Citation Nr: 18160322 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 14-38 646 DATE: December 27, 2018 ORDER Entitlement to service connection for residuals of a rib injury/chest contusion is denied. Entitlement to a total rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran was not diagnosed with residuals of an in-service rib injury/chest contusion at any time during the pendency of the appeal. 2. The probative evidence of record shows the Veteran’s service-connected disabilities have a combined 30 percent rating and do not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a rib injury/chest contusion have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1971 to September 1972. The Veteran testified before the undersigned Veterans Law Judge at a Central Office hearing in Washington, D.C., in July 2016. A transcript is of record. In May 2017, the Board of Veterans’ Appeal (Board), among other things, remanded the claim of service connection for residuals of a rib injury/chest contusion for additional development. The record reveals that in November 1975 the Veteran’s representative filed a claim of clear and unmistakable error (CUE) in the January 1973 rating decision that first denied his claim of service connection for a back disability. The record thereafter shows that the regional office (RO) adjudicated on many occasions application to reopen a claim of service connection for a back disability. It also shows that the RO eventually granted the Veteran service connection for a back disability effective December 22, 2011. However, the record does not show that the RO ever adjudicated the CUE claim. Therefore, this issue is referred to the RO for such adjudication. The Service Connection Claim The Veteran asserts, in substance, that service connection is warranted for residuals of his documented in-service rib injury/chest contusion. Specifically, the Veteran informed VA that while stationed in Germany in June or July of 1972 he bruised his rib when he fell down an embankment and struck a tree. See, e.g., statements dated in January 1975, January 2012, and September 2013; personal hearing testimony dated in July 2016. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his disability such as falling while stationed in Germany in June or July of 1972 and bruising his rib because it comes to him via his own senses. See Davidson, supra. Moreover, service treatment records contain a July 1972 record that reported that the Veteran was hospitalized for observation for two days because of a diagnosed contusion of the right chest. No further diagnosis was made. At discharge, it was opined that his condition was “Good.” Service treatment records dated later in July 1972, show that the Veteran sought care again a week later for a painful rib. It was thereafter noted that the practitioner refused to see him because he had seen him for the same complaint and had seen him twice recently. Service treatment records also report that the Veteran was hospitalized at the United States Army Hospital in Wurzburg Germany in September 1972; the reason for this hospitalization was not identified. However, the Veteran’s post-July 1972 service treatment records, including the September 1972 separation examination, are thereafter negative for complaints or treatment addressing the chest/rib injury. In fact, at the September 1972 examination just two months after his July 1972 injury, it was opined that his chest examination was normal. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, the Board finds as the September 1972 examiner must have found, that the July 1972 right chest injury resolved without any residuals. See Owens, supra. Tellingly, and even more importantly, the post-service record is negative for a diagnosis of residuals of the documented in-service rib injury/chest contusion at any time during the pendency of the appeal. See McClain, supra. In this regard, when examined for the first-time post-service in November 1972, the Veteran did not report a history of an in-service rib injury/chest contusion and the chest X-ray taken at that time was normal. Similarly, a January 1974 chest X-ray reported that his bony structure and soft tissue were unremarkable. Likewise, a September 1976 chest X-ray was normal. Furthermore, at the post-remand VA examination in August 2017 which was held for the express purpose of diagnosing residuals from his July 1972 right chest contusion the examiner opined that the Veteran did not have any such residuals. The Board finds that this opinion is the most probative evidence of record because it was provided after an examination of the Veteran, a review of the record on appeal, it is supported by citation to evidence found during the examination and in the record, and it is not contradicted by any other medical evidence of record. See Owens, supra; Colvin, supra. In reaching the above conclusion that the Veteran does not have any current residuals of the documented in-service rib injury/chest contusion, the Board has not overlooked the fact that treatment records dated from 2001 to 2007 from his place of incarceration documented complaints of recurrent chest pain or tightness including with lying down or exertion, of uncertain etiology but with negative chest X-rays. The Board has also not overlooked the fact that an August 2000 VA treatment record shows the Veteran being seen after being assaulted 2-weeks earlier and on examination his chest X-ray showed a fractured 10th rib. However, as to the 2001 to 2007 treatment records from the Veteran’s place of incarceration, the Board finds that they are not pertinent evidence as to whether the appellant has residuals from his July 1972 right chest contusion because they do not diagnose a residual and because the pre-date the appellant’s December 2011 claim of service connection for such residuals. See Owens, supra; McClain, supra. The Board also finds that the August 2000 rib fracture is not pertinent evidence in the current appeal regarding whether the Veteran has residuals from his July 1972 right chest contusion because the fracture was caused by a documented post-service injury and because it pre-dates the appellant’s December 2011 claim. Id. Furthermore, while the Veteran is competent to report on the symptoms he observed, the Board does not find him competent to diagnose the claimed disorder because diagnosing it requires special medical training that he does not have. See Davidson, supra. Lastly, the Board finds that neither the in-service nor the post-service complaints of pain can provide the Veteran with the missing diagnoses because pain is not a disability. In this regard, the Board finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), because in the current appeal the August 2017 VA examination results show that the claimed disorder does not cause a functional impairment that affects the Veteran’s earning capacity. The law is clear that to prevail on the claim of service connection for residuals of a rib injury/chest contusion the record must show the claimant had a disability at the time he filed his claim for VA disability compensation and/or at any during the pendency of her claim. See McClain, supra. Therefore, because the most probative evidence of record is the August 2017 VA examiner’s opinion that the Veteran does not have any residuals/disability, the Board finds that neither the service treatment records generated before the claim for service connection were filed with VA nor the post-service records that reported chest pain/tightness are sufficient to provide the missing post-service diagnosis. See Owens, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran does not have residuals of the documented in-service rib injury/chest contusion at any time during the pendency of the appeal. See Owens, supra. Therefore, the Board finds that this claim must be denied. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. The TDIU Claim The Veteran asserts, in substance, that he is entitled to a TDIU because his service-connected disabilities prevent employment. Total disability will be considered to exist 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. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. Initially, the Board notes that the record does not include a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU claim form), despite the Veterans' Administration (VA) in July 2017 providing the appellant with a blank TDIU claim form to complete. Therefore, the Board initially finds that the Veteran’s claim for a TDIU is denied because of his and his representative’s failure to cooperate with the prosecution of this claim. In any event, even if the Board were to ignore the above, to be assign a TDIU in the first instance requires that certain schedular disability ratings requirements, such as a combined disability rating of 70 percent with at least one disability rating as 40 percent rating, are met. See 38 C.F.R. § 4.16(a); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16(a) are not met). The Veteran is rated as 10 percent disabled for back disability, 10 percent disabled for right leg radiculopathy; and 10 percent disabled for left leg radiculopathy. The Veteran’s combined disability rating is 30 percent. Therefore, the Board finds that the preliminary schedular rating requirements for a TDIU are also not met. 38 C.F.R. § 4.16(a). Lastly, the Board notes that an award of a TDIU can also be granted on an extraschedular basis. In this regard, it is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). The process for establishing entitlement to an extraschedular TDIU rating is described in 38 C.F.R. § 4.16(b). That process requires first an adjudicative determination that the Veteran is rendered unemployable by virtue of service-connected disabilities, and if that determination is affirmative, followed by referral to the Director, Compensation System. At the outset, it is noteworthy that disability ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from the service-connected disabilities in civil occupations. See 38 C.F.R. § 4.1. In other words, occupational impairment with respect to a specific type of employment is not dispositive; and if a Veteran is precluded by service connected disability or disabilities from participating in a specific type of employment in which the Veteran has primary experience, but remains capable of maintaining other regular substantially gainful employment consistent with education and occupational experience, such Veteran is not deemed unemployable. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this regard, at the November 2012 VA examinations the Veteran after repetition had some lost range of motion of the back due to pain. The Veteran also had mild bilateral radiculopathy. Specifically, the Veteran had mild leg pain, paresthesias/dysesthesias, and numbness. He also had an antalgic gait. However, the Veteran had negative straight leg raising, normal 5/5 muscle strength, no muscle atrophy, and normal 2+ reflexes as well as a normal sensory examination. Moreover, the examiner opined that the Veteran’s back and bilateral radiculopathy did not impact his ability to work. As to his employment history, the November 2012 examiner noted that due to the Veteran having been incarcerated for 17 years, his last employment was in 1991 as a truck driver and heavy equipment operator. It was thereafter opined that the examination findings, which included both his service connected and non-service connected disabilities, did not reveal permanent total impairment and would not prevent gainful employment, however he would not be able to maintain employment as a heavy equipment operator or truck driver. On the other hand, sedentary employment should not be affected. Similarly, the August 2017 VA examiner reported that the Veteran had 5/5 muscle strength in his lower extremities with no muscle atrophy. Next, the Board finds that while VA treatment records document the Veteran’s complaints and treatment for his back disability as well as bilateral leg radiculopathy, nothing in these records show the impact his service-connected disabilities have on employment to be worse than what was reported at the above VA examinations. See Colvin, supra. Tellingly, the symptoms attributed to this service-connected back disability and bilateraly radiculopathy as seen at the above VA examinations is minimal, with only some lost and painful back motion and mild leg pain, paresthesias/dysesthesias, and numbness as well as an antalgic gait but negative straight leg raising, normal muscle strength, no muscle atrophy, normal reflexes, and a normal sensory examination. See Owen, supra. This does not suggest that the Veteran does not have problems with his service-connected disability (if he did not, there would be no basis for the current compensation level). The only question is the degree of the problem, nothing more. In this regard, the November 2012 VA examiner opined that the Veteran’s back and radiculopathy symptomatology have no impact on his ability to work and this medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds it significant that the symptomatology identified by the VA examiners and in the treatment records (back pain and some limitation of motion as well as mild radicula symptoms) are symptoms already contemplated as well as compensated for by the rating criteria. See 38 C.F.R. §§ 4.71a, 4.124a, Diagnostic Codes 5242, 8620. As to the lay statements from the Veteran regarding his service-connected disabilities preventing substantial gainful employment, the Board does not find them accurate because he does not have the required medical experience to provide an answer to a complex medical question. See Davidson, supra. Therefore, the Board finds the lay statements from the Veteran are not sufficient to meet the criteria for referral of a claim for an extraschedular rating. See Owens, supra. Lastly, given the Veteran’s failure to provide VA with a TDIU claim form, the Board has no further details regarding the circumstances surrounding his not working and must work with the evidence found in the claims file. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (holding that “the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the puritive evidence.”). Accordingly, the Board finds that the most probative medical evidence of record shows that the back and bilateral leg radiculopathy symptoms reported by the VA examiners and seen in the treatment records are not the type of symptomatology that meets the criteria for referral of a claim for an extraschedular rating. See Owen, supra; also see Bagwell v. Brown, 9 Vet. App. 337 (1996). Therefore, the Board finds that the preponderance of the medical and lay evidence is against finding that a referral of his claim to the Director, Compensation Service for consideration of an extraschedular rating. See Owens, super. Given the above, the Board finds that the claim for a TDIU rating is denied. 38 C.F.R. § 4.16. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel