Citation Nr: 1808975 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-05 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a low back disorder, arthritis/pain, with all residuals, secondary to feet and neck problems. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: James M. McElfresh, II, Agent WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Salt Lake City, Utah, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2015, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge. A written transcript of the hearing has been prepared and incorporated into the evidence of record. In March 2017, the Board remanded the claims on appeal for additional evidentiary development. They have now been returned for further appellate consideration. The "Introduction" portion of that decision included a detailed procedural history regarding the current claims, as well as others that were previously before the Board. That history will not be repeated here. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager (Virtual VA) paperless claims file associated with the Veteran's claims. FINDINGS OF FACT 1. The Veteran's thoracolumbar spondylosis, degenerative disc disease (DDD), and spinal stenosis, did not have their onset in service or until many years thereafter, and were not caused or aggravated by any inservice event, and were not aggravated by the service-connected foot disorders. 2. The Veteran is service connected for the following: osteoarthritis of the first metatarsophalangeal (MTP) joint and distal digits of the right foot, rated as 10 percent disabling; osteoarthritis of the first MTP joint and distal digits of the left foot, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; bilateral plantar fasciitis with pes planus, rated as 0 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. A combined disability rating of 30 percent is in effect. 3. The evidence does not establish that the Veteran's service-connected disabilities preclude him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. A chronic lumbar spine disorder, to include spondylosis, DDD, and spinal stenosis was not incurred in or aggravated by service, nor may DDD be presumed to have been, and a chronic low back disorder was not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F3d. 1375, 1381 (Fed Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F3d. 1359, 1361 (Fed Cir. 2016) (applying Scott to a duty to assist argument). Service Connection - In General Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, certain chronic diseases (e.g., DDD) may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The chronicity provisions are applicable where evidence, regardless of its date, show that a veteran had a chronic condition, as defined in 38 C.F.R. § 3.309(a) (2017), in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2017). This rule does not mean that any manifestations in service will permit service connection. To show 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 entity is established, there is no requirement of evidentiary showing of continuity. 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(b) (2017). The United States Court of Appeals for Veterans Claims (Court) has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2017). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Analysis - Lumbar Spine Disorder The Veteran contends that service connection should be established for a low back disorder, which he believes is related to an inservice injury or is secondary to foot or neck disorders. It is noted that service connection is in effect for osteoarthritis of the MTP joint and distal digits of both feet and for bilateral plantar fasciitis with pes planus. The Board's March 2017 remand included a detailed summarization of the evidence in the claims file which will not be repeated here. However, as noted at that time, there was an inadequate VA examination report from July 2016 regarding the low back service connection claim. Thus, the Veteran was to be examined by an appropriate VA examiner to address the etiology of all low back disorders found. The requested examination by VA was conducted in May 2017. The examiner reviewed the claims file and examined the Veteran in person. The examiner noted that the Veteran clearly had thoracolumbar impairments. The medical question at issue revolved around the etiology of these impairments and their onset. The examiner opined that the Veteran was found to have osteoporosis and osteopenia by a private physician in 2011. It was also noted at that time that the Veteran was involved in an ATV accident in 2013 resulting in weakened bones. Apparently, at this time, the Veteran suffered some bone and intervertebral disc damage including a thoracic compression fracture of T8 and disc compressions and spondylosis of the thoracolumbar spine. The examiner stated that this had probably been going on for some time prior to the ATV accident, but it would be very difficult to posit that it had had its onset all the way back to military service from 1968 to 1971. The examiner noted that when the Veteran was discharged in 1971, there was no indication of spinal problems as evidenced by his separation examination report. In his opinion, the Veteran must more likely than not developed the damage to his spine much later in life, and it was worsened in the ATV accident, and not causing symptoms until 2013. The VA examiner further noted that while it was true that the Veteran developed foot problems in service and was appropriately service connected for such, he had never had an abnormal gait. The examiner's own examination of the Veteran in 2015 did not note any gait abnormality, nor did the Veteran's private physician on four separate occasions in 2015. The examiner further noted that it was the Veteran's contention that his foot problems caused an altered gait resulting in back problems. Without any such altered gait shown, this argument lacked credibility. The VA examiner also noted that the Veteran's only complaints of foot pain were after prolonged ambulation, so this was unlikely to cause the chronic back impairment from which he suffered. If his arthritis, plantar fasciitis, and pes planus did not produce gait alteration, he did not see any other conceivable means of their resulting in injury to the thoracolumbar spine, or of aggravation of the thoracolumbar spine. At the time of the 2017 examination, the Veteran's gait was normal. Therefore, it was less likely than not (less than 50 percent probability) that his low back disability was proximately due to service-connected osteoarthritis of the MTP joints and distal digits of the right or left foot and/or pes planus and/or altered gait. Moreover, it was less likely than not (less than 50 percent probability) that the Veteran's low back disability was aggravated by these service-connected conditions. The Board finds that there is no support for direct service connection for the Veteran's lumbar spine disability. This is supported by the lack of post-service evidence showing manifestations of a low back disability until many years after service, as indicated above. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that a veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of low back complaints, symptoms, or findings until many years after service is itself evidence which tends to show that any low back disability did not have its onset in service or for years thereafter. Regarding the Veteran's main contention, that his low back disabilities were caused or aggravated by his service-connected foot disorders, the opinion summarized above is to the effect that the low back disorders currently shown are not either proximately the result of, or aggravated by, service-connected foot disorders. The Board finds that the May 2017 VA examiner's report, with the opinion as summarized above, is the evidence most probative to the etiology of the Veteran's low back condition. The opinion is based on a review of the Veteran's complete medical records and examination of the Veteran. Thus, it takes into account the medical evidence in favor of and against the Veteran's claim, and makes references to specific physical findings set forth throughout the medical record. This latter fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. Moreover, the medical articles submitted on the Veteran's behalf by his representative lack significant probative value. The information provided was general in nature, and it does not specifically relate to the Veteran's particular case and in particular obviously does not contain any analysis regarding the facts of this case. As such, this information is noted, but it is of little probative value in the instant case. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, as discussed by the Board above, the Court has held that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Additionally, service connection is not in effect for a cervical spine disorder. As such, the probative evidence of record is against the establishment of service connection for the diagnosed spondylosis, DDD, and spinal stenosis, on a direct, chronic disease presumptive and secondary basis, and the claim must be denied. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a low back disorder and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). TDIU - In General VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16 (2017), if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b) (2017). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance Rather, such cases are to be referred to the Director, Compensation Service, for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Analysis - TDIU Here, the Veteran has established service connection for the following conditions: osteoarthritis of the first MTP joint and distal digits of the right foot, rated as 10 percent disabling; osteoarthritis of the first MTP joint and distal digits of the left foot, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; bilateral plantar fasciitis with pes planus, rated as 0 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. A combined disability rating of 30 percent is in effect, which does not meet the schedular criteria for entitlement to this benefit. Therefore, his service-connected disabilities do not meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a) (2017). As noted at the time of the 2017 examination, the Veteran had been found on earlier exams (e.g., in 2015) to have various foot disorders which resulted in daily foot pain. He was found to be able to do "pretty much" what he wanted to functionally, but was no longer able to hunt or engage in long strenuous walks or hikes. His disabilities were described as moderate, leaving him capable of light duty work with occasional sitting breaks. There was an absence of gait disturbance at the time of the 2015 or 2017 examinations. It is worth noting that the Board also considered the Veteran's lay statements as to severity of symptoms related to his foot disorders. Generally, lay persons can attest to factual matters for which they have first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). While he is competent to report on his symptoms and their severity, he is not deemed competent to render a medical opinion in the absence of the appropriate expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Here, the Veteran described his limitations caused by his service-connected disabilities, and the Board acknowledges that his statement in that regard is competent and of some probative value. However, in this case, the Board ultimately places more weight on the VA examiners' opinions regarding whether the Veteran is unemployable due solely to service-connected conditions. In summary, while the Board does not doubt that the Veteran's service-connected disabilities effect his employability, and do cause him problems, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment at any time during the course of the appeal. Based on the evidence in the claims file, the Board does not find a basis for referral of this case to the Director of Compensation Service for extraschedular consideration. The preponderance of the evidence is against the claim and it must be denied. ORDER Entitlement to service connection for a low back disorder, arthritis/pain, with all residuals, secondary to feet and neck problems, is denied. Entitlement to a TDIU is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs