Citation Nr: 21001142 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-19 859 DATE: January 7, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed. Entitlement to nonservice-connected pension is dismissed. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s back disability began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran’s request for TDIU is based on the sole service-connected disability, PTSD, which is now rated at 100 percent. 3. The Veteran is in receipt of a 100 percent disability rating for his sole service-connected disability from December 22, 2011, which is the date of receipt of his claim for nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. Entitlement to TDIU is moot. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 4.14, 4.16 (2019). 3. The claim for nonservice-connected pension is moot. 38 U.S.C. §§ 1513, 1521, 5107 (2012); 38 C.F.R. § 3.102, 3.151 (2019).  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1986 to February 1993. The issues were previously before the Board in December 2018 and remanded for further development. In August 2020, the RO awarded a 100 percent rating for PTSD retroactive to the original grant of service connection; consequently, the claim for a higher rating is no longer in controversy. Entitlement to service connection for a back disability The Veteran contends that she injured her back during a fall in service. 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 degenerative disc disease (DDD), and evidence shows that she complained of back pain following a fall in 1988 while in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of DDD began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records show the Veteran first complained of low back pain in 1987 associated with a urinary tract infection and in October 1987 the complaints were when the Veteran was 38 weeks pregnant. In August 1988, she indicated that she fell from a maintenance stand two months prior. X-rays of the thoracic spine showed no significant abnormalities. She was diagnosed with thoracic strain. On the January 1989 report of medical history, she indicated that she had back pain and could not sit straight due to scoliosis; however, the corresponding physical examination was negative for a back disability. There were sporadic complaints of pain in August 1990 and spasm in May 1992. The Veteran denied any recurrent back pain on the January 1993 separation report of medical history and the separation physical examination was negative for a back disability. Private treatment records show the Veteran was not diagnosed with disk herniation until a 2007 magnetic resonance imaging (MRI), which is 14 years after her separation from service. She had a spinal cord stimulator implanted in 2008 and repaired in 2009. VA treatment records document the first complaints of back pain in 2011. While the Veteran is competent to report having experienced symptoms of back pain since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a back disability such as DDD. The issue is medically complex, as it requires knowledge and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the 2019 VA examiner opined that the Veteran’s back disability was less likely incurred in or caused by the injury in service. The examiner reasoned that the initial complaints of back pain while the Veteran was pregnant were not musculoskeletal nature and though there were complaints of back pain following a fall in 1988, x-rays were negative for abnormalities. The examiner found it was unlikely that the fall the Veteran described would result in the type of severe lumbar disc disease the Veteran has developed. The examiner noted the complaints of pain and spasm, as well as the complaints the Veteran reported were associated with scoliosis; however, the examiner indicated the separation examination was negative for chronic back pain or disability. The examiner found that post-service, the first documented complaints associated with the back were in 2008. The examiner indicated that while there were back pain complaints in service, the episodes were self-limited and years in between. Moreover, the examiner found there was several years between her end of service and any mention of chronic lumbar pain in the post service records (2002 being the earliest mention). The examiner concluded it was unlikely that isolated instances of back pain, spasm, or contusion from a fall would be casually related to the development of the Veteran’s severe lumbar disease years in the future without any records indicating chronic disease developing that is clearly linked to service. The examiner found that back pain and spasm were very common conditions and rarely resulted in long term implications. Therefore, the examiner concluded it was less likely than not that her current back condition was related to 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). While the Veteran believes her back disability is related to the in-service injury, she is not competent to provide a nexus opinion regarding this issue. Jandreau, supra; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the 2019 VA medical opinion. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to service connection for back disability must be denied. Entitlement to TDIU With respect to the Veteran’s request for a TDIU, the Board notes that the Veteran now has a 100 percent evaluation for his PTSD effective December 22, 2011. A TDIU rating contemplates that the schedular rating is less than total. 38 C.F.R. § 4.16 (a). Because the RO has determined that the Veteran’s PTSD warrants a 100 percent evaluation, and because the Veteran’s request for a TDIU was filed during the claim period, the request for a TDIU is rendered moot. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). The Board recognizes that it is not categorically true that assignment of a total schedular rating always renders a TDIU request moot, particularly as it relates to possible entitlement to special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008). In the Bradley case, the Court held that a TDIU rating could be warranted in addition to a schedular 100 percent evaluation, where the TDIU could be granted for a disability other than the disability for which a 100 percent rating was in effect, explaining that under such circumstances, there was no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. In this case, the Veteran has maintained that she is unemployable due to PTSD. The 100 percent rating for PTSD was made retroactive to December 22, 2011, the original grant of service connection. The Veteran has no additional service-connected disabilities. Therefore, Bradley is distinguishable from the instant case, and the award of a 100 percent schedular evaluation does indeed render the TDIU request moot. Entitlement to nonservice-connected pension Improved nonservice-connected pension is a benefit available to a Veteran if: the Veteran is permanently and totally disabled, provided that the condition was not the result of the Veteran’s willful misconduct, or the Veteran is a patient in a nursing home receiving skilled nursing, or the Veteran is receiving Social Security disability benefits; and the Veteran meets the countable family income and net worth limitations set by Congress. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.2, 3.3(a)(3). If a Veteran meets these qualifications, the improved pension is calculated to be an amount equal to the difference between the Veteran’s countable family income and the annual pension limit set by Congress. 38 U.S.C. § 1521; 38 C.F.R. § 3.23 (b).  On December 22, 2011, the Veteran filed claims for service connection and nonservice-connected pension.  Throughout the appeal period, service connection has been established for PTSD, which is rated 100 percent from December 22, 2011, which is the date of receipt of his claim for nonservice-connected pension benefits. See August 2020 Rating Code Sheet.  A claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. 38 C.F.R. § 3.151 (a). The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. Id.  Disability compensation at 100 percent is greater than the rate payable for nonservice-connection pension.  Therefore, as the Veteran’s service-connected benefits represent a greater award, the claim for nonservice-connected pension benefits is considered moot and must be dismissed.  Id.  E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.