Citation Nr: 18157811 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 11-30 563 DATE: December 13, 2018 ORDER Entitlement to service connection for a sinus disability is denied. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU) prior to February 1, 2011, is denied. FINDINGS OF FACT 1. An increase in the severity of the Veteran’s pre-service sinus disability during service has not been demonstrated. 2. Prior to February 1, 2011, the Veteran’s service connected disabilities did not render him unable to obtain and retain substantially gainful employment. CONCLUSIONS OF LAW 1. A pre-existing sinus disability was not aggravated by service or service-connected disease or injury. 38 U.S.C. §§ 1101, 1110, 1153, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. 2. Prior to February 1, 2011, the criteria for entitlement to TDIU are not met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to September 1971, including service in Vietnam. These matters come before the Board of Veterans’ Appeals (Board) from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the Board remanded the claim for service connection for sinusitis for additional development and for a TDIU prior to February 1, 2011 because it was raised by the record concurrent with an increased rating claim. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. At entrance, the Veteran reported sinusitis and frequent colds prior to military service, and stated that he had sinus problems which effected his ability to work. See February 1970 Report of Medical History. As pre-existing sinusitis was noted prior to service, the presumption of soundness at entrance into service does not apply. Id. Where a pre-existing disease or injury is noted on the entrance examination, section 1153 of the statute provides that “[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 1. Entitlement to Service Connection for a Sinus Disability The Veteran contends that he is entitled to service connection for a sinus disability. The Veteran’s service treatment records (STRs) are associated with the claims file. As noted above, the Veteran reported sinusitis and frequent colds prior to military service, and stated that he had sinus problems which effected his ability to work on his February 1970 Report of Medical History. The Veteran sought medical attention for sinus and sore throat on one occasion in March 1970. He was returned to duty the same day with decongestant medication (but no anti-biotics) with one follow up for renewed medication one week later. He was determined to be in normal condition at his September 1971 separation exam and reported no changes in his overall health since his last examination. In order for the Veteran’s sinus disability to be entitled to service connection, the Board must determine if the Veteran’s service caused an increase in severity beyond the natural progression. VA treatment records reflect that the Veteran was diagnosed with acute sinusitis in February 2006. The Veteran filed for entitlement to service connection for his sinuses in April 2007. He stated that as a medic, he treated himself for sinus infections out in the field. He said that he continues to suffer from sinus infections. He reported that he began treatment for his sinus condition in 1997, and received treatment through VA. The Veteran attended a VA examination in September 2010. He stated that he had many male relatives with throat, lung and other cancers. He reported three to four sinus infections annually. He told the examiner that he had a procedure in 1974 to treat his sinus condition. Because the Veteran listed sinus problems on his entrance examination, the examiner determined that it was less likely than not that the current sinus disability was related to service. An additional opinion was obtained in November 2016. The examiner noted that the Veteran regularly smoked cigarettes from the age of 13. Following a review of the claims file, the examiner determined that there was no evidence to suggest that the Veteran’s sinus disability had undergone an unnatural progression following separation. In another VA opinion from July 2018, the examiner stated that the Veteran’s single incident of a sinus condition in March 1970 resolved after treatment and no other sinus problems were listed during service. The examiner also stated that the Veteran did not seek entitlement to service connection for his sinus condition in his initial compensation and pension claim from January 1981. The examiner concluded that the Veteran’s pre-existing sinus condition was less likely than not aggravated beyond its natural progression during his service. In this case, the Board concludes that the preponderance of the evidence demonstrates that there was no increase in severity during service of the Veteran’s pre-existing sinus disability. In reaching that conclusion, the Board finds the July 2018 VA medical opinion of significant probative value. The reviewing physician concluded that the sinus condition was not aggravated by the Veteran’s service. The rationale was that there was no information in the file to suggest an aggravation of the disability and that the service treatment records noted that the sinus condition pre-dated service. The Veteran has not specifically alleged that his service aggravated the disability beyond the natural progression of the disease. His statements have generally indicated that he continued to have sinus issues throughout service. Additionally, when he filed for entitlement to service connection in April 2007, he reported that he did not begin treatment for a sinus condition until 1997. Thus, it is evident that there was no increase in severity of the pre-existing sinus condition in service; and aggravation is not conceded. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. TDIU 2. Entitlement to a Total Disability Rating Based Upon Individual Unemployability due to Service Connected Disabilities (TDIU) The Veteran served in the U.S. Army as a medic. The issue of entitlement to a TDIU prior to February 1, 2011 has been raised by the record. See September 2010 VA treatment records. It is the established policy of 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). When two or more disabilities are treated as one, the ratings for those disabilities are combined using the combined ratings table. 38 C.F.R. § 4.25. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. In this case the Veteran does not meet the threshold requirements for TDIU during the appeal. Prior to February 1, 2011, the Veteran was service-connected for PTSD rated as 50 percent disabling; tinnitus, rated as 10 percent disabling; residuals of squamous cell carcinoma of the larynx, rated as 10 percent disabling; and left ear hearing loss, gastrointestinal reflux disease and erectile dysfunction, each rated as noncompensable. During this period on appeal the total combined rating was 60 percent. The Veteran did not have one service connected disability rated at 60 percent or more, or one service connected disability rated at 40 percent and a combined rating of 70 percent or more during this appeal. Therefore, prior to February 1, 2011, the Veteran did not meet the threshold requirement for TDIU. 38 C.F.R. § 4.16(a). When the schedular TDIU requirements are not met, as in this case, entitlement to a TDIU on an extraschedular basis may still be granted. See 38 C.F.R. § 4.16(b) (2017). The Board notes that neither the Agency of Original Jurisdiction (AOJ) nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015). 38 C.F.R. § 4.16(b) states that “rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the” schedular TDIU requirements. Accordingly, the issue before the Board is more specifically whether referral to the Director of Compensation Service for consideration of an extraschedular TDIU is warranted. August 2009 VA treatment records reflect that the Veteran was employed as a sales manager. October 2009 VA treatment records reflect that the Veteran was employable and motivated to work. In an April 2010 statement, the Veteran’s mother reported that the Veteran became unemployed around the time she submitted her statement because his company went bankrupt. September 2010 VA treatment records reflect that the Veteran had a history of verbal fights and disagreements with supervisors, and would miss work about 2-3 days a month. Since his last employer went bankrupt, the Veteran had been working in temporary positions or day labor groups. In November 2015, VA obtained an opinion regarding the Veteran’s employability. The examiner stated that it appeared that the Veteran was doing well, though suffered from shortness of breath easily. In October 2015, VA wrote and asked that the Veteran send a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran did not complete and return the requested form. The Veteran was also scheduled for a VA examination in April 2018. The Veteran did not appear for the examination and did not provide good cause. In October 2018, the Veteran was provided a supplemental statement of the case (SSOC) indicating his TDIU claim would be denied. It detailed his failure to provide the necessary employment information and his failure to report to the scheduled examination. The Board concludes that the Veteran was properly notified of the scheduled additional development. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). Administrative records on file indicate that proper notice was provided. Moreover, he has been informed in the SSOC, and has not provided a response. The Veteran’s service-connected disabilities resulted in a combined 60 percent disability rating prior to February 1, 2011. In this regard, 38 C.F.R. § 4.1 provides that “the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses.” The Board concludes that prior to February 1, 2011, the assigned disability ratings contemplated and compensated the Veteran for the resulting occupational impairment from his service-connected disabilities during the period in question. The Veteran has not established that prior to February 1, 2011, he was unable to sustain substantial gainful employment due to service-connected disabilities. As discussed above, the Veteran’s service-connected disabilities were not the reason that the Veteran left his last employer in 2009, and VA treatment records reflect that the Veteran was employable and motivated to work during this time. The preponderance of the evidence does not support the Veteran’s contentions that prior to February 1, 2011, his service-connected disabilities precluded his participation in any form of substantially gainful employment. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel