Citation Nr: 1758057 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 09-45 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a neck disability, as secondary to the service-connected lumbosacral strain. 2. Entitlement to a rating in excess of 40 percent for lumbosacral strain. 3. Entitlement to a total disability rating due to individual unemployability (TDIU) due to service-connected disabilities prior to June 18, 2013, and due to the service-connected lumbosacral strain since that date. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from July 1984 to February 1985 and from November 1985 to January 1987. He was awarded the Rifle Marksmanship Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2006 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the July 2006 rating decision, the RO denied the claim of entitlement to a disability rating in excess of 40 percent for lumbosacral strain. In the April 2013 rating decision, the RO denied the claim of entitlement to service connection for a neck disability. In his October 2009 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge. He was notified of his scheduled October 2015 hearing by letter in September 2015, but he did not attend the hearing. The Veteran also requested a hearing in his June 2016 substantive appeal. He was notified of his scheduled September 2017 hearing by letter in August 2017, but he did not attend the hearing. His hearing requests are deemed withdrawn. No other request for a hearing remains pending. In its November 2015 decision, the Board found that the Veteran had raised the issue of entitlement to a TDIU in a November 2009 statement and directed that entitlement to that benefit be further addressed upon remand. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In an October 2016 rating decision, the RO granted entitlement to a TDIU due to the service-connected depressive disorder, effective June 18, 2013. Accordingly, the issue has been amended as reflected on the cover page. In November 2015 and May 2017, the Board remanded the case for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Finally, the Board notes that additional evidence has been associated with the claims file following the most recent statement of the case and supplemental statement of the case, and that the Veteran has not waived consideration of that evidence by the Agency of Original Jurisdiction (AOJ). However, that evidence is not pertinent to and/or duplicative in substance to the matters adjudicated herein and referral to the AOJ is not, therefore, required. VETERAN'S CONTENTIONS A. Service Connection for Neck Disability The Veteran seeks service connection for a neck disability as secondary to the service-connected lumbosacral strain. See March 2010 claim. He maintains that his neck pain did not occur until his low back pain became very severe in early 2006. He essentially contends that his neck condition was caused by jerks and jolts from his low back spasms. He also states that the August 2010 VA examination was biased against him. See June 2016 substantive appeal. B. Increased Rating for Lumbosacral Strain The Veteran reports that he experiences symptoms of back spasms, pain, and daily leg and foot numbness. See June 2016 substantive appeal. He also states that his low back condition limits his activities, and that he is unable to run and walk, and that it causes difficulty in ascending stairs, playing sports, driving, sleeping, working and lifting. See April 2006 claim, October 2009 substantive appeal. In June 2007, he reported experiencing a tingling sensation which travels up and down his right leg and right foot, and that he experiences foot numbness when seated for a long period of time. The Veteran submitted an April 2016 statement from his partner averring that he has experienced bad back spasms over the past 5 years. In his June 2016 substantive appeal, the Veteran stated that the prior examination was biased against him, and in his October 2009 substantive appeal, requested a medical opinion from a back specialist. C. TDIU In his October 2009 substantive appeal the Veteran stated that he was unable to work at a normal job without taking time off, and he was eventually dismissed and terminated because his back condition limited his mobility. In November 2015, the Veteran submitted a VA Form 21-8940 attributing his unemployability solely to his depressive disorder. In May 2016, the Veteran submitted another VA Form 21-8940 explaining that his lumbar strain, tinnitus, tinea curis and pedis, kidney condition and onychomycosis prevented him from working. In that form, he explained that it was difficult for him to work due to prolonged standing and because of the mental stresses and frustration attributed to his service-connected depressive disorder. FACTUAL FINDINGS 1. The Veteran first reported experiencing neck symptoms during VA chiropractic treatment in February 2009, where he stated that he has had pain in his neck and arm for the past 6 months. The clinician noted cervical trapezius muscle spasm and mild-to-moderate pain on palpation. 2. The Veteran has a current diagnosis of a neck condition. See July 2010 VA chiropractic record reflecting a diagnosis of cervical subluxation, August 2010 VA examination report noting a diagnosis of cervical degenerative disc disease (DDD) with neural foramina encroachment. 3. The neck disability was not caused or aggravated by the service-connected lumbosacral strain. 4. The Veteran has not been diagnosed with ankylosis of the lumbar spine. 5. At no time during the pendency of the appeal was the Veteran diagnosed with intervertebral disc syndrome (IVDS). 6. Since June 7, 2007, the Veteran's right lower extremity has been affected by constant radiating pain, severe paresthesias and/or dysesthesias, severe numbness, and decreased sensation and reflexes. There is no evidence of muscle atrophy or trophic changes. These findings are consistent with no more than moderate incomplete paralysis of the sciatic nerve. See March 2006 VA chiropractic consult; June 2007 notice of disagreement; January 2008 VA treatment record; June 2006, August 2010, and February 2016 VA examination reports. 7. The probative evidence of record does not show that the Veteran was rendered unable to obtain or maintain gainful employment due to his service-connected disabilities prior to June 18, 2013; since that date the Veteran has not been rendered unable to obtain or maintain gainful employment due to his service-connected lumbosacral strain. LEGAL CONCLUSIONS 1. The criteria for service connection for a neck disability secondary to service-connected lumbosacral strain are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for a rating in excess of 40 percent for lumbosacral strain are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237 (2017). 3. Since June 7, 2007, the criteria for a separate rating of 20 percent, but no higher, for right lower extremity radiculopathy of the sciatic nerve associated with the Veteran's lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.120, 4.124, 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for a TDIU due to service-connected disabilities are not met prior to June 18, 2013. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.16 (2017). 5. The criteria for a TDIU due to the service-connected lumbosacral strain are not met since June 18, 2013. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Neck Disability As noted above, the record reflects that the Veteran has been diagnosed with a neck condition, satisfying the first criterion for service connection. He does not assert that his neck condition is directly related to his active service, but rather that it was caused or aggravated by his service-connected lumbosacral strain. Accordingly, the Board will address his claim of entitlement on a secondary basis only. For the reasons listed below the Board finds that the preponderance of the probative evidence indicates that the Veteran's neck condition was not caused or aggravated by his service-connected lumbosacral strain. As such, the claim will be denied. In determining that service connection on a secondary basis is not warranted, the Board finds the negative opinion provided by a VA clinician in August 2010, following examination of the Veteran and review of the claims file, to be the most probative evidence of record. In her August 2010 opinion, the clinician explained that the neck condition was not caused or aggravated by the lumbar spine condition because there is no physiologic relationship between the two conditions. In support of her opinion, she cited to a medical article noting that DDD is caused by damage to intervertebral discs, development of bone spurs, and a gradual thickening of the ligaments. As the August 2010 VA opinion reflects consideration of all relevant facts and is supported by an adequate rationale, the Board finds it that it carries great weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no competent medical opinion to the contrary. The Board acknowledges the Veteran's statement that the examination was biased and that he requests an opinion from a back specialist. The Board notes that "the presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties." Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) and applying the presumption of regularity to VA examinations); see also Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). The results of the August 2010 medical opinion do not support the Veteran's claim of entitlement to service connection, and, so, there is at least some reason, independent of any perceived inadequacies of the examination, for the Veteran to be dissatisfied with the examination. Cartwright v. Derwinski, 2 Vet App. 24, 25 (1991) ("interest may affect the credibility of testimony."). Moreover, the examination was conducted by a clinician who detailed the Veteran's assertions, obtained an accurate history, and conducted all appropriate testing. Subsequently, the clinician rendered an opinion which was based upon consideration of the Veteran's prior medical history, and which contains a reasoned explanation. Therefore, the Board finds that there is not "clear evidence" of irregularity in the August 2010 VA examination or medical opinion. Additionally, although the August 2010 VA examiner was noted to be a physician's assistant, VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified, through education, training, or experience, to offer medical diagnosis, statements, or opinions, whether that is a doctor or other medical specialist. See Cox v. Nicholson, 20 Vet. App. 563, 568 (2007). The August 2010 VA examiner, a physician's assistant, was thus qualified to perform the examination. Therefore, the Board affirmatively finds that the August 2010 VA examination and opinion are adequate and provide sufficient medical evidence to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To the extent that the Veteran believes that his neck disability is related to a service-connected disability, as a lay person, the Veteran has not shown that he has specialized training sufficient to render an opinion as to the cause of his neck disability. 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 this regard, the etiology of neck disabilities is a matter not capable of lay observation, and requires medical expertise to determine. Accordingly, his opinion as to the etiology of his neck disability is not competent medical evidence. The Board finds the August 2010 VA opinion to be significantly more probative than the Veteran's lay assertions. In summary, the preponderance of the probative evidence indicates that a current neck disability was not caused or aggravated by a service-connected disability. Accordingly, service connection 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. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). II. Lumbar Spine Disability In addressing why a rating in excess of 40 percent is not warranted under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran has not been diagnosed with unfavorable ankylosis of the entire thoracolumbar spine, as is required for a higher rating of 50 percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. Additionally, the Veteran has not been diagnosed with IVDS; therefore, a rating based on incapacitating episodes due to IVDS is not warranted. See June 2006, August 2010, and February 2016 VA examination reports. To the degree that the Veteran alleges that these examinations were inadequate, the Board observes that these examiners detailed the Veteran's assertions, obtained an accurate history, conducted all appropriate testing, and noted all relevant symptomatology. Moreover, the examinations were conducted by a physician, a physician's assistant, and a physician's assistant, respectively; these clinicians were qualified to perform the examinations. See Cox, 20 Vet. App. at 568. Therefore, the Board finds that there is not "clear evidence" of irregularity in the June 2006, August 2010, and February 2016 VA examinations, and finds that they are adequate and provide sufficient medical evidence to decide the claim. The Board finds that a 20 percent rating for radiculopathy of the right lower extremity is warranted effective June 7, 2007, the first time during the appeal period that the Veteran reported radiculopathy symptoms. The Board finds these symptoms to be the same symptoms that the February 2016 VA examiner identified as radiculopathy symptoms attributable to the lumbar spine disability. With regard to why a separate rating higher than 20 percent for radiculopathy of the sciatic nerve of the right lower extremity is not warranted, findings supportive of a higher rating, including muscle atrophy, loss of muscle strength, or trophic changes have not been reported or found on examination at any point during the course of the appeal. See 38 C.F.R. §§ 4.120; 4.124; 4.124a, Diagnostic Code 8520; See Miller v. Shulkin, 28 Vet. App. 376, 380 (2017) (holding that a rating higher than 20 percent may not be awarded for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations). The Board has considered the Veteran's and his partner's statements regarding the difficulty he experiences running, walking, playing sports, driving, ascending stairs, sleeping, lifting, and working, as well as his subjective symptoms, including pain and numbness. However, the Board concludes that the medical evidence of record is of greater probative value than the lay allegations regarding the severity of his lumbar spine disability. Moreover, the Veteran does not allege that he suffers from ankylosis of the lumbar spine or from IVDS. In summary, the Board finds that, for lumbosacral strain, the criteria for a rating in excess of 40 percent have not been met. The Board also finds that the criteria for a separate 20 percent rating, but no higher, for right lower extremity radiculopathy affecting the sciatic nerve have been met since June 7, 2007. III. TDIU A. Prior to June 18, 2013 The Board finds that entitlement to a TDIU is not warranted prior to June 18, 2013 due to any service-connected disability or due to any combination of service-connected disabilities. The Board makes this finding in consideration of the fact that the Veteran pursued and obtained an associate degree in information technology from a community college from January 2010 to May 2013. See July 2013 VA treatment record, November 2015 VA Form 21-8940. He noted that he earned A+ and Net+ certifications through this program, and, during or before this program, worked at a firm repairing computer hardware. See July 2013 VA treatment record. He then worked as a network customer care specialist at a technology company from January 2013 to January 2014, working 50 hours per week. See November 2015 VA Form 21-8940. During the period prior to June 18, 2013, the Veteran's service-connected disabilities consisted of lumbosacral strain and radiculopathy. The June 2006 and August 2010 VA examiners noted the effects of these conditions on performing physical work, but their reports do not indicate that the Veteran could not perform sedentary tasks, nor is such suggested by the other evidence of record. Thus, the Board finds that the Veteran was not unable to obtain or maintain sedentary employment consistent with his education, training, and prior work experience prior to June 18, 2013. To the extent that the Veteran reported that the functional effects of his lumbosacral strain interfere with his ability to work, the Board points out that such occupational impairment is considered by the assigned disability ratings. See 38 C.F.R. § 4.1 (2017) (explaining that disability evaluation percentages "represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations" and "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) ("A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment."). Therefore, given the medical evidence of record, and the Veteran's successful participation in sedentary employment and in an academic program similar to sedentary employment, the Board finds that entitlement to a TDIU prior to June 18, 2013 is not warranted. B. Since June 18, 2013 The Board notes that in the October 2016 rating decision, the RO granted entitlement to a TDIU due to the service-connected depressive disorder. Essentially, then, the Veteran is now in receipt of a 100 percent rating for the depressive disorder. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Board must consider whether a TDIU is warranted based on the lumbosacral strain, alone, because such an award may form the basis for an award of special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, the issue at present is whether a TDIU is warranted due solely to his lumbosacral strain since June 18, 2013. The Board finds that a TDIU is not warranted solely due to the lumbosacral strain. Notably, the Veteran has not asserted that his lumbosacral strain, alone, has rendered him unemployable. In his November 2015 VA Form 21-8940 he attributed his unemployment solely due to the depressive disorder. In his May 2016 VA Form 21-8940, he attributed his unemployability to numerous conditions. The Board also finds highly probative the Veteran's report to a January 2016 VA psychiatric examiner that he was fired from the technology company because of missing days of work due back pain and asthma, as well as inefficiency in resolving customer technology issues. He added that following the end of that employment his back pain, asthma, and recently diagnosed obstructive sleep apnea would likely preclude him from maintaining gainful employment. The Veteran provided a similar report to the February 2016 VA lumbar spine examiner stating that he was dismissed from the technology company because he was missing work due to his back condition and depression. That examiner noted the functional impact of the lumbosacral strain as difficulty being gainfully employed in a physical/labor type job. The Board credits the examiner's evaluation of the functional effects of the lumbar spine disability, because it was made following an examination of the Veteran. See Nieves-Rodriguez, 22 Vet. App. at 302-04. There is no functional evaluation to the contrary, nor does the medical evidence reflect that the Veteran is unemployable solely due to his lumbar spine disability. In summary, the Board finds that the preponderance of the evidence is against a finding that Veteran's service-connected lumbosacral strain, alone, has rendered him unable to obtain and maintain gainful employment consistent with his education, training, and prior work experience since June 18, 2013. Accordingly, the preponderance of the evidence is against the claim, and entitlement to a TDIU based on lumbosacral strain 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. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board is grateful to the Veteran for his distinguished and honorable service, and regrets that more favorable outcomes could not be reached. ORDER Service connection for a neck disability is denied. A rating in excess of 40 percent for lumbosacral strain is denied. Since June 7, 2007, a separate 20 percent rating, but no higher, for right lower extremity radiculopathy of the sciatic nerve associated with the lumbar spine disability is granted. For the period prior to June 18, 2013, entitlement to a TDIU is denied. For the period since June 18, 2013, entitlement to a TDIU based on service-connected lumbosacral strain is denied. ____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs