Citation Nr: 18152841 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 02-20 392A DATE: November 27, 2018 ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for Raynaud's Syndrome is denied. Entitlement to an initial rating in excess of 40 percent for Hepatitis C is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran's right knee disorder, diagnosed as osteoarthritis, did not manifest during service or within one year of separation from active duty service and was not caused by military service. 2. Raynaud's syndrome was not present during service and is not shown to have been caused by any in-service event. 3. In an October 2018 written statement, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to an initial rating in excess of 40 percent for hepatitis C. 4. The Veteran has service connected disabilities of schizophrenia, unspecified, rated as 70 percent disabling; and Hepatitis C, rated as 40 percent disabling. The Veteran's combined schedular rating is 80 percent. 5. The Veteran completed high school. He has had occupational experience as a lawn care specialist; he last worked full time in August 2010. 6. The Veteran's service-connected disabilities, alone, have not rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 2. The criteria for service connection for Raynaud's Syndrome have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 3. The criteria for withdrawal of an appeal by the Veteran as to the issue of entitlement to an initial rating in excess of 40 percent for hepatitis C have been satisfied. 38 U.S.C. § 7105 (b) (2), (d) (5); 38 C.F.R. §§ 20.202, 20.204(b), (c). 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to November 1975. These matters came before the Board of Veterans’ Appeals (hereinafter Board) on appeal from rating decisions by the Montgomery, Alabama, Regional Office (RO). By a rating action in May 2004, the RO denied the Veteran’s claims of entitlement to service connection for a right knee condition and service connection for Raynaud’s syndrome. He perfected a timely appeal to that decision. The Board notes that, in his substantive appeal (VA Form 9), received in May 2005, the Veteran requested a hearing before a Veterans Law Judge at the RO. The Veteran was scheduled for a hearing in June 2008; however, on the day of the hearing, the Veteran withdrew his request for a hearing. 38 C.F.R. § 20.704 (c) (2017). In November 2008, the Board remanded the claims of service connection for a right knee disorder and Raynaud’s syndrome to the RO for further evidentiary development. By a Decision Review Officer’s (DRO) decision, dated in December 2012, the RO granted service connection for hepatitis C and assigned a 0 percent rating from February 3, 2003; a 40 percent disability rating was assigned from September 21, 2012. In a subsequent rating action, in November 2015, the RO assigned an effective date of February 3, 2002 for the 40 percent rating for hepatitis C. the Veteran perfected a timely appeal to the rating assigned for hepatitis C. As regards current characterization of the appeal, the evidence reflects that the Veteran has been unemployed since August 2010. He has contended that he is unable to secure and follow substantially gainful employment due to his service-connected hepatitis C, and he submitted a formal claim for a TDIU (VA Form 21-8940) in April 2018. Entitlement to a TDIU may be an element of an appeal for a higher initial rating or a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). Given the evidence of current disabilities, the Veteran's claims for the highest ratings possible, and the evidence of unemployability, the issue of entitlement to a TDIU is properly before the Board under Roberson and Rice. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For a 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If 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). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a right knee disorder The Veteran essentially contends that his right knee disorder developed as a result of his physical activities during military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of osteoarthritis of the knee, the preponderance of the evidence weighs against a finding that the Veteran’s diagnosis of osteoarthritis of the knee began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Post service VA treatment records show the first clinical documentation of the onset of right knee pain was in February 2003, approximately 28 years after separation from service; at that time, it was noted that the Veteran was status post knee surgery in 1995. The treatment reports note that the Veteran was diagnosed with osteoarthritis of the knees in March 2009, more than 34 years following discharge from service. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). This lapse in time weighs against the claim. While the Veteran is competent to report having experienced symptoms of right knee pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of osteoarthritis of the right knee. The issue is medically complex, as it requires knowledge of orthopedic conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the August 2017 DBQ examiner opined that the Veteran’s right knee disorder is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there is no service treatment records (STRs) reflecting treatment for the right knee, and the January 1978 separation examination was completely normal for any complaints or knee problems. The examiner further noted that the first record of a right knee problem began about 2000. Therefore, the right knee less likely than not incurred in or caused by service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the August 2017 medical opinion agrees with a previous VA medical examiner’s opinion, dated in November 2009, which concluded that it is less likely as not that the right knee condition occurred in military service or within one year of release from military service. The Board acknowledges the Veteran's contention that he has a current right knee disorder that is related to his active military service; and, the Board again acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the question regarding the relationship between a current right knee disorder and any instance of his military service to be complex in nature. For this reason, the Board concludes that the Veteran's etiology opinion is not competent evidence; and, the Board gives more probative weight to the August 2017 medical opinion. Put simply, the evidence does not establish that the Veteran had a chronic right knee disorder during active service or that a current right knee disorder is otherwise related to active service. Because there is no approximate balance of positive and negative evidence, the rule affording the Veteran the benefit of the doubt does not help the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). The appeal as to this issue must be denied. 2. Entitlement to service connection for Raynaud's Syndrome The Veteran essentially contends that his Raynaud’s syndrome developed as a result of military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of primary Raynaud’s phenomenon, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of Raynaud’s phenomenon began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records show the Veteran was not diagnosed with Raynaud’s phenomenon until April 2002, more than 27 years after his separation from service. While the Veteran is competent to report having experienced symptoms of pain and cold sensation in the fingers since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of Raynaud’s syndrome. The issue is medically complex, as it requires knowledge of the vascular system. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the August 2017 DBQ examiner opined that the Veteran’s Raynaud’s syndrome is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there is no service treatment records (STRs) reflecting treatment for Raynaud’s syndrome, and the January 1978 separation examination was completely normal for any complaints or clinical findings of Raynaud’s syndrome. The examiner further noted that the first record of Raynaud’s syndrome began about 2000. Therefore, Raynaud’s syndrome less likely than not incurred in or caused by service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the August 2017 medical opinion is consistent with a previous VA medical examiner’s opinion, dated in November 2009, which concluded that it is less likely as not that Raynaud’s phenomenon occurred in military service or within one year of release from military service. While the Veteran believes that his Raynaud’s syndrome is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the vascular system. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the November 2009 and August 2017 medical opinions. Therefore, the Board concludes that the preponderance of the probative evidence of record shows that the Veteran's Raynaud’s syndrome is not causally related to his active service or any incident therein. As the preponderance of the evidence is against the Veteran's claim of service connection for Raynaud’s syndrome, the benefit of the doubt doctrine is not for application in the instant case. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 3. Entitlement to an initial rating in excess of 40 percent for Hepatitis C Pursuant to 38 C.F.R. § 20.204 (b), a withdrawal of an appeal must be in writing and must include the name of the claimant, the claim number, and a statement that the appeal is being withdrawn. The statement must be received by the Board prior to issuance of a decision regarding the claim or claims being withdrawn. On October 1, 2018, the Veteran's attorney submitted a statement which expressed the Veteran's wish to withdraw his claim for entitlement to a disability rating in excess of 40 percent for service-connected Hepatitis C. The statement was in writing, included the name of the claimant, the claim number, and the statement that the appeal is being withdrawn. As the Board has not yet issued a decision concerning this claim upon receipt of the statement, criteria are met for withdrawal of this appeal. See 38 C.F.R. § 20.204 (b). When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal is the appropriate disposition. 38 U.S.C. § 7105 (d). Accordingly, further action by the Board concerning this claim is unwarranted, and the appeal is dismissed. Id. 4. Entitlement to a total disability rating based on individual unemployability rating by reason of service connection disabilities. Awards of TDIU are governed, in part, by 38 C.F.R. § 4.16 (a) (2017). Under that regulation, total disability ratings for compensation can be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, the disability must be ratable at 60 percent or more, and that, if there are two or more 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. See also 38 C.F.R. §§ 3.340, 3.341 (2017). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. In this case, the Veteran is currently service connected for schizophrenia, unspecified, rated as 70 percent disabling; and Hepatitis C, rated as 40 percent disabling. The Veteran's combined rating is 80 percent from August 29, 2017. Thus, the Veteran meets the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16 (a). In order to establish entitlement to TDIU benefits, there must be impairment so severe that a claimant cannot follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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, 529 (1993). The issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate 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, 363 (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 nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Significantly, the record reflects that the Veteran has a high school education, and VA records indicate that he has had experience in lawn care and has worked as a lawn care specialist. After a thorough review of the evidentiary record, the Board finds that the functional limitations imposed by the Veteran's service-connected disabilities do not preclude his ability to engage in substantially gainful employment. Significantly, following the August 2017 DBQ examination, the examiner stated that the Veteran’s Hepatitis C does not impact his ability to work. Additionally, the Board acknowledges that the Veteran's service-connected schizophrenia is productive of a significant degree of disability, as indicated by the current 70 percent rating assigned. However, while the Veteran undoubtedly suffers significant impairment from these disabilities, the competent evidence of record preponderates against a finding that he is unemployable due to his service-connected schizophrenia. It is noteworthy that on his application for TDIU (VA Form 21-8940), dated in April 2018, the Veteran stated that he is prevented from employment by his hepatitis C and alcoholism. Therefore, while the record indicates that the Veteran has been unemployed, it does not establish that his unemployment is caused by his service-connected disabilities. Based upon the foregoing, the Board finds that the evidence does not demonstrate that the Veteran’s service-connected disabilities alone, when considered in association with his educational attainment and occupational background, render him unable to secure or follow a substantially gainful occupation. As such, the evidence weighs against finding that his service-connected disabilities have combined to cause unemployability. The Veteran has not presented any evidence that his service-connected disabilities cause him would prevent him from utilizing his skills to do work of the nature he previously performed or engage in other substantially gainful occupations. To the extent the Veteran is limited by his service-connected disability, any such limitation is contemplated in, and is being adequately compensated by, the current disability ratings assigned for his schizophrenia and Hepatitis C. For reasons set forth above, a TDIU rating is therefore not warranted. 38 C.F.R. § 4.16 (b). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs