Citation Nr: 19174166 Decision Date: 09/24/19 Archive Date: 09/24/19 DOCKET NO. 14-08 432 DATE: September 24, 2019 ORDER Entitlement to service connection for a back disability is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s preexisting scoliosis was not aggravated beyond natural progression by active service. 2. The Veteran’s degenerative disc disease (DDD) of the lumbar spine is related to active service. 3. The Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have been met. 38 U.S.C. § §§ 1110, 1131, 5107 (2012); 38 C.F.R. § §§ 3.102, 3.303 (2018). 2. The criteria for a TDIU have been met. 38 U.S.C. § § 1155 (2012); 38 C.F.R. § §§ 3.340, 3.341, 4.3, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1989 to July 1992, with service in Southwest Asia from January 1991 to May 1991. This case comes before the Board of Veterans’ Appeals (the Board) from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in November 2016. A transcript of that proceeding has been associated with the claims file. 1. Entitlement to service connection for a back disability At the onset, the Board notes that the Veteran’s January 1989 entrance examination shows that he was noted to have scoliosis at the time of enlistment. Additionally, the Veteran also has a current diagnosis of degenerative disc disease (DDD) of the lumbar spine. As service connection for a preexisting condition differs from the requirements for direct service connection, the conditions will be addressed separately below. Scoliosis A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § § 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § § 3.304(b) (2018). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § § 1153; 38 C.F.R. § § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § § 3.306. As the Veteran had a diagnosis of scoliosis that was noted at entrance into service, the question before the Board is whether the Veteran’s scoliosis was aggravated beyond the natural progression of the disability during active service. When this matter was last before the Board in December 2017, it was remanded, in pertinent part, to obtain a medical opinion which addressed whether the Veteran’s scoliosis was clearly and unmistakably aggravated during service. The Veteran was afforded the requested opinion in March 2018. The examiner cited several occasions where the Veteran was treated for pain and strains related to his spine in service. The examiner also noted that at separation, the Veteran reported that he did not have recurring back pain. The examiner went on to state that the Veteran’s entrance examination did not note the level of scoliosis, but that his first post-service x-rays in 1999, showed only mild levoscoliosis. Ultimately, the examiner opined that there was no evidence that the Veteran’s scoliosis was aggravated beyond normal progression during service. The Veteran also submitted a January 2019 private medical opinion from Dr. R. T., which also addressed the Veteran’s preexisting scoliosis. Dr. R. T. noted that the Veteran’s entrance examination noted mild scoliosis that was asymptomatic. He opined that there was no evidence that the Veteran’s complaint of back pain 2 weeks prior to service was not an acute and isolated incident, that the entrance examination showed no other condition, and that the Veteran was deemed physically sound. Finally, Dr. R. T. opined that the Veteran’s back strains during service were independent and unrelated to the Veteran’s preexisting scoliosis, and therefore, it was his opinion that the condition was not aggravated by active service. In sum, there is no competent medical evidence that shows that the Veteran’s preexisting scoliosis was aggravated by service. Accordingly, the Board must turn to whether the Veteran’s diagnosed degenerative disc disease of the lumbar spine is related to service. Degenerative Disc Disease (DDD) of Lumbar Spine Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § §§ 1110, 1131 (2012); 38 C.F.R. § § 3.303 (2018). Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. § 1101, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, arthritis is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Veteran does not contend, and the evidence does not otherwise suggest, that the Veteran’s DDD had its onset in active service. The medical evidence of record shows that the Veteran was first noted to have disc herniation and bulging in 2004. The Veteran’s DDD of the lumbar spine was further confirmed by a July 2010 VA examination. The remaining questions for the Board are whether the Veteran’s DDD is related to active service, whether there is evidence of continuity of symptomatology since service, or whether the condition was manifested to a compensable degree within one year of separation. The Board finds that resolving all doubt in favor of the Veteran, the evidence is in relative equipoise as to whether the Veteran’s condition is related to service. When this matter was before the Board in December 2017, it was remanded to obtain an opinion that addressed the etiology of the Veteran’s DDD of the lumbar spine. The examiner was asked to opine as to whether the Veteran’s DDD was a developmental or congenital defect, whether the condition preexisted service, and if not, whether the condition was related to service. The requested opinion was obtained in March 2018. The examiner indicated that it was less likely as not that the congenital or developmental and not a congenital defect. The examiner indicated that DDD is a condition that develops over time, and cited post-service x-ray testing from 1999 that showed that the Veteran’s intervertebral disk spaces were within normal limits. The examiner indicated that there was no evidence that the condition preexisted service. As to whether the condition was incurred in or related to active service, the examiner stated that were no notes indicating a diagnosis of DDD during service. Ultimately, the examiner opined that it was less likely than not that the condition was related his service. The examiner added that the Veteran denied recurrent back pain at separation. The previously discussed private opinion rendered by Dr. R. T. also addressed the Veteran’s DDD of the lumbar spine. Dr. R. T. opined that it was at least as likely as not that the Veteran’s condition was directly related to active service. He noted that the medical evidence showed that the Veteran has had persistent and recurring back problems, which are still present. Dr. R. T. added that the Veteran’s service treatment records (STRs) also showed that he consistently sought treatment for back pain during service. He added that the Veteran was involved in an in-service motor vehicle accident, following which he also experienced back pain. Finally, Dr. R. T. indicated that all of the above factors, coupled with the Veteran’s continuity of symptoms, all played a role in the rendered medical opinion. In this case, the Board finds that both the March 2018 VA examiner’s opinion and the opinion rendered by Dr. R. T. are probative, as they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that there is evidence weighing both in favor and against the claim. However, the evidence tends to show, at minimum, that the Veteran was treated on multiple occasions during service for lower back pain, that he has consistently sought post-service treatment, and that he has a current diagnosis of DDD of the lumbar spine. Thus, resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s DDD of the lumbar spine is related to service. Accordingly, service connection is warranted. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 the impairment caused by nonservice-connected disabilities. 38 U.S.C. § § 1155 (2012); 38 C.F.R. § §§ 3.340, 3.341, 4.16, 4.19 (2018). 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) (emphasis added). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, this disability shall be ratable at 60 percent or more, or 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 38 C.F.R. § § 4.16(a) (2018). In determining whether the Veteran is eligible to receive TDIU benefits, the Board observes that prior to the grant for a back disability herein, the Veteran was service-connected for PTSD evaluated as 70 percent disabling and a right knee strain evaluated as 10 percent disabling. Therefore, the Veteran's service-connected disabilities meet the criteria for schedular consideration of TDIU. In the Veteran’s June 2010 VA Form 21-8940, he indicated that he was unable to secure or follow gainful employment due to his service-connected PTSD, right knee and back condition, as well as a non-service connected ulnar nerve condition and dental trauma. He reported that he was last employed in 2008 as a mechanic, and that his highest level of education was 3 years of college. In a July 2010 VA-218940, he indicated that he last worked in April 2009. Additionally, in a May 2010 VA examination, he reported that his highest level of education was a master’s degree in theology. As to the Veteran’s PTSD, a May 2010 examiner noted that his symptomatology would have a moderate impact in his work environment. The examiner added that the Veteran's difficulty in containing his anger and irritability toward others would make it very challenging for him to interact with others in most work environments in a positive manner. Additionally, the examiner noted that the Veteran's difficulties with long-term memory would also make it challenging for him to complete tasks in most work environments with accuracy. A February 2015 letter from C. K., a Chief Physician Assistant at a VA Medical Center in Phoenix, indicates that the Veteran is fully disabled to any and all means of employment in spite of his medical compliance with treatment. The letter cited the Veteran’s psychiatric symptoms, hospitalizations related to his psychiatric conditions, and his service-connected right knee, as the causes of his unemployability. The Veteran also submitted a February 2019 opinion from Dr. E. T., a Licensed Psychologist and Diplomate for The American Academy of Experts in Traumatic Stress. Dr. E. T. opined that based on the Veteran’s education, training, past work experience, and current level of symptoms related to his service-connected impairments alone, that it was her opinion that he is not a viable rehabilitation candidate, nor is he capable of sustaining substantial gainful work activity. She added that the Veteran has extreme difficulty getting along with others and severe depression with poor sleep patterns that cause daytime fatigue and irritability. The Veteran also submitted a February 2019 opinion from Dr. J. P., a Licensed Psychologist. She opined that the Veteran’s mental health condition is manifested by total social and occupational impairment. Dr. J. P. opined that the Veteran’s mental health condition prevents him from being able to secure and maintain gainful employment. She indicated that the evidence shows that the Veteran’s chronic difficulties with anxiety, triggers, difficulties with activities of daily living, and hypervigilance, among other symptoms, have already prevented the Veteran from securing and maintaining gainful employment. She added that due to the permanency of the Veteran’s condition, it is more likely than not that he will remain unemployable for the foreseeable future. As to the Veteran’s service connected right knee, the only evidence of any functional limitation are the Veteran’s own statements during a July 2010 VA examination, where he reported that he finds the right knee condition to be aggravating, but not particularly limiting in terms of daily activities. The examiner noted that the Veteran could stand for an hour at a time, and walk for 10 to 20 minutes at a time. With regard to the Veteran’s now service-connected back disability, a March 2018 VA examination notes that his functional loss of the lumbar spine is that he has difficulty with bending and household chores in general. In the February 2019 opinion from Dr. R. T., he indicated that the Veteran’s back disability significantly limited his ability to function normally. Finally, the claims file also contains records from the Social Security Administration (SSA), showing that the Veteran was determined to be disabled in November 2008 due to anxiety related issues and disorders of the back. Based on the above, the Board finds that the evidence shows that the Veteran’s service-connected disabilities prevent him from being able to secure and maintain gainful employment. Here, the medical opinions from Dr. E. T. and Dr. J. P. show that the symptoms related to the Veteran’s PTSD alone render him unemployable. Moreover, Dr. E. T. cited the Veteran’s education, training, and past work experience in rendering her findings. The Board also notes the February 2015 letter from C. K. indicating that the Veteran is fully disabled to any and all means of employment in spite of his medical compliance with treatment. Moreover, the above opinions are bolstered by the SSA determination, which only considered the Veteran’s symptoms related to his service-connected PTSD and back disability in finding that he was disabled. For these reasons, the Board finds that a grant of TDIU is warranted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.