Citation Nr: 21065360 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-19 066A DATE: October 26, 2021 ORDER Entitlement to service connection for a left lower extremity disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. A left lower extremity disability was not manifest in service and is not otherwise attributable to service and arthritis was not manifest within one year of separation. 2. A left lower extremity disability is unrelated (causation or aggravation) to a service-connected disease or injury. 3. The service-connected disabilities do not render the Veteran unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. A left lower extremity disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. A left lower extremity disability is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. 3. The criteria for TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1972 to March 1974. The Veteran had active service from June 1985 to July 1985, which was a period of active duty for training in which the Veteran was disabled from an injury incurred in the line of duty. See July 1989 rating decision (finding the Veteran's back disability (dorsolumbar fibromyositis) was due to an injury in a period of service from June to July 1985). Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, air, or space service. 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). In addition to direct service connection, secondary service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Left lower extremity disability The Veteran is service connected for dorsolumbar myositis, claimed as back condition and muscle inflammation. He contends that his lower back disorder has caused his left knee condition to worsen, to the point that he required a total knee replacement. See, e.g., May 2016 VA Form 9. The Veteran also had treatment of the left knee in service in May 1972 and injury of the back in June 1985 and a theory of direct service connection has also been considered. A May 1972 service treatment record indicates that the Veteran fell from a bus and hurt his left leg. There was no objective findings and no swelling. A May 1972 radiographic report was negative. A separation examination occurred in October 1973. The Veteran had a clinical normal evaluation of the lower extremities, feet, skin, scars, and spine and other musculoskeletal system. The Veteran reported he was in good health. The examination report notes no defects in a summary of defects section. A statement of physical condition dated in March 1974 contains a statement from the Veteran that there had been no change in his medical condition since the separation examination. While part of the National Guard, the Veteran injured his back in June 1985 during a period of active duty for training from June 1985 to July 1985. This was noted on a Statement of Medical Examination and Duty Status dated in July 1985. A November 1988 medical board shows that the Veteran was serving with the Army National Guard and noted that the Veteran had chronic low back pain with spondylolysis at L5 with Grade I spondylolisthesis, L5 on SI. The Veteran signed below a statement indicating that the medical board accurately covers all of his medical conditions and that all health records pertaining to his case had been turned over to the proper authorities. A sworn statement from June 1985 also notes falling and hitting his back and feeling pain in the back, but no problems of the lower extremities were noted. In May 1989, the Veteran had a VA examination in conjunction with a claim for his back disability. Neither the claim nor the examination report indicates any left lower extremity issue. An August 1995 treatment record notes X-ray showed moderate degenerative changes of the left knee, diagnosed as inflammatory and degenerative arthritis, generalized with recurrent and severe effusions and partial ankylosis of the left knee. A VA examination dated in December 2014 noted that the Veteran had a motor vehicle accident in the 1990s and knee osteoarthritis was found at that time. The examination report noted that a VA examiner rendered a diagnosis of left knee osteoarthritis status post total knee replacement. The examiner provided an opinion stating the left knee condition was less likely than not related to military service. The examiner provided the following rationale: there is evidence the Veteran was evaluated for left knee pain during military service, with negative X ray. There is no evidence of continuity of symptoms for a chronic left knee pain condition. Left knee degenerative changes were diagnosed in 2011, several years after service, and is due to normal progression of the aging process. A June 2015 Notice of Disagreement from the Veteran notes that he injured his left knee in service and reinjured it in June 1985. In September 2020, the Board found a prior July 2019 VA examination of the left knee was inadequate and it will not be addressed here. A VA examination completed in June 2021 noted a history of left knee arthritis treated with total knee replacement. All opinions provided with regards to direct and secondary (causation and aggravation) service connection were negative, noting that it was less likely than not. It was the opinion of the examining doctor that in-service treatment for a left leg contusion in 1972 was an acute condition that resolved without residual disability. Dr. R.-T. opined that the current knee condition began after separation and the Veteran's 1972 left leg contusion resolved without sequel. In addition, it was the opinion of the physician that current left knee condition did not develop due to the service-connected back condition, nor was it aggravated beyond its normal course by service-connected back condition because the spinal cord and the left knee are different anatomical structures of the human body with different specific functions, etiopathogenesis, and pathophysiology. The examiner reports that the service-connected back condition does not cause or affect the left knee condition. Dorsolumbar myositis affects the external parts of the dorsal and lumbar spine and not the internal parts of the dorsolumbar spine where the spinal nerves are. Dorsolumbar myositis cannot cause spinal nerve irritation and there is no dorsolumbar radiculopathy affecting the lower extremities. Therefore, the Veteran's current claimed left leg disability is less likely than not (less than 50 percent probability) aggravated beyond its natural progression by the Veteran's service-connected dorsolumbar myositis. The spinal cord and left knee are different anatomical structures of the human body with different specific functions, etiopathogenesis, and pathophysiology. The examiner noted that the medical records reveal a service medical note dated in May 1972 with a history of a fall and hitting his left leg. Diagnosis was no objective findings nor swelling. Therefore, the Veteran had a left leg contusion that resolved without sequel. The Veteran's left knee end-stage osteoarthritis, including left knee total replacement, is not related to the Veteran's low back condition. The Veteran's left knee diagnosis is left knee end-state osteoarthritis, from March 2005. Inflammatory and degenerative arthritis, generalized with recurrent and severe effusion and partial ankylosis of the left knee was noted in August 1995, which is out of the Veteran's service dates. The Veteran's left knee end-state osteoarthritis and left knee total replacement, including inflammatory and degenerative arthritis generalized with recurrent and severe effusion and partial ankylosis of the left knee, is less likely than not (less than 50 percent probability) due to or caused by any incident in service. The Veteran's records are silent of another episode of leg condition complaint while in and after service. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of a disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran has stated his left lower extremity disorder started in service in June to July 1985. The Veteran is competent to report onset of lay observable symptoms, such as pain. However, such is not credible, the Veteran did not report any lower extremity problems after the 1985 injury, nor did the medical evidence show any lower extremity problem. A November 1988 medical board noted that the Veteran had chronic low back pain with spondylolysis at L5 with Grade I spondylolisthesis, L5 on SI. The Veteran indicated that the medical board accurately covers all of his medical conditions and that all health records pertaining to his case had been turned over to the proper authorities. Further, the Veteran has been inconsistent when noting onset of symptoms, noting during one VA examination that such occurred in the 1990s after a car accident, not in 1985. In contrast, with regards to secondary causal or aggravation, the Veteran is not competent to report a relationship of his lower extremity disability due to his service-connected back disorder in the absence of lay symptoms. He is not competent as a lay person to provide etiology in the absence of symptoms. The Board acknowledges that the examiner did note, in both the 2021 examination report and in the opinion, that the Veteran reported onset in 1985. The medical history reads that the Veteran reported that in 1985, he fell to his left knee from a gas tanker truck, his knee twisted, felt that his knee made a noise like a crack. He had a slight pain that went away. Later, his left knee began to ache (3-4/10) that lasted all day and was repeated every day of the week. Finally, his knee swelled up, he couldn't bend it, and he went numb. He reported to a VA facility, and in 1995 he had X-rays taken, and an orthopedist saw him. However, this report of medical history provided by the Veteran was not an opinion from the examiner that a left leg or knee disorder was due to the period of active military service in 1985, as the examiner noted both knee osteoarthritis and left knee total replacement were found after service. The VA opinion, in the rationale section, also noted that the Veteran's records, after 1972, are silent of another episode of leg condition complaint while in service. However, the examiner clearly noted the first post-service treatment records indicating the existence of disease or injury were many years after 1985. Further, the examiner reviewed the evidence record, which includes several documents, including statements from the Veteran, that indicate the Veteran only had a back injury and that the Veteran had informed the relevant authorities of all medical problems he had. Therefore, based on the evidence as whole and read in conjunction with the VA opinion and report, the examiner was just reporting of the Veteran lay history, already noted above, and was not stating that the examiner's opinion was that the current disability started in 1985. The examiner was clarifying that, during the examination, the Veteran was not alleging that the injury in 1972 was the cause of the current knee disorder. The Board finds that the VA medical opinion outlined above to be more probative than the Veteran's statements. The medical professional that provided the medical opinion is competent to provide an opinion on this matter. He determined that the Veteran's left lower extremity disability was not due to in-service events, as there was an absent of any report of left lower extremity problems. Further, the back and the left lower extremity are different anatomical structures of the human body with different specific functions, etiopathogenesis, and pathophysiology. The type of back disability the Veteran has would not cause radiculopathy. The examiner had knowledge of the Veteran's medical history and examined the Veteran and provided conclusions in medical documents based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, while the Board has considered the Veteran's lay statements, they do not outweigh the probative medical opinion. This is true with regards to aggravation, causal relationship to service-connected disease or injury, or direct causal relationship. Further, the other medical evidence, in the 1980s, do not report any left lower extremity disability and the Veteran specifically denied any problems besides those of his back. The evidence suggests a post-service car accident was the alleged cause as opposed to the back injury in 1985, as no disability of the left lower extremity reported as late as 1989, during a VA examination of the back, and the first report was in August 1995. Finally, for certain chronic diseases, including arthritis, service connection may be granted if the disease becomes manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The evidence of record shows that the Veteran's left lower extremity arthritis was not manifest in service or within one year of separation. He did not have characteristic manifestations to identify the disease entity during such a timeframe. The earliest finding of arthritis was many years after service. There is no probative evidence that arthritis was manifested during service or within one year of separation. There is no credible evidence of continuity of symptomatology. There is no acceptable evidence of record that arthritis during service or within one year of separation. There is no accepted proof that the remote onset of arthritis first reported multiple years after service is otherwise related to service. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. 2. TDIU The Veteran contends service-connected disabilities render him unemployable. The Veteran last reported working in June 1990 on his February 2019 VA Form 21-8940, working as a technician. The Veteran reported four years of high school, as his highest education. However, VA treatment records indicate that the Veteran had three years of college. See, e.g., June 2015 VA Social Work Comprehensive Assessment. Service personal records indicate at least one year of college. Employment records from the National Guard of Puerto Rico noted that the Veteran worked as a mechanic. TDIU can be awarded where the scheduler 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. § 4.16(a). Provided that if there is only one disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. The Veteran does not meet the schedular requirements for consideration for TDIU under 38 C.F.R. § 4.16(a). The Veteran is service connected for dorsolumbar myositis is rated at 40 percent disabling, tinnitus is rated at 10 percent disabling, and sensorineural hearing loss at 0 percent disabling, with a combined rating for compensation at 50 percent disabling. The Veteran does not meet the schedular criteria. It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. Id. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. Id. A statement from a Dr. J.R.C. from August 1995 indicates that the Veteran was unable to work since 1985 with symptoms in multiple joints, with swelling, pain, fluid accumulation, and loss of motion, more severe in the left knee, but also involving the right knee, shoulder, neck, upper back, lower back, elbows, and both hands and wrists. The doctor noted that the Veteran was disabled for all types of jobs due to the upper and lower spine and extremities. A VA examination occurred in early April 2014. There he complained of chronic low back pain which was constant and felt like pressure. He rated the pain between a 4 and 5 out of 10 on the pain scale and stated that it did not radiate to the lower extremities. He reported flare-ups, stating that prolonged standing and bending increased the intensity of his back pain. The examiner indicated the Veteran's occasional use of a brace and a cane. The examiner noted that the Veteran had pain that could significantly limit the Veteran's functional ability during pain flare-up or when the lower back was used repetitively. The examiner indicated there were no functional impacts. During a VA examination dated in August 2015 for hearing loss and tinnitus, the VA examiner noted that the Veteran reported that the Veteran indicates that he needs to ask for repetition. No occupational functioning effects were reported for hearing loss and, for tinnitus, the Veteran indicated no occupational functioning effects were reported, although he reported that tinnitus bothered him. A January 2017 VA examination for the back noted low back pain, which was constant, and the Veteran has difficulty when putting on his shoes when having flare-ups. The Veteran used a cane and a brace. The Veteran's functional impact was that he was unable to sit or stand for long periods of time. VA examinations of the knee and lower leg indicate that the Veteran did have substantial functional impacts of the lower leg and knee. For example, a December 2014 VA examination noted difficulty climbing stairs and with prolonged walking. A VA examination which occurred in June 2021, noting knee and lower leg functional symptoms of walking difficulty, limps, cannot push, pull, lift, carry heavy objects, and cannot go up and downstairs. Functional impacts where the Veteran must avoid jobs that require standing and walking for long periods of time, frequent knee bending, acquiring awkward positioning of the knee or the leg, pushing, and pulling heavy objects. For example, the knee is more affected in construction workers, carpenters, roofers, carpets, tiles, and floor installers. The Veteran has some difficulties due to functional limitations due to service-connected disabilities. His limitations were that he was unable to sit or stand for long periods of time, prolonged standing and bending, and other issues listed above. A medical professional did note that the Veteran was disabled for all types of jobs due to involvement of the upper and lower spine and extremities. However, based on the medical evidence and VA examination reports, the Veteran's functional impacts that prevented employment were due to non-service-connected disabilities (to include the knee). The Board has considered the Veteran's lay statements. The Board notes that the Veteran has not been entirely forthcoming with matters regarding his claim for TDIU, namely with regards to his educational attainment. In addition, the Veteran has not been clear with regards to why his service-connected disabilities prevent employment. Therefore, the lay statements, which amount to bare assertion that TDIU is warranted, are given less weight than the other evidence of record. Treatment records and VA examinations show some impact on his ability to function and undertaking some physical tasks. As a result, the more probative evidence does not show that the Veteran was unable to maintain substantial gainful employment, instead having some limitations. He does not warrant extraschedular consideration under 38 C.F.R. § 4.16(b) because the record does not support such referral. His service-connected disabilities were productive of limitations, but the probative evidence does not suggest that the Veteran would be unable to obtain and retain substantially gainful employment. Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As described in Ray v. Wilkie, the correct standard for referral is whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. 31 Vet. App. 58, 66 (2019). The Board cannot identify any extraschedular factors to warrant referral, and the Veteran does not meet the schedular criteria. Therefore, no referral is warranted. Accordingly, referral of the claim for TDIU is not warranted and TDIU must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.