Citation Nr: 21066836 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-50 848 DATE: November 2, 2021 ORDER Service connection for a back disorder is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. A back disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest to a compensable degree within one year of discharge from active duty. 2. The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1965 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in November 2015 and August 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2020, the case was remanded for additional development and now returns for further appellate review. 1. Entitlement to service connection for a back disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis and organic diseases of the nervous systems, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends his back disorder, diagnosed as degenerative arthritis and lumbar stenosis, for which he had surgery in February 2012, is related to his military service. Specifically, he testified his back was injured in a pugil stick attack when he knocked to the ground and landed on his tailbone. In this regard, service treatment records (STRs) dated in May 1965 reflect that the Veteran reported that he hurt his back and fell on his tailbone twice. X-rays revealed angulation of the distal tip inferiority, but there was no fracture, and tenderness of the coccygeal area was diagnosed. Additionally, a February 1967 STR reveals complaints of upper back pain, described as a dull ache in the middle of the spine that radiates to the left up to the left shoulder. The Veteran also testified his back was injured during the many hard landings during his 142 combat missions as a door gunner on a Huey gunship helicopter. In this regard, the Board observes that he is in receipt of the Combat Aircrew Insignia. As such, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The combat presumption, however, does not alleviate the requirement that the evidence show current disabilities attributable to the past in-service disorders. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999). As such reported injuries are consistent with the nature of the Veteran's combat service, VA accepts his lay testimony as to the occurrence of them. Consequently, the remaining inquiry is whether the Veteran's currently diagnosed back disorder is related to his military service, to include the aforementioned reported injuries. In this regard, at a February 2017, a VA examiner opined that the Veteran's back disorder is less likely than not incurred in or caused by claimed in-service injury, event, or illness. In support of such opinion, he noted the Veteran's February 1967 in-service report of upper back pain; however, there was no clear documentation of a continuation of back pain after discharge from service. Rather, the Veteran's post-service treatment records reflect complaints of back pain in 2011, which resulted in surgery in 2012, which was more than 40 years after service. Therefore, the examiner found that, due to limited documentation of back pain in the military and no documentation of continuity of a back disorder, such was less likely as not incurred in and/or was caused by military service. However, as noted in the May 2020 remand, the February 2017 VA examiner did not consider the Veteran's documented in-service injury affecting his tailbone or his acknowledged in-service injury to his back due to hard landings during his combat service, or his report of a continuity of back symptomatology after service. Consequently, the Board remanded the case in order to obtain an addendum opinion addressing such matters. In January 2021, after a review of the record, interview with the Veteran, and physical examination, a VA examiner opined that his back disorder was less likely than not that incurred in or caused by his military service, to include his documented in-service injury to his tailbone in May 1965, his complaints of upper back pain in February 1967, or his report of back injuries coincident with many hard landings during his 142 combat missions as a door gunner on a Huey gunship helicopter. In support of thereof, he noted that, other than the aforementioned complaints, the Veteran's STRs were negative for any complaints of back pain. Rather, he first reported relevant complaints to VA in 2010, many years after service, at which time it was observed that he had degenerative changes of the lumbar spine in the facet joints and discs. In this regard, he explained that such degenerative changes were consistent with his age at the time (64). The examiner further observed that a review of the May 1965 X-ray of the coccyx revealed that the Veteran's tailbone was curved normally and was inferior, not curved forward as described by the Veteran, which is likely congenital. He noted that, if the Veteran had continuous back pain since separation to the present time, then the degenerative changes likely developed after the injury. Based on a review of relevant medical literature, the examiner explained that it was not likely that the degenerative changes were correlated to the Veteran's reported symptoms. Rather, it would be expected that the reported pain would increase significantly or change in character, and the degenerative changes would be found at an earlier age if the Veteran's back disorder were related to any aspect of his military service. The examiner found that, given that the Veteran's degenerative changes were not formally diagnosed until age 64 and are typical for someone his age, it was more likely that such are due to age and time rather than an injury incurred in service. He also explained that a ground level fall would not be expected to cause advanced degeneration of the spine unless there was a significant fracture or ligament rupture. Similarly, the examiner observed that, while the Veteran reported several hard landings in service, injury to the spine would have been diagnosed at such time, but subsequent examination, to include on separation in November 1968, did not show any abnormalities. Further, he indicated that, even when patients do sustain enough force to the spine causing a compression fracture, the majority of such injuries do not result in chronic back pain or associated degenerative findings. Thus, the examiner found that there was no clear evidence that the Veteran's in-service injuries resulted in his current back disorder diagnosed on imaging many years later. The Board affords great probative weight to the January 2021 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the Veteran's statements and his relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. The Board has also considered the Veteran's assertions as to the etiology of his current back disorder. However, as a lay person, he does not have the requisite training and experience necessary to address such complex medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of a disorder of the spine, to include degenerative arthritis and lumbar stenosis, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the musculoskeletal system and the impact prior injuries have on the spine. Therefore, such matters may not be competently addressed by lay evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the etiology of his back disorder is not competent evidence and, consequently, is afforded no probative weight. Moreover, the Board finds that the evidence fails to show that the Veteran manifested degenerative arthritis of the spine to a compensable degree within one year of his separation from active duty in November 1968. In this regard, November 1967 and November 1968 examinations revealed that his spine was normal upon clinical evaluation and no relevant complaints were documented; rather, post-service treatment records reflect normal age-related degenerative changes first manifested many years after service as detailed by the January 2021 VA examiner. Further, as he explained, even if the Veteran reported a continuity of back symptomatology since service, such was unlikely related to his currently diagnosed degenerative arthritis. Consequently, the Board finds that presumptive service connection, to include on the basis of a continuity of symptomatology, for arthritis of the lumbar spine is not warranted. Therefore, based on the foregoing, the Board finds that a back disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest to a compensable degree within one year of discharge from active duty. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a back disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (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 instant appeal stems from the Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), which was received on May 4, 2015. For the entire appeal period, the Veteran is service-connected for voiding dysfunction, evaluated as 60 percent disabling; posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; erectile dysfunction (ED), evaluated as noncompensably disabling. As of May 5, 2015, the Veteran is service-connected for inguinal hernias, umbilical/ventral hernia, and scarring status post ventral hernia/umbilical hernia/prostatectomy surgery, each evaluated as noncompensably disabling; and, as of October 15, 2019, is service-connected for coronary artery disease (CAD), evaluated as 60 percent disabling. Thus, for the entire appeal period, he has a combined disability rating of 80 percent prior to October 15, 2019, and 90 percent thereafter, thereby meeting the schedular threshold for consideration of a TDIU. However, the Board notes that the Veteran does not contend, and the record does not show, that his service-connected tinnitus, ED, or scarring impact his ability to work. Specifically, in his May 2015 Veteran's Application for Increased Compensation based on Unemployability (VA Form 21-8940), he only alleged his PTSD, voiding dysfunction, and hernia disabilities rendered him unemployable and, in his March 2020 VA Form 21-8940, he only claimed that his PTSD and CAD rendered him unemployable, and the evidence does not show that such disabilities result in any functional impairment. With regard to the Veteran's education, the record indicates he completed a Bachelor's degree in industrial education. With respect to his work history, the Veteran testified at his February 2020 Board hearing that, after discharge from the service, he was employed in boat building and maintenance. In his May 2015 VA Form 21-8940 he reported working full-time from March 1985 until January 2008 as a river ranger with the U.S. Forest Service. However, his subsequent September 2015 VA Form 21-8940 lists this job as ending January 1, 2010, which was confirmed by his former employer in November 2015. Thus, the Veteran has not worked at any time pertinent to the appeal period. As to the functional impairment associated with the Veteran's service-connected disabilities, his employer with the U.S. Forest Service reported in November 2015 that the Veteran retired because he felt could no longer perform his duties. In an October 2017 letter, his former supervisor, E.B., stated the Veteran requested retirement because he was having trouble performing his duties due to medical issues, which included complications from prostate cancer requiring multiple surgeries, persistent falls, and memory difficulty. In this regard, in his May 2015 VA Form 21-8940, the Veteran stated he retired due to his PTSD, prostate problems, and hernia problems. However, in a November 2016 letter, he stated that he retired due to thinking he was "just too old to fulfill the duties of a river ranger," as he was having difficulty walking, and even the simplest assignments had become a challenge. Subsequently, he received a diagnosis of hydrocephalus and, in his letter, he attributes these symptoms to such disorder. Further, the Veteran testified that he had a shunt put in his brain in 2008 to relieve the pressure from the hydrocephalus and was unable to return to work following that surgery. However, the Board notes that the Veteran is not service-connected for hydrocephalus, and thus cannot consider such symptoms in its determination of entitlement to a TDIU. As to the functional impairment associated with the Veteran's service-connected disabilities, he testified that his job as a river ranger required him to transport passengers, crew, equipment, and building material up and down the river. He reported that his service-connected voiding dysfunction caused incontinence and necessitated the wearing of three absorbent pads a day. Specific to his PTSD, he testified that such left him angry with a very short fuse. He stated that, when he got into stressful situations on the river, it caused conflict with the public and fellow employees. Further, his PTSD caused nightmares and his lack of sleep might result in tiredness, or a lack of focus and concentration. However, an October 2012 neuropsychological report attributes the Veteran's impairment in executive function/neurocognition to his nonservice-connected hydrocephalus. In addition, the Veteran's spouse, J.L., testified that the Veteran had difficulty lifting the required equipment he needed to ferry up and down the river to various maintenance sites; however, she attributed this difficulty to his nonservice-connected back and knee disorders. In August 2015, the Veteran underwent VA examinations for his service-connected disabilities. At such time, the VA examiner stated his hernia disabilities restricted him to lifting less than 30 pounds. Specific to the impact of voiding dysfunction, the examiner noted that excessive daytime urination and very frequent need for complete hygiene prevents the Veteran from being very far from bathroom facilities and required frequent toilet time. At such time, the Veteran required absorbent material that must be changed 2 to 4 times per day, with daytime voiding intervals of less than 1 hour. In March 2020, the VA examiner noted no changes in the Veteran's service-connected hernia and voiding dysfunction disabilities. Specific to his service-connected CAD, the examiner opined such would prevent the Veteran from doing heavy exertional tasks. According to August 2015 and December 2019 VA PTSD examinations, the Veteran's psychiatric disability resulted in 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. At his August 2015 examination, the Veteran reported retiring in 2008, mostly due to symptoms from his nonservice-connected normal pressure hydrocephalus. His December 2019 examination reflects the Veteran is able to do his own shopping, goes for walks with his dog, and attends religious services every Sunday. Based on the foregoing, the Board finds the probative evidence described above does not show the Veteran's service-connected disabilities alone are of sufficient severity so as to render him incapable of performing the physical and mental acts required by employment consistent with his education and work history. Notably, none of the VA examiners who examined the Veteran psychologically and/or physically found his service-connected disabilities precluded employment either singularly or jointly. Here, the Board affords significant probative weight to the VA examiners' opinions as such were based on physical and psychological examinations of the Veteran and a review of the record, to include his medical history, work history, and lay statements. Moreover, the Veteran's November 2016 letter, E.B.'s October 2017 letter, and his statements during his August 2015 PTSD examination and Board hearing indicate he retired from the forest service mostly due to symptoms related to his nonservice-connected hydrocephalus. Further, while the Veteran's voiding dysfunction requires him to be near a restroom and wear absorbent pads, he is able to participate in most activities if in reasonable proximity of a restroom, as evidenced by his ability to shop, walk his dog, and attend church services weekly, and as stated by the August 2015 and March 2020 VA examiners. In this regard, the Board acknowledges driving a river boat would be difficult for the Veteran if he needs to be close to a restroom. However, the Veteran described part of his duties as delivering building materials along the river to various facilities, where there might be restrooms to use and/or provide the ability to change absorbent pads. Furthermore, while the Veteran's hernia disabilities and CAD required him to avoid heavy lifting and exertional tasks, and his PTSD resulted in some interpersonal conflict, such limitations were not shown to result in an inability to perform the physical and mental tasks associated with his job as river ranger. Moreover, he also has a college degree and work experience in boat maintenance, which would allow him to work off the water and in proximity to restroom facilities, avoid heavy lifting and exertional tasks, and work alone so as to reduce conflict with others. Furthermore, as detailed previously, the evidence of record, to include the Veteran's own statements, also reflects that his nonservice-connected hydrocephalus, and back and bilateral knee disorders, negatively impact his ability to obtain and maintain gainful employment. Therefore, based on the foregoing, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against such claim, the benefit of the doubt doctrine is not applicable. Therefore, a TDIU is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.