Citation Nr: 20052944 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 14-28 968 DATE: August 10, 2020 ORDER Entitlement to service connection for a disability manifested by blackouts with frequent loss of consciousness, to include as secondary to service-connected cervical spondylosis, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to December 11, 2014, is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran’s disability manifested by blackouts with frequent loss of consciousness began during active service or is otherwise related to an in-service event, illness, or injury. 2. The preponderance of the evidence of record is against finding that the Veteran’s disability manifested by blackouts with frequent loss of consciousness was either caused or aggravated by his service-connected cervical spondylosis. 3. The preponderance of the evidence of record is against finding that the Veteran’s service-connected disabilities prevented him from obtaining or maintaining substantially gainful employment prior to December 11, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a disability manifested by blackouts with frequent loss of consciousness, to include as secondary to service-connected cervical spondylosis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to a TDIU prior to December 11, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 1978. The record also reflects service in the Reserves. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in May 2015; a transcript is of record. The Board previously remanded this matter in October 2015, June 2016, and December 2017. 1. Entitlement to service connection for a disability manifested by blackouts with frequent loss of consciousness, to include as secondary to service-connected cervical spondylosis, is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires competent medical or lay evidence of three things: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury may be service connected. 38 C.F.R. § 3.310(a). Establishing secondary service connection requires competent medical or lay evidence of: (1) a current disability that is not already service connected; (2) at least one service-connected disability; and (3) a nexus between the current disability and the service-connected disability, showing that the current disability was either proximately due to or the result of the service-connected disability or that the current disability was aggravated (increased in severity) beyond its natural progression by the service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for deciding whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Regarding a current disability, the Board notes that the Veteran’s CAPRI records note a resolution of his symptoms. See July 2015 VA Primary Care Note (reflecting that the Veteran’s “passing out” when he turns his head had resolved following surgery). However, a disability which resolves during the appeal period may be subject to service connection, so long as a disability was present during the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the record reflects that the Veteran reported his blackout condition during the course of the appeal. See December 2009 Records from P. Chao, M.D., reflecting that the Veteran reported passing out while walking; December 2011 VA examination, wherein the Veteran reported that he experiencing loss of consciousness during cervical spine range of motion . As such, the Board finds that the Veteran meets the requirement of a current disability. Concerning an in-service incurrence, the Veteran reports that his blackouts were caused by an in-service head injury. Specifically, there are consistent reports that his disorder began shortly after he was responding to a dispute during which he was hit in the head with a chair. See December 2010 VA Form 21-0820; October 2011 Buddy Statement from D.K.; March 2012 Correspondence from Veteran; May 2013 VA Physical Medicine Rehab Note; August 2014 VA Form 21-0820. Further, the Veteran's service treatment records show that he was involved in a motor vehicle accident on March 19, 1978, and seen at the emergency room at the U.S. Army Medical Department at Ft. Carson, CO. On his separation examination in April 1978, he gave a history of a head injury. Therefore, the Board finds that the Veteran meets the criteria for an in-service incurrence. However, the question remains as to whether the Veteran’s disability manifested by blackouts with frequent loss of consciousness is related to his in-service injury and/or symptoms or was caused or aggravated by his service-connected cervical spondylosis. The Veteran was examined for this condition in November 2015, at which time the examiner found that it was less likely than not that the Veteran’s disability was caused by his active service or caused and/or aggravated by his cervical spondylosis. The examiner reasoned that the history provided of the Veteran’s condition “does not allow for any reasonable assessment of the nature and etiology of this condition.” Furthermore, the examiner found that “[t]here are many causes of syncope . . . [a]ny assertion about the service-connected status of this condition would be mere speculation.” Regarding secondary service connection, the examiner reasoned that there was no documentation of record establishing the loss of consciousness condition as a result of the Veteran’s service-connected cervical spondylosis, as it is an unlikely cause of loss of consciousness. Spondylosis, the examiner noted, causes myelopathy and other effects that are downstream away from the brain. However, changes in consciousness, including a loss of consciousness, is not an effect of spondylosis. The November 2015 VA examination was found to be inadequate for several reasons, as explained in the prior remands. Consequently, the Board remanded this matter for a new VA examination and opinion in June 2016 and December 2017, in addition to requesting VA and private medical treatment records. Most recently, an examination was scheduled for December 2018; however, the Veteran did not attend and neither he nor his representative have presented good cause for the failure to appear. The December 12, 2018, letter from the Veterans Evaluation Services to the RO noted that the examination had been cancelled at the Veteran’s request. The Board finds that good cause has not been shown for the Veteran’s failure to report for his scheduled VA examination. In so deciding, the Board is aware that prior to the scheduled examination, a January 4, 2018 Report of general Information noted that the Veteran reported that he had gotten to the point that he was hardly able to walk and was confined to a room until his wife returned from work. He also stated that due to his medical condition his driver’s license had been taken away. However, his VA treatment records show that he reported for numerous appointments subsequent to January 2018, to include on January 26, 2018, for orthotics; February 7, 2018, for a gastroenterology consult; May 17, 2018, for primary care; May 30, 2018, for an eye examination; June 13, 2018, for a periodic dental examination; July 2, 2018 for primary care; November 21, 2018 in otolaryngology for nasal congestion; December 4, and 24, 2018, for dentistry; and in January 2019 for occupational therapy consultations. Thus, the evidence reflects that the Veteran was able to travel and attend medical appointments in December 2018. In sum, the Veteran canceled the examination and has offered no explanation for doing so. Further, in the December 2017 remand the Board noted that the Veteran had not responded to the RO's November 2015 inquiry for certain treatment records and that such records were significant in the present appeal, as the November 2015 VA examiner appeared to have been unable to render an etiological opinion as to the Veteran's claimed condition on the basis that there was no information available that documented the nature of the episodes. Therefore, these records were again requested on remand. In a January 2018 letter, the Agency of Original Jurisdiction (AOJ) requested that the Veteran complete and return authorizations allowing VA to request medical records on his behalf. See January 2018 Custom 5103 Notice. The Veteran did not respond to the AOJ’s request to date and has not submitted any additional private medical treatment records. Given the AOJ’s actions and the Veteran’s choice not to submit to the December 2018 examination or respond to the AOJ’s request, the Board finds that VA has no remaining duty regarding a medical examination or opinion or obtaining medical records in conjunction with this claim. Although VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street and it is important that he make efforts to assist the VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); Hurd v. West, 13 Vet. App. 449, 452 (2000); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination was scheduled in conjunction with any other original claim, a reopened claim for benefits which was previously disallowed, or a claim for increase, the claim shall be denied. Therefore, the Board considers the evidence of record in this matter. There are no adequate examinations of record establishing a nexus between the Veteran’s loss of consciousness condition and either his active service or his service-connected cervical spondylosis. Although the Veteran had submitted medical evidence establishing his condition, one of the records from his provider notes that the Veteran fell and hit his head in 2009, decades after his in-service incident. See December 2009 Record from P. Chao, M.D. The Veteran’s providers have not opined as to whether it was at least as likely as not that his disability was due to his active service or whether it was at least as likely as not caused or aggravated by his cervical spondylosis. The Veteran has not submitted any competent medical evidence linking his loss of consciousness to either his active service or to his cervical spondylosis. The Veteran’s assertion that his condition manifested by blackouts and loss of consciousness is related to service and/or his cervical spine condition is not probative as it is not supported by an explanation or any evidence; moreover, it is not competent, as this is a determination that is too complex to be made based on lay observation alone. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, service connection must be denied on both a direct and secondary basis. The Board finds that entitlement to service connection for a disability manifested by blackouts and loss of consciousness, including as secondary to the Veteran’s service-connected cervical spondylosis, is not warranted. In reaching this conclusion, the Board as considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 2. Entitlement to a TDIU prior to December 11, 2014, is denied. As a preliminary matter, the Board notes that in a February 2016 rating decision, the RO awarded the Veteran a 100 percent rating for his service-connected cervical spondylosis, effective December 11, 2014, and ending March 31, 2015, pursuant to 38 C.F.R. § 4.30 for surgical or other treatment necessitating convalescence. As a result, the RO, in the February 2016 rating decision, determined that the Veteran’s claim of entitlement to a TDIU was moot. However, the Board previously found that the Veteran’s claim of entitlement to a TDIU prior to December 11, 2014, was not moot as the maximum compensation possible was not in effect. See June 2016 Board Decision; Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); Bradley v. Peake, 22 Vet. App. 280 (2008). Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disabilities. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability). The claimant’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment, such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must fully consider “the effect of combinations of disability” in its determination, “neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and the disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. On remand in June 2016 and December 2017, the Board requested that the AOJ send to the Veteran for completion and return a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The AOJ, in its January 2018 correspondence, sent the Veteran a VA Form 21-8940. To date, the Veteran has not completed and/or returned the form. Without a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, which would identify the Veteran’s last employment, the AOJ was not able to request a VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, from the Veteran’s last employer. Simply put, the Veteran’s employment history could not be verified or considered. Again, the duty to assist is not a one-way street. Woods, 14 Vet. App. at 224; Hurd, 13 Vet. App. at 452; Wood, 1 Vet. App. at 193. If a Veteran wishes help, he cannot passively wait for it. Wood, 1 Vet. App. at 193. If he is to have a reasonable opportunity to prevail on his claims, he must respond with specificity to VA’s requests for additional action. Otherwise, his claims may be denied. Here, the Veteran has asserted entitlement to a TDIU, but has not participated in any development of the claim. Significantly, the AOJ communicated in the May 2019 SSOC that in January 2018, the Veteran was sent a VA Form 21-8940 which the Veteran had not to date returned. The Veteran still, to date, has not submitted a VA Form 21-8940. Again, as the Veteran has not provided a VA Form 21-8940, his employment history could not be verified or considered. Accordingly, the evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the claim of entitlement to TDIU and therefore the claim must be denied. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.