Citation Nr: 18156905 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 11-20 010 DATE: December 11, 2018 ORDER Entitlement to service connection for bilateral knee pain is denied. Entitlement to service connection for a bilateral ankle disorder is denied. Entitlement to service connection for a bilateral disorder of the feet is denied. Entitlement to service connection for headaches, as secondary to hypertension, is denied. Entitlement to a total rating based on individual employability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran’s bilateral knee pain disabilities, bilateral ankle disabilities, and bilateral foot disabilities are not related to his service. 2. The Veteran’s headaches are not secondarily caused or aggravated by his service-connected hypertension. 3. Throughout the appeal, the evidence does not show that the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral knee pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral ankle disabilities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral feet disabilities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for headaches, as due to hypertension, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310. 5. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from July 27, 1973 to July 31, 1993. He is a Veteran of the Vietnam Era. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In August 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Addressing the relevant procedural history, in November 2014, the Board denied the Veteran’s claims for entitlement to service connection for bilateral feet disabilities, ankle disabilities and a right knee disability, and remanded the claim for TDIU. The Veteran appealed the Board’s denial of the claims for bilateral feet disabilities and ankle disabilities and right knee disability to the Court of Appeals for Veterans Claims (the Court), and by a March 2015 Joint Motion for Partial Remand, the Court vacated and remanded those claims to the Board. In December 2015, the appeal was before the Board. At that time, the claim was remanded for additional development. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. §20.900(c); 38 U.S.C. §7107(a)(2). The Board also notes that nine additional issues that were remanded by the Board for further development in December 2015 have not yet been recertified to the Board, and will not, therefore, be addressed at this time. The Board also acknowledges the Veteran’s assertions that entitlement to service connection for his bilateral feet, ankles, and legs should be construed instead as a claim for service connection for chronic venous insufficiency (CVI). The Board also acknowledges the private medical evaluation submitted to VA in June 2018. However, a review of the record indicates that the Veteran has been previously denied service connection for venous insufficiency in April 2010, July 2010 and December 2012 rating decisions. That claim became final when it was not appealed within one year of the decision being issued and thus can only be reopened upon the receipt of adequate new and material evidence and a claim to reopen. Regardless, at this point, the issues of service connection for the Veteran’s bilateral feet, ankles, and legs constitute distinct claims and the Board must treat them as such. The request to reopen service connection for chronic venous insufficiency is referred to the RO for initial adjudication. 1. Entitlement to service connection for bilateral knee pain disabilities, bilateral foot disabilities, and bilateral ankle disabilities, is denied. The Veteran contends that he is entitled to service connection for bilateral knee pain disabilities, bilateral foot disabilities, and bilateral ankle disabilities. Under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if manifested to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). In this case, a review of the medical evidence of record indicates that service connection is not warranted for the Veteran’s claimed bilateral knee pain disabilities, bilateral foot disabilities, and bilateral ankle disabilities because the disorders on appeal did not onset during the Veteran’s service, nor are they related to his service or a service-connected disability. In December 2017, the Veteran was afforded a Compensation and Pension Examination. The examiner noted that there was a less than a 50 percent probability that the Veteran’s knee conditions are directly-related to his service or secondarily-imposed or aggravated-by his service-connected hypertension. In so opining, the examiner stated that the Veteran does “not recall any knee injury associated with this active duty service”. The examiner also found that the “X-ray of [the] knees show[s] asymmetric findings. One would expect symmetrical degenerative changes to the knees, if the knees were caused by years of repetitive trauma from weight-bearing activities.” Further, the Veteran stated that “his knees have been bothering him for the past 10 years”, which indicates an onset date that would have been well over a decade after the Veteran separated from service. The evidence therefore indicates that the Veteran’s knee conditions are not related to service. In regard to the Veteran’s claimed ankle disabilities, the examiner noted that the Veteran claimed he began having ankle pain while in service in the 1980s. However, the examiner found that it was less likely than not that the Veteran’s ankle condition originated during his active military service because “[t]he event in 1988 during service that reports right forehead laceration after a fall off [a] truck does not include any statement, diagnosis or symptoms related to right [or left] ankle”. The examiner also noted that there is no evidence that the Veteran’s service-connected hypertension directly caused or aggravates his ankle condition. Similarly, in regard to the Veteran’s claimed foot disabilities, diagnosed as foot strain, the Veteran’s April 1993 retirement exam reflected that he did not have foot trouble. See April 1993 Service Treatment Records. Further, the December 2017 Compensation and Pension examiner found that the Veteran’s foot condition was less likely than not to be related to his service because the above-referenced 1988 in-service event did “not include any statement, diagnosis or symptoms related to [the Veteran’s] right [or left] foot” and “[t]here is no evidence of right [and left] foot conditions during service”. After thorough consideration of the evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran’s claims for service connection for bilateral knee pain disabilities, bilateral foot disabilities, and bilateral ankle disabilities. While the evidence of record shows that the Veteran has currently diagnosed right knee strain, left knee minimal osteophytosis, bilateral ankle strain and foot strain, the probative evidence of record demonstrates that such is not related to his service. The Board places great probative weight on the December 2017 Compensation and Pension Examination opinions. In this regard, these opinions are based on an accurate and comprehensive review of the pertinent evidence in the claims file, and provide adequate supporting rationale to support the opinions stated. No contrary medical opinions are of record other than the private medical evaluation submitted by the Veteran to VA in June 2018, which addresses only CVI and thus for the reasons stated above, holds minimal probative value. In the absence of any competent and credible evidence linking the Veteran’s current bilateral knee pain disabilities, bilateral foot disabilities, and bilateral ankle disabilities to his service, service connection must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims. As such, that doctrine is not applicable in the instant claims, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for headaches, as secondary to hypertension, is denied. The Veteran seeks secondary service connection for a headache disability, which he contends is caused or aggravated by his service-connected hypertension. In order to establish service connection on a secondary basis, the evidence of record must establish that the Veteran’s headache disorder was either caused by or aggravated by a service-connected disability, in this case his hypertension. In this matter, no such finding is warranted. Specifically, the evidence of record establishes that the Veteran’s headaches are not related to his hypertension. Turning to the evidence of record, in December 2017, the Veteran was afforded a Compensation and Pension Examination. The examiner noted that the Veteran reported that he had started having headache symptoms “after service [in] about 2014” which are directly caused or aggravated by his service-connected hypertension. He further reported that the headaches occur four times per week and last approximately twenty minutes. However, the examiner found that there was “no nexus found in the current medical literature reviewed that hypertension is one of the direct-causes responsible for migraine condition” nor was it one of the “aggravated causes responsible for the migraine condition”. The examiner also noted that the Veteran did not have scars nor any other pertinent physical findings. In fact, the CT Scan in September 2014 performed on the Veteran was “normal”. Ultimately, the examiner stated that there was no evidence that the Veteran’s headaches were caused, aggravated, or permanently worsened by the Veteran’s hypertension. The Board concludes that the Veteran’s headaches are not related to his hypertension. In so concluding, the Board has considered the general statement asserted in the October 2018 Third Party Correspondence that the American Journal of Hypertension has stipulated that hypertension is frequently associated with headaches. However, the Board finds that the record contains no concrete evidence of this claimed assertion such as a copy of the journal itself. Further, even if the record did contain such evidence, which it does not, the general nature of such a statement would not automatically render it applicable to the outcome of this claim. In contrast with this general statement, the Board has afforded great probative weight to the opinion of the December 2017 Compensation and Pension examiner which was based on a review of the actual evidence in this case, including a review of the entire record and the Veteran’s own statements. As such, the Board awards the assertion made in the October 2018 Third Party Correspondence minimal probative weight. The Board finds the December 2017 Compensation and Pension examiner’s medical opinions highly probative to the issue of whether the Veteran’s headache disorder is related to his hypertension. The examiner possesses the necessary education, training, and expertise to provide the requested opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The opinions were based on a review of the claims file and an examination of the Veteran. The examiner’s review of the Veteran’s claims file consists of his service treatment records and post-service medical evidence, and his contentions, upon which the examiner relied upon in giving his opinion. It is clear that the examiner took into consideration all relevant factors in giving his opinions. Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for secondary service connection. The Board finds that the only medical opinion evidence of record shows that the Veteran’s headache disorder is not related to his hypertension. The Board has also considered the Veteran’s lay statements and does not dispute the reports of his headache symptomology. However, although the Veteran is competent to describe observable symptoms of his headaches, he is not competent to opine as to the etiology of his headache disorder, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay opinions that his headache disorder was caused by his service-connected hypertension do not constitute competent medical evidence and lack probative value. The Board is aware that the Veteran’s wife has medical training, and her statements are given more weight than those of a lay person. The Board has contemplated the assertions on the July 2011 VA Form 9 that his wife, who is a nurse, monitors his blood pressure when he gets headaches and “it is always elevated”. However, the Veteran’s wife’s opinions are outweighed by the other highly probative medical evidence of record. Here, the 2017 Compensation and Pension examiner concluded that there was no evidence of headaches shown during the Veteran’s period of service and the medical literature did not support a link between service-connected hypertension and his headaches. This examination is highly probative evidence, as it relied on sufficient facts and data, provided a rationale for the opinion, and contained sound reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board reiterates that the examiner has the requisite expertise to render an opinion as to nature and etiology of headaches. He also reviewed the claims file, examined the Veteran, supported his opinion with rationale, rendered his opinion on the Veteran’s history and competent lay statements and on medical literature, and he covered all relevant bases. In sum, the claims file does not contain competent and credible evidence that the Veteran’s headache disorder is caused or aggravated by his hypertension. Accordingly, as the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 3. Entitlement to a total rating based on individual employability (TDIU) due to service-connected disabilities is denied. The Veteran also asserts that he is entitled to a TDIU. A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. In determining whether a TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a Veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The issue of entitlement to a TDIU was raised as part of the Veteran’s claim for a higher rating for hypertension. The relevant period for the claim is from September 20, 2009, one year prior to receipt of the claim for a higher rating for hypertension, through the present. During the relevant period, the Veteran was service connected with compensable ratings for: lumbar spine multilevel degenerative disc and joint disease, rated as 20 percent disabling and right and left hip degenerative arthritis, respectively rated as 10 percent disabling; and with non-compensable ratings for: left and right thigh limitation of extension and left and right thigh limitation of flexion. His combined disability rating was 10 percent prior to February 18, 2010, and 40 percent therefrom including a bilateral factor of 1.9 percent for his right and left hip degenerative arthritis. Thus, the schedular percentage requirements for a TDIU were not met at any time during the relevant period. Nevertheless, the Board will consider whether the Veteran’s service-connected disabilities have prevented him from securing or following a substantially gainful occupation such that referral for consideration of entitlement to a TDIU on an extra-schedular basis is warranted under 38 C.F.R. § 4.16 (b). After a review of the evidence of record, the Board determines that TDIU is not warranted because the medical evidence does not show that the Veteran’s service-connected disabilities are severe enough to preclude substantially gainful employment. The Veteran completed a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in January 2012. On the form, he indicated that he has a high school education and two additional years of college courses. He also stated that he worked at a nursing home from 1996-2010, earning $1600/month. The Veteran alleges that he stopped working in 2010 because of his hypertension per instructions from VA examiner Dr. H. V. See September 2010 Notice of Disagreement. However, the record indicates that Dr. V. reported in a November 2011 statement that the Veteran had difficulty standing and walking because of his venous insufficiency, a condition that, as stated above, has been separately denied service connection. Further, while in January 2012, Dr. V. included the Veteran’s service-connected hypertension and his now-service-connected back pain as reasons why the Veteran was reportedly unable to work, Dr. V. still included the nonservice-connected venous insufficiency in drawing this conclusion. See January 2012 Third Party Correspondence. Although all medical opinions constitute medical conclusions that the Board cannot ignore or disregard, the Board is not obligated to accept any examiner’s opinion. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). Thus, the Board affords minimum probative value to Dr. V’s opinions as they are not based solely on the Veteran’s service-connected disabilities. The Board finds that while the Veteran’s service-connected disabilities affect him physically, this is rectified by sedentary employment. In addition, the Board acknowledges that the Veteran’s nonservice-connected disabilities likely further limit his functioning such that he is unable to secure or follow a substantially gainful occupation, but his nonservice-connected disabilities are not for consideration in determining whether he is entitled to a TDIU. See 38 C.F.R. § 4.16. When only his service-connected disabilities are considered, the evidence indicates that the Veteran’s work history and level of education would not prevent him from transitioning to an occupation that involves a basic, routine occupation of a low exertional level such as clerical work or customer support. The Board affords substantial weight to a June 2017 Disability and Benefits Questionnaire for the Veteran’s service-connected hypertension in which the examiner stated that the condition has “no” impact on the Veteran’s ability to work. See VA Treatment Records Received June 2017. At a May 2015 treatment exam, the Veteran reported that he is still functional in many activities of daily living, albeit at a slower pace, such as dressing and undressing, hygiene care, and driving independently. He also does light housework, including the laundry. See id. The Veteran could therefore drive himself to work at a place where he does sedentary work. Similarly, the Board acknowledges that the December 2017 Compensation and Pension Examiner stated that the Veteran’s service-connected degenerative lumbar and hip conditions would occupationally impact his ability to stand at greater than 20 minute intervals, limits his ability to walk to 1000 feet, limits his lifting abilities to no more than 25 pounds and limits his driving ability to no more than 45 minute distances. See December 2017. The Board also finds that such occupational impact presented by the Veteran’s service-connected conditions may be corrected by sedentary employment where the Veteran’s workspace is stationary and he is not required to lift heavy items, or drive significant distances. Thus, the Veteran’s service-connected disabilities do not prevent him from obtaining substantially-gainful employment. The Board has considered the Veteran’s level of education and previous work experience. See 38 C.F.R. §§ 4.16. As noted above, the Veteran has indicated that he has a high school education and two additional years of college courses. The Board finds that the Veteran’s high school education and additional college coursework is consistent with an ability to perform sedentary work. The Veteran has past work experience as a dietitian and cook. The Board finds that although the Veteran may no longer be able to perform his past work due to his service-connected disabilities, his work history would not prevent him from transitioning to a sedentary occupation, or from securing or following a sedentary occupation. The Board also has considered the Veteran’s lay statements that his service-connected disabilities prevent him from securing or following substantially gainful employment. The Veteran’s assertion that he has difficulty standing and walking for long periods of time is consistent with the medical findings and opinions of record. Thus, the Board finds the Veteran credible in that regard, and assigns probative value to his assertions. However, the Board also notes that multiple VA examiners as well as the private records submitted by the Veteran indicate that this difficulty is not due solely to his service-connected disabilities. Regardless, such difficulties are consistent with a finding that the Veteran is able to secure or follow a substantially gainful sedentary occupation of a low exertional level such as clerical work or customer support. As such, the probative evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Instead, when considering only his service-connected disabilities, the record indicates only that the Veteran is limited to sedentary work. Moreover, the record does not demonstrate, nor does the Veteran argue, that there is anything unique about his educational background or abilities that would preclude him from obtaining sedentary employment. The Board has also considered the Veteran’s assertions that his claims should be granted by VA because he was granted a 100 percent rating by the Social Security Administration (SSA). See July 2011 Third Party Correspondence. However, SSA uses a different standard in determining claims than the VA. Further, the “treating physician” rule (in SSA requiring SSA to give more evidentiary weight to the treating physician and accept the opinion unless contradicted) is not applicable to VA claims. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). In making this determination, the Board does not wish to convey any lack of sympathy for the Veteran in this matter. Moreover, the Board does not doubt the sincerity of the Veteran’s contentions. That being said, the Board is bound by the laws and regulations governing the payment of benefits, which, in this case, do not support the award of benefits. (Continued on the next page)   The Board concludes that the Veteran’s service-connected disabilities impair the ability to work, but only to the extent of requiring that his employment be sedentary. His service-connected disabilities do not rise to a level of impairment which causes unemployability. The Board therefore concludes that his service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. Therefore, the preponderance of the evidence is against entitlement to a TDIU, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk