Citation Nr: 1806195 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-11 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a thoracic spine disorder. 2. Entitlement to service connection for pleurisy. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to April 1971 in the United States Marine Corps. This case initially came before the Board of Veterans' Appeals (Board) on appeal from February 2010 and September 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2016, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2016, the Board remanded the Veteran's case for additional development. Following the Board's remand, the RO granted the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. Accordingly, those issues are not presently before the Board. The remaining issues have been returned to the Board. FINDINGS OF FACT 1. The Veteran's thoracic spine disorder did not manifest during active service; arthritis did not manifest within one year of separation of service; and there is no indication that the degenerative changes of the thoracic spine are causally related to his active service. 2. The Veteran does not have pleurisy. 3. The evidence does not indicate that the Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a thoracic spine disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for pleurisy have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). I. Service Connection 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, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. VA shall consider all information and lay and medical evidence of record. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Thoracic Spine Disorder The Veteran contends that he has a thoracic spine disorder that was incurred during his military service when his drill instructor threw him down to the ground. He asserts that he did not report the incident during service for fear of retaliation. During the July 2016 Board hearing, the Veteran stated that he continued to have problems with his back after service and sought treatment from his family doctor who treated him with trigger point injections in 1976 or 1977. See Hrg. Tr. at 22. He also indicated that he complained of back pain while he worked at the sheriff's department in 1985 and 1986, and was told that his spine was curved. See, id at 22. He stated that he also began seeing a chiropractor in 1980, and was treated for about two and half years. See, id. at 24. Despite efforts to obtain these records, it has been determined that they are unavailable. The Board notes, however, that the Veteran is competent to describe the treatment he received. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran's service treatment records indicate that, in March 1969, he complained of an eight-month history of pain in the thoracic region of his back. He reported no history of trauma. On physical examination, there was mild left paravertebral tenderness at the mid scapular level. There was no tenderness over the thoracic spine itself. Spine compression test was negative. The impression was musculoskeletal pain. A week later, he continued to complain of back pain. Physical examination was unchanged. There was no vertebral tenderness and the pain was limited to the musculature, which was tender on palpation. In April 1969, physical examination was unchanged. He was given injections of Lidocaine and Aristicort into the trigger points. In December 1969, the Veteran complained of mid thoracic and scapular muscle pain with prolonged sitting and pressure. On physical examination, there was tenderness along the left paraspinal group and mid thoracic spine. He had full range of motion. X-rays of the thoracic spine were negative. The impression was musculoskeletal pain in the left parascapular area. At his March 1971 separation examination, his spine was noted as normal. A June 2004 private treatment record reflects that the Veteran complained of sharp pain in his left side once in a while. He said the pain had worsened in the past two years. VA treatment records dated in March 2010 indicate that the Veteran complained of minor pain in the upper left back that was noted to likely be musculoskeletal in origin. A chest X-ray showed no acute cardiopulmonary disease or erosion/fractures of the ribs. Degenerative changes were noted in the thoracic spine. The assessment was supraspinatus bursitis left side. It was noted that the Veteran had a 40-year history of recurrent left medial scapular pain, variously diagnosed as pleurisy bursitis, myalgia, and was remotely treated successfully by steroid injections. There was local tenderness in the left medial mid-scapula with good range of motion of the shoulder. A December 2012 VA chest X-ray noted that there were degenerative changes in the thoracic spine. In April 2013, a VA examiner indicated that there was no thoracic spine pathology to warrant a diagnosis. The Veteran had full range of motion of his thoracolumbar spine. There was localized tenderness to palpation of the mid back. The examiner indicated that there was no functional loss and/or functional impairment of the spine. X-rays of the thoracic indicated that vertebral body stature and alignment were maintained without compression, fracture, or listhesis. There were mild intervertebral disc space height loss and endplate degenerative changes in the inferior thoracic spine. The impression was no acute osseous abnormality. The January 2017 VA examination report notes a diagnosis of "thoracic sprain - resolved" in March 1969, and a diagnosis of "degenerative changes thoracic spine" in March 2010. The examiner opined that the Veteran's thoracic spine disorder was less likely than not incurred in or caused by the claimed in-service injury. The examiner noted that the diagnosis of a "sprain" is a temporary soft-tissue disorder which typically resolves in several weeks to months without residuals of long lasting sequelae. The examiner considered the Veteran's statements regarding the injury he sustained from his drill instructor, but noted that there was no objective evidence of a significant back injury during service and no objective evidence of residual back pathology during service, noting that X-rays during service were negative. The examiner also noted that there was no objective evidence of a back condition outside of degenerative changes during the January 2017 VA examination. With regard to the degenerative changes, the examiner opined, based on a review of current medical literature and general medical consensus, that the Veteran's condition most often occurs as a chronic process from "wear and tear" and is also part of the normal aging process. For these reasons, the VA examiner concluded that it was less likely than not that the degenerative changes of the thoracic spine were related to an in-service injury, event, or illness. In April 2017, the VA examiner provided an addendum opinion. She indicated that the degenerative changes of the thoracic spine most often occur as a part of the normal aging process and that it was less likely than not that they were present when he left service in 1971 at the age of 22. In August 2017, a VA examiner reviewed the Veteran's claims file and opined that it was less likely than not that the thoracic spine arthritis manifested within one year of separation of service. The examiner noted that the initial evidence of arthritis was noted in 2010 and that X-rays during service were negative. In this case, the Board finds the most probative evidence weighs against the claim. The first objective evidence of the claimed disability, i.e., degenerative changes of the thoracic spine, occurred many years after service. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the only medical opinions on the question of etiology, weigh against the claim. The VA examiners reviewed the Veteran's medical history, considered his lay assertions, and provided rationale for their opinions. Therefore, the Board finds the VA examiners' opinions highly probative. Finally, to the extent that the Veteran himself believes that his current back condition is related to service, given the medical complexity of the etiological questions involved here, the Board finds that his lay opinion is not competent evidence of causation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board. . . .") B. Pleurisy During the Board hearing, the Veteran stated that the only reason he claimed pleurisy was because a doctor told him that he had pleurisy in 1969, and that he was not currently receiving any treatment for pleurisy. See Hr. Tr. at 30-21. The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses related to pleurisy. At his March 1971 separation examination his lungs and chest were noted as normal and his chest X-ray was within normal limits. After service, the Veteran's treatment records are unremarkable for a diagnosis of pleurisy. Whether service connection is claimed on direct, presumptive, or secondary basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no medical evidence establishing that he has pleurisy. Therefore, the Board finds that service connection is not warranted for this condition. II. TDIU TDIU may be assigned 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. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Entitlement to a total rating must be based solely on the impact of a veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment. See 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). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to show unemployability. A high rating in itself is recognition that the impairment makes it difficult to secure or follow employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. § § 3.341(a), 4.16, 4.19. See Van Hoose, 4 Vet. App. at 363. A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran is service connected for posttraumatic stress disorder (PTSD), rated 70 percent; diabetes mellitus, rated 20 percent disabling; tinnitus rated 10 percent disabling; and bilateral hearing loss, rated noncompensable. The Board finds that the Veteran satisfies the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for TDIU. In September 2012, the Veteran sought a TDIU, asserting that his service-connected PTSD prevented him from securing or following any substantial gainful occupation. In June 2013, the Veteran's former employer completed and returned a Request for Employment Information, VA From 21-4192. It was noted that he had worked as a trade show carpenter and that he retired early in June 2010. In September 2013, a VA examiner reviewed the Veteran's claims file and opined that "[a]lthough the Veteran's symptoms are documented as severe and causing impairment in multiple areas, it is this writer's opinion that the Veteran's psychiatric symptoms and accompanying diagnosis of PTSD does not render him unable to gain or sustain work. Recent VA treatment reports assigning GAF scores of 62 (7/1/13 and 10/1/12) also support moderate symptoms and/or moderate impairment." A June 2015 Disability Determination from the Social Security Administration (SSA) indicates that the Veteran was determined to be entitled to disability benefits due to a primary diagnosis of "Disorders of Back (Discogenic and Degenerative)" and a secondary diagnosis of "Essential Hypertension." The Administrative Law Judge noted that the evidence indicated that the Veteran had severe impairments of depression and PTSD, but that the finding of disability was based on his physical impairments. During the July 2016 Board hearing, the Veteran indicated that he believed he was unemployable due to his PTSD and back pain. See Hr. Tr. at 3. He stated that he graduated from high school and completed 10 months of commercial college. See, id. at 8. He stated that he last worked as a steward for trade shows putting exhibits together and that he would get a stabbing, sharp pain while climbing ladders, carrying tools, and driving. See, id. at 7. He also indicated that he would get depressed and moody, and that he experienced anxiety and stress and would get angry at some of the workers and go off on them. See, id. at 8. He stated that he felt he was getting worse and worse, and becoming more difficult to live with, so he went to see a doctor at VA. See, id. at 8. The report of a June 2017 VA Social Work and Industrial Survey reflects that the Veteran was appropriately dressed, maintained good eye contact, and was able to maintain concentration throughout the interview. He indicated that he was married three times and had step children, but no biological children. He stated that he maintained contact with his youngest step daughter and her son, that his relationship with his wife was currently stressed due to her erratic behavior, and that he related well with his in-laws and visited with them weekly. He exhibited symptoms of low motivation/energy and anhedonia when asked about activities or hobbies. He also reported experiencing social isolation, irritability, bouts of low mood and stated that these symptoms had increased in the past several months. The social worker noted that he held down jobs appropriate to his level of education and was able to support himself until he retired at 62 years old. He had never been fired or undergone administrative adverse action. He stated that he last worked for the Carpenter's Union setting up displays and that while doing heavy lifting he noticed problems with his back. He stated that his decision to retire was influenced by his observation that he was no longer able to do any heavy lifting. On mental status evaluation, the Veteran was oriented. His mood was dysthymic and congruent with affect. His speech was normal. His thoughts were logical and coherent and revealed no evidence of thought disorder. He was not suicidal or homicidal. He stated that his PTSD caused him to isolate and stay more at home and do minimum activities. It was noted that he had very limited interaction with his family members. He also stated that he did not have any motivation to do anything and felt depressed. In this case, the Board finds the most probative evidence weighs against finding that the Veteran is unable to secure and follow a substantially gainful occupation solely due to his service-connected disabilities. The evidence indicates that while severe, the Veteran's service-connected PTSD does not render him unemployable. The Veteran indicated that he had some difficulty getting along with his coworkers and supervisors; however, he worked many years at the same job without any negative administrative actions against him. The evidence indicates that he retired early on his own volition and he stated that his back disability and inability to lift heavy objects influenced this decision. Furthermore, SSA found the Veteran entitled to disability benefits based primarily on his back disability, which is nonservice-connected. The Board further notes that the Veteran's PTSD is evaluated as 70 percent disabling, which in and of itself is recognition that the impairment makes it difficult to secure or follow employment. However, the Board does not find that his PTSD, alone, renders him unable to secure or follow a substantially gainful occupation. The Board notes that the Veteran is also service-connected for diabetes mellitus, tinnitus, and hearing loss; however, he has not alleged that any of these disabilities, or a combination thereof, render him unemployable. For these reasons, the Board finds that the weight of the evidence is against the claim for TDIU. III. Conclusion The Board is grateful for the Veteran's honorable service; however, given the record before it, the Board finds that evidence with regard to these claims does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Accordingly, the claims of service connection for a thoracic spine disorder and pleurisy, and entitlement to TDIU must be denied. ORDER Service connection for a thoracic spine disorder is denied. Service connection for pleurisy is denied. Entitlement to TDIU is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs