Citation Nr: 1827488 Decision Date: 05/03/18 Archive Date: 05/14/18 DOCKET NO. 13-17 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the feet. 2. Entitlement to service connection for a low back disability, to include as secondary to peripheral neuropathy of the feet and/or broken left foot. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Michael T. Sullivan WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1987 to July 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The New York, New York RO subsequently acquired jurisdiction. In December 2013, the Veteran testified at a videoconference hearing of the Board held at the New York RO before the undersigned veterans law judge. A transcript of the hearing is of record. The Board remanded this matter in August 2014, May 2016, and August 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Peripheral neuropathy of the feet manifested during the Veteran's active military service as a result of the Veteran's abuse of alcohol. 2. Scoliosis, stenosis, and degenerative changes of the lumbosacral spine were not manifest in service and are not attributable to service. Arthritis was not manifest in service or within one year following service. 3. Scoliosis, stenosis, and degenerative changes of the lumbosacral spine are not caused or permanently worsened by a service-connected disease or injury. 4. The Veteran is service-connected for tinnitus only; tinnitus does not prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Because the Veteran's disability of peripheral neuropathy of the feet results from the Veteran's abuse of alcohol, service connection may not be granted for peripheral neuropathy of the feet. 38 U.S.C. §§ 105, 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.307, 3.309 (2017). 2. Scoliosis, stenosis, and degenerative changes of the lumbosacral spine were not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. Scoliosis, stenosis, and degenerative changes of the lumbosacral spine are not proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). 4. The criteria for entitlement to a TDIU have not been met at any time during the claim period. 38 U.S.C. § 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA must notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VCAA notice was provided to the Veteran by letters of March 2009 and May 2009. The evidence of record includes service treatment records, service personnel records, post-service VA and private treatment records, Social Security Administration (SSA) records, lay statements, and statements of the Veteran. The Veteran underwent a VA examination for peripheral neuropathy in July 2016, and an addendum medical opinion was obtained in March 2018. The VA medical reports are adequate. See 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). No VA examination or opinion was obtained with regard to the Veteran's claimed disability of the low back. VA will provide a medical examination or opinion if the information and evidence of record does not contain sufficient medical evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the claimant has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017). The third factor has been held to have a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). A conclusory lay statement that an in-service event or illness caused a current disorder is alone insufficient to require VA to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As discussed below, the evidence does not indicate that the Veteran's low back disability may be associated with an injury or disease of service or with a service-connected disability]. Accordingly, a VA medical opinion is not warranted. See Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010). The Veteran's complete service treatment records are unavailable despite VA efforts to obtain them, and further attempt to find such records would be futile. See VA Formal Finding on the Unavailability of Service Records (July 9, 2009). Under the circumstances, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the appellant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). In conducting the December 2013 Board hearing, the VLJ fully explained the issues on appeal and suggested the submission of evidence that would be beneficial to the Veteran's claim. The actions of the VLJ supplement the VCAA and comply with 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The agency of original jurisdiction (AOJ) substantially complied with the Board's August 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not raised an issue with respect to the duty to notify or assist. The Board is not required to search the record for procedural arguments not raised by the claimant. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty-to-assist). II. Legal Criteria Service connection will be granted for a current disability that resulted from an injury or disease incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Generally, service connection requires: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2017). Service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2017). 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 progress of the nonservice-connected disease, will be service-connected. See 38 C.F.R. § 3.310(b) (2017). Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509 (1998). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis and peripheral neuropathy, if the chronic disease is shown as such during service or within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2017). When the fact of chronicity in service is not adequately supported, a continuity of symptomatology since service is an alternative means of establishing service connection. See 38 C.F.R. § 3.303(b) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The claimant bears the evidentiary burden of establishing all elements of a service connection claim, including the nexus requirement. See 38 U.S.C. § 5107(a) (2012); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). VA is required to give due consideration to all evidence in evaluating a claim for disability benefits. See 38 U.S.C. § 1154(a) (2012). The Board's analysis below focuses on what the evidence shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board must give a claimant the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). III. Peripheral Neuropathy of the Feet The Veteran seeks service connection for bilateral peripheral neuropathy of the lower extremities. See Veteran's claim of December 2008. The Veteran has neuropathy of the bilateral lower extremities. See July 2016 VA examination report; July 2014 record of Dr. O. A. The first element of Shedden is met. A June 1994 service treatment record indicates that the Veteran had bilateral lower extremities paresthesias. While the VA examiner stated in her report of July 2016 that there were no peripheral neuropathy symptoms during service, the addendum opinion of March 2018 determined that the Veteran's peripheral neuropathy of the feet had its onset during service. The specific findings were 1) that the Veteran's service treatment records document paresthesias, 2) that paresthesias is a well-known symptom of peripheral neuropathy, and 3) that lay statements of record regarding the Veteran's difficulty walking due to balance problems in 1991 and 1994 support a clinical diagnosis of neuropathy. Accordingly, the second element of Shedden is established. In general, service connection can be presumed for a current chronic disease, such as peripheral neuropathy, that manifested during service. See 38 C.F.R. § 3.303(b) (2017). However, effective for claims filed after October 31, 1990, service connection may not be granted if the disability is the result of a veteran's abuse of alcohol or drugs. See 38 C.F.R. § 3.301(a) (2017). Alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to the user. See 38 C.F.R. § 3.301(d) (2017). If the willful misconduct in question is secondary to, or symptomatic of, a service-connected disability, compensation for the secondary disorder will be allowed. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The VA examiner determined that the Veteran's peripheral neuropathy is most likely related to chronic, heavy alcohol abuse and associated nutritional deficiencies. The rationale noted that the Veteran has a well-documented history of alcohol abuse, including multiple rehabilitation admissions during service. It was noted that alcohol is a well-known and common risk factor for peripheral neuropathy. See July 2016 VA examination report; March 2018 VA addendum opinion. The VA examiner also determined that the Veteran's foot bruising in 1991 is not likely related to peripheral neuropathy, as neuropathy does not cause bruising. Furthermore, the examiner found that the Veteran's wearing of combat boots and carrying heavy gear during service are not risk factors for the development of peripheral neuropathy. See March 2018 VA addendum opinion. A VA medical report must be read as a whole. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012). Where the opinion is lacking in detail, the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). When reading the July 2016 VA examination report in conjunction with the March 2018 addendum opinion, it is clear to the Board that the VA examiner is of the opinion that the Veteran's peripheral neuropathy of the bilateral feet had its onset during service and that the neuropathy is most likely due to the Veteran's alcohol abuse, which is documented in his service treatment records. See, e.g., May 1994 service treatment record diagnosing physiological alcohol dependence. In this case, the Board assigns significant probative weight to VA examiner's opinion that the Veteran's peripheral neuropathy is attributable to his history of alcohol abuse. The VA examiner's rationale was based on a neurological examination of the Veteran, the Veteran's service and medical history, the lay statements of record, and the Veteran's report of having drunk alcohol heavily beginning at age 16. To the extent that the Veteran contends that his peripheral neuropathy is related to his service, he is not competent, without medical training, to identify the etiology of a disease such as peripheral neuropathy. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). There is no competent opinion of record that links the Veteran's peripheral neuropathy of the feet to his service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). IV. Low Back Disability The Veteran has a current disability of the low back. X-rays of September 2010 show minimal scoliosis and slight degenerative changes of the lumbosacral spine. See September 2010 record of Dr. P. K. An MRI of July 2012 shows central canal stenosis. See September 2012 record of Dr. M. R. A service treatment record of May 1988 notes the Veteran's report of pain in his neck and right shoulder that radiates into the back. The Veteran stated that the injury resulted from swinging a bat while playing baseball. The Veteran was found to have "normal range of motion," but no specific joint was mentioned. No diagnosis relating to the back was made by the clinician. The remaining service treatment records of record contain no complaints or treatment relating to the back. The Board determines that the preponderance of the evidence is against finding entitlement to service connection on either a direct or secondary basis. The Veteran does not maintain that his low back injury is directly related to an in-service injury, and no evidence of record indicates that the Veteran's current low back disability may be directly caused or aggravated by a disease or injury incurred during service, including the radiating back pain noted in the May 1988 service treatment record. The preponderance of the evidence is also against finding that arthritis of the low back manifested during service or within one year of service separation. Accordingly, service connection cannot be presumed for the chronic disease of arthritis. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017). To the extent that the Veteran contends that his low back disability is related to his service, he is not competent, without medical training, to identify the etiology of a disease such as lumbar spinal stenosis and degenerative changes of the lumbar spine. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). There is no competent opinion of record that links the Veteran's current back disability to his service. Therefore, service connection on a direct basis is not warranted. The Veteran seeks service connection on a secondary basis as related to his peripheral neuropathy of the feet. See Veteran's claim of December 2008. As explained above, the Veteran is not entitled to service connection for peripheral neuropathy of the bilateral lower extremities. He has previously been denied service connection for residuals of a broken foot. See rating decisions of April 2003 and October 2004. Therefore, service connection is not warranted on the Veteran's theory of secondary service connection. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). V. TDIU A claim for a total rating based on unemployability due to service-connected disabilities, either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the issue of entitlement to a TDIU was raised by the record as a result of the Veteran's testimony at the December 2013 Board hearing. The Veteran testified that he had been unable to work since 2003 as a result of his feet disabilities, as well as his sleep difficulties stemming from PTSD. See August 2014 Board remand. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). Because the Veteran's one service-connected disability, tinnitus, is rated at 10 percent from December 16, 2008, the threshold percentage criteria for TDIU consideration under 38 C.F.R. § 4.16(a) are not met. When a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the case shall be submitted to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. §§ 3.321(b), 4.16(b) (2017). The Veteran underwent a VA audiological examination for his hearing in June 2015. The examiner determined that the Veteran's tinnitus had an impact on the conditions of daily life, including the ability to work, in that the Veteran reported that his tinnitus interferes with his hearing. There is no indication in the record, and the Veteran does not assert, that his tinnitus prevents him from securing and following gainful employment. As discussed in detail above, the Veteran is not entitled to service connection for peripheral neuropathy of the bilateral lower extremities. He has previously been denied service connection for residuals of a broken foot (see rating decisions of April 2003 and October 2004) and for PTSD (claimed as PTSD with alcoholism). See Board decision of May 2016. Because a TDIU must be the result of service-connected disabilities, any disability attributed to the Veteran's residuals of a broken foot, peripheral neuropathy of the bilateral lower extremities, or PTSD symptoms cannot form the basis for an award of a TDIU. The Board finds that the Veteran is not entitled to referral for an extraschedular total rating based upon individual unemployability. Under 38 C.F.R. § 4.16(b), there must be credible evidence that a service-connected disability renders the Veteran unable to secure and follow a substantially gainful occupation. Here, while the Veteran's tinnitus has some limited impact on his functional and occupational ability, the preponderance of the evidence is against finding that he is unable to obtain and maintain substantially gainful employment as a result. ORDER Entitlement to service connection for peripheral neuropathy of the feet is denied. Entitlement to service connection for a low back disability is denied. Entitlement to a TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs