Citation Nr: 1803100 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 10-13 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right shoulder disability, to include tendinitis and degenerative joint disease (DJD), to include as secondary to service-connected thoracolumbar spine disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: James G. Fausone, Attorney-at-Law ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from December 1968 to November 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board remanded the issues on appeal for additional development in September 2013 and March 2015. The requested development has been completed and the matters are again before the board. Updated private treatment records were associated with the record after the March 2017 Supplemental Statement of the Case without VA consideration, or waiver of initial consideration of the additional evidence by the AOJ. See 38 C.F.R. § 20.1304 (2017). However, as the additional evidence is not pertinent to the claim adjudicated herein (any relevant information is cumulative), there is no need to remand for consideration of the additional evidence. The record also reflects that the Veteran's attorney requested a copy of the claims file in August 2017, which was fulfilled in September 2017. In his August 2017 letter, the Veteran's attorney requested 60 days after receipt of the file to review it and provide a response. More than 60 days have elapsed since VA sent the claims file to the Veteran's attorney and there has been no response; as such, the Board will proceed with a decision. FINDINGS OF FACT 1. A right shoulder disability did not manifest during active service or within one year following discharge, and the probative evidence of record is against a finding that a current right shoulder disability is related to an in-service disease or injury. 2. The probative evidence of record is against a finding that a current right shoulder disability was caused or aggravated by a service-connected disability. 3. The probative evidence of record demonstrates that the Veteran has not been rendered unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. A right shoulder disability was not incurred during service, may not be presumed to have been incurred therein, and is not secondary to a service-connected disability. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.310 (2017). 2. The schedular criteria for TDIU are not met, and referral of the matter to the Director of Compensation Service for extraschedular consideration is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection As a general matter, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2017). In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for direct or secondary service connection for a right shoulder disability. The Veteran asserts that his right shoulder disability had its onset in, or is otherwise related to an in-service motor vehicle accident. In the alternative, he asserts his disability is secondary to his service-connected spine disabilities. At the outset, the Board notes that the Veteran's current diagnoses include chronic tendonitis of right shoulder with impingement and osteoarthritis of right shoulder, and therefore the existence of a right shoulder disability is not at issue. Likewise, the Veteran has service-connected disabilities to include lumbosacral strain, residuals of dorsal spine compression fractures D-11 and D-12, and gastroesophageal reflux disease (GERD) associated with residuals of dorsal spine compression fractures D-11 and D-12. The Board initially notes that the Veteran does not contend, nor does the evidence demonstrate, that the Veteran's service-connected GERD disability has caused or aggravated his right shoulder disability. As such, with respect to secondary service connection, the Board will focus its analysis on whether the Veteran's service-connected spine disability has caused or aggravated his right shoulder disability. Service treatment records are negative for complaints or findings of a right shoulder disability and there is no evidence a right shoulder disability manifest to a compensable degree within one year following discharge from active service. His November 1971 separation examination specifically includes a "normal" clinical evaluation of the upper extremities, and specifically checked "no" in response to the question of whether he had ever experienced painful or "trick" shoulder on his November 1971 Report of Medical History. Although the Veteran was involved in a motor vehicle accident, corresponding reports indicate no treatment for any shoulder injury. The first complaint of right shoulder pain is shown in April 1982 private treatment records following right thoracotomy and wedge resection of apical portion of right upper lobe. The Veteran had decreased range of motion following the operation on his lung; however, the day after his initial complaint he had full range of motion. Strength was gradually decreased from lack of use, but with regular use it was thought to return to within normal limits. A March 1982 X-ray showed a normal right shoulder. An October 1995 VA treatment record shows decreased range of motion in the right shoulder and an impression of possible frozen right shoulder. An October 1995 rheumatology note included an assessment of rotator cuff tendinitis. A November 1995 X-ray was negative for the right shoulder. In an April 1996 independent medical evaluation, a diagnostic impression of painful arc syndrome at the right shoulder secondary to supraspinatus tendonitis with possible impingement syndrome was noted. An X-ray of the right shoulder was negative, but magnetic resonance imaging (MRI) was suggested. An August 1997 private treatment record shows the Veteran complained of pain in his right shoulder and an assessment of right shoulder tendonitis was noted. The Veteran had continued reports of right shoulder pain over the next several years. A January 2007 MRI of the right shoulder did not show a definite rotator cuff tear. Impingement syndrome was considered. There was degenerative change of the acromioclavicular joint. A November 2010 VA treatment record noted the Veteran's complaint that ongoing low back pain limited bilateral shoulder tendinitis. The Veteran was afforded a VA examination in November 2013. The Veteran reported he believed his back condition and the motor vehicle accident in service caused the tendonitis of this right shoulder. He further reported that the accident caused a lung problem and treatment of that condition may have caused the shoulder disability. The examiner diagnosed chronic tendonitis of the right shoulder with impingement and osteoarthritis of the right shoulder. The examiner opined that the right shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there was no clinical evidence that a right shoulder injury occurred at the same time as the Veteran's spinal fractures, nor were there any complaints related to his right shoulder in the early documentation of his back condition. The examiner further noted that the Veteran suggested, at the time, that earlier claims for his right shoulder due to service were presented by his lawyer, and further provided that his shoulder only began bothering him four to five years ago. The examiner further opined that regardless of earlier claims there was no evidence that the current tendonitis of the right shoulder was related to service or a residual of his service-connected spine condition. The Veteran was afforded another VA examination in August 2016. The Veteran again reported he believed his right shoulder pain resulted from the motor vehicle accident in service. He also reported he fell riding his bicycle five years prior to the examination and landed on his right shoulder. X-rays done in 2011 were normal, but noted a small partial thickness tear at the insertion site of the supraspinatus tendon on MRI in 2011. The examiner opined that the right shoulder disability was a non service-connected disability. In a February 2017 addendum opinion, the August 2016 examiner opined that the Veteran's right shoulder disability was not likely related to nor aggravated by the service-connected spine disability. The examiner pointed to the Veteran's bicycle fall six years prior, followed by a right rotator cuff tear and a January 2011 MRI that showed a small partial thickness tear at the insertion site of the supraspinatus tendon. The examiner also noted literature that showed the back and shoulders as two different anatomical sites and opined the back and right shoulder were independent conditions. The Board finds the November 2013 and February 2017 opinions the most probative evidence of record. The examiners offered clear conclusions with supporting data, as well as a reasoned medical explanation in support of a negative nexus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There are no medical opinions of record contrary to that of the November 2013 and February 2017 VA examiners. The Veteran has had ample opportunity to submit medical evidence contrary to the reasoned conclusions of the November 2013 and February 2017 VA examiners, but he has not done so. To the extent the Veteran himself contends that his right shoulder disability is related to his in-service motor vehicle accident or his service-connected disabilities-in particular to his spine-the Board notes that the Veteran is competent to report his observable symptoms to include pain from his back to his shoulder. Layno v. Brown, 6 Vet. App. 465, 470 (1994). He is not competent however to clinically associate his service-connected spine disability to his shoulder disability through a finding of causation or aggravation. Additionally, as the Veteran has stated the in-service accident caused a lung problem and treatment of that condition may have caused the shoulder disability, the Board notes that the Veteran has not been service-connected for a lung condition. Indeed, the Board finds that the most probative evidence concerning the nature, development and etiology of the Veteran's right shoulder disability is the report of the February 2017 VA examiner, who has professional expertise to offer the medical findings presented, and in rendering such findings took into account the Veteran's complaints and provided conclusions supported with a clear clinical rationale. The evidence also does not support a finding of continuity of symptoms since service, as the Veteran was shown to have a "normal" upper extremity evaluation upon separation, he specifically denied any pain in his shoulder on his Report of Medical History in November 1971, and at the November 2013 VA examination, he noted that his disability only began to bother him approximately five years prior. Accordingly service-connection is not warranted based on a showing of continuity of symptoms. Thus, the Board concludes that the greater weight of the evidence is against the Veteran's right shoulder claim. The right shoulder disability is not shown to have been caused by service or caused or aggravated by his service-connected disabilities. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected disability, is denied. II. TDIU Generally, 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 such 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). 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 in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently service-connected for residuals of dorsal spine compression fractures D-11 and D-12, rated 20 percent disabling; lumbosacral strain, rated 20 percent disabling; and GERD, rated as noncompensably disabling. His combined rating is 40 percent. Thus, the schedular criteria for consideration of a schedular TDIU are not met. See 38 C.F.R. § 4.16(a). However, 38 C.F.R. § 4.16(b) provides that it is the established policy of the 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. Therefore, rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. The Board finds that referral for extraschedular consideration is not warranted in this case. Although the Veteran is service-connected for GERD, rated at zero percent disabling, he has not argued and there is no evidence suggesting that such disability has in the past or now causes interference with his ability to obtain or maintain employment. Rather, the Veteran contends that his back and shoulder disabilities are what render him unemployable. The Veteran's Social Security Administration (SSA) records indicate that he has been disabled since April 1997 primarily due to a back condition and secondarily due to right shoulder tendonitis. When filing his claim with SSA, the Veteran had also listed his disability was due to a collapsed lung and amputated left thumb. In November 2013, the Veteran was afforded a VA examination to determine the nature and severity of his back condition. The Veteran reported that he was able to ride a bicycle for about a mile and then needed to rest, but noted riding a bicycle was easier for him than walking. He was not receiving treatment for his back at the time, but rather treated with self-rest with some relief. The Veteran reported that flare-ups do not impact the function of his spine, and he was able to forward flex to 90 degrees or greater. He used no assistive devices for locomotion. On examination there was diminished sensation and weakness in his lower extremities, but no true signs of radiculopathy. Additionally, degenerative changes to the Veteran's spine were noted. The examiner opined the Veteran was unable to stand or walk for more than a few minutes to perform the type of factory work he was doing after service due to his back pain. In December 2015, the VA received the Veteran's Application for Increased Compensation Based on Unemployability. The Veteran noted that his back and shoulder prevented him from securing and following any substantially gainful occupation. He reported he last worked as a welder and left employment due to his disability. In August 2016, the Veteran underwent another VA examination. The Veteran stated he was not able to walk for long distances or lift anything heavy due to his low back pain and the examiner opined this would impact his ability to work. He exhibited forward flexion to 85 degrees, and did not report instances of flare-ups, with no pain in weight-bearing, localized tenderness or pain on palpation of the joints. He was able to perform repetitive use testing with at least three repetitions with no loss of function. The examiner opined the Veteran's service-connected conditions were not likely to impact his ability to obtain and maintain substantially gainful sedentary employment, but was likely to impact his ability to obtain and maintain substantially gainful physical employment due to his limitations in walking long distances and lifting anything heavy due to his low back pain. In adjudicating a claim, the competence and credibility of lay statements must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Throughout the appeal period, the Veteran has endorsed low back pain which has impacted his ability to maintain substantially gainful employment. The Veteran has also reported he could not hold a manual labor job, was uneducated, and had been denied vocational rehabilitation by the VA because he had too many disabilities. The Board acknowledges he is competent to give evidence about what he observes or experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). That stated, the evidence of record does not favor a finding that the Veteran's service-connected disabilities (in particular his back disability) alone, render him unable to secure and follow gainful employment. In this regard, the most probative evidence of record is the November 2013 and August 2016 VA medical examination results and opinions as they focus their analysis on the specific functional impairment caused by the Veteran's service-connected back disability. As outlined above, while the Veteran may not be able to perform the physical requirements of a welder or an assembly line worker anymore, the objective test results showing near-full range of motion, the ability to ride a bike, lack of flare-ups or treatment, and no complaints of pain on repetitive use supports a finding that the Veteran would at the very least be able to perform sedentary work, if not lighter physical work. There is no indication that the Veteran is unable to sit, concentrate, or otherwise get to and from a place of employment, looking solely at the functional impact of the Veteran's back disability. The Board observes that the Veteran has several other nonservice-connected disabilities that affect his ability to perform either physical or sedentary work. Indeed, private treatment records show that the Veteran has multiple other medical conditions contributing to general debility, to include obesity, coronary artery disease, atypical chest pain, hypertension, benign prostatic hypertrophy, inguinal hernia, rotator cuff tendonitis, chronic obstructive pulmonary disease, and generalized osteoarthritis. These disabilities cannot be considered in the determination as to whether a TDIU may be awarded. Although the SSA has deemed the Veteran to be unemployable, this determination was based on disability of the back and the Veteran's nonservice-connected shoulder. SSA determinations are not binding on the Board, and the Board finds the medical examination evidence of record dated in 2013 and 2016 to be more informative as to the impairment caused by the Veteran's spine disabilities alone. The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Indeed, the focus of the examiner is not on whether a veteran is unemployable due to his service-connected disabilities, but the functional impairment caused solely by his service-connected disabilities. Thus, the Board finds that the assessments of record are probative in that they support the finding that, when considering the back disability alone, the Veteran is physically capable of at least sedentary employment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that to be probative, a medical opinion must be factually accurate, fully articulated, and based on sound reasoning). As noted above, the sole fact that a Veteran is unemployed or has difficulty finding employment is not enough to award a TDIU, since a high compensation rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. Despite clear limitations imposed by his service-connected disabilities, the weight of the probative evidence is against a finding that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board adds that it has considered the fact that the Veteran has an 11th grade education in making the determination above. The Board finds that the Veteran's education is not so limited so as to restrict him to only other than sedentary occupations. In fact, there is indication in the record that the Veteran has held less physical positions in the past that did not cause him back pain, but he was not able to stay in those positions either because he was laid off, or his employer thought he was more valuable at the time in a physical position. See a May 1981 Hearing Testimony, p.14. In sum, the preponderance of the evidence shows that the Veteran is not unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. See 38 C.F.R. § 4.16. The preponderance of the evidence shows that his service-connected disabilities do not preclude sedentary employment. As a consequence, referral for extraschedular consideration of a TDIU award is not warranted. 38 C.F.R. § 4.16(b). ORDER Service connection for right shoulder disorder is denied, to include on a secondary basis. A TDIU is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs