Citation Nr: 19134792 Decision Date: 05/03/19 Archive Date: 05/03/19 DOCKET NO. 08-33 563 DATE: May 3, 2019 ORDER Entitlement to service connection for an upper back disability, to include as secondary to service-connected postoperative resection of right clavicle, is denied. REMANDED Entitlement to service connection for an eye disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s upper back disability is causally related to his period of active duty service or any event therein, or has been caused or aggravated by a service-connected disability, to include postoperative resection of right clavicle with residual pain, right shoulder. CONCLUSION OF LAW The criteria for entitlement to service connection for an upper back disability have not been met. 38 U.S.C. §§ 1131, 5107 (2014); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1977 to November 1982. These matters are before the Board of Veterans' Appeals (Board) on appeal from a Rating Decision by the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO) dated in November 2009. In September 2014, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This case was last remanded by the Board for additional development in December 2016. Relevant to the claim decided herein, this Remand directed that the Veteran be scheduled for a VA examination to ascertain whether his diagnosed degenerative arthritis of the cervical spine was caused or chronically aggravated by his service-connected postoperative resection of the right clavicle. Such an examination was conducted in November 2018. As such, the Board finds that there has been substantial compliance with its November 2016 Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, the Veteran has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP). Although the AMA was implemented effective February 19, 2019, the Rating Decision on appeal was issued prior to that date. Accordingly, the Board will review his appeal under the existing Legacy Appeals System. The Board recognizes that the Veteran also appealed the issues of entitlement to increased evaluations for left foot hammer toe and linear surgical scars of the right ankle to the Board in a July 2018 substantive appeal. However, as the Veteran requested to testify at a Board videoconference hearing with respect to these issues, and they are currently in Advanced (rather than Active) status, the Board concludes that merging those issues into the current appeal is not appropriate. As such, these issues will be addressed in a separate decision under a separate docket number. The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2014); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, neither the Veteran nor his representative have raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 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 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran seeks entitlement to service connection for an upper back disability, to include as secondary to service-connected postoperative resection of the right clavicle. The Veteran is currently service-connected for postoperative resection of the right clavicle with residual pain, right shoulder. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. "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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Further, additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability may be service connected under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Here, a review of the Veteran’s service treatment records reflects that he complained of a sore neck after heavy lifting in September 1979, at which time he was referred to physical therapy for treatment. In November 1979, he complained of pain down the right side of his neck upon movement after falling down the stairs and landing on his right buttocks. At that time, he was diagnosed as having muscle strain. In January 1980, he complained of experiencing back, neck, and rib pain for 48 hours after sustaining trauma in a “ballgame,” at which time he was again diagnosed as having muscle strain. He underwent resection of the right distal clavicle for residual traumatic arthritis in April 1982 after falling on his right shoulder while playing football in October 1980. The Veteran was provided with a VA examination in October 2009, at which time there was radiographic evidence of mild degenerative changes in the cervical and thoracic spines, both on the right side. However, the examiner opined that it was more likely than not that the Veteran’s neck, upper thoracic, and upper extremity pain and numbness were due to these degenerative changes rather than to his history of shoulder trauma and surgical repair. The Veteran was provided with a VA Neck (Cervical Spine) Conditions examination in March 2015. The examiner provided diagnoses of cervical strain as well as degenerative arthritis of the cervical spine. The examiner then opined that the Veteran's cervical spine disability was less likely than not incurred in or caused by an in-service injury, event, or illness, or caused or aggravated by his service-connected bilateral pes planus. However, the Veteran had never asserted that his upper back disability was caused or aggravated by his service-connected pes planus; rather, the Veteran had contended that his upper back disability was caused or aggravated by his service-connected postoperative resection of the right clavicle. As such, the Board remanded the matter in December 2016 in order to provide the Veteran with an examination to determine the likelihood that his cervical spine disability was caused or aggravated by his service-connected postoperative resection of the right clavicle. Pursuant to the Board’s December 2016 Remand instructions, the Veteran was provided with another VA examination in November 2018. The VA examiner noted that a May 2014 radiology report of the cervical spine showed mild narrowing of the C5-C6 disc interspace, and moderate degenerative spondylosis with interval increase in the degenerative spurring since April 2010. However, the VA examiner opined that the upper back disability was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected postoperative resection of the right clavicle. In support of this conclusion, the VA examiner explained that the two conditions were not medically related, and that the claimed upper back condition was a separate entity entirely from the service-connected postoperative resection of the right clavicle with residual pain and unrelated to it. Moreover, the medical literature did not support a medical relationship between the two disabilities. As such, a nexus had not been established. Additionally, the VA examiner opined that the upper back disability was less likely than not aggravated beyond its natural progression by the service-connected postoperative resection of the right clavicle. In support of this conclusion, the VA examiner explained that there was no evidence in the service treatment records of back pain caused by postoperative resection of the right clavicle. Additionally, the VA examiner noted that the Veteran was treated for low back spasms in March 1987 (five years after his separation from service), and was also involved in a motor vehicle accident in 1988 (six years after his separation from service) while working for the U.S. Postal Service, thereby sustaining a thoracic back injury. As such, the VA examiner concluded that the Veteran’s current upper back disability was likely caused by the 1988 motor vehicle accident, and that it was less likely than not aggravated beyond its natural progression by his service-connected postoperative resection of the right clavicle. There is no competent medical opinion of record in support of the Veteran's contention that his current upper back disability was caused by or incurred in his period of active duty service, or caused by, the result of, or aggravated by, a service-connected disability. The Board has considered the Veteran's lay history of symptomatology related to his claimed disorder throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Of the competent opinions of record, the Board finds the November 2018 examination report to be the most probative. Thus, for the foregoing reasons, the Board finds that the preponderance of the evidence is against finding that the Veteran’s upper back disability being caused by or incurred in his period of active duty service, or caused by, the result of, or aggravated by, a service-connected disability. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND The Veteran also seeks entitlement to service connection for an eye disability as well as entitlement to a TDIU. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to the issue of entitlement to service connection for an eye disability, the Board's December 2014 Remand emphasized that there were multiple instances of treatment for eye symptomatology in service and directed the RO to provide the Veteran with a VA examination to determine the probable nature and etiology of each diagnosed eye disorder. Specifically, the examiner was asked to opine as to whether it was at least as likely as not (50 percent or greater probability) that any currently existing, acquired eye disorder of the Veteran originated in service or was otherwise related to his military service or any event occurring therein. Pursuant to the Board's Remand instructions, the Veteran was provided with a VA Eye Conditions examination in March 2015, at which time he was diagnosed as having dry eye syndrome and seasonal allergic blepharitis. However, after citing several instances in the Veteran's service treatment records where he was treated for eyelid irritation and/or soreness, the VA examiner simply stated that, "EXAM today confirms Dx of dry eye syndrome. Veteran uses OTC various brands of artificial tears. He did not present a current prescription. He did not receive a diagnosis of Dry Eye Syndrome in service. He was seen for eyelid swelling in service and his history is consistent with chronic seasonal allergic blepharitis with eyelid swelling." Significantly, however, the March 2015 VA examiner did not provide opinions as to whether it was at least as likely as not that the Veteran's diagnosed dry eye syndrome and/or seasonal allergic blepharitis originated in service or was otherwise related to his military service or any event occurring therein, as was explicitly requested by the Board in its December 2014 Remand. As such, the Board’s December 2016 Remand directed that the Veteran be provided with another VA examination to determine the likely etiologies of his diagnosed eye disabilities, to include dry eye syndrome and seasonal allergic blepharitis. In providing this opinion, the examiner was asked to specifically reference the documented records of in-service treatment for eye symptomatology, the current prescription of tear solution for dry eyes, and the Veteran's lay testimony about continuity of symptomatology since service. Pursuant to the Board’s December 2016 Remand instructions, the Veteran was provided with a VA Eye Conditions examination in February 2017, at which time the VA examiner opined that the Veteran’s ischemic optic neuropathy with visual field abnormality was at least as likely as not incurred in or caused by an in-service event, injury, or illness. In support of this conclusion, the VA examiner explained that the Veteran developed diabetes mellitus in 2000 which had produced dry eye, and blepharitis secondary to dryness of the eyes, as well as ischemic optic neuropathy in the optic nerve of each eye, and that this was “directly service related with 20 years of diabetes mellitus managed by oral agents and insulin by the military.” Significantly, however, the Board emphasizes that the Veteran has never been service connected for diabetes mellitus, and there has been no showing that diabetes mellitus was related to service. The Veteran was provided with another VA Eye Conditions examination in November 2018, at which time the VA examiner opined that the Veteran’s eye disabilities were less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner simply stated that: Veteran's eye examine [sic] revealed a diagnosis of bilateral dry eye syndrome and cataracts. Its the examiner's opinion that neither of these conditions are service related. The Veteran's claims file does not document cataracts during his period of service. In reference to the dry eye syndrome, the Veteran's claims file does not contain enough documentation to support that his diagnosis of dry eye is service related. The Veteran had multiple health care visits in reference to his eyes but the clinician's assessment, documentation and plan of action do not support that the diagnosis was dry eye but rather intermittent allergic conjunctivitis and hordeolum. The Board again finds that this opinion is inadequate. First, it does not specifically reference the Veteran's lay testimony about continuity of symptomatology since service, as explicitly requested in the Board’s December 2016 Remand directives. Indeed, a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Moreover, the November 2018 VA examiner concluded that the eye symptomatology treated in service only supported diagnoses of intermittent allergic conjunctivitis and hordeolum, rather than dry eye. However, there is no further discussion or acknowledgment that conjunctivitis (pink eye) can be a symptom of dry eye, or that a hordeolum (stye) is recognized by the National Eye Institute as a known complication of blepharitis. As the directives in the Board's December 2016 remand were not fully completed, this issue must be remanded to provide the Veteran with another VA examination to determine the likely etiologies of his diagnosed dry eye syndrome and seasonal allergic blepharitis. Finally, the Veteran seeks entitlement to a TDIU. However, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the service-connection issue being remanded herein. As such, the Board finds that remanding this issue is required in order for the claims to be contemporaneously adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision in the matter). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA eye examination in order to determine the likely etiology of each diagnosed eye disability, to include dry eye syndrome and seasonal allergic blepharitis. The Veteran's claims file must be furnished to the VA examiner for use in the study of this case. That examination should entail a complete medical history, full clinical evaluation, and any diagnostic studies deemed warranted by the VA examiner. Upon completion of the above, the VA examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed eye disability, to include dry eye syndrome and/or seasonal allergic blepharitis, originated in service or is otherwise related to his military service or any event occurring therein. Rationale must be provided for the opinion given. In providing the requested rationale, the examiner is asked to specifically reference the documented records of in-service treatment for eye symptomatology, the current prescription of tear solution for dry eyes, and the Veteran's lay testimony about continuity of symptomatology since service. The examiner is also asked to specifically discuss the relationship and overlap of symptomatology, if any, of the Veteran’s current dry eye syndrome and/or seasonal allergic blepharitis with the conjunctivitis and hordeolum identified in service. The VA examiner is further informed that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a proposition as to find against. "More likely" and "as likely" support the contended relationship; "less likely" weighs against the claim. 2. Thereafter, readjudicate each of the issues remaining on appeal. If any benefit sought on appeal remains denied, then the Veteran should be provided with a supplemental statement of the case and afforded a   reasonable period of time to respond before the case is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel