Citation Nr: 21069123 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 19-30 123 DATE: November 17, 2021 ORDER Entitlement to service connection for a lumbosacral spine disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The record evidence shows that the Veteran's current lumbosacral spine disability is not related to active service. 2. The record evidence shows that the Veteran, without good cause, refused to report for 2 different VA neck (cervical spine) conditions Disability Benefits Questionnaires (DBQs) when these examinations were scheduled for the purpose of determining the nature and etiology of his cervical spine disability. 3. The record evidence does not show that the Veteran's current cervical spine disability is related to active service. 4. The record evidence shows that the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). 2. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.655 (2020). 3. The criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16a (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1957 to March 1961. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision which denied the claim of service connection for a lumbosacral spine disability and from a December 2016 rating decision which denied, in pertinent part, the claim of service connection for a cervical spine disability. The Veteran appointed his current service representative to represent him before VA by filing a completed VA Form 21-22a at the Regional Office (RO) in in December 2017. Although the Veteran initially requested a Board hearing in October 2019, he subsequently withdrew this request in November 2019 correspondence. See 38 C.F.R. § 20.704 (2020). Because the Veteran currently lives within the jurisdiction of the RO in St. Petersburg, Florida, that facility has jurisdiction in this appeal. Service Connection 1. Entitlement to service connection for a lumbosacral spine disability The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for a lumbosacral spine disability. He essentially contends that he injured his lumbosacral spine during service and experienced continuous post-service disability. The record evidence does not support his assertions regarding an etiological link between a current lumbosacral spine disability and active service. It shows instead that his current lumbosacral spine disability is not related to service. The available service treatment records show that, at his enlistment physical examination in December 1957, clinical evaluation was within normal limits. He denied all relevant pre-service medical history. In October 1959, the Veteran was involved in a motor vehicle accident. At the time of this accident, physical examination was within normal limits except for nasal and jaw fractures. He was diagnosed as having and treated for neck and jaw fractures. Clinical evaluation of the Veteran's spine was normal at his separation physical examination in February 1961, prior to his separation from service in March 1961. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for a lumbosacral spine disability. Contrary to the Veteran's lay assertions, it shows instead that, although he has complained of and sought treatment for a lumbosacral spine disability in the decades since his service separation, this disability is not related to active service. For example, VA magnetic resonance imaging (MRI) scan of the lumbosacral spine taken in December 2014 showed new L2-L3 mild disc bulge with touching of the L3 nerve roots in the lateral recesses, an interval decrease in the size of the small L4-L5 disc herniation with only a tiny residual, stable multilevel neural foraminal stenosis and L3-L4 left lateral recess stenosis with nerve root impingement, and no central canal stenosis. On VA back (thoracolumbar spine) conditions DBQ in August 2015, the Veteran's complaints included chronic back pain. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. This examiner noted the in-service motor vehicle accident. He also noted that, following service, the Veteran worked in a variety of heavy labor jobs, including as a laborer, carpenter's helper, and a fisherman. The Veteran denied flare-ups of low back pain. He was unable to bend, twist, or lift or carry more than 25 pounds. Physical examination showed pain with weight bearing, tenderness to palpation of the lumbar paraspinal muscles, muscle spasm and localized tenderness not resulting in an abnormal gait or spinal contour, and hypoactive reflexes. X-rays showed arthritis. The VA examiner opined that it was less likely than not that the lumbosacral spine disability is related to active service or any incident of service, including as due to the service-connected bilateral pes planus. The rationale for this opinion was based on a review of the claims file. The rationale also was based on a review of relevant medical literature which "shows that there is no empirical or objective evidence to indicate that an injury in one extremity can [cause] a major problem in the other extremity or a joint above or below the injured extremity." The examiner opined instead that it was more likely than not that the current lumbosacral spine disability is related to the Veteran's "work for over 40 years in physically demanding manual labor work, combined with an injury which occurred in 2004 while he was taking down storm shutters." The diagnosis was degenerative arthritis and degenerative disc disease of the lumbar spine. Contrary to the Veteran's lay assertions, the record evidence shows that his current lumbosacral spine disability is not related to active service. The Board recognizes that he was involved in a motor vehicle accident during service. The contemporaneous service treatment records show that his injuries from this motor vehicle accident involved only his jaw and neck. The Board also recognizes that he complained of and sought treatment for a lumbosacral spine disability in recent years, several decades after his service separation, although this disability is not related to active service. The August 2015 VA examiner specifically opined that it is less likely than not that the current lumbosacral spine disability is related to active service and more likely than not related to the Veteran's post-service employment for 40 years in a variety of "physically demanding manual labor" jobs. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a lumbosacral spine disability. In summary, the Board finds that service connection for a lumbosacral spine disability is not warranted. 2. Entitlement to service connection for a cervical spine disability The Board finally finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for a cervical spine disability. He essentially contends that he injured his cervical spine (or neck) during service and experienced continuous post-service disability. The Board notes initially that the Veteran failed to report for VA examination when it was scheduled for the purpose of determining the nature and etiology of his cervical spine disability in August 2019. He asserted that the original location for the VA examination was too far from his home. After he was advised that the examination was being rescheduled at a location nearer his home, he refused to report to this examination when notified by VA later in August 2019. Neither the Veteran nor his service representative has presented good cause for his refusal to report for 2 different VA examinations. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). In this case, the Board finds that it was unreasonable for the Veteran to refuse to report for the rescheduled VA examination when offered the opportunity to report for this examination at a location closer to his home. Given the Veteran's refusal to report for VA examination, and given that this claim is an original compensation claim, it will be rated based on the evidence of record. See 38 C.F.R. §§ 3.655(a)-(b) (2020). And the record evidence does not show that the current cervical spine disability is related to active service. The Board acknowledges again that the Veteran incurred fractures of the neck and jaw following an in-service motor vehicle accident in October 1959. Treatment records dated immediately after this accident indicate that, after having intermaxillary elastics attached to arch bars on the maxilla and ivy loops on the mandible to reduce the fractures on October 9, 1959, the Veteran had an uneventful post-operative course. Elastic traction was removed on October 23, 1959, and arch bars and wire were removed on October 26, 1959. He was discharged to full duty. In other words, it appears that the in-service neck fracture was acute, transitory, and resolved with treatment. Clinical evaluation of the Veteran's neck was normal at his separation physical examination in February 1961, prior to his separation from service in March 1961. This also persuasively suggests that the in-service neck fracture resolved with treatment. The post-service evidence also does not support granting service connection for a cervical spine disability. The Board acknowledges that the Veteran has complained of and sought treatment for a cervical spine disability in the decades since his service separation. None of the post-service VA and private clinicians who treated him for a cervical spine disability related it to active service or any incident of service, to include the October 1959 motor vehicle accident, however. And his failure to report for 2 different VA examinations in August 2019 leaves the Board without information which was expected to be obtained at this examination regarding the nature and etiology of his current cervical spine disability. See also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding Board prohibited from exercising its own independent judgment to resolve medical questions). The Board observes that, on VA outpatient treatment in April 2015, the Veteran reported to his VA treating clinician that his current cervical spine pain was related to his involvement in a motor vehicle accident in January 2014. He did not report, and the VA treating clinician did not indicate, that any reported cervical spine pain in April 2015 was related to the in-service motor vehicle accident which occurred decades earlier in October 1959. The Board does not dispute that the Veteran fractured his neck as a result of an in-service motor vehicle accident in October 1959. This injury was treated and apparently resolved with in-service treatment as his neck was normal clinically at his separation physical examination in February 1961 prior to his actual separation from service 1 month later in March 1961. The Board also does not dispute that the Veteran experienced cervical spine problems in the decades since his service separation, including as a result of another motor vehicle accident in January 2014. It is unfortunate that the Veteran, without good cause, failed to report for VA examinations scheduled for the purpose of determining the nature and etiology of his cervical spine disability. The remaining record evidence does not show that a current cervical spine disability is related to active service. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a cervical spine disability. In summary, the Board finds that service connection for a cervical spine disability is not warranted. 3. Entitlement to a TDIU is remanded. The Veteran seeks a total disability rating based on individual unemployability. He asserts he has been unable to work since April 2008 due to his service-connected feet and hearing loss. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Factors to be considered in determining whether unemployability exists are the Veteran's education, employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Consideration may not be given to the Veteran's age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For a Veteran to prevail on a claim of entitlement to TDIU, the record must reflect some factor which takes the case outside the norm. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable 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). The Veteran's educational background includes a high school education. His entire employment history appears to have been as a machinist for an airline from 1967 to 1989, when he last worked full time. He stated that his hearing loss and feet make him unemployable. The Veteran is service connected for bilateral sensorineural hearing loss, rated at 60 percent disabling; bilateral pes planus, rated at 30 percent disabling; tinnitus, rated at 10 percent disabling; and nasal fracture and fracture of the mandible, which are both rated at zero percent. The combined rating for the Veteran's service-connected disabilities is 80 percent, and his bilateral sensorineural hearing loss is rated 60 percent disability. As such, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16 (a) for consideration of entitlement to a total rating based on individual unemployability. The determinative issue is whether the Veteran was shown to be unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. The Board finds that, based upon the evidence of record, and giving the Veteran every benefit of the doubt, his service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. 38 C.F.R. § 4.16 (a); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). His hearing loss and feet significant limit his ability to perform physical labor, which the entirety of his employment history consisted of. Due to the Veteran's education and experience, he would likely be unable to obtain any sort of sedentary position or a position where his hearing loss would not be an impediment. Given the Veteran's disabilities, the Board finds that the weight of the evidence is in at least relative equipoise and therefore the Veteran is entitled to TDIU. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.