Citation Nr: 1808217 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 05-39 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from June 1959 to June 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was previously before the Board in October 2012 and October 2013 when it was remanded for further development. Following the requested development, the Agency of Original Jurisdiction (AOJ) confirmed and continued its denial of entitlement to service connection for a back disability and entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders. Thereafter, the case was returned to the Board for further appellate action. In January 2013, during the course of the appeal, the Veteran testified before the undersigned. FINDINGS OF FACT 1. A chronic, identifiable low back disorder, primarily diagnosed as spondylosis and degenerative disc disease, was first manifested several years after service, and the preponderance of the evidence is against a finding that it is in any way related thereto. 2. The preponderance of the evidence is against a finding that the Veteran's back disability is proximately due to or has increased in severity due to a disability for which service connection has already been established. 3. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. A back disability is not the result of disease or injury incurred in service, arthritis of the spine may not be presumed to have been so incurred, and a back disorder is not caused or aggravated by a service connected disorder. 38 U.S.C. §§ 1101, 1110, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for a total disability evaluation based on individual unemployability due to service-connected disorders have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Service Connection for a Back Disability During his January 2013 video conference, the Veteran testified that his back disability was first manifested by back pain in service. The appellant also alleges that his back disorder is caused or aggravated by a service connected disorder to include his service connected knee disorders. After carefully considering the Veteran's claim in light of the record and the applicable law, however, the Board is of the opinion that the preponderance of the evidence is against it. The Veteran is competent to report his symptoms and what he experienced during and since his separation from service. Layno v. Brown, 6 Vet. App. 465 (1994). For example, he is competent to report when he first noticed the presence of back pain. However, there is no evidence to suggest that he is competent by training or experience to diagnose any pathology causing his back pain, or to state that any current back disorder is related to service, or to a service connected disorder. The question of an etiologic relationship between any current spinal problems and service or a service-connected disability involves a medical issue. Thus, the question of etiology may not be competently addressed by lay evidence. Davidson v. Shinseki, 581 F.3d 1313 (2009). In this case, not only is a chronic, identifiable back disability uncorroborated by the evidence in the service; a relationship between a back disorder and service or a service-connected disability is contradicted by more contemporaneous and probative evidence of record. Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. For certain disabilities, such as arthritis, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. § 3.307. In addition, service connection may be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310 ; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran's service medical records show that he entered service without any complaints or clinical findings of a back disability. In May 1971, he was treated for complaints of back pain. Although the complaints were diagnosed as sciatic neuritis, there were no findings that the disorder was chronic in nature. Indeed, there was no evidence of neuritis at any time during the Veteran's remaining eight years of service. Moreover, during his October 1978 service retirement examination, the appellant denied that he then had, or had ever had, recurrent back pain, and his spine was clinically evaluated as normal. In April 1979, shortly before his separation from service, the Veteran was treated for complaints of low back pain. X-rays of the lumbar spine were normal, and the diagnosis was a lumbar strain. There was no competent evidence that such disability was chronic in nature, as the Veteran did not complain of any further back pain for more than three years. In August 1982, the Veteran complained of back pain after using a weed wacker. The diagnostic impression was a low back strain. The appellant noted that he had had no prior back disease. X-rays were negative for any bony abnormalities of the lumbar spine. Such findings corroborate the finding that the Veteran's inservice back pain was not chronic in nature, and show that arthritis was not compensably disabling within a year of the claimant's separation from active duty. Although the Veteran has complained of back pain, intermittently since the mid-1980s, a chronic back disability was not diagnosed until 1997 when X-rays confirmed the presence of degenerative joint disease (arthritis). From 1980 until 2000, the Veteran was employed as a Federal fire fighter. In February 2013, O. W., a fellow employee of the Veteran reported that since the early 1980's, the Veteran had received treatment from a Dr. L., but that Dr. L. had not retained records of that treatment. In February 2013, the Veteran's chiropractor, C. M., D.C., noted more recent evidence showing that the appellant had disc bulges and protrusions, as well as multiple level thoracolumbar arthritis. After reviewing the service medical records, Dr. M. reported that the Veteran had been experiencing back pain and spasms since service. Given the Veteran's report of heavy physical activity and back problems in service, Dr. M. opined that the claimant's more recent back problems were related to his years of active duty. However, the preponderance of the foregoing evidence is against such a conclusion. The Veteran simply did not present chronic complaints of back pain inservice, or for at least three years after service and he did not demonstrate an identifiable back disability for many years after that. During his hearing, the Veteran stated that he could obtain a statement from his neurosurgeon that his current back disability had initially been manifested in service. Therefore, the undersigned Veterans Law Judge left the record open for sixty days to receive such evidence. To date, however, that evidence has not been received. Further, the Veteran did not file his initial claim for service connection for a back disorder until 2009, almost thirty years after he retired from active duty service. Had he had a chronic back disability since his retirement, it is reasonable to expect that he would have filed an earlier claim. He certainly knew how to do so having filed successful claims for service connection for multiple disabilities in July 1979, the month after his retirement from service. That he did not file a claim for service connection for a back disability at that time further supports the conclusion that his back problems in service were not chronic in nature. Hence, the Board finds that the preponderance of the evidence is against entitlement to service connection on a direct or presumptive basis. With respect to any entitlement to service connection on a theory of secondary service connection, despite his contentions, there is no competent evidence on file that the Veteran's back disability is proximately due to or has increased in severity due to his service-connected knee disabilities. For example, following a June 2013 VA examination and record review, the examiner opined that by all accounts, the Veteran's service-connected knee disabilities had not caused or aggravated the claimant's lumbar spine disorder. In support of his opinion, the Veteran cited multiple reports of treatment or examination of the knees which were silent for finding any association with the lumbar spine. Absent such, an association, the claimant does not meet the criteria for secondary service connection. The claim of entitlement to service connection for a back disorder is denied. Individual unemployability The Veteran also seeks entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. To establish entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, there must be impairment so severe that it is impossible to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.341, 4.16. In reaching such a determination, 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 (1993). Unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991); 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). When the Veteran's schedular rating is less than total, a total rating may nonetheless be assigned for two or more disabilities, provided that at least one disability is ratable at 40 percent or more and that there is sufficient additional disability to bring the combined rating to 70 percent or more. In addition, the disabled person must be unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16 (a). A total disability rating may also be assigned, for Veterans who are unemployable by reason of service-connected disabilities, but who do not meet the percentage standards of 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). In such cases, the claim will be submitted to the Director of the VA, Compensation Service, for extra-schedular consideration. The Veteran has a combined 80 percent rating for the following service-connected disabilities: left knee arthritis, status post total arthroplasty, evaluated as 30 percent disabling; traumatic arthritis of the right knee manifested by limited extension, evaluated as 10 percent disabling; traumatic arthritis of the right knee manifested by limited flexion, evaluated as 10 percent disabling; right knee instability, evaluated as 10 percent disabling; right shoulder osteoarthritis with shoulder impingement syndrome, evaluated as 10 percent disabling; residuals of a left wrist fracture, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; hemorrhagic prostatitis, status post radiation treatment, evaluated as 10 percent disabling; and hypertension, evaluated as 10 percent disabling. He is also service connected for residuals of a fractured distal right radius, a right hydrocelectomy, a bilateral hearing loss disability, and a left knee surgical scar each evaluated as noncompensable. Such ratings do not meet the percentage rating criteria in 38 C.F.R. § 4.16(a). The salient question, then, is whether he is unemployable due solely to his service-connected disabilities. The evidence shows that the Veteran has two years of college education and forty years of service as a Federal fire fighter, both in his military and civilian life. In those capacities, he had extensive supervisory experience, rising to the rank of assistant fire chief. He voluntarily retired from the military in 1979 after approximately twenty years of service. He also retired after twenty years of Federal civilian firefighting service, when he reached the mandatory retirement age. Although the appellant is currently unemployed, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran contends that he is unemployable primarily as a result of his service-connected knee disabilities and that his disabilities began to affect his full-time employment in June 1995. While multiple VA knee examinations, such as those in March 2011, October 2014, March 2015 and September 2016 show that the Veteran's knee disabilities impair mobility, weight bearing, and stamina there is no evidence on file that any service-connected disability alone or in combination, prevents him from securing or following a substantially gainful occupation. In addition, there is neither evidence that his employers provided the claimant special accommodations nor is there evidence that he has sought and been denied employment due to his service-connected disabilities. Although he also receives Social Security benefits, the evidence shows that those benefits are due to his age and years of employment, not disability. Given the Veteran's long employment history, extensive supervisory experience, and two years of college education, the Board finds no basis to submit this case to the Director of VA Compensation Service for extraschedular consideration. Accordingly, the preponderance of the evidence is against the Veteran's claim; and therefore, the appeal is denied. Additional Considerations In arriving at these decisions, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves a claim. In this case, the preponderance of the evidence is against the Veteran's claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017). ORDER Entitlement to service connection for a back disability is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs