Citation Nr: 21069023 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 19-35 653 DATE: November 17, 2021 ORDER Entitlement to service connection for a lower back condition is denied. Entitlement to service connection for a neck condition is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. Entitlement to special monthly compensation (SMC) based on aid and attendance is denied. FINDINGS OF FACT 1. The preponderance of the evidence establishes the Veteran's lower back condition was not present until more than one year following his discharge from service and is not etiologically related to his active service. 2. The preponderance of the evidence establishes the Veteran's neck condition was not present until more than one year following his discharge from service and is not etiologically related to his active service. 3. The evidence of record does not show that the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment. 4. The Veteran's service-connected disabilities alone do not render him so helpless as to be in need of the regular aid and attendance of another. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a lower back condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for establishing entitlement to service connection for a neck condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for establishing entitlement to a TDIU have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for establishing entitlement to SMC based on aid and attendance have not been met. 38 U.S.C. §§ 1114, 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1969 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision from a Department of Veteran's Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. When this case was last before the Board in April 2021, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with a VA medical opinion to opine on the etiology of his claimed bilateral hearing loss, neck, and back disabilities. Appropriate examinations and medical opinions were obtained. As such, the Board finds that the AOJ substantially complied with the directives in the April 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a June 2021 rating decision the RO granted the Veteran's claim for entitlement to service connection for bilateral hearing loss. This constituted a complete grant of the benefits sought on appeal. As such, the issue of entitlement to service connection for bilateral hearing loss is no longer before the Board and will not be addressed further. Additionally, the Board notes that the Veteran was granted a temporary total rating for surgical convalescence for his service-connected shoulder disability effective September 9, 2020 to October 31, 2021. As such, the Board will be addressing the Veteran's entitlement to a TDIU during the periods on appeal outside of this temporary total evaluation. Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lower Back and Neck At the outset, the Board notes that the essential facts of the Veteran's claims for service connection for his lower back and neck are essentially identical. In addition, the resolution of these claims involves the application of identical law to similar facts. As such, in the interest of judicial economy these issues will be addressed together. In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran is seeking service connection for his lower back and neck conditions which he claims is etiologically related to his active-duty service. The Board notes that the Veteran has current diagnoses of degenerative arthritis in both his back and neck, and of status post lumbar laminectomy, fusion and discectomy. See May 2021 VA Back Conditions examination and May 2021 VA Neck Conditions examination. Therefore, the central issue that must be resolved is whether the Veteran's current disabilities originated in service or are otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Veteran has currently diagnosed disabilities, competent medical evidence of record does not support that these disabilities were incurred in service or otherwise related to service. The Veteran's service treatment records (STRs) contain no complaints, treatment, or diagnosis of a back or neck condition. There are no treatment records for these conditions while the Veteran was in service, and no medical examiner has given an opinion linking the Veteran's current disabilities to his active-duty service. The Veteran's private medical records document that he underwent his initial back surgery in 1982 and has had subsequent surgeries since and back pain following these surgeries. Further, the Veteran's private records document a slip and fall accident in November 2011, and that he had experienced neck and low back pain from that accident which had not resolved. The Veteran's VA treatment records document treatment for neck and back pain, though no etiological opinions are given regarding these conditions in his outpatient treatment records. The Veteran has submitted multiple lay statements throughout the record indicating that he fell off of a gangplank in service and landed on his shoulder. The Veteran's wife submitted a March 2019 lay statement wherein she indicated that she first met the Veteran in 1981-1986 when he became a patient of a doctor for whom she was the office manager. The Veteran's wife reported that his visit was for a workman's compensation case but provided no further elaboration as to what brought the Veteran into the office or what this workman's compensation case was for. However, she stated that the Veteran indicated he felt back pain on many occasions and that since they were married in 1987 the Veteran has had two major back surgeries. The Veteran also submitted a November 2019 lay buddy statement from a friend who had known him since high school. In this statement the Veteran's friend reported that the Veteran told him about falling from the gangplank and that the Veteran was always complaining of back pain. During his January 2021 Board hearing, the Veteran indicated that he believed his back, neck, and shoulder conditions were all related to the same in-service incident where he fell off of a gangplank. The Veteran testified that he reported back pain at the time, but it was brushed off and not documented. The Veteran further reported other post-service injuries, such as two injuries from the 1990s when he tripped over a gas hose and fell and when he fell off of a ladder when he was a construction manager. In response to the Board's April 2021 Remand, the RO provided the Veteran with May 2021 VA Back and Neck Conditions examinations. Regarding the Veteran's diagnosed disabilities, the examiner opined that the Veteran's conditions were less likely than not (less than a 50 percent probability) etiologically related to his active-duty service. The rationale provided was that the Veteran's STRs and discharge examination were silent for complaints, (singular or chronic) treatment and/or any diagnoses of a neck or back injury. The examiner further noted that the Veteran left service in 1970 and that as per the Veteran's wife's lay statements, she first met the Veteran in 1981 during a workman's comp. case (which she does not elaborate on the root cause of the case) more than 10 years after the Veteran left service. The examiner also notes that the Veteran had a 20+ year work history in construction and had a documented slip and fall accident in 2011. The examiner concluded that the Veteran's lower back and neck conditions are more likely than not (a 50 percent probability or greater) caused by age related changes and his 20-year work history in construction. The examiner provided an September 2021 Addendum to their opinions where they added that the Veteran's current cervical and lumbar spine disabilities were not caused by, aggravated by, secondary to, or otherwise etiologically related to his active duty service. The examiner again opined that the Veteran's conditions are most likely related to aging and his 20-year physical labor work history in construction. The Board weighs the above-mentioned VA examinations against the Veteran's lay contentions that his back and neck disabilities are due to service. The Veteran and his wife are competent to report symptoms they directly observed because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, neither the Veteran nor his wife are competent to offer an opinion as to the etiology of his current back and neck conditions due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As such, the Board finds the VA examinations, which opined against a link between the Veteran's currently diagnosed disabilities and his service, to include his service-connected conditions, to be of high probative value. Additionally, the Board notes that the Veteran was not diagnosed with back or neck conditions until many years after he left active-duty service. Further, no medical examiner has provided a nexus opinion which links the Veteran's condition to his active-duty service. Indeed, the medical evidence and the Veteran's own lay statements document multiple post-service injuries from which he began to experience lower back and neck pain. Thus, the probative evidence of record preponderates against the Veteran's claims for service connection. In light of the above discussion, there is no evidence that the Veteran sought treatment for or was diagnosed with a lower back or a neck condition while in service, or within a year after service, and there is no medical opinion in the record linking his current disabilities to his active-duty service. Therefore, the claims must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. TDIULegal Criteria Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities of one or both upper extremities or one or both lower extremities including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as "one disability" for these purposes. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in 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, 168 (1991) (level of education is a factor in deciding employability); see, e.g., 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). A veteran's age and/or impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Marginal employment or employment in a protected environment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with his or her education and experience. Recently, in Ray v. Wilkie, 31 Vet. App. 58 (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 United States 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. Analysis The Veteran contends that his service-connected disabilities render him unable to secure or follow substantially gainful employment. For the relevant periods on appeal, the Veteran is service connected for left shoulder degenerative joint disease with rotator cuff tear status post total arthroplasty at 20 percent disabling; tinnitus at 10 percent disabling; and bilateral hearing loss at 10 percent disabling. He does not meet the schedular criteria under 38 C.F.R. § 4.16(a) for a TDIU. Nonetheless, in cases where the scheduler criteria are not met, an extraschedular rating must be considered. 38 C.F.R. § 3.321. Entitlement to benefits on an extra-schedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Regarding the economic factors contemplated by Ray, the Veteran's Social Security Administration (SSA) records and May 2018 VA Form 21-8940 Application for Increased Compensation Based on Unemployability showed that the Veteran has been unemployed since June 2012. As such, the Veteran has not been engaged in employment earning more than marginal income. Regarding the non-economic factors, the Veteran has three years of college education, has denied any additional training, and has been employed in construction as a developer and manager, and has been employed as a manager in a global medical research business. See SSA records and May 2018 VA Form 21-8940. However, as noted above, in determining whether unemployability exists, 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 or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board notes that the SSA in an August 2011 decision found the Veteran to be disabled due to his cervical spine, right shoulder, left carpal tunnel, and coronary artery disease. While findings from SSA constitute probative evidence with respect to a TDIU claim, they are not dispositive or altogether binding on VA. SSA's legal criteria for assessing disability for Social Security benefits purposes differs in important respects from VA's own framework for determining entitlement to TDIU. SSA bases disability on a claimant's residual functional capacity, and whether there is substantial gainful activity that could be performed with that residual functional capacity. A VA claim for a TDIU focuses on unemployability based on impairments caused only by service-connected disabilities. Also, unlike SSA, VA does not consider age in making its determination. However, the Board finds it notable that the Veteran was considered disabled by the SSA due to a combination of disabilities the majority of which are not service connected. The Veteran's medical records document left shoulder pain and difficulty hearing as related to his service-connected conditions. However, the Board notes that the Veteran's May 2018 VA Shoulder examiner indicated that his disability would not impact his ability to perform any type of occupational task. Further, the Veteran's August 2021 VA Hearing Loss examiner documented the Veteran's functional impact due to his hearing loss to be difficulty understanding words and his tinnitus keeps him from sleeping/is distracting during the day. Based on the evidence of record, the Board finds that TDIU is not warranted. The Board initially notes that the evidence of record does not show that the Veteran's service-connected left shoulder and hearing disabilities alone preclude him from seeking substantially gainful employment. The medical evidence of the record indicates that the Veteran's non-service-connected neck, back, carpal tunnel, and heart disabilities contribute to/cause him to be unable to obtain or maintain substantially gainful employment. However, the Board notes that there is no evidence in the record that the Veteran's service-connected disabilities have by themselves rendered him unemployable. The Board has considered the Veteran's lay statements in support of his claim. He is competent to report symptoms such as pain and difficulty hearing because it requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserted that his condition entitled him to a TDIU, such statements are inconsistent with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In this case, the weight of the evidence is against the conclusion that the Veteran's service-connected disabilities have rendered him incapable of being able to secure or follow substantially gainful employment. In short, the Board finds that the preponderance of the evidence is against the claim for TDIU; therefore, entitlement to TDIU must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 49. SMC Aid and AttendanceLegal Criteria SMC based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b) The Veteran has not lost use of both feet or one hand and one foot and he is not blind in both eyes due to service-connected disabilities. As such, whether SMC is warranted is determined by whether he is permanently bedridden or so helpless as to be in need of regular aid and attendance. As directed by 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. "Bedridden," which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. §§ 3.350(b)(4), 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance not that there is a constant need for aid and attendance. See Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). Furthermore, the performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Analysis The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to special monthly compensation based on the need for aid and attendance. The Veteran essentially contends that his service-connected and nonservice-connected disabilities are so disabling that he requires the regular aid and attendance of another person. The Veteran's service-connected disabilities include, as noted above, left shoulder degenerative joint disease, bilateral hearing loss, and tinnitus. He also has nonservice-connected disabilities such carpal tunnel syndrome, cervical spine degenerative arthritis, lumbar spine degenerative arthritis, a heart disability, gastroesophageal reflux disease, knee pain, major depression, and insomnia. See SSA records; see also VAMC Active Problems list. Turning to the record, the Veteran has been continually treated for his left shoulder condition. His May 2018 VA Shoulder Condition examination indicates the Veteran experiences shoulder pain, weakness, and limitation of motion. Additionally, the Veteran has undergone a left total shoulder arthroplasty in September 2020. The treatment notes following his surgery indicate that he has been recovering well and advised to maintain pendulum exercises. The Veteran's complaints regarding his bilateral hearing loss and tinnitus are that he has difficulty understanding people and that he is distracted by the ringing in his ears. During his January 2021 Board hearing, the Veteran testified that his wife is his full-time caregiver. The Veteran continued that he cannot balance in the shower, cannot wash himself, cannot cut his own foods, cannot lift things out of the refrigerator, cannot drive, cannot tie his own shoes, and that he spends the majority of his time in bed/on the couch watching television or sitting at his computer. A VA aid and attendance examination in November 2019 completed by a B.B. This examination revealed that the Veteran is not confined to bed, is able to feed himself, is not able to prepare meals - with no further explanation, does not need assistance in bathing and tending to other hygiene needs, is not legally blind, and has the ability to manage his own financial affairs. The examiner noted the Veteran requires nursing home care and for their explanation indicated that the Veteran loses balance often, cannot bend over, and cannot lift more than 7 lbs. The examiner further noted normal posture and general appearance. The examiner noted the Veteran's upper extremities have limitations of fine movement but are otherwise unremarkable. Regarding the Veteran's lower extremities, the examiner noted the Veteran has pain which limit his lower extremity use, weight bearing, and balance. The examiner also noted that the Veteran has multiple symptoms which limit the mobility of his trunk, spine and neck. The examiner further noted loss of memory and poor balance as issues which would cause difficulty to travel beyond the premises of the home. The examiner indicated the Veteran is able to leave home 2 times weekly with assistance. An additional May 2021 VA aid and attendance examination by B.B. was submitted by the Veteran. B.B. indicated that in their opinion the Veteran needed assistance at all times while awake. The examiner noted that the Veteran's left shoulder, back, and neck limited his activities. The examiner noted the Veteran could not feed himself and explained that the Veteran could with difficulty as he cannot raise his left arm and cannot apply pressure. The examiner continued that the Veteran could not prepare meals as he could not raise his arm or lift liquid bottles to pour. The examiner noted the Veteran needed assistance bathing because he could not lift arm to wash his back or underarms. The Veteran was noted to not be legally blind. The examiner noted the Veteran required in-home care to assist with his meals, hygiene and dressing; further that the Veteran's caregiver has to administer the Veteran's medications. The examiner noted the Veteran walks with a dropped foot and slumped shoulders, and that he needs a cane. The examiner noted the Veteran has rods and screws in his back and a fused cervical disc in his neck. The examiner continued that the Veteran has poor balance and limited left arm movement and grip. The examiner stated the Veteran is mostly confined to the house and either uses his computer or watches television; additionally the examiner noted the Veteran could leave his home/immediate premises weekly with assistance and was advised not to walk alone. Based on the foregoing, the Board finds that the Veteran has not been rendered in need of regular aid and attendance of another person due to his service-connected disabilities alone. While his service-connected disabilities cause physical impairment, the medical evidence of record does not demonstrate that such impairment restricts his ability to care for himself. There is no evidence of limitation of cognitive or physical functioning affecting his ability to carry out the activities of daily living. The Board does not doubt that the Veteran may need the aid and assistance of another person due to the totality of his disabilities. However, the evidence does not demonstrate that his service-connected disabilities alone render him in such need. Indeed, his nonservice-connected disabilities appear to cause most of his impairment. Accordingly, the Board finds that the Veteran's service-connected disabilities alone do not render him in need of the regular assistance of another person. As such, SMC based on the need for regular aid and attendance is not warranted. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.