Citation Nr: 1645213 Decision Date: 12/01/16 Archive Date: 12/19/16 DOCKET NO. 09-35 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to October 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 (TDIU) and July 2010 (cervical spine) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2014, the Veteran testified at a Board hearing by videoconference before a Veterans Law Judge. A transcript of that proceeding is of record. Following February 2014 hearing, the Veterans Law Judge who conducted the hearing retired. The Veteran was afforded the opportunity to testify in a new Board hearing but declined and requested that the Board proceed with adjudication of his claims. Thus, the issues ready for adjudication. The claim was last remanded in February 2015. The RO has returned the claim to the Board for further appellate adjudication. FINDINGS OF FACT 1. A cervical spine disorder is not related to service. 2. The competent evidence of record is against a finding that the Veteran's service-connected disabilities preclude him from maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 2. The criteria for the award of TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the Veteran was furnished with notice letters in April 2008 and September 2009 that were fully compliant with the provisions of 38 C.F.R. § 3.159(b) and issued prior to the appealed rating decisions. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's relevant service and post-service treatment records have been obtained, and he has been afforded multiple comprehensive VA examinations in conjunction with his claims. In so finding, the Board is cognizant of the July 2016 informal hearing presentation from the Veteran's representative which asserts that the Veteran's most recent VA examination is inadequate. The Veteran asserts that the November 2015 VA opinion should be afforded "scant probative value" as the examiner noted that there was no neck trauma shown in service and claims that the examiner therefore did not adequately consider the Veteran's statements of in-service symptoms. Upon review, however, the Board finds the examination reports adequate, as the VA examiner is shown specifically to note the Veteran's reports of symptoms in service. The examiner's finding that the lack of a significant neck trauma rendered it less likely than not that a neck disability is related to a present disability is a medical one which is shown to have been made upon thorough review of the evidence of record. Thus, compliance with the Board's February 2015 remand instructions is shown. See Stegall v. West, 11 Vet. App. 268, 271 (1998). No further efforts are needed to ensure compliance with VA's duty to assist. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases, to include arthritis and organic neurological disorders, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Finally, a non-service disability may be service-connected when that disability is proximately due to a service connected disability, the result of a service-connected disability or where the non-service connected disability is aggravated by a service-connected disease when a baseline level of severity of that disability is established. 38 C.F.R. § 3.310. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is 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)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Analysis Service treatment records are silent as to any cervical spine disability, injury or complaints. The Veteran's September 1966 report of medical examination demonstrated a normal spine. The Veteran did not report recurrent back pain in his September 1966 report of medical history for discharge. Post-service treatment records include a July 2009 finding of interior cervical fusion and degenerative disc disease in the cervical spine and an April 2010 private treatment record which demonstrated cervical spondylosis with spinal stenosis and foraminal narrowing. A current disability is therefore demonstrated. The Veteran was afforded a VA examination in June 2010. During his examination, the Veteran reported that he had no injury to the neck but over the years had increasing pain. The Veteran reported that in the last year he had been in the emergency room for left arm numbness. The Veteran described numbness and paresthesias in the left upper extremity and stiffness in the neck. An assessment of cervical spondylosis producing spinal stenosis and foraminal narrowing with intermittent left cervical radiculopathy symptoms was provided. The VA examiner stated that degenerative spondylosis of the vertical spine was not related to the right ankle sprain. At his February 2014 videoconference hearing, the Veteran testified that he felt that his service-connected ankle disability aggravated his back and contributed to its deterioration. The Veteran stated that during service he was injured while lifting something and given a back brace. He stated that after service he dealt with his back problems and self-medicated. The Veteran explained that he felt his ankle disability led to poor posture which caused his neck problems. The Veteran described neck problems as beginning between twenty-five and thirty years ago. During an April 2014 VA examination, the Veteran again described a gradual onset of neck pain during service due to repeated overuse injury during physical training and field exercises. Following a physical examination and review of the Veteran's claims file, the VA examiner concluded that a neck disorder was less likely than not incurred in or caused by service. The examiner noted that the Veteran's service treatment records showed no complaints regarding injuries to the neck and the Veteran denied back pain at his separation examination. The examiner found that the Veteran's current neck problems were likely due to wear and tear over time since discharge. In a July 2015 treatment note, the Veteran's physician noted that the Veteran was obtaining narcotics of the same type from a private provider and VA. Impressions of drug seeking behavior and malingering were noted. A diagnosis of cervicalgia was provided in a private treatment note from the Veteran's private doctor Dr. W.S. dated in July 2015. During an August 2015 VA examination, the Veteran reported that he had an onset of neck pain thirty-four years ago. He stated that following service he sought medication for his neck pain on occasion. Following VA examination, and review of the claims file the VA examiner opined that it was less likely than not that the Veteran's neck condition was a result of or caused by his military service or were in any way related to his service connected ankle condition. The examiner explained that there was inadequate documentation of an ongoing disability or need for therapy between service and present and no medical literature which supported a nexus between the Veteran's ankle condition and neck condition. In a November 2015 addendum to that report the examiner stated that there was no anatomical or physiological nexus between an ankle and cervical spine disorder and since there was no history of significant neck trauma the Veteran's cervical spine condition was at least as likely as not and greater than a fifty percent likelihood directly due to the degenerative aging process. The examiner further noted that, consequently, the cervical spine disorder was not aggravated by the ankle disorder. After review of the record, the Board notes that the medical evidence of record does not show a cervical spine disorder nor are any symptoms or complaints of a cervical spine disorder shown for several years after service. The Veteran's cervical disorder may not, therefore, be presumed to be due to service. 38 C.F.R. §§ 3.307, 3.309. In fact, the Veteran's service treatment records do not demonstrate any treatment for a cervical spine disorder over three decades after the Veteran's discharge. Similarly, the Veteran is shown to report cervical pain years after his discharge noting that his symptoms began between twenty-five and thirty years ago at his February 2014 hearing and thirty-four years ago in an August 2015 VA examination. Both of these estimations suggest that the Veteran's cervical spine symptoms began long after service, in the 1980s. As noted above, in order to establish service connection there must be evidence of an in-service incurrence of a disorder, a present disorder and a nexus between the two, or alternatively the evidence must demonstrate that a non-service connected disability was proximately due to or aggravated by a service-connected disability. Here, while the record demonstrates a present cervical spine disorder the evidence demonstrates neither an in-service disability or incurrence of a disability nor a competent nexus between the Veteran's service and his cervical spine disorder or between an ankle disorder and a cervical spine disorder. To the extent that the Veteran believes that his cervical spine disorder is related to service, as a lay person, it has not been shown that he had specialized training sufficient to determine the etiology of cervical spine disorder in a case where he reported it being first manifest years after service. Thus, the etiology of a cervical spine disorder requires medical expertise to determine. As such, the Veteran's lay opinion on the etiology of his cervical spine disorder is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In contrast, as shown above, the Veteran's VA examiners are shown to attribute the Veteran's cervical spine disorder largely to aging and have found that there is no medical relationship between the Veteran's cervical spine disorder and his service or between the disorder and a right ankle disability. Given the Veteran's lack of demonstrated medical expertise and the complexity of linking the etiology of the Veteran's cervical spine disorder to an ankle disorder or otherwise to service, the Board concludes that in this case his statements regarding any such link are significantly outweighed by the conclusions of the above VA examiners. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The reason for this is that the VA examiners have medical training, reviewed the history, conducted examinations, and provided a medical opinion supported by a rationale. In short, the preponderance of the competent, credible, and probative evidence indicates that a cervical spine disorder was not shown in service or for many years thereafter, and the competent evidence weighs against linking the current disability to service or to a right ankle condition. Accordingly, the claim for service connection for a cervical spine disorder is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TDIU 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 a 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 service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Because 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, rating boards should submit to the Director of Compensation Services all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), for extra-schedular consideration. See 38 C.F.R. § 4.16(b). Unlike extraschedular evaluations under 38 C.F.R. § 3.321 (b), which requires a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by a particular disability, extraschedular evaluation under 38 C.F.R. § 4.16(b) requires only a finding that the service-connected disability renders a particular veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his or her age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During the pendency of this appeal, the Veteran has not met the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). The Veteran has been service connected for lumbosacral strain, evaluated as 10 percent disabling and residuals of a right ankle sprain, evaluated as 20 percent disabling, for a combined rating of 30 percent disabling. A May 2008 examination report included the Veteran's report of right ankle pain. The Veteran stated that he was unable to stand for over ten minutes or to perform strenuous labor such as lawn care. During a June 2010 VA examination the Veteran noted that he last worked in 2003 as a welder but that he could not work due to his back, neck and ankle problems. At his February 2014 videoconference hearing, the Veteran stated that he earned his GED and then was a bricklayer for a while after he got out of the Air Force. The Veteran described experience as a welder. The Veteran stated that he last worked around 2004 as a welder. The Veteran stated that he could no longer do his work. In an April 2014 VA examination, the Veteran described flare-ups of pain which caused difficulty walking and bending and difficulty with activities of daily living. The Veteran reported that he had difficulty walking due to his right ankle disability. Following examination and review of the claims file, the VA examiner found that the neither the Veteran's back condition nor his ankle condition impacted his ability to work. An August 2015 VA examination reflects that pain, weakness, fatigability or incoordination did not significantly limit the Veteran's functional ability with repeated use of the lumbar spine. The Board acknowledges the Veteran's contentions that he is unable to work due to his service-connected conditions. However, the most probative medical evidence of record does not support these contentions. Lay persons can attest to factual matters of which they had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Ultimately, given the medical expertise of the examining professionals, the Board places more weight on the April 2014 and August 2015 VA medical findings regarding whether the Veteran's service-connected disability are of such a severity that they render him unemployable. Not only does the Veteran not meet the scheduler criteria for TDIU, the preponderance of the evidence is against a finding that the Veteran is unable to maintain substantially gainful employment. The VA examination reports note that neither the Veteran's right ankle nor his lumbar spine impacts his ability to work. The Board notes that the Veteran is currently unemployed; however, the claims folder does not reflect that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability. Based on the above, to include the Veteran's lay statements, the Board finds that TDIU is not warranted. The preponderance of the evidence is against the Veteran's contention that his service-connected disabilities are of such severity as to preclude his participation in substantially gainful employment. The Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a total disability based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs