Citation Nr: 21004803 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-17 795 DATE: January 28, 2021 ORDER Service connection for thoracic outlet syndrome, to include secondary to left clavicle resection, is denied. REMANDED A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a current diagnosis of thoracic outlet syndrome that began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for thoracic outlet syndrome, to include secondary to left clavicle resection, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1974 to July 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision. The Board remanded the claim in March 2020 in order to obtain an addendum opinion. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Thoracic Outlet Syndrome Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disability. 38 C.F.R. § 3.310. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). The Veteran contends that his thoracic outlet syndrome is proximately due to his service-connected left clavicle resection. However, in an April 2020 VA examination, the examiner failed to find a current diagnosis for thoracic outlet syndrome. VA medical records from March 2009 show the Veteran has a history of thoracic outlet syndrome since approximately 1987. Further a February 2014 note stated that the Veteran had undergone a clavicle resection due to thoracic outlet symptoms. However, although there was discussion of thoracic outlet symptoms, no diagnosis was ultimately noted. The Veteran underwent a VA examination in April 2020 in order to determine if the Veteran has a current disability of thoracic outlet syndrome. The examiner ultimately concluded that there was no condition on examination. Specifically, the examiner noted that the Veteran was previously involved in a motorcycle accident which was associated with his left clavicle fracture. Further, the examiner stated that mid clavicular fractures have been associated with the development of thoracic outlet syndrome, however, the Veteran underwent a resection of the left clavicle which would relieve the nerve and vascular compression that would cause thoracic outlet syndrome. Lastly, the examiner noted that there is no recent evidence in the record of thoracic outlet syndrome. Although there were some notations discussing symptomatology consistent with thoracic outlet syndrome, the examiner concluded that a discussion of symptoms does not amount to a diagnosis. The examiner also noted that the Veteran has short cervical ribs, which can be associated with thoracic outlet syndrome, as opposed to the left clavicle resection. While the Veteran believes he has a current diagnosis of thoracic outlet syndrome, he has not shown the required medical knowledge or training to provide a competent diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which shows no current diagnosis to be present during the appeal period or recent to the filing of the claim. Therefore, as there is no current diagnosis of thoracic outlet syndrome, service connection is not warranted. REASONS FOR REMAND TDIU The Veteran contends that he is unable to work due to his service-connected disabilities. A TDIU is warranted where a veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(a). The service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more such 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. Here, the Veteran is currently service-connected for only several disabilities. None of these disabilities are rating at 40 percent or more and the combined rating is 50 percent. Accordingly, he does not meet the schedular criteria for TDIU. However, notwithstanding the above listed schedular criteria, a Veteran may be awarded a TDIU on an extraschedular basis if he is nonetheless unemployable because of his service-connected disabilities. Such a TDIU claim may be submitted to the Director of Compensation Service. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Additionally, the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU. Therefore, the Board may not adjudicate the issue of the Veteran’s entitlement to an extraschedular TDIU in the first instance. A May 2016 VA examination found that the Veteran shoulder disability impacts his ability to perform any type of occupational task. Additionally, a separate May 2016 VA examination of the Veteran’s right knee condition also found that the Veteran’s knee condition impacted his ability to perform any type of occupational task. Additionally, the Veteran submitted a lay statement dated July 2016 regarding his work history. He stated that he had bounced around from job to job because of the physical limitations and required surgeries as a result of his service-connected disabilities. He again testified to this during his May 2018 hearing when he stated that he was forced to leave the best job he had because he could not perform the heavy lifting required. The Veteran indicated in his April 2010 claim for TDIU that his last job was as a bus driver. He reported that he was no longer employed as a result of the pain from his service-connected disabilities. Based on the foregoing, the Board finds that there is evidence sufficient to refer the claim for entitlement to TDIU to the Director of Compensation Service for extraschedular consideration. (Continued on the next page)   The matter is REMANDED for the following action: Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, 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.