Citation Nr: 21062479 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 15-11 722 DATE: October 7, 2021 ORDER Service connection for a back disability is denied. A total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a back disability began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran's service-connected disabilities have not been shown to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability 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 a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to December 1973, and from April 1981 to September 1981. These issues were remanded by the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) in August 2018 and May 2021. In May and June 2021, VA sent letters to the Veteran requesting that he complete VA Form 21-4142 pertaining to private medical providers; the Veteran did not respond. In July 2021, the Veteran's representative signed a 30-day waiver indicating that there was no additional evidence regarding the Veteran's appeal. Service Connection 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 back 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 current diagnoses of degenerative arthritis of the spine and multilevel lumbar spondylosis status post spinal arthrodesis surgery, the preponderance of the evidence weighs against finding that any lumbar spine diagnosis began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records are negative for any complaints or treatment related to the back. A May 1979 Report of Medical History reflects that he checked the 'No' box for 'recurrent back pain.' 01/22/2015 STR-Medical at 12. A May 1980 Report of Medical Examination reflects that his 'spine, other musculoskeletal' was clinically evaluated as normal. Id. at 10. A March 1982 Report of Medical History reflects that the Veteran checked the 'No' box for 'recurrent back pain.' Id. at 3. A March 1982 Report of Medical Examination reflects that his 'spine, other musculoskeletal' was clinically evaluated as normal. Id. at 1. A December 1989 x-ray of the lumbar spine reflects evidence of narrowing of L4-5 disc space with sclerosis adjacent vertebral and plates and osteophyte formation. 07/12/2018 Translation Related at 90. A March 1990 MRI of the lumbar spine reflects degenerative changes at L4-5 with herniated disc without encroachment on thecal sac, nerve roots, or neural foramina. 10/21/2013 Medical Treatment Records Furnished by SSA at 26, 36. A June 1990 evaluation reflects the Veteran's report of a labor accident in April 1989. While doing this work, he had been holding a heavy motor. He did not have pain at the moment but the following day he was unable to ambulate due to severe pain, and also noted swelling of his low back. The symptoms have persisted. The examiner diagnosed low back pain; and painful musculo-skeletal syndrome. Id. at 101. A January 1993 evaluation reflects the Veteran's report that he suffered an accident in 1989 when an 800-pound motor fell on him. Id. at 40; 10/29/2018 Translation Related at 98. In March 2013, the Veteran sought treatment with a private practitioner, Dr. N.O. The Veteran reported that during service he used to carry a lot of heavy equipment; his duties were as a heavy mechanic. He used to lift, carry, load and unload heavy vehicle parts. He also complained of strong back pain during his basic training due to exercises on top of the gravel. Dr. N.O. stated that his duties used to put a lot of stress at the column area causing inflammatory changes that promotes degenerative problems in the long term. All of this causes loss of correct alignment and loss of curvature of cervical, thoracic and lumbar lordosis, putting more stress in one side of vertebras than the other and by consequence the Veteran could present disc bulging and herniation with degenerative problems. This also brings problems of radiculopathy and neuropathy. Dr. N.O. asked that the Veteran be evaluated carefully because it is at least as likely as not that his back problem is service connected. Such opinion, however, is entitled to limited probative weight, as initially the examiner provided only a speculative diagnosis, stating that the Veteran's reports of in-service stress on his back "could present" disc bulging and herniation with degenerative problems. Further, and more importantly, the examiner's opinion did not detail or address the well-documented April 1989 work-related injury, in which an 800-pound motor fell on the Veteran's back. In November 2020, the Veteran underwent a C&P examination wherein the examiner diagnosed degenerative arthritis of the spine and multilevel lumbar spondylosis status post spinal arthrodesis surgery. The Veteran reported a history of low back pain since many years ago that has increased slowly but steady. He described pain as deep and dull sometimes sharp that caused him limitations during the past 30 years. The examiner opined that his lumbar spine disability is not due to service. The examiner noted disagreement with the opinion of Dr. N.O. The examiner stated that there was no evidence found in the service treatment records concerning possible etiologies for the Veteran's lumbar spine condition during his active service periods. The examiner stated that the Veteran's lumbar spine condition is secondary to the normal atraumatic changes that occur as part of the normal aging process, in few persons such changes can produce significant limitations that can require surgical management. This aging process changes usually have a slow but steady progression during many years and that is evident in this case. A June 1989 CT scan of the spine was highly sensitive for degenerative changes of the spine with complete normal results at all levels of lumbar spine without any type of degenerative changes of the bone structures of the spine. In March 1990, the Veteran underwent a lumbar MRI study which resulted in L4-5 disc herniation without described lumbar spine multilevel spondylosis. When compared with the August 2018 MRI of the lumbar spine, the classic atraumatic degenerative changes of the lumbar spine secondary to aging are seen. The Veteran had a lumbar spine arthrodesis surgery, which is a procedure done to stabilize the bone structures of the spine in August 2020, a common surgery done in patients that develop spondylosis due to atraumatic aging changes. The examiner stated that the Veteran's service dates are silent for any pathology of lumbar spine or events during service that could explain the lumbar spine condition as a non-traumatic etiology. As detailed, service treatment records are negative for any complaints or diagnosis pertaining to the back. A diagnosis pertaining to the back is not reflected in the medical record until 1989, thus several years after separation from active service. Moreover, the Veteran incurred a post-service accident in 1989 in which he dropped an 800-pound motor and injured his back. While the Veteran is competent to report having experienced symptoms related to the lumbar spine during service, such assertions offered many years after service are in contradiction with his denial of recurrent back pain in May 1979 and March 1982. Moreover, while the Veteran reported to Dr. N.O. his in-service problems with his back, he failed to detail the 1989 incident in which he injured his back. However, based on his lay assertions an opinion was sought, which was negative. The November 2020 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). The Board acknowledges the Veteran's belief that he has a back disability due to service. The Veteran, however, is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/anatomical relationships/pathology/interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the opinion of the November 2020 trained medical professional. Entitlement to a TDIU Total disability ratings for compensation 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. 38 C.F.R. §§ 3.340, 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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). Service connection is in effect for major depressive disorder (70% 03/11/2013); left third finger (20% 03/11/2013; 30% 08/09/2018); left thigh muscle strain with limitation of flexion (10% 03/11/2013); tinnitus (10% 03/11/2013); left thigh strain with limitation of extension (0% 03/11/2013); left thigh muscle strain with limitation of rotation and adduction (0% 03/11/2013); and, residual scar, left third finger (0% 03/11/2013. The Veteran's combined rating is 80 percent disabling, effective March 11, 2013, thus his service-connected disabilities meet the percentage standards set forth in § 4.16(a). Thus, the question is whether the Veteran's service-connected disabilities preclude gainful employment. The evidence of record reflects that the Veteran was awarded disability benefits from the Social Security Administration (SSA) due to his disability of the lumbar spine. It was established that since April 1989 the Veteran was unable to perform his past relevant work as a driver, mechanic helper or store clerk due to his lumbar spine disability. 10/21/2013 Medical Treatment Record-Furnished by SSA at 43-47. In his October 2013 Application for Increased Compensation Based on Unemployability, the Veteran asserted that his service-connected disabilities precluded gainful employment from January 1, 1989. A July 2017 C&P examination pertaining to the finger reflects that the impact his disability has on his ability to work is he has limited ability to hold things. A September 2017 C&P examination pertaining to his left thigh muscle strain disabilities reflects that the impact his disability on his ability to work is he is unable to sit or stand for long periods of time. A November 2018 C&P examination pertaining to his left thigh muscle strain disabilities reflects that the impact his disability on his ability to work is he is limited in carrying objects that weigh 10 or more pounds, or performing activities that require walking on irregular surfaces and repetitively going from sitting to standing and vice versa, climbing stairs or ladders and is limited to sedentary or semi sedentary type activities and should not participate in high impact activities. A November 2018 C&P mental health examination reflects depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, and disturbances of motivation and mood. A February 2019 C&P examination pertaining to tinnitus reflects that his tinnitus does not impact ordinary conditions of daily life, including the ability to work. A February 2019 VA 21-2680 Examination for Housebound Status reflects that the Veteran has limitations due to his back disability. A December 2020 C&P mental health examination reflects the examiner's finding of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner found that he had depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. In an addendum opinion, the examiner noted that the Veteran was coherent, logical, and relevant at the time of his examination. He had not experienced a significant decrease in functionality, has not been hospitalized and there is no evidence of psychologic crisis nor evidence of changes in pharmacologic treatment in relation to his service-connected mental condition. There is no evidence of recurrent crisis or hospitalizations therefore the mental condition is not precluding the Veteran from a part time repetitive or stressless job. As a matter of fact, his treating physician was called, and record showed that his last appointment was almost a year ago. The examiner opined that the Veteran's mental condition is stable and responding to conventional pharmacotherapy. His mental disorder symptoms are not severe enough to interfere with the Veteran's marital relation, parenting performance, daily activities, family responsibility, financial debts and social functioning. Based on the review of the medical records and after taking a psychiatric history and performing a mental status exam and taking into consideration the social outcome of this Veteran. It is determined that his service-connected neuropsychiatric condition is not severe enough to render him unemployable. 12/08/2020 Email Correspondence. VA's policy is to award TDIU in all cases where service-connected disability precludes gainful employment regardless of the percentages awarded. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, but it can review the record and determine whether an appropriate case is to be referred to the Director of the VA Compensation Service (Director) or Undersecretary for Benefits for such extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001); see Wages v. McDonald, 27 Vet. App. 233, 236 (2015) ("On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance."). The Veteran's service-connected disability, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, non-service-connected disabilities and his advancing age are not for consideration. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task is to determine whether there are circumstances apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the Board must determine if there are circumstances, apart from non-service-connected disabilities, that place this Veteran in a different position than other veterans. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). 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). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). After review of the entire evidence of record, the Board finds that the Veteran's disability picture does not warrant a finding that his service-connected disabilities preclude gainful employment. While the Veteran has not worked since in or about 1989, he stopped working after suffering a back injury. The evidence of record as a whole does not support a finding that his psychiatric symptoms and symptoms associated with his left third finger and left thigh muscle strain affect his ability to maintain gainful employment. The SSA records do not reflect any psychiatric symptomatology, or symptomatology associated with his left third finger and left thigh muscle strain associated with his inability to work. While it is clear that the Veteran would experience some limitations due to his service-connected disabilities, to include limitations carrying objects and limitations with sitting or standing for longer periods of time, the evidence reflects that he could maintain sedentary or semi-sedentary employment. Moreover, as detailed, the December 2020 mental health examiner opined that his mental disorder symptoms are not severe enough to interfere with the Veteran's marital relation, parenting performance, daily activities, family responsibility, financial debts and social functioning and would not render him unemployable. (Continued on the next page) The evidence of record does not support a finding that any lack of gainful employment was or is due to his psychiatric symptomatology or symptomatology associated with his left finger, left thigh, and tinnitus. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring). The overall medical and lay evidence of record does not reflect that the Veteran was precluded from gainful employment for which he was qualified due solely to his service-connected disabilities. Thus, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.