Citation Nr: 1740451 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 09-14 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a low back disability, to include secondary to service-connected bilateral pes planus. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Mark R. Lippman, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1981 to December 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2007 by the Regional Office (RO) of the Department of Veterans Affairs (VA) in New Orleans, Louisiana. The case has since been transferred to the RO in Roanoke, Virginia. The Board previously assumed jurisdiction of the claim of entitlement to a TDIU as part and parcel of the increased rating claim for bilateral pes planus previously on appeal, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In July 2012, the Board granted a 30 percent rating, but no higher, for bilateral pes planus, and remanded the claim for service connection for a low back disability. In March 2013, the parties to this appeal entered into a Joint Motion for Remand (Joint Motion) agreeing that the Board erred when denying a higher rating for pes planus, necessitating a vacatur of this issue, and the United States Court of Appeals for Veterans Claims (Court) granted the Joint Motion in an Order also issued in March 2013. In March 2013, the Board remanded both the pes planus increased rating claim and low back disability service connection claim for further development, and in October 2013, the Board again remanded the case to obtain relevant outstanding treatment records. In October 2015, the Board issued a decision denying the Veteran's claims seeking service connection for a low back disability, an increased rating for bilateral pes planus, and entitlement to a TDIU. In a July 2016 Joint Motion for Partial Remand (Joint Motion), the parties to this appeal agreed that a vacatur of the Board's denial of the service connection claim for a lower back disability and entitlement to a TDIU was required, and the Court granted this Joint Motion in a July 2016 Order. In February 2017, the Board remanded the low back and TDIU claims to schedule a Board hearing. In May 2017, the Veteran was afforded a videoconference hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. The issue of entitlement to a TDIU due to service-connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's current low back disability had its onset in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, a low back disability was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims to have a low back disability due to service. At the May 2017 Board hearing, he attributed low back pain to physical activity during service. He claims to have continuous symptoms since service. The Veteran also claims that his current low back disability is caused or aggravated by his service-connected bilateral pes planus. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection for any particular disability on a direct incurrence basis, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Veteran's DD-214 indicates that his military occupational specialty was a tactical wire operation specialist. At the May 2017 Board hearing, he reported having low back pain due to strenuous physical activity during service, such as lifting, pulling, falling, and running. Service treatment records document complaints and injuries to the low back. In January 1976, the Veteran reported that he hurt his back one day prior. On examination, there was full range of motion. Complaints of back pain were noted. In September 1976, the Veteran again complained of back pain. September 1978 service treatment records document reports of low back pain with L5 radiculopathy. Post-service the Veteran sought treatment for back pain starting in 2002. August 2002 VA treatment records document complaints of persistent low back pain. On physical examination, tenderness in the low back with mild limitation of motion was noted. An impression of degenerative lumbar disc disease and facet arthritis secondary to his leg discrepancy was provided. February 2008 magnetic resonance imaging (MRI) of the low back showed degenerative changes and broad base disc protrusion at L5/S1 disc level compressing the left S1 nerve root. August 2011 private treatment records document the Veteran's report of being diagnosed with a herniated nucleus pulposis with L5 nerve root compression producing symptoms in the Veteran's left lower extremity during service. Lumbar x-rays showed multilevel degenerative disc disease worst at L4/L5 and L5/S1 disc levels with evidence of spondylolisthesis. Based on medical history, a diagnosis of S1 nerve root compression was provided. The Veteran was afforded a VA examination in August 2012. The examiner diagnosed degenerative disc disease of the lumbosacral spine with radiculopathy of the left lower extremity. The examiner described the Veteran's history, to include his complaints of back pain in service and since separation from service. The examiner opined that the Veteran's current back disability was less likely than not incurred in or caused by the Veteran's in-service complaints of injury. He specifically acknowledged the three complaints of back pain during service. He then noted that the claims file is then void of any complaints, treatments, diagnoses, or evaluations for a low back disability until 2005. He also noted that the claims file contains a number of documents indicating injuries to the back post-military. The examiner found absolutely no evidence of a chronic low back disability within twenty-five years of the Veteran's military separation. He determined that the Veteran's lay testimony indicates that he sustained on the job injuries after he left military service. Therefore, he concluded that the evidence in the claims file does not support the contention that the Veteran's current back disability was incurred while the Veteran was on active military duty. The Veteran was afforded another VA examination in May 2013. The examiner opined that it is less likely as not that the Veteran's current low back disability (degenerative disc disease of the lumbosacral spine with radiculopathy in the left lower extremity) had its onset during service or during the year immediately following service, is related to the Veteran's low back problems during service, or is otherwise related to a disease or injury in service. The examiner acknowledged the Veteran's complaints of back pain during service, but noted no complaints from 1978 through separation in 1984. The first medical documentation was in 2007. The examiner acknowledged the Veteran's conflicting reports of injuries post-service. The examiner provided a rationale for his opinion, noting that the Veteran's in service complaint noted radiculopathy, whereas his post-service complaints generally focused on low back pain. The examiner could find no link between the Veteran's back complaints while on active duty and the low back condition he has today. The diagnosis of L5 radiculopathy during service was most likely due to irritation of the L5 nerve root. There were no ongoing complaints of symptoms of radicular pain for the remainder of the Veteran's military service and for years thereafter. Additionally, in April 2008, the Veteran was diagnosed with acute L5 radiculopathy, not chronic L5 radiculopathy. The May 2013 examiner also found that the Veteran's low back disability is less likely as not caused by the Veteran's service-connected bilateral pes planus or residuals of inguinal hernia repair and that the back disability was less likely than not aggravated by the Veteran's service-connected disabilities. The examiner reviewed the medical literature and noted that excess strain from flat feet can cause other foot complications or aggravate conditions, including hammertoes, bunions, heel spurs, arch strain, corns, neuromas, and sagging joints. The examiner noted no medical literature that cites studies or otherwise supports the contention that degenerative disc disease is aggravated by either a flat foot condition or inguinal hernia repair. In making the opinions, the examiner gave weight to all the evidence available, including the Veteran's lay testimony, his low back diagnoses while on active military duty, his post military back injuries, as well as his post military back diagnoses. A review of medical literature was also conducted in formulating the above opinions. Finally, the May 2013 examiner also provided an alternative etiology for the Veteran's disability. He found that the Veteran's current chronic low back condition is more likely than not due to the normal aging process of his lumbar discs coupled with the acute low back injury in 2005. Medical literature defines degenerative disc disease as not actually a disease, but rather a condition usually associated with aging. The Veteran's degenerative disc disease was diagnosed when he was in his fifties. In a November 2013 letter, based on a physical examination and an August 2011 MRI of the lumbar spine, an assessment of multilevel degenerative disc disease, multilevel foraminal narrowing, canal stenosis, L4-5 and L5-S1 extruded herniated disk, impingement of the left existing L4 and L5 nerve roots, and acute L5 radiculopathy, were provided. The treating private treating physician recommended steroid injection treatment and opined that "[it is] more likely than not that the patient's low back disability is related to his service in military." In an October 2016 letter, a private physician provided a positive nexus opinion on the Veteran's current low back disability and service. Based on a review of the claims file and medical literature, the examiner opined that it is at least as likely as not that the Veteran's current low back disability resulted from in-service injuries, and was permanently aggravated by his antalgic gait from service-connected bilateral pes planus. As rationale, the private physician acknowledged that the Veteran had an L5 nerve root diagnosis in service and explained that due to limited technology in the 1970's there is no way to ascertain the severity of his disc bulging at that time. Citing the Veteran's private treatment records, to include the November 2013 medical opinion, the examiner stated that the in-service January 1976 event was not a transient injury because the Veteran again sought treatment in September 1978, three years later. As for secondary service connection and aggravation, based on medical literature, the private physician opined that the Veteran's antalgic gait from service-connected pes planus could have caused long term spine symptoms and certainly aggravated the low spine condition. For the following reasons, the Board finds that the record supports the award of service connection for lumbar spine degenerative disc disease. The Veteran was diagnosed with degenerative disc disease of the lumbosacral spine with radiculopathy of the left lower extremity during an August 2012 VA examination, thus, he meets the current disability requirement. Moreover, given the Veteran's service treatment records documenting multiple complaints of back pain including a note of L5 radiculopathy, post-service treatment records, his credible lay statements, as well as the November 2013 and October 2016 private physician opinions, the evidence is at least evenly balanced as to whether the diagnosed low back disability is related to his military service, in particular duties related to his military occupational specialty as a tactical wire operation specialist. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a lumbar spine degenerative disc disease is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for lumbar spine degenerative disc disease is granted. REMAND A TDIU 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 a result of service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Here, the Veteran's service-connected disabilities are bilateral pes planus (rated 30 percent disabling) and residuals of inguinal hernia repair (rated noncompensable). Thus, he is not currently eligible for a TDIU on a schedular basis. 38 C.F.R. § 4.16 (a) (2016). However, pursuant to this decision, the Board has granted service connection for a low back disability. Thus, the AOJ should consider the issue of entitlement to a TDIU after implementing the Board's grant of service connection for a low back disability. If the Veteran then meets the schedular requirements, the AOJ should readjudicate entitlement to a TDIU on this basis. If the Veteran does not meet the schedular criteria, a TDIU may still be granted even if the Veteran does not meet the schedular standards if the criteria of inability to secure and follow substantially gainful employment are met. 38 C.F.R. § 4.16 (b). The Board may not grant this benefit in the first instance. Rather, it must remand the case for referral to the Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Veteran reports that his occupational experience and educational attainment limit him to manual labor and he cannot perform manual labor due to the combination of his bilateral pes planus and low back disabilities. If TDIU cannot be addressed on a schedular basis after implementing the Board's grant of service connection for a low back disability, then the issue of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(a) should be referred to the Director of Compensation. Accordingly, the claim remaining on appeal is REMANDED for the following action: 1. After implementing the Board's grant of service connection for a low back disability, determine whether consideration of entitlement to a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) is warranted. If so, readjudicate the claim. If not, refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) to the Director of Compensation Service and readjudicate the claim after it is returned. 2. Thereafter, readjudicate the claim on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond before the case is returned to the Board. 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). ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs