Citation Nr: 21065233 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-11 191A DATE: October 25, 2021 ORDER Entitlement to service connection for lumbar spine degenerative disc disease (lumbar spine disability) is granted. Entitlement to service connection for cervical spondylolisthesis (cervical spine disability) is granted. Entitlement to service connection for right shoulder acromioclavicular degenerative hypertrophy (right shoulder disability) is granted. Entitlement to service connection for left lower extremity radiculopathy secondary to lumbar spine disability, on a causation basis, is granted. Entitlement to a total disability rating due to individual unemployability (TDIU) from May 27, 2011 is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's lumbar spine disability had its onset during service. 2. The evidence is at least evenly balanced as to whether the Veteran's cervical spine disability had its onset during service. 3. The evidence is at least evenly balanced as to whether the Veteran's right shoulder disability had its onset during service. 4. The Veteran's left lower extremity radiculopathy was caused by his lumbar spine disability. 5. For the period from May 27, 2011, the evidence is at least evenly balanced as to whether the Veteran's service connected disabilities preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for cervical spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right shoulder disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left lower extremity radiculopathy secondary to lumbar spine disability, on a causation basis, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU for the period from May 27, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to December 1969 with service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied service connection for right shoulder, back, neck, and left leg conditions; and a February 2016 Decision Review Officer Decision which, among one other thing, granted a TDIU effective April 3, 2014. In February 2013, the Veteran filed his notice of disagreement with, among other things, the denials of service connection for back, neck, right shoulder, and left leg conditions, was issued a statement of the case in February 2016, and in March 2016 perfected his appeal to the Board. In May 2016, the Veteran filed his notice of disagreement with the effective date assigned for his TDIU, was issued a statement of the case in October 2017, and in November 2017 perfected his appeal to the Board. In a November 2018 decision, the Board, among other things, remanded the Veteran's claims for service connection for low back, cervical spine, right shoulder, and left leg disabilities for VA examination reports, and remanded the inextricably intertwined issue of TDIU prior to April 3, 2014. In February 2020, the RO denied, among other things, entitlement to service connection for right shoulder, cervical spine, low back, and left leg disabilities, and entitlement to a TDIU prior to April 3, 2014, notifying the Veteran in a supplemental statement of the case. In April 2020, the Board, among other things, again remanded the Veteran's claims for new VA examinations to determine the etiology of the Veteran's disabilities. In October 2020, the RO again denied the Veteran's claims, notifying him in a supplemental statement of the case. In March 2021, the Board again remanded the Veteran's claims, finding the previously administered examinations inadequate. In September 2021, the RO denied the Veteran's claims for service connection and TDIU prior to April 3, 2014, again notifying the Veteran in a supplemental statement of the case. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (b). Back, Neck, Right Shoulder, and Left Lower Extremity Disabilities In a November 2011 letter, the Veteran's brother reported that the Veteran suffered noticeable problems with walking when he returned from service, sometimes collapsing, and needing to be carried to a couch until he was able to move. He reported that the Veteran eventually had shock therapy to his neck and back, and was told his back was damaged and inoperable due to excessive disk damage. In a November 2011 letter, the Veteran's wife stated that the Veteran suffered numerous bouts of back and shoulder pain while they were dating, causing him to "lay-up" for several days until he could function. She also recalled a time when he was lifted by a crane from a jobsite and taken to a hospital for treatment for back pain. The Veteran's wife reported that the Veteran was treated in New York for shoulder pain which provided temporary relief, and also tried other various treatments for his spine and shoulder. The Veteran reported in a November 2011 letter that his right shoulder was damaged after being blown off the top of supplies he was sending out. He stated that he fell on his shoulder and has never been the same. He reported that treatment records were destroyed in 2005, but indicated that he received shoulder and back injections in New York by Dr. P. K. The Veteran stated that he has had surgery on his neck, and deterioration of the disks of his back, and reported using pain medication to function. He stated that he, on numerous occasions, has not been able to move for 4 to 7 days due to his back pain, and that this has been the case since discharge from service. He reported that he was forced into early retirement from the construction company he owned due to infrequent attendance. The Veteran's June 2015 Informal Conference Report indicates that the Veteran reported that he suffered injuries to his shoulder and possibly neck when he was blown down from a height by the gusts of helicopter propellers during service. The Veteran's service treatment records do not note treatment for, or complaints of a back, neck, left leg, or right shoulder disability, his December 1969 medical examination report is normal, and his December 1969 medical history report also does not reflect complaints of a back, neck, left leg, or right shoulder disability. September 2006 private treatment records indicate that the Veteran had a diagnosis of severe cervical spondylolisthesis. March 2007 post-service treatment records indicate that the Veteran was treated for cervical spine graft and bone struts. May 2008 treatment records reflect treatment for right shoulder acromioclavicular degenerative hypertrophy. In a July 2011 letter, the Veteran's private physician reported that the Veteran has been treated for cervical and lumbar spine disease among other disabilities which have been present for many decades, and have worsened over the years. May 2012 VA treatment records reflect that the Veteran was treated for pain radiating to his left lower extremity. In an April 2013 letter, the Veteran's physician stated that the Veteran suffered from degenerative disc disease in his spine, and degenerative disease of his shoulder. He stated that the Veteran developed the pain in his shoulder and back since an injury during service, and that over the course of the last 44 years the symptoms have progressed and worsened. A March 2019 disability benefits questionnaire (DBQ) reflects that the Veteran has a diagnosis of right shoulder osteoarthritis with the Veteran reporting that he dislocated his right shoulder in service while "throwing a load". The examiner opined that the Veteran's right shoulder disability was not at least as likely as not (at least a 50 percent probability) incurred in, or caused by the right shoulder disability during service, stating that he was unable to verify that the Veteran suffered a right dislocated shoulder in service. He also reported that there was no evidence of a right shoulder injury or accident in service, and no indication of right shoulder symptoms that started within one year of separation from service. A March 2019 DBQ indicates that the Veteran has a cervical spinal fusion with the Veteran reporting that he developed neck pain after service which eventually led to surgery. The examiner opined that the Veteran's cervical spine disability was not at least as likely as not (at least a 50 percent probability) incurred in or caused by the cervical spine disability during service, stating that there was no indication of a cervical spine injury or symptoms related to active duty, and no mention of cervical spine pain at the Veteran's separation examination. The examiner also noted that there was no indication that neck symptoms started within one year of separation. In a March 2019 DBQ, the examiner noted degenerative arthritis of the Veteran's lumbar spine, and reported that the Veteran stated he was never treated for back pain during service, but was treated for spine pain after service. He reported pain and numbness down the left leg to his foot. The examination report reflected moderate left lower extremity paresthesias and/or dysesthesias, and moderately severe radiculopathy of the left side. The examiner opined that the Veteran's lumbar spine disability was not at least as likely as not (at least a 50 percent probability) incurred in or caused by a low back disability in service, stating that there was no indication of any back injury or pain during service, and that the separation examination does not mention any back problems during service. The examiner also noted that the Veteran was an owner of a construction company after service, and that the back disability is more likely related to years of laborious work. The examiner reported that there was no indication of back symptoms within one year of discharge, and no continuity of symptomatology since service. In an October 2020 addendum medical opinion, the examiner stated that the Veteran's lumbar spine disability was not at least as likely as not (at least a 50 percent probability) related to service, stating that there is no indication of any back injury or pain noted in service. He also reported that the separation examination does not mention back problems in service, and stated that the Veteran's current back disability is more likely related to years of work with his construction company. The examiner opined that the Veteran's cervical spine injury was not at least as likely as not (at least a 50 percent probability) related to service, stating that there was no indication of cervical spine injury or symptoms related to active duty, and no mention of cervical spine pain at his separation examination. The examiner opined that the Veteran's right shoulder disability was not at least as likely as not (at least a 50 percent probability) related to service, as he was unable to verify that the Veteran suffered a right dislocated shoulder in service, and there was no evidence of a right shoulder injury or accident in service. The examiner reported that there was no indication of right shoulder symptoms that started within one year of separation from service, and that x-rays do not show a Bony Bankart lesion or Hills-Sachs deformity which could indicate prior dislocation. The examiner also opined that the Veteran's left lower extremity disability was not at least as likely as not (at least a 50 percent probability) related to service. The examiner noted that there was no accident or injury during service to support his opinion. In a September 2021 DBQ, the examiner opined that the Veteran's lumbar spine disability was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness, explaining that while the Veteran reported a fall injuring his right shoulder, slinging heavy equipment, performing mine sweeps, and other activities, the examiner stated that these can cause temporary strain on the lumbar spine, but that there is no objective evidence of a chronic lumbar spine condition manifesting as a result of these duties. The examiner noted that the separation examination was normal, and that "no" was marked regarding back trouble of any kind at separation. The examiner stated that while the Veteran reported difficulty staying on his feet too long without resulting back pain, and provided statements noting ongoing symptoms over the years, these do not equate to diagnoses. In a September 2021 DBQ, the examiner opined that the Veteran's right shoulder disability was less likely than not (less than a 50 percent probability) incurred in, or caused by an in-service injury, event, or illness, stating that while the Veteran reported a fall injuring his right shoulder and in-service activities which can cause overuse of the right shoulder, there is no objective evidence of a chronic right shoulder disability manifesting as a result of these duties. The examiner noted that the Veteran's separation examination was normal, "No" was marked regarding whether there was a painful or trick shoulder at separation, and no residuals were noted when the Veteran was evaluated for a new shoulder condition after a fall onto the right shoulder in 2007. The examiner stated that the 2008 imaging diagnosed arthritis and rotator cuff tear, and opined that the current right shoulder disability was less likely as not related to the acute injury noted in service, or the duties performed during service. In another September 2021 DBQ, the examiner opined that the Veteran's cervical spine disability was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran's reported injuries to his neck while performing his duties in service, but stated that there was no objective evidence of a chronic cervical spine condition manifesting as a result of these duties. He also noted that the Veteran's separation examination noted a normal spine, and that the Veteran described his health as excellent on his report of medical history. The examiner concluded that while the Veteran reported ongoing symptoms since separation, these do not equate to a diagnosis. A separate September 2021 DBQ reflects that the examiner opined that the Veteran's left leg disability was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness, stating that the Veteran's separation examination indicated normal lower extremities, with the medical history report from 1969 reflecting no trick or locked knee. The examiner added that while the Veteran has confirmed left lower extremity radiculopathy with noted epidural injections due to lumbar spine degenerative disc disease, it was diagnosed many years after service, and the Veteran's separation examination is silent for spinal injuries, recurrent back pain, or numbness. The examiner stated that the Veteran's lower left extremity radiculopathy developed years after service, and is unrelated to his duties in service including carrying heavy packs, cutting foliage, and clearing mines. The evidence reflected by the previously noted post-service private treatment records and VA treatment records establish that the Veteran has current disabilities of the neck, lumbar spine, right shoulder, and left lower extremity, and the Veteran's competent and credible statements establish that he suffered from an in-service injury during service. The dispositive issue is whether there is a nexus between the current disabilities and the in-service injuries. The medical opinions provided in the DBQs note a lack of relationship between the Veteran's lumbar spine, cervical spine and right shoulder disabilities and an in-service injury. However, the examiners based their negative nexus opinions on the lack of evidence of disability or treatment during service, and no evidence of treatment until several years after service which is impermissible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Therefore, the March 2019, October 2020, and September 2021 medical opinions are inadequate. The Veteran has stated that he sustained injuries to his right shoulder, neck and back in service, which have worsened since service, and it has been determined that treatment records were destroyed in 2005. The Veteran has also provided statements from family members which indicate that the Veteran has had these injuries since he was discharged from service. The Veteran's statements as well as those submitted from his family members regarding cervical, lumbar, and right shoulder pain and treatment since service are competent and there is no indication that the Veteran's or his family members' statements lack credibility. See Buchanan v. Nicholson, 451 F. 3d 1331 at 1337 (Fed. Cir. 2006). ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Additionally, the Veteran's physician in the April 2013 letter stated that the Veteran developed pain in his right shoulder and back since an in-service injury which has since worsened. The medical opinions provided in the DBQs have been deemed inadequate, but there is competent and credible medical and lay evidence of lumbar spine, cervical spine, and right shoulder pain continuing since service. In these circumstances, a remand for yet another medical opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence of record is at least evenly balanced as to whether the Veteran's lumbar spine, cervical spine, and right shoulder disabilities are related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for lumbar spine disability, cervical spine disability, and right shoulder disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Regarding the Veteran's left lower extremity radiculopathy, the evidence of record indicates that service connection secondary to lumbar spine disability is warranted. The May 2012 VA treatment records indicate the Veteran underwent treatment for pain radiating to his left lower extremity, and the March 2019 DBQ reflects moderately severe radiculopathy of the left side. While the September 2021 examiner opined that the Veteran's left lower extremity radiculopathy was unrelated to service, he also indicated that it was due to his now service connected lumbar spine degenerative disc disease. While the September 2021 examiner's rationale was not extensive, reading his opinion as a whole and in the context of the evidence of record, he found that the nature of the Veteran's service connected lumbar spine disability, and its symptoms, made it likely that they had resulted in his current left lower extremity radiculopathy. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The evidence of record thus reflects that the Veteran's left lower extremity radiculopathy is caused by his now service connected lumbar spine disability. Therefore, service connection for left lower extremity radiculopathy as due to lumbar spine disability, on a causation basis, is warranted. TDIU The Veteran has been awarded a TDIU from April 3, 2014, but his agent stated in the May 2016 notice of disagreement that the effective date of the TDIU should be the date of the claim, May 27, 2011, as it was factually ascertainable that the Veteran was unable to work in 2006. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, due to his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. "A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment." Id. The ultimate question, however, is "whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Id. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Id ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). For the period prior to April 3, 2014, the Veteran was service connected for: posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling from May 27, 2011; tinnitus, evaluated as 10 percent disabling from May 27, 2011; acne, and bilateral hearing loss, each evaluated as noncompensable from May 27, 2011. The Veteran thus meets the requirements of 38 C.F.R. § 4.16 (a) for a TDIU from May 27, 2011 as he has a combined 70 percent disability rating with at least one disability rated 40 percent or greater. Nonetheless, to grant TDIU from May 27, 2011, it must be found that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Veteran has submitted multiple VA 21-8940 forms which indicate that he worked in construction, left due to his back, knee, shoulder, and wrist disabilities, and became too disabled to work in June 2006. He also indicated that he completed 4 years of high school. In the previously discussed November 2011 letter, the Veteran indicated that he was forced to retire early due to infrequent attendance caused by his back pain. A November 2011 VA examination report reflects that the Veteran's service connected PTSD causes difficulty in establishing and maintaining effective work and social relationships, and occupational and social impairment with deficiencies in most areas. In an April 2013 letter, the Veteran's private physician stated that the Veteran has undergone treatment for his multiple orthopedic issues, and that he is no longer able to maintain his regular occupation as a building contractor and roofer due to his shoulder and back disabilities. A June 2015 VA examination report reflects that the Veteran reported he stopped working due to physical problems and difficulty interacting with others, problems concentrating, irritability, and fatigue due to his PTSD. The examiner reported that reminders of Vietnam may interfere with his ability to complete job tasks and interact with others in a work environment. The evidence is thus at least evenly balanced as to whether the Veteran's service-connected disabilities preclude him from obtaining or maintaining any gainful employment since May 27, 2011. The Veteran has provided competent and credible lay evidence that his now service connected back, neck, and shoulder disabilities prevented him from performing his duties at his previous place of employment which ultimately resulted in his leaving the position, and he has stated that his PTSD impacts his ability to interact with others, and concentrate, which are essential duties necessary for the Veteran to adequately perform his job in construction. The August 2013 private physician also opined that the Veteran is no longer able to maintain his regular occupation due to his now service connected musculoskeletal disabilities, and the June 2015 examiner has stated that his PTSD interferes with his ability to complete job tasks. The Veteran has stated that his service connected disabilities have prevented him from working since 2006, and there is no indication in the evidence of record that the Veteran lacks credibility. Additionally, there is no evidence of record which indicates that the Veteran has been able to work since 2006, and no indication that the Veteran's disabilities have worsened to the point that a TDIU would not have been warranted from the time of the Veteran's initial claim. As the evidence demonstrates that the Veteran's service connected disabilities would prevent him from performing the requisite duties of a person of his education and experience as a building contractor and roofer, the evidence is at least evenly balanced as to whether for the period from May 27, 2011, the Veteran's service connected disabilities preclude him from obtaining or maintaining any gainful employment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) from May 27, 2011, the date of the formal claim for a TDIU, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.