Citation Nr: 1807119 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-22 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection neck disability. 2. Entitlement to service connection for low back disability. 3. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU) prior to July 19, 2017. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from November 1955 to January 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). As noted in the Board's April 2017 remand, the Veteran failed to appear for a October 2016 Board hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's current neck disability was not manifest in service, or for arthritis, to a degree of 10 percent within 1 year of separation, and is unrelated to service. 2. The Veteran's current low back disability was not manifest in service, or for arthritis, to a degree of 10 percent within 1 year of separation, and is unrelated to service. 3. Prior to July 19, 2017, the Veteran's service-connected disabilities did not preclude him from obtaining or retaining all forms of substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for service connection for neck disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The criteria for service connection for low back disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 3. The criteria for a TDIU are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection claims Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis is listed as a chronic disease. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b). The Board notes that the Veteran's service treatment records were apparently destroyed in a 1973 fire at the National Personnel Records Center (NPRC). Attempts have been made to reconstruct his file and to otherwise assist the Veteran with fully developing the evidence. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind, and for the purposes of the decision, it is being conceded that he did injure his neck and/or back in service as claimed, including as he reported the events to have occurred in service in July and August 2009. The Veteran indicated in January 2010 that he received treatment for neck problems between June 1956 and January 1958, and this will be accepted as well. The earliest medical records in the file are dated in 2001. There is no mention of neck or back problems in VA medical records dating from August 2001 to August 2006, and in fact the Veteran's back was noted to be nontender and no neck abnormalities were reported on VA evaluation in August 2001. In March 2002, he complained of unrelated matters and it was noted that he had no other complaints and was doing well otherwise. In December 2002, the Veteran was privately assessed as having cervical and thoracic strain. In March 2003 and later, cervical and lumbar strain were diagnosed. An April 2003 private MRI of the Veteran's cervical spine revealed degenerative disc changes and osteophytes. The Veteran had complained of a neck injury with pain in his neck. In April and/or July 2005, he was assessed with chronic cervical and lumbar strain. In January 2006, the Veteran had diagnoses of chronic cervical and lumbar strain. In April 2006, the Veteran reported that his neck and back felt worse. The diagnosis was chronic neck pain. In November 2006, it was noted that the Veteran had been hit broadside the week beforehand. He complained of neck and back pain. Cervical and lumbar strain were diagnosed. A January 2007 MRI of the Veteran's lumbar spine for pain showed some degree of intervertebral disc desiccation and minimal diffuse bulging in the lower lumbar spine region. The MRI was interpreted as revealing no significant abnormality. In that month, the Veteran was assessed with chronic neck and back pain. There are current diagnoses of degenerative disc and facet disease of the Veteran's cervical and lumbar spine, as reflected by September 2010 and April 2017 VA examination reports. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current neck or low back disability. The preponderance of the evidence shows that neither was manifest in service or to a degree of 10 percent (for arthritis) within 1 year of separation, and that neither is related to service. First, neither disability was shown until many years after service. Second, the VA examiner in September 2010 noted the Veteran's story of a fall in service as causing him to hurt his neck and back and of him having pain off and on in his neck and back since that time. The examiner examined the Veteran and reviewed the claims folder and noted that there was a gap in the medical records of some 47 years from the Veteran's fall in service to his earliest private treatment notes. The examiner stated that it was therefore impossible to trace back symptoms, physical findings, test results, and diagnosis from the present to the Veteran's time in service to establish a potential common cause of his symptoms now and in service. The examiner found that in the absence of any objective data for this period of time, the Veteran's current back and neck conditions are less likely than not caused by or a result of a fall in service. Additionally, the Board remanded in April 2017 for additional record development and another VA examination. The VA examiner in September 2017 also considered the Veteran's history, examined him, and reviewed his claims folder. The examiner noted that the Veteran reported sustaining lacerations and a broken nose from the in-service fall or its aftermath, but not remembering X-rays. The Veteran reported that his neck was treated with a soft collar. However, the examiner reviewed photographs from the time, showing the Veteran in uniform a couple of weeks afterwards, with a bandage on his forehead but no cervical collar. The examiner noted that the Veteran reported working as a railroad conductor and engineer after service, and never being disqualified from his duties due to any neck or back issues. Additionally, his wife reported that he had been involved in 3 different motor vehicle accidents after service. The examiner noted that from a chronicity standpoint, there were no visible medical records of any neck or back complaints or treatments from any medical providers until the 2000s. There appeared to be a gap of some 45 years from the Veteran's discharge to his first record of seeking medical care for neck and back pain. The VA examiner in September 2017 opined that the Veteran's current neck and back disabilities were less likely than not due to service. The rationale was that although it is a possible that a service event such as that conceded could have caused the Veteran's current cervical and lumbosacral spine disabilities, the medical evidence available does not provide a 50 percent or greater probability of such a relationship. Although the Veteran's service treatment records are unavailable, the evidence that was reconstructed suggests that the most likely diagnosis was that of a cervical strain/sprain (in service). However, a single in-service event (such as that) would be less likely than not to be the cause of the degenerative changes seen in the Veteran's spine 47 years after discharge. Furthermore, there is insufficient evidence to demonstrate any chronicity in the claimed conditions, as there is a gap of over 45 years from discharge to the first recorded visit where the Veteran complained of pain. In the intervening time between discharge and the onset of neck/back pain, where he sought treatment, there is no evidence that he had any recorded chronic back or neck pain to include a lack of doctor's office notes, missed work excuses, chiropractic care, prescription pain medications for the spine, X-ray reports, physical therapy notes, etc. Furthermore, he was involved in 3 motor vehicle accidents post service which may have contributed to a causality issue for his spinal disease. Therefore, when examining the totality of the medical record evidence over time, there is insufficient evidence to support of probability of 50 percent or greater that the Veteran's cervical or lumbosacral spine disabilities had their onset in service, to include as a result of the conceded injury from being thrown from a vehicle during service. For general context, the VA examiner noted, degenerative disc disease of the axial spine describes disc changes at a particular level following from the interaction of life events with the underlying strength and resiliency of spinal disc material (being affected). Such strength and resilience are also affected by age and genetics. Once damaged, there may be some repair, leaving a bulge or even a tear. However, these changes do not spread to any other level. Disc changes are expected to progress with age, unrelated to any event in young adulthood, including service. Degenerative disc disease refers to a syndrome in which a compromised disc causes back pain. Lumbar degenerative disc disease usually starts with a torsional injury to the lower back such as when it is rotating. However, the pain is also frequently caused by simple wear and tear on the spine. Degenerative disc disease is also rather common. Furthermore, the VA examiner stated, this issue had been reported on in a published medical work by Herkowitz and Bell. They reported that even though several environmental and constitutional factors had been implicated in this condition, their effects are relatively minor, and recently family and twin studies had suggested that disc degeneration can be explained to a large degree by genetic factors. The VA examiner noted that the same process may also describe the same condition in the thoracic and cervical spine. The VA examiner stated that the Veteran's arthritis (including facet disease) is a normal process of aging and age-related degeneration. It is common in Veterans as well as non-Veterans, who are in their 7th decade of life. And as discussed above, there is a lack of established chronicity to support a 50 percent or greater probability of a causal or proximate causal relationship between this Veteran's in-service injury and the later development of spinal degenerative arthritis. Both VA examiner's rendered reasoned medical opinions based on a review of the claims folder and examination of the Veteran, and the second VA examiner explained his reasoning as to the conclusion regarding disc disease in very thorough detail, citing a published medical study on the matter of disc disease, and cited other factors such as aging and age-related degeneration as the likely cause of the Veteran's arthritis. There is no competent evidence of record in support of service connection. So in conclusion, service connection is not warranted for neck or low back disability. In December 2009, the Veteran's representative noted that the army had promised to safeguard his records (and that they are now lost), and that VA should not deny benefits where the Veteran is not at fault (in the loss of his records). However, under the law, the Veteran is still required to prove his case, and the claims are being denied because he has not met his burden of proof. His assertions as to what happened in service have not been rejected, but instead have been conceded and thoroughly considered. The Veteran was hoping to service connect his low back disability as secondary to his neck disability, but service connection is not warranted for either neck or low back disability and the examiner indicated that the disability which the Veteran has does not spread. The preponderance of the evidence is against the claims and there is no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). TDIU Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the claimant's service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. The Veteran's service-connected disabilities, standing alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016). The issue of entitlement to a TDIU from July 19, 2017 has become moot as a result of the September 2017 award of a 100 percent schedular rating for PTSD from that date. Accordingly, the issue is as shown on the cover page. The Veteran's service-connected disabilities prior to July 19, 2017, as evaluated under the VA Rating Schedule, are: PTSD rated as 70 percent disabling; bilateral hearing loss disability, 20 percent; tinnitus, 10 percent; and hypertension, 10 percent; for a combined rating of 80 percent prior to July 19, 2017. Based on the evidence, the Board finds that a TDIU is not warranted prior to July 19, 2017, as the preponderance of the evidence indicates that the Veteran was not unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. He had 12 years of formal education and work experience as a brakeman/conductor, bar tending, and running heavy equipment. VA examiners' opinions in March 2016 were to the effect that the Veteran's well controlled service-connected hypertension, hearing loss, and tinnitus would not have any significant impact for physical or sedentary employment. His PTSD is 70 percent disabling prior to July 19, 2017, but there is no indication that he was unable to secure and follow a substantially gainful occupation due to PTSD. On the contrary, the VA audiology examiner stated that the Veteran could hold a conversation in a one on one situation with very little problems, and that he could work in a job that was in a quiet environment or one with noise that required hearing protection, such as heavy equipment. Additionally, the VA psychiatric examiner in March 2016 indicated that occupational and social impairment with reduced reliability and productivity, rather than total occupational and social impairment, best summarized the level of occupational and social impairment due to all mental diagnoses. The Veteran had a railroad retirement and VA compensation as sources of income at the time of the March 2016 VA examination, and he reported that he retired from the railroad and had not tried to get a job since then since nobody will hire him. A number of life activities were described at the time of the VA examination, however, including having friends, going to church, shopping, and having great children and wonderful grandchildren and maintaining family relationships. The VA examiner in March 2016 indicated that from a psychological perspective in regard to his current impairment from PTSD, jobs that do not require much mental stamina or for the Veteran to work around large groups of people may be a good fit for him. The examiner stated that although it may be challenging, the Veteran's psychological symptoms would not likely preclude him from functioning in a work setting. While statements have been submitted from potential employers, to the effect that the Veteran's PTSD would cause conflicts and safety concerns, it appears that those concerns were specific to the employment positions at issue at those businesses, which is not the same as being unable to secure and follow a substantially gainful occupation. The VA examiners in March 2016 have made it clear that his PTSD would not preclude him from jobs that do not require much mental stamina or working around large groups, and that his hearing loss would not prevent him from working with heavy equipment, which he has done in the past. His educational and occupational experiences made him qualified for those types of substantially gainful employment prior July 19, 2017. The preponderance of the evidence indicates that the Veteran's service-connected disabilities did not result in him being unable to secure and follow a substantially gainful occupation. Accordingly, a TDIU is not warranted. While the Board's decisions unfortunately are not favorable to the Veteran, the Board would like to thank the Veteran for the service he gave to his country. ORDER Service connection for neck disability is denied. Service connection for low back disability is denied. A TDIU prior to July 19, 2017 is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs