Citation Nr: 20008048 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-38 362 DATE: January 30, 2020 ORDER Entitlement to service connection for a back disorder is denied. Entitlement to service connection for a right hip disorder, to include as secondary to a back disorder is denied. Entitlement to service connection for a right leg disorder, to include as secondary to a back disorder is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) from June 2019 is granted. Entitlement to a TDIU prior to June 5, 2019 is denied. FINDINGS OF FACT 1. The Veteran’s current back disorder, to include degenerative arthritis, did not manifest until decades after his separation from service, and the preponderance of the evidence is against a finding that it is otherwise related to his period of service. 2. The Veteran’s current right hip pain was not incurred in service or otherwise related to his period of service. 3. The Veteran’s current right leg pain was not incurred in service or otherwise related to his period of service. 4. As of June 5, 2019, the Veteran’s service-connected disabilities include depression disorder rated as 70 percent disabling, tinnitus rated as 10 percent disabling, and left ear hearing loss rated as noncompensable. 5. The evidence of record likely demonstrates that the Veteran’s service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment from June 5, 2019. 6. The Veteran did not meet the criteria for consideration of TDIU on a scheduler basis prior to June 5, 2019; the evidence does not show he was been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities during this period, and forwarding the matter to the Director, Compensation service for extraschedular consideration was not required. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right hip disorder, to include as secondary to a back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a right leg disorder, to include as secondary to a back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to a total disability rating due to individual unemployability (TDIU) from June 5, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. 5. The criteria entitlement to TDIU prior to June 5, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1987 to December 1987. Service Connection 1. Entitlement to service connection for a back disorder The Veteran seeks entitlement to service connection for a back disorder. He contends that his current back disorder is a result of injury incurred during his period of service. The Veteran reports that he sustained injury during basic training when he fell about 10 to 12 feet from training platform and landed on his back and right hip. He reports that he received treatment from a medic in the field and he later sought treatment at the clinic, and he was placed on bed rest. He then returned to training after a few days, despite persistent back pain. The Veteran reports that he has continued to experience back pain since service. See December 2015 statement in support of the case. Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The question for the Board is whether the Veteran has a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has a diagnosis of degenerative arthritis of the lumbar spine, which is a chronic disease under 38 C.F.R. § 3.309 (a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records did not show findings of arthritis of the lumbar spine until a December 2015 VA radiology report that revealed evidence of degenerative changes of the lumbar spine. This comes well after his separation from service and more than two decades outside of the applicable presumptive period. While the Veteran is competent to report experiencing back pain consistently since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which show an onset of back symptoms about 2011 or so. In this regard, his November 1987 examination prior to separation shows his spine was evaluation as normal, and he specifically denied any history of recurrent back problems on the associated report of medical history. An October 2015 VA PT consultation report shows that the Veteran reported a history of intermittent back pain which had an onset of 3 to 4 years ago. This is outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Service connection for a back condition may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s current back disorder and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. VA did not obtain a medical nexus opinion on this issue. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, the Board finds no indication beyond the Veteran’s claim suggesting that he has a current back disorder that is associated with his military service or was ever present during his active service. This is insufficient to warrant the need to provide a medical examination as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). The Veteran’s service treatment records do not show a back or spine injury. Despite his repeated reports of back injury from a fall during basic training, the contemporaneous medical records do not corroborate this and there is no documentation of back-related problems during service. On his November 1987 report of medical history, the Veteran specifically denied any history of recurrent back problems. Given that the Veteran has stated that this was a significant injury necessitating bed rest for several days, the lack of any mention of any back problems during service is compelling. Thus, the Board finds the lay evidence of an injury or continuity of back pain is not credible. As such, an opinion is not necessary. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for back disorder and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a right hip disorder, to include as secondary to a back disorder 3. Entitlement to service connection for a right leg disorder, to include as secondary to a back disorder The Veteran seeks entitlement to service connection for right hip and right leg disorders. He asserts that he has current right hip pain and right leg pain related to his military service, specifically to his claimed in-service fall injury during basic training. In the alternative, the Veteran has asserted that his right hip pain and right knee pain is secondary to his back disorder. However, as service connection is not warranted for a back disorder as addressed above, the Board needs to only address the merits of service connection on a direct basis. Initially, the Board notes that the VA treatment records and lay statement reflect evidence of right hip pain and right knee pain that results in functional impairment. This is sufficient to establish a current disability for each respective claim. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). VA did not obtain a medical nexus opinion on this issue. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon, 20 Vet. App. 79, 81-82. Here, the Board finds no indication beyond the Veteran’s claims suggesting that he has current right hip and right knee conditions that are associated with his military service or was ever present during his active service. This is insufficient to warrant the need to provide a medical examination as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. See Waters, 601 F.3d 1274; see also Colantonio, 606 F.3d 1378. Moreover, the Veteran’s service treatment records do not show a relevant in-service disease or injury to right hip or right knee. Despite his assertion of injury sustained from fall during basic training, the contemporaneous medical records do not corroborate this. Rather, his November 1987 examination prior to separation shows his right lower extremity was evaluated as normal, and the Veteran specifically denied any history of lower extremity, neuritis, or paralysis-related problems on the associated report of medical history. Post-service treatment records do not show complaints of right hip or right knee problems until 2015, which comes more than two decades after his separation from service. Thus, the Board finds the lay evidence of an in-service injury or disease to be not credible. As such, an opinion is not necessary. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for right hip disorder and right knee disorder and his appeal must be denied. There is no reasonable doubt to be resolved as to these issues. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Total Disability Rating Due to Individual Unemployability (TDIU) The Veteran contends that his service-connected disabilities prevent him from obtaining or maintaining gainful employment. TDIU may be assigned, 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, this disability shall 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. 38 C.F.R. § 4.16 (a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19. The ultimate question is whether the Veteran, in light of his service connected disabilities, 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 (1993). “Marginal employment,” for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered “substantially gainful employment.” 38 C.F.R. § 4.16 (a). From June 5, 2019, the Veteran has been service-connected for depressive disorder disability, rated as 70 percent disabling; tinnitus, rated as 10 percent disabling; and left ear hearing loss, rated as zero percent disabling. His combined disability rating from June 5, 2019, is 70 percent. Prior to June 5, 2019, service-connection was only in effect for the Veteran’s tinnitus and left ear hearing loss disabilities. Accordingly, the Veteran meets the schedular criteria for TDIU from June 5, 2019; however, prior to this date, his total disability rating does not meet the schedular criteria for entitlement to TDIU. See 38 C.F.R. § 4.16. As such, the Board will consider the merits of the claim for TDIU as two separate periods, one for schedular TDIU from June 5, 2019, and one for extraschedular TDIU prior to June 5, 2019. 4. Entitlement to a TDIU from June 5, 2019 The Board finds that as of June 5, 2019, entitlement to TDIU is demonstrated. On his July 2017 application for increased compensation based on unemployability, VA Form 21-8940, the Veteran recorded that he did not complete his high school education and he no other vocational training. VA medical record shows that the Veteran last held substantially gainful employment in March 2015, when he worked as a farmer maintaining ethanol plants for a renewable energy company. See VA treatment records and June 2019 VA psychiatric examination report. Since March 2015, the record shows that the Veteran has obtained some temporary employment or held odd jobs, but such positions would be no more than marginal employment and he has had extended periods of unemployment since March 2015. See July 2017 VA Form 21-8940 and VA treatment records. The Veteran does meet the scheduler criteria for TDIU as of June 5, 2019, when he was awarded service-connection for depressive disorder as secondary to tinnitus disability. VA psychiatric examination report shows that the Veteran’s depression disorder is manifested by suicidal ideations and lack of energy, near continuous depression, disturbance in motivation and mood, difficulty establishing and maintaining work relationships, difficulty adapting to stressful situations, irritability, depressed mood, sleep impairment, and poor concentration. See June 2019 VA psychiatric examination with July 2019 addendum medical statement. The VA psychiatric examiner found that his mental health symptomatology caused him occupational and social impairment with reduced reliability and productivity, and it was noted that the Veteran’s depression interferes with his ability to function in a work environment In addition, throughout the pendency of the appeal, the Veteran has reported that his tinnitus and hearing loss disabilities make it difficult for him to hearing other people are saying which interferes with job performance. He reports that others get frustrated when he has difficulty hearing and understanding conversations, which causes him to become frustrated with them. A June 2019 VA audiology examination report shows that the Veteran’s tinnitus and hearing loss disability results in functional impairment that impacts his ability to work due to difficulty hearing others and becoming easily frustrated. Based on the Veteran’s training, eduction, and impairment from his service-connected disabilities, the Board finds that he is unable to secure or follow a substantially gainful occupation. There is no medical opinion to the contrary. When all doubt is resolved in favor of the Veteran, the Board finds that his service connected disabilities preclude gainful employment, and the criteria for TDIU from June 5, 2019 have been met. 38 U.S.C. § 5107 (b). 5. Entitlement to a TDIU prior to June 5, 2019 Prior to June 5, 2019, the Veteran’s service-connected disabilities do not meet the criteria for consideration of entitlement to TDIU on a schedular basis. 38 C.F.R. § 4.16 (a). Regardless, it is VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b). As such, the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16 (b) is warranted for the time period prior to June 5, 2019. Under the extraschedular provision of 38 C.F.R. § 4.16 (b), a claimant must show that he is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities in order to warrant a referral to the Director, Compensation Service, for extraschedular consideration. Following a review of the evidence of record, the Board finds that referral of the TDIU claim to the Director of VA Compensation Service for extraschedular consideration is not warranted. In his July 2017 VA 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran indicated that his tinnitus and back prevents him from securing or following any substantially gainful employment. As discussed above, service connected for back and secondary right lower extremity pain has been denied. While the Veteran has consistently reported that his tinnitus and left ear hearing loss disabilities make it difficult for him to hear others and understand conversations and the June 2019 VA audiology examiner noted that his impairment impacted his ability to work, the record does not demonstrate that the Veteran was precluded from obtaining and maintaining substantial gainful employment solely due to his tinnitus and left ear hearing loss disabilities. Notably, during the June 2019 VA psychiatric examination, the VA examiner observed that the Veteran did not have any difficulty communicating during clinical evaluation due to his tinnitus and hearing loss impairment. The Board acknowledges that the Veteran’s depressive disorder was awarded as secondary to his tinnitus disability; however, the currently assigned effective date of service connection for depressive disorder is June 5, 2019. As such, the Veteran’s depressive disability cannot be considered in analysis for TDIU until the effective date of service connection. See Delrio v. Wilkie, No. 17-4220, 2019 U.S. App. Vet. Claims LEXIS 2233 (December 19, 2019) (holding that the effective date of an extraschedular award of a total disability rating based TDIU cannot be earlier than the date of service connection for the disability or disabilities upon which the TDIU was based). The Board does not find that the Veteran is entitled to a scheduler TDIU for the period prior to June 5, 2019, and referral for extraschedular consideration for the period prior to June 5, 2019 is not warranted. The preponderance of the evidence does not show that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected tinnitus and left ear hearing loss disabilities alone. To the extent the Veteran is limited by his service-connected tinnitus and left ear hearing loss disabilities, any such limitation is found to be contemplated in, and is being adequately compensated by, the current disability rating assigned for his service-connected disability. (Continued on the next page)   Accordingly, for reasons set forth above, prior to June 5, 2019, a TDIU rating on schedular basis has not been met, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 4.16. James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray, 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.