Citation Nr: 18140067 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-35 227 DATE: October 2, 2018 ORDER 1. Entitlement to service connection for a right shoulder disability is denied. 2. Entitlement to service connection for a cervical spine disability is denied. 3. Entitlement to service connection for bilateral upper extremity neuropathy of the median nerve, to include as secondary to a cervical spine disability is denied. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. A right shoulder disability did not have its onset during active service and is not otherwise related to active service, to include an isolated complaint of rhomboid strain in April 2004. 2. A chronic cervical spine disability did not have its onset during active service and is not otherwise related to active service, to include complaints of neck pain following combative physical training in September and November 2005. 3. Bilateral upper extremity neuropathy of the median nerve did not have its onset during active service and is not otherwise related to active service, to include as secondary to a cervical spine disability. 4. The Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for bilateral upper extremity neuropathy of the median nerve, to include as secondary to a cervical spine disability, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. The criteria for a TDIU rating have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 2003 to December 2007. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 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. Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for bilateral upper extremity neuropathy of the median nerve, to include as secondary to a cervical spine disability. The Veteran claims entitlement to service connection for a right shoulder disability and cervical spine disability due generally to his active service, including in a combat environment. In a statement submitted along with his July 2011 claim, the Veteran reported that his combat environment service as a gunner on a vehicle, which traveled through rough terrain, resulted in chronic back pain from his neck to his lower back. Service treatment records do not document the onset of a chronic right shoulder or cervical spine disability. An April 2003 Report of Medical History prior to enlistment does not document any relevant conditions. In April 2004, the Veteran complained of right shoulder pain for the past two days, without any mechanism of injury and gradual onset of pain; this was assessed as rhomboid strain. In September 2005, the Veteran complained of neck pain and stiffness after combative training; this was assessed as neck strain secondary to combative physical training. Upon follow-up five days later, the Veteran continued to report neck pain due to assessed neck strain. In November 2005, a problem list includes cervicalgia. An April 2007 post-deployment health assessment documents the Veteran’s report of back pain without other swollen, stiff, or painful joints; he also reported that his health was the same as a prior March 2006 health assessment, that he had not had any illnesses or injuries since that time, that he had not been seen by a health care provider and did not experience an injury or illness for which he did not seek care, that there were no conditions that limited his ability to work in his military specialty, and that he had no other health concerns and did not intend to seek VA disability benefits. In May 2007, the Veteran complained of neck pain for the past month; a physical exam revealed a small lump on the right posterior neck which was assessed as a swollen lymph node. Post-service treatment records document relevant complaints regarding right shoulder pain, cervical spine pain, and upper extremity numbness. Regarding his right shoulder, VA treatment records from January 2010 document the Veteran’s report of intermittent right shoulder pain for 4 years without a history of significant trauma, which was assessed as intermittent right medial upper scapular border pain. In March 2010, the Veteran complained of chronic lower back pain; however, he denied other significant pain issues. In January 2012, he reported a knot in his right shoulder, and in May 2012, he again reported intermittent right shoulder pain. Finally, private treatment records from October 2010 document his complaints of progressing neck pain noted at C1 and C5. Upon VA examination in September 2011, the Veteran reported a right shoulder problem since 2004, due to his history of driving on rough roads during active service. He further stated that his claimed cervical spine condition was due to an injury from a parachute accident in 2004 and asserted that his claimed cervical spine condition also resulted in numbness in his toes and fingers since 2006. A physical examination noted lower neck tenderness; however, there was no clinical evidence of significant pathology in the cervical spine or right shoulder. The examiner concluded that there was no pathology to render a diagnosis regarding the cervical spine, although he diagnosed right shoulder strain based upon subjective pain and objective loss of motion. Regarding the Veteran’s reported numbness in his fingers, the examiner concluded that the most likely peripheral nerve involved was the digital nerve; however, he noted that the etiology of the peripheral nerve disease was unknown. In July 2015, a VA examiner opined that the Veteran’s claimed right shoulder disability was less likely than not related to active service as service treatment records did not document a chronic condition or treatment for right shoulder strain. The Veteran’s January 2012 notice of disagreement asserts that VA should grant service connection as it is feasible that his claimed conditions are related to his combat service. The Board acknowledges that the Veteran has met the first element for a service connection claim as the post-service treatment records document right shoulder pain diagnosed as right shoulder strain, neck pain without diagnosis regarding the cervical spine (which may constitute a current disability without an identified underlying diagnosis where pain alone results in functional impairment), and bilateral finger numbness diagnosed as upper extremity neuropathy. Additionally, the Veteran’s service personnel records, including his DD Form 214, documents his receipt of a Combat Action Badge; therefore, his combat service is sufficient to meet the second in-service element of a service connection claim. Significantly, however, the probative evidence of record does not otherwise document a nexus between any of the Veteran’s claimed disabilities and his active service, including his documented in-service complaints discussed above. Regarding the Veteran’s claimed right shoulder disability, the Board finds that the September 2011 VA examination and the July 2015 VA opinion are entitled to great probative weight, as they were based upon a thorough review of the claims file, properly considered the Veteran’s service treatment records, and are well-supported by a reasoned rationale. Additionally, the September 2011 VA examiner noted that the etiology of the Veteran’s bilateral upper extremity neuropathy was unknown, which is not a positive nexus to service. The Board has considered the lay statements of record, which are probative evidence insofar as they report observable symptoms. However, to the extent that the Veteran asserts that he has chronic right shoulder and cervical spine disabilities that are related to his active service, such statements are of little probative value given the Veteran’s lack of medical expertise. Moreover, to the extent that the Veteran asserts that his claimed conditions first had their onset during active service and have continued since that time to the present, albeit intermittently, the Board has considered this but finds that the preponderance of the evidence of record weighs against such a finding. While service treatment records document an isolated complaint of right shoulder pain in April 2004, and complaints of neck pain resulting from physical training in September and November 2005, the Board finds it probative that the Veteran subsequently denied any related conditions within an April 2007 post-deployment health assessment just months prior to his discharge from active service. To the extent that he again reported neck pain the following month, in May 2007, the Board notes that this was ultimately related to a lymph node, rather than his cervical spine. Additionally, post-service treatment records do not document any related complaints regarding his right shoulder or cervical spine until January 2010, more than two years since service discharge. Similarly, to the extent that the Veteran asserts that his bilateral upper extremity neuropathy is related to his claimed cervical spine pain, such conclusions are of no probative value given the Veteran’s lack of medical training to make this medical determination. In conclusion, the most probative evidence of record weighs against the Veteran’s claims of entitlement to service connection for a chronic right shoulder disability, chronic cervical spine disability, and bilateral upper extremity neuropathy. The preponderance of the evidence of record is against a finding that chronic disabilities of the right shoulder or cervical spine first manifested during active service, and the preponderance of evidence weighs against a finding that the current complaints of cervical spine pain and right shoulder strain are otherwise related to active service. Concerning his claimed upper extremity neuropathy, the Board notes that the September 2011 VA examiner concluded that the etiology of such complaints were unknown. Moreover, as the Board has herein denied service connection for a cervical spine disability, secondary service connection for the Veteran’s claimed bilateral upper extremity neuropathy is not warranted as a matter of law. In sum, as the preponderance of the evidence is against the Veteran’s claims, there is no reasonable doubt to be resolved, and the claims are denied. 4. Entitlement to a total disability rating based on individual unemployability. A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award. Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead 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. In reaching a decision, it is necessary that the record reflect some factor, which takes the case outside the norm with respect to a similar level of disability under the rating schedule. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. The Veteran is currently service connected for posttraumatic stress disorder (rated as 30 percent disabling from July 1, 2011) and a lumbar spine and bilateral knee disabilities (each rated as 10 percent disabling from July 1, 2011). As such, the Veteran's combined 50 percent disability rating from July 1, 2011 does not meet the schedular requirements for assignment of a TDIU for any period on appeal. While failure to meet the schedular percentage requirements does not preclude the availability of a TDIU rating on an extraschedular basis, a review of the evidence of record regarding the Veteran’s service-connected disabilities does not document that such disabilities completely preclude the Veteran from securing or following a substantially gainful occupation for any period on appeal. Additionally, VA provided the Veteran with proper notice regarding his TDIU claim and requested that the Veteran complete and submit VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. A substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU rating because it gathers relevant and indispensable information regarding the Veteran's disabilities and employment and educational histories. The form concludes with a series of sworn certification statements, and in endorsing it, the Veteran attests to his current employment status, and it signals an understanding of the TDIU award and its incompatibility with substantially gainful work. A properly signed and executed VA Form 21-8940 further enables VA to gather the information necessary to determine entitlement to TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms. Significantly, following a request by VA, the Veteran has not submitted a completed VA Form 21-8940 for consideration during the pendency of his claim. The Board has also considered the lay evidence of record, which is probative insofar as it reports observable symptomatology; however, to the extent that the Veteran asserts that is precluded from securing or following a substantially gainful occupation due to his claimed conditions for which he was seeking service connection, the Board has herein denied service connection for such claims and, as such, a TDIU award cannot be based upon such conditions. To the extent the Veteran is service-connected for PTSD, lumbar spine, and bilateral knee disabilities, the Board finds that the preponderance of the evidence is against a finding that the Veteran is precluded from gainful employment due to his service-connected disabilities. For example, in reviewing the records, the Board can see that in 2010, he quit his job due to conflicts with his boss, but reported feeling that he left on good terms with his boss. In 2011, he got a job as a mechanic, where he continued to work there until at least 2012. He then became a full-time college student in 2013 and was continuing to take classes until 2015. In 2015, the Veteran reported completing his associates degree. Thus, the evidence tends to show that the Veteran is not precluded from working and is furthering his education. In conclusion, while the evidence of record documents some functional impact resulting from the Veteran’s several service-connected disabilities, including PTSD, a lumbar spine disability, and bilateral knee disabilities; however, the preponderance of the evidence of record is against a finding that the Veteran is precluded from securing or following a substantially gainful occupation as a result of his service-connected disabilities for any period on appeal. As such, there is no reasonable doubt to be resolved, referral for consideration of a TDIU rating on an extraschedular basis is not warranted, and the claim is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel