veteran in the prosecution of his claims and adjudication of this appeal may go forward. 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). With regard to the Veteran's claim of entitlement to a TDIU, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted where disability is proximately due to or the result of an already service- connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre- aggravation baseline level of disability for the non-service- connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which suggests the possibility that the recent change amounts to a substantive change in the regulation. For this reason, and because the Veteran's claims were pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which is more favorable to the claimant. When an approximate balance of positive and negative evidence regarding the merits of a claim exists, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107(b). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Bipolar Disorder The Veteran seeks service connection for bipolar disorder on either a direct or a secondary basis. The Veteran asserts that he saw a mental health professional while in service at the time of his low back treatment. He states that he has a current diagnosis of bipolar disorder. Alternatively, the Veteran believes that his bipolar disorder was aggravated because of the severity of his back condition. As to service incurrence under 38 C.F.R. § 3.303(a), the Board notes that service treatment records are entirely negative for complaints, diagnosis, or treatment of bipolar disorder or any other mental disorder. Therefore, entitlement to service connection for bipolar disorder based on in-service incurrence must be denied. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the lack of evidence of treatment after his separation from active duty in 1984 to be compelling evidence against finding continuity. The Board acknowledges that the Veteran is competent to give evidence about what he sees and feels; for example, the Veteran is competent to report on his mental state since service. See Buchanan, supra; Jandreau, supra; Charles, supra. However, upon review of the claims folder, the Board finds that the Veteran's assertions that he has had bipolar disorder since service are not credible. In this regard, his claim of seeing a mental health professional in service is contrary to what is found in the in-service and post-service medical records, including his separation examination. Therefore, entitlement to service connection for bipolar disorder based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(b). As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for a medical opinion finding a causal association or link between bipolar disorder, or any other mental disorder, and service. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). As to the Veteran's claim that bipolar disorder was caused by active duty, the Board finds that this disability may not be diagnosed by its unique and readily identifiable features and therefore the presence of psychiatric disorders are a determination "medical in nature" and not capable of lay observation. Buchanan, supra; Jandreau, supra; Charles, supra. Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that bipolar disorder was caused by service not credible. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Based on the discussion above, the Board also finds that service connection for bipolar disorder is not warranted based on the initial documentation of the disability after service because the weight of the competent and credible evidence is against finding a causal association or link between the post-service disability and an established injury, disease, or event of service origin. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d); Rabideau, supra. As to service connection under 38 C.F.R. § 3.310, the record is negative for a medical opinion finding that an already service connected disability caused or aggravated the bipolar disorder. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.310; Allen, supra. Moreover, the Board finds that the question of whether or not a service connected disability caused or aggravated another disability is a determination "medical in nature" and not capable of lay observation. Buchanan, supra; Jandreau, supra; Charles, supra. Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disability was caused or aggravated by already service connected disabilities not credible. Routen, supra; see also Bostain, supra. Accordingly, the Board also finds that service connection for bipolar disorder is not warranted based on it being secondary to an already service connected disability because the weight of the competent and credible evidence is against finding such a causal association or aggravation. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.310; Allen, supra. Accordingly, the Board must conclude that the weight of the evidence is against the claims of service connection for bipolar disorder on a direct, presumptive, and secondary basis. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303, 3.307, 3.309, 3.310. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, to the extent outlined above, the doctrine is not for application. See also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Foot The Veteran seeks service connection for osteoarthritis of the first metatarsophalangeal joint of the right foot on a secondary basis. The Veteran asserts that using a cane for his service-connected low back condition has caused him to shift his weight onto his right foot, specifically his right toe, which has caused the disability. As to service incurrence under 38 C.F.R. § 3.303(a), the Board briefly notes that service treatment records show no indication of right foot injury or treatment. Moreover, the Veteran has not claimed in service incurrence, stating during his Board hearing that his problems began in 2002 or 2003. Therefore, entitlement to service connection for a right foot disorder based on in-service incurrence must be denied. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between his separation from active duty in October 1984 and his first complaints of right foot pain in 2002 or 2003 to be compelling evidence against finding continuity. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Therefore, entitlement to service connection for a right foot disorder based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(b). As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for a medical opinion finding a causal association or link between the Veteran's right foot disorder and an established injury, disease, or event of service origin. See 8 U.S.C.A. §§ 1131, 1131; 38 C.F.R. § 3.303(d); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In fact, the January 2007 VA examiner, after a review of the record on appeal and an examination of the Veteran, opined that his current right foot disorder is not caused by or a result of trauma while in service. His rationale was that the disorder is secondary to a normal aging process. This opinion is not contradicted by any other medical opinion of record. See Colvin v. Derwinski 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Likewise, the Board finds that the presumptions found at 38 C.F.R. §§ 3.307, 3.309 do not help the Veteran is establishing his claim because the record is negative for manifestations of arthritis in the right foot in the first post service year. As to service connection under 38 C.F.R. § 3.310, the record is negative for a medical opinion finding that an already service connected disability caused or aggravated the right foot disorder. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.310; Allen, supra. In fact, the January 2007 examiner opined that the Veteran's right foot disorder is neither adjunct nor aggravated by the Veteran's service-connected low back disability. The Board interprets this opinion to mean that the service-connected right foot disorder is not related to the low back disability in any way, including on the basis of aggravation. This opinion is not contradicted by any other medical opinion of record. See Colvin, supra. Moreover, the Board finds that the question of whether or not a service connected disability caused or aggravated another disability is a determination "medical in nature" and not capable of lay observation. See Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra. Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disability was caused or aggravated by already service connected disabilities not credible. Routen, supra; see also Bostain, supra. Accordingly, the Board also finds that service connection for a right foot disorder is not warranted based on it being secondary to an already service connected disability because the weight of the competent and credible evidence is against finding such a causal association or aggravation. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.310; Allen, supra. Accordingly, the Board must conclude that the weight of the evidence is against the claim of service connection for a right foot disorder on a direct, presumptive, and secondary basis. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303, 3.307, 3.309, 3.310. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Shoulder The Veteran seeks service connection for bursitis of the right shoulder on either a direct or a secondary basis. The Veteran asserts that he began experiencing shoulder problems in service, and he received initial treatment for both shoulders at that time, including injections. Alternatively, the Veteran believes that his right shoulder disorder was aggravated by service-connected low back and left shoulder conditions. As to service incurrence under 38 C.F.R. § 3.303(a), the Board notes that service treatment records are entirely negative for complaints, diagnosis, or treatment of a right shoulder disorder. Therefore, entitlement to service connection for a right shoulder disorder based on in-service incurrence must be denied. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the lack of evidence of treatment after separation to be compelling evidence against finding continuity. The Board acknowledges that the Veteran is competent to give evidence about what he sees and feels; for example, the Veteran is competent to report right shoulder pain and limitation of motion since service. See Buchanan, supra; Jandreau, supra; Charles, supra. However, upon review of the claims folder, the Board finds that the Veteran's assertions that he has had right shoulder problems since service are not credible. In this regard, his claim of having problems with right shoulder pain since active duty is contrary to what is found in the in- service and post-service medical records including his separation examination. Therefore, entitlement to service connection for a right shoulder disorder based on post- service continuity of symptomatology must be denied. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(b). As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for a medical opinion finding a causal association or link between any right shoulder disorder and service. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). As to the Veteran's claim that a right shoulder disability was caused by active duty, the Board finds that this disability (bursitis) may not be diagnosed by its unique and readily identifiable features and therefore the presence of the disorders are a determination "medical in nature" and not capable of lay observation. Buchanan, supra; Jandreau, supra; Charles, supra. Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that a right shoulder disorder was caused by service not credible. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Based on the discussion above, the Board also finds that service connection for a right shoulder disorder is not warranted based on the initial documentation of the disability after service because the weight of the competent and credible evidence is against finding a causal association or link between the post-service disability and an established injury, disease, or event of service origin. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d); Rabideau, supra. Likewise, the Board finds that the presumptions found at 38 C.F.R. §§ 3.307, 3.309 do not help the Veteran is establishing his claims because the record is negative for manifestations of arthritis in the right shoulder in the first post service year. As to service connection under 38 C.F.R. § 3.310, the record is negative for a medical opinion finding that an already service connected disability caused or aggravated the right shoulder disorder. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.310; Allen, supra. Moreover, the Board finds that the question of whether or not a service connected disability caused or aggravated another disability is a determination "medical in nature" and not capable of lay observation. Buchanan, supra; Jandreau, supra; Charles, supra. Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disability was caused or aggravated by already service connected disabilities not credible. Routen, supra; see also Bostain, supra. Accordingly, the Board also finds that service connection for a right shoulder disorder is not warranted based on it being secondary to an already service connected disability because the weight of the competent and credible evidence is against finding such a causal association or aggravation. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.310; Allen, supra. Accordingly, the Board must conclude that the weight of the evidence is against the claims of service connection for a right shoulder disorder on a direct, presumptive, and secondary basis. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303, 3.307, 3.309, 3.310. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, to the extent outlined above, the doctrine is not for application. See also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). COPD The Veteran seeks service connection for COPD on a direct basis. He asserts that he began having trouble breathing in boot camp but was not treated for a lung condition in service. He believes that the disease was caused by cigarette smoking, which he started in service. He stated that his first diagnosis of COPD occurred in the late 1980's when he had pneumonia on two occasions. He testified that he has received treatment for COPD since that time. As to service incurrence under 38 C.F.R. § 3.303(a), the Board notes that service treatment records are silent as to complaints of or treatment for a lung condition or breathing problems. Therefore, entitlement to service connection for COPD based on in-service incurrence must be denied. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In a private medical evaluation conducted in relation with his SSA claim, the Veteran reported that he was diagnosed with COPD in 1992. However, VAMC treatment notes dated in January 1994 and June 1995 revealed no acute cardiopulmonary disease. The first diagnosis of record is dated July 1997. As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between his separation from active duty in 1984 and the first record of a diagnosis in 1997 is evidence against finding continuity. Put another way, the over a decade gap between the Veteran's discharge from active duty and the first evidence of COPD weighs heavily against his claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002). In this regard, the Board acknowledges that the Veteran and his representative are competent to give evidence about what they see and the claimant is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had breathing problems since service. See Buchanan, supra; Jandreau, supra; Charles, supra. However, upon review of the claims folder, the Board finds that the Veteran's assertions that he has had COPD since service are not credible. In this regard, his claim of having COPD or breathing problems since active duty is contrary to what is found in the in-service and post-service medical records, including his separation examination. Therefore, entitlement to service connection for COPD based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(b). As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for a medical opinion finding a causal association or link between the Veteran's COPD and an established injury, disease, or event of service origin. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). As to the Veteran and his representative's claims that the COPD was caused by smoking in service, the Board finds that COPD may not be diagnosed by its unique and readily identifiable features and therefore the presence of the disorders are a determination "medical in nature" and not capable of lay observation. Buchanan, supra; Jandreau, supra; Charles, supra. Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that COPD was caused by service not credible. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Based on the discussion above, the Board also finds that service connection for COPD is not warranted based on the initial documentation of the disability after service because the weight of the competent and credible evidence is against finding a causal association or link between the post-service disability and an established injury, disease, or event of service origin. See 8 U.S.C.A. § 1131; 38 C.F.R. § 3.303(d); Rabideau, supra. Accordingly, the Board must conclude that the weight of the evidence is against the claims of service connection for COPD. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, to the extent outlined above, the doctrine is not for application. See also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. TDIU 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Other factors that receive consideration in determining whether a Veteran is unemployable include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16(b). See also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Analysis The Veteran contends that his service-connected disabilities render him unemployable. He is service-connected for the following disabilities: a low back disability, rated as 40 percent disabling; bursitis of the left shoulder, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; residuals of a fracture of the fifth metacarpal of the right hand, rated as 10 percent disabling; bilateral sensorineural hearing loss, rated as 10 percent disabling; radiculopathy of the right lower extremity, rated as 10 percent disabling; and hemorrhoids, rated noncompensably. The Veteran's overall combined disability rating is 70 percent. 38 C.F.R. § 4.25. Consequently, the preliminary schedular criteria for assignment of a TDIU are met. 38 C.F.R. § 4.16(a). Thus, the question presented by the Veteran's appeal is whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities alone. 38 C.F.R. § 4.16(b). The record shows that the Veteran was last employed in quality assurance 1995. During a January 2007 VA examination, the Veteran reported that this position was at a tool company, and he was terminated because he could not keep up with his work. In his May 2006 TDIU claim, he stated that his employer cited his limited ability to lift, stand, walk, and work longer hours. He was previously employed as an electrical engineer and has stated that he has a Bachelor's degree in electrical engineering. During his July 2009 Board hearing, the Veteran further discussed his job loss due to his low back disability. His most recent job duties entailed examining plates as they exited a machine. He lost the job because he could not work the hours required, and he could not sit in a chair to perform his duties. He stated that, at the time, he was going to the Dayton VAMC every three months for epidurals in his spine for pain relief. This required one to two days off work, and he was fired for this time off from work. His previous job was as an electrical engineer working on sparrow missiles. This required taking an elevator to an upstairs laboratory to run tests. The Veteran was fired after the company's elevators broke when he could not climb ladder-like stairs to the laboratory. The Veteran also testified that his pain medication impacts his ability to concentrate. The record shows that the Veteran receives SSA disability benefits, mainly due to his low back disability. In a November 1996 application for SSA benefits, the Veteran listed his disabilities as osteoarthritis of the lower spine, degenerative disc disease, bursitis of the left shoulder, tinnitus, and bilateral hearing loss, along with a nonservice-connected abdominal disability and subchondral sclerosis. He reported that pain, quarterly epidurals, medications and his use of a cane made working impossible. He listed the joint and muscle medications he was prescribed and stated that the symptoms of these medications included drowsiness, lethargy, dizziness, and numbness. The record shows that the Veteran's service-connected disabilities, specifically his low back and left shoulder disorders, have worsened over time. In his application for SSA benefits, he stated that his joint pain his increased and mobility has decreased. He also reported that sitting in one position for any length of time is impossible because pressure on his lower spine causes his legs to fall asleep or tingle. He stated that pain and prescription medications make concentration difficult. The January 2007 VA examiner stated that the Veteran's service-connected right shoulder makes overhead activity difficult. During the same examination, the Veteran complained of loss of strength in his service-connected right hand, and the examiner noted decreased grip. The record contains a nexus statement by the Veteran's primary care physician. The physician stated that the Veteran has been in his care since September 2000 and is totally and permanently disabled due to his service-connected disabilities. As this opinion is from a primary care physician familiar with the Veteran's medical conditions and history, the Board affords it probative weight. The January 2007 VA examiner stated that the Veteran's lumbar disability and associated radiculopathy would make standing for protracted periods, walking long distances, repetitive bending, stooping, or lifting difficult. He opined that this would not be a source for individual unemployability, as the Veteran would be capable of working in a sedentary occupation. However, since this examiner did not provide an opinion considering all of the Veteran's service-connected disabilities and did not discuss the cognitive effects of associated medication, the Board finds this opinion to be less probative than the opinion of the Veteran's primary care physician. The evidence of record demonstrates that the Veteran's service-connected disabilities would cause difficulty in almost every employment capacity due to an inability to ambulate or sit for long periods, difficulty reaching overhead, difficulty grasping with his right hand, and hearing impairment. Moreover, the Veteran has consistently reported that medication prescribed for his service-connected disabilities cause cognitive impairment, including difficulty concentrating. Considered together, the Board finds that the Veteran's service-connected disabilities render him incapable of substantially gainful employment. The evidence in the Veteran's favor is not overwhelming. He is not totally physically incapable of performing sedentary employment and could possibly hold a part time job which did not require intense concentration and allowed him to change positions often. The Board has also considered evidence of the Veteran's nonservice-connected disabilities which may impact employment, including major depression. However, resolving all doubt in his favor, the Board finds that most, if not all, occupations are closed to him due to service- connected disabilities. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. at 53. As such, the Veteran's symptomatology has been shown to be productive of a disability picture that more nearly approximates that of the appellant being rendered unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.7. Therefore, entitlement to TDIU benefits has been established. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. ORDER Entitlement to service connection for bipolar disorder is denied. Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for COPD is denied. Entitlement to a TDIU is granted. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In this case, the Veteran has not been afforded a VA examination in connection with his claim for service connection for a thoracic spine disability. The medical evidence of record does document that the Veteran has current disc space narrowing in the thoracic spine. The Veteran has claimed that he incurred his thoracic spine disorder in service, and service treatment records show that degenerative changes of the thoracic spine were found in August 1984. However, the evidence of record does not include a medical opinion based on a review of the Veteran's claims file that addresses whether he currently has a thoracic spine disorder. Therefore, the Board finds that a VA examination and medical opinion are necessary for the purpose of determining the nature and etiology of any and all thoracic spine disorders that may be present. Further, the Veteran has not received an examination with regard to his claim of entitlement to service connection for sinusitis. While the Veteran does not contend that his sinusitis preexisted military service, the Board finds that the evidence of record clearly and unmistakably demonstrates that the Veteran's sinusitis preexisted his military service. The Board has reached this conclusion because he documented a history of sinusitis in a report of medical history prepared in conjunction with his December 1981 enlistment examination. The military examiner appears to have documented occasional sinusitis at that time. Given this record, the Board finds that clear and unmistakable evidence shows that the Veteran's sinusitis preexisted his active duty service. 38 U.S.C.A. §§ 1111, 1132; C.F.R. §§ 3.304(b). Accordingly, on remand, the Veteran should be provided a VA examination and opinion as to whether the record contains clear and unmistakable evidence that his sinusitis, if still present, was not aggravated by his military service. See 38 C.F.R. §§ 3.304(b), 3.306; see also VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate medical examination to ascertain the etiology of any disorder of the thoracic spine that may be present. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether any thoracic spine disorder found on examination is more likely than not (i.e., probably greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), causally or etiologically related to the Veteran's military activity. The examiner is requested to explain the rationale behind this opinion. Please send the claims folder to the examiner for review in conjunction with the examination. The examiner should indicate that it was reviewed. 2. The Veteran should be afforded an appropriate medical examination to ascertain the etiology of any sinusitis that may be present. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether there is clear and unmistakable evidence that the Veteran's sinusitis was not aggravated by his military service. In this regard, the examiner is advised that "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition, as opposed to a temporary flare-up of symptoms. The examiner is also advised that "clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). The examiner is requested to explain the rationale behind this opinion. Please send the claims folder to the examiner for review in conjunction with the examination. The examiner should indicate that it was reviewed. 3. Thereafter, the Veteran's claims of entitlement to service connection for a thoracic spine disorder and sinusitis should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs