Citation Nr: 1332012 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-18 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an upper back disorder, to include as due to service-connected disabilities. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from April 1974 to April 1977. These matters come before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a Travel Board Hearing in July 2011 with an Acting Veterans Law Judge no longer employed by the Board. A transcript of the hearing is associated with the claims file. In August 2013 the Veteran was asked if he wished to have another hearing. The Veteran was informed that he had 30 days to respond and that if he did not respond the Board would assume that he did not want another hearing. The Veteran did not respond and, therefore, the Board will proceed with adjudication. This case was before the Board in December 2011, January 2013, and May 2013 when it was remanded for further development. As noted in the prior remands decision, the issue of entitlement to service connection for a lumbar spine disorder has been raised by the record (and previously referred by the Board), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and again refers this issue. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's upper back disorder is not related to service and was not caused or aggravated by a service-connected disability. 2. The Veteran's service-connected disabilities do not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for an upper back disorder have not been met. 38 U.S.C.A. §§ 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 2. The criteria for an award of TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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). Appropriate notice was provided in March 2007, February 2013, and June 2013, and the claims were readjudicated in a July 2013 Supplemental Statement of the Case. Mayfield, 444 F.3d at 1333. The duty to assist has also been met and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records. The appellant was afforded relevant VA medical examinations in January 2008 and April 2012. In addition, medical opinions were obtained in February 2013 and April 2013. Private treatment records from Hillcrest Hospital, Elm Community Clinic, Providence Health Center, and Dr. D.S. have been associated with the claims file. Records regarding a claim for Social Security Administration (SSA) benefits have been associated with the claims file. At the Veteran's hearing in July 2011 the Veteran reported that he had additional treatment for his back from Dr. D.S. It was noted that the record would be held open for the submission of additional records. In addition, the Veteran was asked in a subsequent letter dated in February 2013 to provide authorization or submit additional records regarding his condition. No further records or authorization were submitted by the Veteran. Significantly, neither the appellant nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it 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 (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that he has an upper back disability due to a motor vehicle accident in service. Service treatment records reveal that upon examination at entrance to service in April 1974 the Veteran was noted to have mild pes planus. A treatment note dated in April 1976 reveals that the Veteran was in motor vehicle accident four days prior. A Medical Condition - Physical Profile Record, dated in April 1976, indicates that the Veteran had "upper back pain." In August 1976 the Veteran complained of backaches since a car accident. The pain was noted to be in the thoracic spine and the Veteran was assessed with muscle strain. In the Report of Medical History, dated in February 1977, the Veteran reported that he was in a motor vehicle accident while in service. A letter from a physician dated in April 1976 indicates that the Veteran was treated for injuries sustained in a car accident. The letter did not indicate any upper back injuries. Post-service, in January 2005 the Veteran complained of upper back pain. The Veteran complained of upper back aches in February 2005. A January 2005 x-ray of the thoracic spine revealed mostly mild prominent degenerative hypertrophic changes. It was noted that it was otherwise a negative exam of the thoracic spine. In April 2005 the Veteran was noted to have acute spasms of the left paraspinals thoracic and lumbar area. There was tightness both sides along with tenderness reported with palpation over both sides of the spine and directly over the spinous processes. A private evaluation in May 2005 revealed acute spasms of the left paraspinals thoracic and lumbar with tenderness to palpation over both sides of the spine and directly over spinous processes. The Veteran complained of right leg and knee problems. Examination revealed full range of motion of all extremities with no pain. Muscle strength was 5/5 in all extremities. There was no indication of neurological deficits. Range of motion of the back and neck were mildly decreased and x-rays revealed degenerative joint disease throughout the spine. In June 2005 the Veteran complained of thoracic pain. An information form completed by the Veteran in July 2007 revealed waist and lower back problems as well as spasms in the back. The Veteran complained of thoracic spine pain in January 2008. He underwent a private radiology examination that revealed a negative thoracic spine. In January 2008 the Veteran underwent VA spine examination. After examination the Veteran was diagnosed with degenerative disc disease of the C5-C6 with myofascial pain. The examiner noted that the Veteran was involved in a motor vehicle accident in April 1976 and that the claims file reveals cervical spine and shoulder complaints. The Veteran was noted to have a history of substance abuse putting him at a higher risk for injuries. The localized degenerative disc disease at C5-C6 was noted to favor a traumatic residual. The Veteran's cervical condition was noted to be as likely as not related to injury to the neck in military service. In January 2009, the Veteran complained of pain in the back. Myelography of the entire spine, dated in February 2009, did not reveal a thoracic diagnosis. In February 2010, the Veteran was afforded a VA medical examination regarding the cervical spine. This examination did not discuss the thoracic spine. The Veteran reported in July 2011 that Dr. D.S. has indicated that his back is related to his injuries in service. He reported that he had an appointment to see Dr. D.S. later that month. The Veterans Law Judge held the record open so that additional records from Dr. D.S. could be obtained and submitted. The Veteran was afforded a VA medical examination in April 2012. He was noted to be diagnosed with degenerative joint/disc disease of the thoracolumbar spine. The Veteran stated that he had pain in the low back with stiffness and with trouble bending. He stated he got the stiffness with standing or sitting for very long. He stated he gets pain in the back similar to muscles pulling with walking very far, such as 8-10 blocks. He denied injury other than a motor vehicle accident in 1974 when he was told he had bruised his back. He has had no back surgery. He stated that in the past he was treated with steroid injections in his back and with physical therapy with hydro therapy. He took over the counter medications for the pain as well as using icy hot and sometimes took his girlfriend's hydrocodone. He reported that his neck and back flare up about three times a week and that the pain was relieved in two to three hours by taking a nap and medication. An opinion was not offered regarding the etiology of the Veteran's thoracic spine condition. In February 2013, a VA medical opinion was obtained regarding the etiology of the Veteran's upper back condition. The prior examination of April 2012 was noted to have been reviewed. The Veteran was reported to be diagnosed with mild degenerative changes of the thoracic spine. The examiner noted that the changes on the Veteran's x-rays were consistent with changes found in normal aging for a moderately active man of this age. The Veteran was noted to have been involved in a motor vehicle accident while in service and diagnosed with a contusion(bruised) back. The examiner rendered the opinion that based on a review of the Veteran's April 2012 examination and the changes noted on x-rays it is less likely than not that the Veteran's current upper back condition is related to a bruised back caused in the accident while in service, nor was it aggravated by the Veteran's service. The examiner found that it is more likely than not that the changes found on x-ray are related to normal changes of aging. It is also less likely than not that the mild degenerative changes found on the upper back x-rays are caused by or aggravated by the Veteran's other service connected disabilities. There is no nexus between a condition in the cervical spine and the development of degenerative changes in the thoracic spine. Entitlement to service connection for an upper back disorder is not warranted. The Board acknowledges that the Veteran was treated after a motor vehicle accident in service. In addition, the Board acknowledges that the Veteran currently has degenerative changes of the thoracic spine which he believes are related to service. The Veteran is competent to report certain symptoms, such as those in his back; however, his assertions that he currently has an upper back disability that is due to service are outweighed by more specific medical assessment that is based on history and specific VA examination. See Kahana, 24 Vet. App. at 428. The preponderance of the evidence is against a finding that the Veteran's current upper back disorder is related to his injury in service. Although the Veteran has reported that he believes that his condition is related to his injury in service, a VA medical examiner, after review of the claims file has rendered the opinion that the Veteran's thoracic spine condition is less likely than not related to the Veteran's injury in service. The examiner rendered the opinion that the Veteran's thoracic spine condition is more likely related to the normal changes of aging. In addition, the examiner rendered the opinion that the Veteran's thoracic spine condition is not caused by or aggravated by the Veteran's service-connected disabilities. The examiner explained that there was no nexus between the Veteran's cervical spine condition and the development of degenerative changes in the thoracic spine. As the preponderance of the evidence is against a finding that the Veteran's upper back disorder is related to the Veteran's active service or his service connected disabilities, entitlement to service connection for an upper back disorder is denied. III. TDIU In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. VA defined substantially gainful employment as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." See M21-1MR, Part IV, Subpart ii, Chapter 2(F)(24)(c). In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, 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). It is VA policy, however, to grant TDIU in all cases where a Veteran is unable to work dud to service connected disability. Rating boards are required to submit to the Director, Compensation and Pension Service (Director), for extraschedular consideration, all cases of veterans who are unemployable by reason of service-connected disability(ies), but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Where a claimant does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a total disability evaluation based on individual unemployability under 38 C.F.R. § 4.16(b). The Board may, however, refer the claim to the Director for extraschedular consideration. The governing norm for the Board in making the determination is whether there is a plausible basis for concluding that the Veteran is unable to secure and follow a gainful occupation. Bowling v. Principi, 15 Vet. App. 1 (2001). In a letter dated in April 2005 the Veteran was noted to have applied for SSA benefits. The letter indicated that the Veteran had become unemployed and unemployable. A SSA decision indicates the finding that the Veteran has demonstrated that he lacks the residual functional capacity to perform requirements of any past relevant work. The Veteran's severe impairments were noted to be posttraumatic stress disorder (PTSD), back pain, vertigo, and left ear perforation with otitis. In July 2011 the Veteran reported that he had not worked in approximately seven years. He indicated that he was a tailor and that his disabilities prevented him from working. In April 2012 the Veteran was afforded a VA medical examination. After physical examination the examiner noted that the Veteran's thoracolumbar spine, cervical spine, and peripheral neuropathy conditions did not impact on his ability to work. In April 2013 a VA medical opinion was obtained regarding the Veteran's claim for TDIU. The examiner noted that the Veteran's claims file was reviewed including the examination in April 2012 and the addendum. The examiner reported that the Veteran's service-connected disabilities do not render the Veteran unable to secure or maintain substantially gainful employment. The examiner found that the Veteran should be able to function in either sedentary or physical employment with limitations. Entitlement to a TDIU is not warranted. The Veteran is currently in receipt of service connected benefits for right upper extremity peripheral neuropathy associated with traumatic cervical spine degenerative disc disease with myofascial pain, currently evaluated as 20 percent disabling; traumatic cervical spine degenerative disc disease with myofascial pain, currently evaluated as 10 percent disabling; laceration scar of the right thigh, currently evaluated as noncompensably disabling; and laceration scar of the scalp, currently evaluated as noncompensably disabling. The Veteran currently has a combined evaluation of 30 percent disabling. As such, the Board notes that the Veteran does not meet the schedular criteria for a TDIU. In addition, although the Veteran is in receipt of SSA benefits and the SSA Disability Determination and Transmittal sheet indicates that the primary diagnosis is disorders of the back, this same sheet indicates that the secondary diagnosis is anxiety related disorders and the SSA decision reveals that the Veteran's severe impairments are posttraumatic stress disorder (PTSD), back pain, vertigo, and left ear perforation with otitis. As such, SSA's decision includes consideration of disabilities for which the Veteran is not in receipt of service connected benefits. An April 2013 VA medical opinion indicates that that the Veteran's service connected disabilities do not render the Veteran unable to secure or maintain substantially gainful employment. The examiner found that the Veteran should be able to function in either sedentary or physical employment with limitations. The Board notes that the Veteran's usual employment is as a tailor. As such, the Board finds that the preponderance of the evidence does not reveal that the Veteran is unemployable. The Board finds further that the evidence shows no plausible basis for referring the Veteran's claim for consideration by the Director for unemployability on an extraschedular basis. 38 C.F.R. § 4.16(b). Therefore, entitlement to a TDIU is denied. ORDER Entitlement to service connection for an upper back disorder to include as due to service-connected disabilities is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs