Citation Nr: 1610993 Decision Date: 03/17/16 Archive Date: 03/23/16 DOCKET NO. 12-28 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for back condition, to include as secondary to bilateral flat feet. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). 3. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Christopher J. Boudi, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and a physician ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active service from February to August 1978; and from September 1979 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, issued in October 2009, April 2014, and May 2014. The October 2009 decision denied service connection for a back condition; the April 2014 decision assigned an initial disability rating of 50 percent for service-connected PTSD, and the May 2014 decision denied a claim for TDIU. In June 2012 the Veteran testified at a hearing before a Decision Review Officer. In August 2013 and October 2014, he testified before the undersigned Veterans Law Judge via videoconference. In November 2013 and November 2014 the Board remanded the case for additional development. In a rating decision dated in April 2015, the RO granted a temporary total rating for PTSD effective March 12, 2015. In a rating decision dated in June 2015, the RO returned the rating for PTSD to 50 percent effective May 1, 2015. The issue of an initial disability rating for PTSD in excess of 50 percent and to a TDIU prior to July 30, 2009, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A back disorder was not complained of or diagnosed during service; and the Veteran's post-service complaints, diagnosed as lumbar strain and intervertebral disc syndrome, were first diagnosed long after service and are unrelated to service or a service-connected disability. 2. Since July 30, 2009, the combined effects of his service-connected PTSD and bilateral flat feet precludes employment. CONCLUSIONS OF LAW 1. A back disability was not incurred in or aggravated by service, may not be presumed to have been incurred during service, and is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1131, 1112, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2015). 2. Effective July 30, 2009, the criteria for TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters dated in August 2009, and May and July of 2013. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The Veteran was apprised of the information and evidence needed to substantiate his claims, including the information and evidence to be submitted by him and the information and evidence to be obtained by VA. VA also assisted the Veteran in the development of his claims. The Veteran's medical records have been obtained and are in the claims file. The Veteran was also afforded multiple VA examinations during the appeal period, including a VA spine examination. The Board has reviewed the examination reports and finds that they are adequate because the examiners reviewed the claims file; physically examined the Veteran; conducted appropriate tests; and reported all findings in detail. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is considered adequate when it is based on consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In addition to the medical evidence, the Veteran testified by videoconference regarding his claims before the undersigned Veterans Law Judge in August 2013 and October 2014. During those hearings the Veteran was assisted by an attorney. His attorney, and the Veterans Law Judge, asked questions to ascertain the etiology of the Veteran's back disorder and the Veteran's ability to work. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or his attorney. The hearings focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims, as evidenced by the questioning pursued by his attorney during the hearings; and neither the attorney nor the Veteran has suggested any deficiency in the conduct of the Board hearings. Therefore, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In sum, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the claims herein addressed on the merits, and has not argued that any error or deficiency in the accomplishment of the duties to notify and assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation, and will review the merits of the Veteran's claims de novo. II. Merits The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. The Board's analysis below focuses specifically on the elements needed to substantiate the claims, and the evidence that the record shows, or fails to show, with respect to the claims See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Service connection, back The Veteran seeks service connection for a back disorder secondary to his service-connected bilateral flat feet disability. See Board Hearing Transcript, p. 26. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection for arthritis may be presumed if the disorder is manifest to a degree of 10 percent or more within the year following separation from active duty service. 38 C.F.R. § 3.307(a), 3.309(a). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability, or is aggravated by a service connected disability. 38 C.F.R. § 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts and analysis Service treatment records, which are aplenty, contain no record of a back disorder, including any degenerative disease of the lumbar spine, during service, and there is no record of any degenerative disease in the year thereafter, so service connection on a direct basis under 38 C.F.R. § 3.303(a) or under the presumptive provisions of 38 C.F.R. § 3.307, 3.309(a) is not warranted. In fact, there is no complaint or finding of any back disorder until long after service. See, e.g., April 2006 Social Security disability examination findings of normal spine with full range of motion, and normal gait. Moreover, the Veteran's post-service back disorders are not linked by competent medical evidence to service. On the contrary, according to a March 2015 VA examiner, the Veteran's lumbosacral strain and intervertebral disc syndrome did not begin during service or in the year after service, and are not related to any incident of service or to a service-connected disability. See also February 2014 VA examination report. The 2015 examiner, an orthopædic surgeon, explained that it was less likely than not that the Veteran's current back disorder began during service or within the year following service because there was no clearly documented continuum of care from service until now; and no aggravation of the back by the Veteran's service-connected feet disorder because there was no clearly abnormal gait that could have placed undue strain on the back. In April 2015 the examiner added that there is no credible medical evidence extant that bilateral flat feet causes a level of unusual mechanical stress on the back that aggravates back strain and/or arthritis beyond normal progression. The record contains no medical evidence of record to the contrary. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). At this point the weight of the evidence is decidedly against the claim. To the extent that the Veteran himself suggests that there may be a nexus between his current back problems and his service-connected pes planus, this is a medical question that is complex in nature, so any inference, that is, opinion, must come from one with medical expertise, or have some medical foundation. See, e.g., Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (providing that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on medical causation. He also has presented no learned evidence in support of his lay opinion (see 38 C.F.R. § 3.159(a)(1)); so the record is without any competent evidence in support of his lay opinion and it is of no probative weight. The weight of the evidence is therefore against the claim, as there is no evidence of a back disorder until long after service, and no probative evidence that links a current back disorder to service or the Veteran's service-connected feet disability. The appeal for service connection must therefore be denied. B. TDIU In a rating decision dated in May 2014 the RO denied the issue of TDIU because the Veteran did not then meet the percentage criteria. At that time the Veteran was service-connected for PTSD only. His disability picture has since changed, as he is now also service-connected for a bilateral feet disability. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability). The Veteran was last gainfully employed in 2007 and his effective July 30, 2009, his PTSD is rated as 50 percent disabling and his bilateral flat feet is rated as 30 percent disabling for a combined 70 percent rating. As such, the Veteran meets the schedular criteria set forth in 38 C.F.R. § 4.16(a). The issue then is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. The Board finds that the evidence supports a finding that the Veteran is unable to secure or follow substantially gainful employment due to a combination of his service-connected disabilities. During the August 2013 Board hearing, the Veteran's VA treating psychologist (the Coordinator of the PTSD Clinical Team) testified that due to the Veteran's severe psychiatric impairment, it would be very difficult for him to sustain employment and noted that he was not employed. See August 2013 Board Hearing Transcript, p. 12. He testified that that the Veteran's PTSD includes severe hypervigilance and hyperarousal symptoms which in turn causes an interference with normal sleep, and averred that the Veteran had not slept in a healthy or normal fashion for the last 30 years; with the effect that the Veteran is chronically unable to concentrate, chronically in a negative mood, and chronically drowsy and experiences periods of drowsiness during the day. Id. The physician pointed out that functioning with a chronic and severe sleep deprivation is not possible at most jobs. Id. The Board finds this physician's assessment of the Veteran's unemployability to be compelling, particularly in light of the fact that the Veteran was hospitalized because of his PTSD a few months after the Board hearing. See also February 2014 VA PTSD examination report, documenting the Veteran as reporting that he had not worked since 2007 and was on Social Security disability. In addition, the Veteran testified that he has foot pain and that his feet swell if he stands on them too long. See August 2013 Board Hearing Transcript, p. 23; and October 2014 Board Hearing Transcript, p. 18. He testified that he is unable to run, and that he walks slowly because he cannot bear any pounding or pressure to his feet. Id. See also February 2014 VA pes planus examination report, advising of pain on use of both feet; accentuated on use. Given that the Veteran's prior work experience has been in labor/heavy labor, this too is strong evidence of current unemployability. Evans, 12 Vet. App. 22, 30 (it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's service-connected disabilities, alone, preclude employment. ORDER Service connection for a back condition is denied. Effective July 30, 2009, entitlement to TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND As stated before, in March 2015 the Veteran was hospitalized because of his service-connected PTSD, for which he was awarded a temporary total rating. He has not been examined for rating purposes since that time, and there are no treatment records in the claims file dated after this in-patient care. In order to ascertain the current severity of his PTSD the Veteran should be accorded a new VA examination. See 38 C.F.R. § 3.327. On remand the claims file should be updated to include VA treatment records dated after April 8, 2015. Bell v. Derwinski, 2 Vet. App. 611 (1992). As to his TDIU claim, in this decision, the Board grants a TDIU, effective July 30, 2009. As to the period of time prior to July 30, 2009, in Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88,94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director, Compensation Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the veteran "was ineligible for 4.16(b)-TDIU consideration." ld. In this case, the RO did not submit the veteran's TDIU claim to the Director, Compensation Service for extraschedular consideration. As such, this matter must be remanded. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate all of the Veteran's VA PTSD records dated after April 8, 2015, with the claims file. Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorizations from the Veteran. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge about the Veteran's PTSD symptoms, to include the effect of this disorder on the Veteran's ability to work and activities of daily living. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a new VA PTSD examination. The examiner should review the claims file in conjunction with the examination, and interview the Veteran during the examination. Examination findings, including the nature, frequency and severity of the Veteran's PTSD symptoms and his current GAF score, must be set forth in the examination report. The examiner must also a) opine as to the current level of impairment of the Veteran's service-connected PTSD on his occupational and social functioning; and b) opine, based on the lay and medical evidence of record, as to the date that the current level of impairment began. A complete rationale for all opinions must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 4. Refer the Veteran's claim of entitlement to a TDIU prior July 30, 2009, to the Director, Compensation Service, for extraschedular consideration. 5. Then readjudicate the appeal. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs