Citation Nr: 1301397 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 12-30 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for lumbar spine degenerative disc disease with spondylosis L5-L1, status post L1 fracture with neurosurgical repair and cage placement (lumbar spine disability) to include as secondary to service-connected residuals of a laceration of the left hand with ulnar nerve damage post tendon transfer. 2. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veteran Affairs ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1960 to June 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The Veteran's lumbar spine disability, diagnosed as lumbar spine degenerative disc disease with spondylosis L5-L1, status post L1 fracture with neurosurgical repair and cage placement, is not etiologically related to active duty service or a service-connected disease or injury. 2. The Veteran's service-connected disabilities do not preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. Lumbar spine degenerative disc disease with spondylosis L5-L1, status post L1 fracture with neurosurgical repair and cage placement was not incurred or aggravated during service and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for an award of a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran contends that service connection is warranted for a lumbar spine disability as it was incurred during active duty service, or in the alternative, that it is secondary to service-connected residuals of a laceration of the left hand with ulnar nerve damage post tendon transfer. In a December 2009 statement, the Veteran reported that in August 2009 he was standing on an extension ladder and due to the weakness in his left hand, caused by his service-connected disability, he was unable to hold onto the ladder and prevent his fall and thus, he injured his back. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing: (1) a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post-service symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show that: (1) a current disability exists; and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Turning first to whether service connection is warranted on a direct basis, service treatment records (STRs) note a complaint of low back pain on January 6, 1969. A diagnosis of mild low back strain was documented. On April 21, 1976, the Veteran complained of low back pain and a diagnosis of muscle spasm was made. On April 29, 1976, the Veteran complained of back pain and a diagnosis of muscle spasm was documented. The STRs do not include any further complaints or treatments for back issues. The Veteran's spine was noted as normal on his June 1960 induction examination, periodic physicals in July 1966, April 1976 and May 1980, and on his separation examination performed in March 1982. The Veteran self-reported on his July 1966 and May 1980 physical examinations and March 1982 separation examination that he had never experienced recurrent back pain or bone, joint or other deformities. The Veteran stated during his March 2010 VA examination that he had occasional low back pain prior to his August 2009 accident. However, it was noted by the examiner that onset of the occasional low back pain was unknown. During the May 2010 VA examination, the Veteran denied any previous back problems. No mention of back pain prior to August 2009 was made during the August 2010 VA examination. In the Veteran's appeal to the BVA in October 2012, he states that he had degenerative disc disease with spondylosis L5-S1 pre-existing the August 2009 accident. The earliest evidence in the record of a low back disability dates from August 2009 after the Veteran fell approximately 10 to 30 feet, as variously reported, off an extension ladder. The Veteran was immediately admitted to the hospital and diagnosed with a lumbar spine fracture. The Veteran had to undergo lumbar spine surgery in August 2009. More recently in a March 2010 VA examination, the Veteran was diagnosed with a lumbar spine disability. To the present, the Veteran still complains of back discomfort and pain. The record therefore establishes the presence of a current disability. As stated above, the STRs do not document pre-existing or in-service injuries to the lumbar spine and the Veteran has not contended that his back was injured or a pre-existing back injury was aggravated in-service. Additionally, the March 2010 VA examination found no connection between the Veteran's current lumbar spine disability and any disease or injury in-service. Therefore, the evidence is against in-service incurrence or aggravation of a disease or injury. As a result, service connection for lumbar spine degenerative disc disease with spondylosis L5-L1, status post L1 fracture with neurosurgical repair and cage placement is not warranted on a direct basis. The Board must now determine whether service connection is warranted for a lumbar spine disability on a secondary basis. The Veteran contends that his service-connected residuals of a laceration of the left hand with ulnar nerve damage post tendon transfer have caused or aggravated his lumbar spine disability. In support of his claim, the Veteran submitted several lay statements, wherein he stated that his lumbar spine disability was the result of his service-connected left hand disability because the left hand disability prevented him from adequately gripping a ladder. The Veteran claims that if his left hand was stronger, he would have been able to grip the ladder and thus, prevent his August 2009 fall and resulting lumbar spine disability. The Board notes that the Veteran is left-hand dominant. Lay statements, such as those made by the Veteran, are considered to be competent if they are provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Symptoms of the Veteran's left hand disability are capable of lay observation with regard to weakened grip associated with the condition. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). "Competent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Id. at 469-70. Therefore, the Veteran would be competent to opine on this weakness in his left hand so long as he had personal knowledge of the events. In this instance, there is conflicting evidence in the record as to whether the Veteran had personal knowledge of the circumstances surrounding the accident. As stated above, the Veteran claims that the accident which injured his spine was precipitated by his inability to grasp a ladder with his left hand. Conversely, the contemporaneous medical records report that the Veteran had no clear recall of the events of the accident. See Hospital Admission History and Physical, August 2, 2009. Indeed, the Veteran never once mentions during his 12 day hospital stay that he fell as a result of being unable to grip a ladder with his left hand. The Court of Veterans Appeals (Court) has held that it is permissible for the Board to apply reasoning found in the Federal Rules of Evidence, such as the rule that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997); Fed. R. Evid. 803(4) (2012). In this case, the Veteran, upon admission to the hospital and in order to assist with his medical care, told doctors that he could not recall the events of the accident. The Board finds this lack of recall statement, due to its proximity to the accident and made for the purpose of obtaining medical treatment, entitled to greater probative value that the Veteran's later contradictory statements that he fell off a ladder because he lost the grip in his left hand. The first time in the record the Veteran alleges he fell off a ladder as a result of losing the grip in his left hand was December 9, 2009 on his compensation claim, which was over four months after the accident. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that it is permissible for the Board to conclude that contemporaneous evidence has a greater probative value than subsequently reported history). Not only is this later statement made in the Veteran's own pecuniary interest but it also contradicts his earlier statements that he could not recall the events surrounding the accident. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). The Veteran statements are also contradictory in that he states he fell from a height of 10-15 feet when he first arrived at the emergency room of the hospital on August 2, 2009, then later the same day he states the fall was from 15-20 feet, then on October 26, 2012 states he fell from a height of approximately 20 feet, and finally he states he fell from a height of 20-30 feet on September 9, 2009. See Hospital Primary, August 2, 2009; Hospital Consult Notes, August 2, 2009; VA Form 9, October 26, 2012; Doctor's Notes, September 9, 2009. The difference between 10 feet and 30 feet is significant and indicates that the Veteran does not accurately recall the circumstances surrounding his accident. See Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006). Additionally, five days after the accident, the Veteran stated he had no unusual symptoms prior to the fall, while the Veteran now contends that immediately prior to the fall his left hand injury was symptomatic and lead to him being unable to grip the ladder. See Hospital Consultation, August 7, 2009; Statement in Support of Claim, December 9, 2009. The conflicting nature of the Veteran's statements, made after the fact, and in his own interest, weighs against their credibility. Based on the foregoing, the Board finds the Veteran's claim of personal knowledge of the events surrounding the accident is not credible. It is not possible for the Veteran to provide competent lay statements when he had no personal knowledge of the circumstances of the accident. Thus, the Board finds the Veteran's lay statements regarding his inability to grasp the ladder, resulting in his fall and subsequent back injury, are not competent and shall not be considered in rendering a decision. There is considerable competent and credible medical evidence in the record. While a VA examination was performed in March 2010, the examiner did not address the issue of secondary service-connection. The same VA examiner conducted the May 2010 and August 2010 examinations. After reviewing the claims file, the VA examiner during both examinations concluded that the Veteran's lumbar spine degenerative disc disease with spondylosis L5-L1, status post L1 fracture with neurosurgical repair and cage placement was not secondary to service-connected residuals of a laceration of the left hand with ulnar nerve damage post tendon. The VA examiner in May 2010 concluded that the minimal amount of functional limitation to the left hand due to the ulnar nerve paralysis did not support a fall injury. During the August 2010 examination, the Veteran's left-hand grip was tested. The examiner found that the Veteran's strength testing to gravity and resistance was 5/5 bilaterally for upper and lower extremities except for the Veteran's left hand, which grip strength was decreased to 4/5. The examiner also found the left hand had atrophy of intrinsic muscles and thenar muscles, decreased pinprick sensation of 1/2, and decreased light touch sensation of 1/2 in the dorsal left hand around first two digits. The examiner opined that the Veteran had minimal functional limitation in his left hand. The examiner found that the Veteran's lumbar spine disability was less likely than not caused by the service-connected paralysis of ulnar nerve left hand. The examiner stated that the minimal amount of functional limitation to the left hand due to the ulnar nerve paralysis does not support a fall injury. The VA opinions were rendered following review of the complete claims file and contained clear conclusions with supporting data and reasoned medical explanations. The medical opinions are therefore entitled to significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). Specifically, the VA examiners found that the Veteran's fall was less likely than not cause by his service-connected left hand injury as the Veteran's left hand injury results in only a minimal functional limitation and his left hand grip strength is only reduced by 1/5 on a 5/5 scale. Additionally, the pre-claim private medical records relating to the Veteran's treatment for his lumbar spine disability do not include any opinions stating the Veteran's fall and subsequent lumbar spine injury were caused by his service-connected left hand injury. As discussed above, the Veteran was found not credible with regard to his assertion of personal knowledge, resulting in the Board not considering his statements linking his left hand injury with his fall. Thus, the evidence is against the claim for service connection on a secondary basis of the Veteran's lumbar spine degenerative disc disease with spondylosis L5-L1, status post L1 fracture with neurosurgical repair and cage placement. In sum, the evidence of record shows that the first evidence of the Veteran's claimed disability was many years after his separation from active duty, specifically in August 2009 as a result of a fall from an extension ladder. The Board found the Veteran did not have personal knowledge of the circumstances surrounding the accident, causing his lay statements on that issue to be incompetent. In addition, the competent and credible medical evidence does not establish that the Veteran's lumbar spine disability was incurred secondary to his service-connected left-hand disability. The Board therefore concludes that the evidence is against a nexus between the Veteran's claimed disability and a service-connected disability or active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b). II. TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91 (1991). As discussed above, the Veteran is not service-connected for his lumbar spine disability. However, the Veteran is service-connected for residuals of a laceration of the left hand with ulnar nerve damage post tendon transfer, rated as 30 percent disabling, and residuals of thyroiditis with hypothyroidism, rated as 10 percent disabling. The Veteran's combined evaluation for compensation is 40 percent. Therefore, the Veteran does not satisfy the percentage criteria for a TDIU under 38 C.F.R. § 4.16(a), as he does not have two or more service-connected disabilities with one rated at least 40 percent disabling and a combined rating of at least 70 percent disabling. Even though the percentage requirements of § 4.16(a) are not met, if the evidence establishes that the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred to the Director of the VA Compensation and Pension Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16(b). The central inquiry in a claim for TDIU is, "whether that veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In this case, although the record contains some lay evidence that the Veteran is currently unemployable, it does not establish that this inability to maintain gainful employment is due solely to service-connected disabilities. Therefore, referring the claim to the Director for extra-schedular consideration is not warranted. On his December 2009 claim for TDIU, the Veteran reported that he had graduated high school and completed four years of college. The Veteran stated that his lumbar spine disability stemming from his August 2009 accident prevents him from securing or following any substantially gainful occupation. Prior to the accident, the Veteran was employed as an occupational safety and health consultant. The Veteran has submitted no statements that he is prevented from working as a result of his service-connected disabilities- residuals of a laceration of the left hand with ulnar nerve damage post tendon transfer and residuals thyroiditis with hypothyroidism. Indeed, the Veteran was gainfully employed during the time he was service-connected for these disabilities. See Application for Increased Compensation Based on Unemployment, December 14, 2009. Furthermore, the Veteran contends throughout the appeals period that it is his lumbar spine disability that is preventing him from working, not his service-connected disabilities. The March 2010 VA examiner found the Veteran's service-connected disabilities do not impede his ability to perform duties of his usual occupation. The August 2010 VA examiner found the Veteran's service-connected residuals of thyroiditis with hypothyroidism results in no functional limitation. The Veteran's service-connected residuals of a laceration of the left hand with ulnar nerve damage post tendon transfer results in minimal functional limitation. The examiner opined that the Veteran is capable of sedentary to light duty employment based on his service connected and non-service connected conditions. The Board therefore finds that the preponderance of the evidence is against a finding that the Veteran is unemployable. Nonservice-connected disabilities may not be considered in the determination of whether the Veteran warrants TDIU. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Accordingly, the benefit-of-the-doubt rule is inapplicable and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. III. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) with respect to direct service connection and TDIU was furnished to the Veteran in a December 2009 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the December 2009 letter. The Veteran received VCAA notice with respect to his claim for secondary service connection in an April 2010 letter. This April 2010 letter also included notice regarding disability-rating and effective-date elements. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including STRs and private medical records. Additionally, the Veteran was provided with three VA examinations in response to his claim. See 38 U.S.C.A. § 5103A. The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions. For the reasons set forth above, the Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. ORDER 1. Entitlement to service connection for lumbar spine degenerative disc disease with spondylosis L5-L1, status post L1 fracture with neurosurgical repair and cage placement to include as secondary to service-connected residuals of a laceration of the left hand with ulnar nerve damage post tendon transfer is denied. 2. Entitlement to service connection for TDIU is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs