Citation Nr: 21069566 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-57 093 DATE: November 18, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disorder was not incurred in service, is not otherwise causally or etiologically related to service and arthritis did not manifest to a compensable degree within one year of service separation. 2. The preponderance of the evidence does not show that the Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment due to service-connected disability at any time during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to November 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Jurisdiction of this appeal is currently with the RO in St. Petersburg, Florida. In September 2019, the Board issued a decision denying entitlement to service connection for a lumbar spine disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court granted a Joint Motion for Partial Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion. This case was most recently before the Board in February 2021 and in June 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the Board instructed that the Veteran's updated VA treatment records were to be obtained, that relevant private treatment records were to be obtained and that a VA examination was to be conducted to determine the etiology of the Veteran's claimed lumbar spine disorder. Updated VA treatment records have been associated with the record and a February 2021 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain treatment records on his behalf. A VA etiology opinion as obtained in September 2021. The Board therefore finds that there has been substantial compliance with its previous remand. The case has now been returned to the Board for appellate action. In addition, in a September 2021 rating decision, the AOJ granted service connection for bilateral hearing loss and assigned an initial rating. To date, the Veteran has not submitted a notice of disagreement with this decision. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Service Connection Lumbar Spine Disorder The Veteran seeks service connection for a lumbar spine disorder, which he asserts is the result of the physical rigors during active service, to include running, jumping, and marching with a rucksack on his back. See Appellate Brief, October 22, 2021. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as arthritis is presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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's service treatment records do not show any back complaints or injuries. Notably, the Veteran's examinations at induction and separation are both unremarkable for any complaints of the back. See Service Treatment Record, November 25, 1963; see Service Treatment Record, September 7, 1965. Of record is a June 2012 letter by Dr. N.O-V. In her letter, Dr. N.O-V. noted that the Veteran had continuous strong back pain that had been worsening; he presented with recurrent periods of locking, interference with physical activities, constant stiffness, and continuous muscle spasm. The Veteran was unable to tolerate physical activity and had a restriction of daily activities. Dr. N.O-V. indicated the Veteran used to carry and dispatch heavy loads during active service, that caused a lot of stress at the column area causing inflammatory changes that promotes degenerative problems in the long term; all of these caused loss of correct alignment and loss of curvature of the cervical, thoracic, and lumbar lordosis, putting more stress on side that would present as disc bulging, herniation, and degenerative problems. Dr. N.O-V. indicated that the Veteran should be evaluated carefully as it is at least as likely as not that his back problem is service-connected. The Veteran was afforded a VA examination in September 2012. At that time, the examiner diagnosed degenerative disc disease of the lumbar spine, discogenic disease, and mild central L5-S1 protrusion. The examiner opined that the Veteran's lumbar spine disorder was not caused by or the result of or incurred in or caused by military service, as opined by Dr. N.O-V. In this regard, the examiner noted that the separation examination and service treatment records were silent as to a back condition; there was no evidence for treatments or complaints due to a back condition until more than 40 years after separation from active service, indicating that the condition occurred a long time after service; and that Dr. N.O-V.'s opinion was rendered in June 2012, over 40 years after service. Additionally, the examiner noted that Dr. N.O-V. did not indicate she reviewed the Veteran's service treatment records or evidence, to include VA treatment records. Therefore, the examiner found the Veteran's lumbar spine disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Of record is a November 2015 lay statement submitted by the Veteran that indicates the Veteran worked in tight and noisy spaces, and his work required him to frequently carry heavy tools that placed stress on his back. The Veteran was afforded a VA examination in August 2021. At that time, the examiner opined that the lumbar spine disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted that, in spite of official medical literature that could support a causal relationship between chronic cumulative trauma and the eventual development of degenerative joint disease in weight-bearing joints, the procured medical record in the Veteran's case did not support by documentation of complaints, diagnoses, treatment, or medical management of any lumbosacral spine condition that would have had impacted functionality in a reasonable time after military service. Therefore, the examiner found that the contiguity temporal relationship in this case was not fulfilled; there was no readily understandable causation relationship between active military service and his currently diagnosed lumbar spine disorder. Additionally, the examiner noted that there was no specificity of the military service and the development of the conditions that would make it plausible that the lumbar spine disorder was related to service; rather, the examiner opined that the lumbar spine disorder is more likely due to the normal process of aging. The August 2021 VA examiner noted that the medical record did not support that the Veteran's current diagnoses of degenerative arthritis and degenerative disc disease were at least as likely as not due to an in-service disease or injury. The examiner acknowledged the Veteran's lay statements that low back pain began around the 1970's, and that he was treated by a private physician during that time, and he first presented to a VA medical center around the year 2000. Additionally, the VA examiner noted the June 2021 opinion by Dr. N.O-V. that the Veteran's lumbar spine disorder was at least as likely as not the caused by his active service. However, the examiner concluded that the lumbar spine disorder could have been incurred in the absence of military service, and therefore the implication of the military service as the cause was not strong enough. In this regard, even though there was a temporal ordering, there was not temporal continuity given the degenerative nature of the lumbar spine disorder, and the absence of a specific clear injury or even that directly related to the cause that could be readily understandable. Moreover, the VA examiner noted that causation or causal relationship could not be established due to the degenerative nature of the lumbar spine condition. Moreover, the examiner noted that the November 2015 statement contained no reference, nor have any relationship with any lumbar conditions of aging after so many years. The Board has first considered whether service connection for a lumbar spine disorder is warranted on a presumptive basis. However, the record shows that the Veteran's current lumbar spine disorder did not have its onset during service or for many years thereafter. The diagnosed arthritis did not manifest within one year of separation from service. As the Veteran's arthritis was not diagnosed until about 2012, and did not manifest during service or within one year of separation, the provisions of 38 C.F.R. §§ 3.307, 3.309 are not for application in this matter. Turning to direct service connection and the question of whether there is an etiological relationship between the Veteran's a lumbar spine disorder and his service, the Board notes that the record contains contradicting opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board will consider each of these opinions below. The Board notes that in her June 2012 private opinion, Dr. N.O-V. addressed the Veteran's statements and contentions regarding the circumstances of his service as it related to his back pain. However, no rationale was provided for her opinion. Id. In this regard, Dr. N.O-V. indicated the Veteran experienced physical rigors during service and had a currently diagnosed lumbar spine disorder, and opined that the two were related without elaboration or explanation. Moreover, Dr. N.O-V. failed to address the 40 years between separation from active service and when the Veteran was first diagnosed with a lumbar spine disorder, and how the two were related. Therefore this opinion is afforded little, if any, probative weight. Next, the September 2012 VA examiner opined that the Veteran's lumbar spine disorder was not etiologically related to his active service, and noted that his service treatment records were unremarkable for complaints of, diagnoses for, or treatment of a lumbar spine disorder. Additionally, the September 2012 VA examiner noted the 40 years between service and a diagnoses of a lumbar spine disorder, and addressed Dr. N.O-V.'s June 2012 opinion. However, the September 2012 VA examiner seemed to rely solely on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the September 2012 VA examiner failed to provide adequate or supporting rationale for the conclusions reached. Moreover, the examiner did not consider the Veteran's reports that his back symptoms began during service. Therefore this opinion is afforded little, if any, probative weight. Finally, the Board considers the August 2021 VA examination opinion of record. In contrast to the June 2012 private opinion and September 2012 VA opinion, the Board finds the August 2021 VA opinion to be highly probative as the doctor reviewed the claims file, interviewed the Veteran, and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this regard, the August 2021 VA examiner noted that the Veteran's statements and contentions regarding the onset and continuity of his symptoms, to include the physical rigors of active service, addressed the June 2012 private opinion by Dr. N.O-V, explained that the opinion failed to address the temporal continuity showing 40 years separation from service and a diagnosis of a lumbar spine disorder and addressed the relevant medical literature in support of the conclusions. Additionally, the August 2021 VA examiner noted that there was an absence of evidence in his military service but also noted there was an absence of a specific injury that could be directly related to a later diagnosis of a lumbar spine disorder. Moreover, the August 2021 VA examiner noted that the November 2015 statement submitted by the Veteran, and addressed his contentions that his lumbar spine disorder was caused by heavy tools and stress on his back during service in Germany. In this regard, the VA examiner noted that the Veteran's statement failed to address a specific incident or injury that could be related to his lumbar spine disorder, and the lack of such make it less likely than not that his lumbar spine disorder was etiologically related to his active service. The Board finds this opinion to be highly probative as the examiner reviewed the claims file, interviewed the Veteran, addressed the relevant evidence and medical literature, addressed the lay statements and contentions of the Veteran, and provided an opinion supported by a clear rationale. Id. The Board has weighed the evidence of record and finds that the preponderance of the evidence is against the claim. For all of the reasons above, the evidence shows that the Veteran's lumbar spine disorder was not incurred in service, is not otherwise causally or etiologically related to service and arthritis did not manifest to a compensable degree within one year of service separation. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of medical nexus. As a lay person, the Veteran is competent to report observable symptoms, such as back pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Veteran is competent to report having experienced symptoms of having back pain, he is not competent to provide a diagnosis in this case, or to determine that these symptoms are somehow related to his active service. This issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, supra. Consequently, the Board gives more probative weight to the medical evidence in this case. In sum, 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 of entitlement to service connection for a lumbar spine disorder. As such, that doctrine is not applicable in the instant claim, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Entitlement to a TDIU The Veteran asserts he is entitled to a TDIU. Specifically, the Veteran contends that his posttraumatic stress disorder (PTSD), bilateral hearing loss and tinnitus prevent him from obtaining and maintaining gainful employment. See November 2015 Application for Increased Compensation Based on Unemployability (VA Form 21-8940). 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). Rating boards should submit to the Director of Compensation Service for extraschedular 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 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). 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); see 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 the instant case, service connection is currently in effect for bilateral hearing loss, rated as 20 percent disabling beginning on April 22, 2016 and 40 percent beginning on June 17, 2021; tinnitus associated with left ear hearing loss, rated as 10 percent disabling; left ear hearing loss, rated as noncompensably disabling from June 21, 2012 to April 22, 2016. His combined rating was 10 percent beginning on June 21, 2012, 30 percent beginning on April 22, 2016, and 50 percent beginning on June 17, 2021. Thus, the schedular criteria are not met. However, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to appropriate VA officials for consideration of assignment of a TDIU rating. 38 C.F.R. § 4.16(b). In a November 2015 VA 21-8940, the Veteran reported that he had four years of college education and that he was self employed as a manager from 1996 to 2000. A November 2015 Social Security Administration (SSA) response indicates that medical records related to the Veteran's claim had been destroyed and that further efforts to obtain them will be futile. A June 2021 VA Disability Benefits Questionnaire notes that the Veteran's hearing loss and tinnitus impact him in that he has difficulty hearing people speaking to him, that he constantly has to ask people to repeat themselves and that he struggles to hear in background noise. The examiner noted that the Veteran reported that he can hear people speaking to him but he cannot understanding what they are saying, that he cannot hear in restaurants, that he has to keep the television very loud to be able to hear and that the neighbors complain the television and radio are too loud. The examiner also noted that the Veteran reported that he is very frustrated and feels isolated because he cannot hear and that he needs help from the VA. The examiner noted that the Veteran's tinnitus keeps him awake at night and makes it more difficult to fall asleep. The examiner noted that the Veteran reported tinnitus was worse in quiet rooms, that it causes him significant anxiety and affects his hearing. Here, the evidence is against finding that the Veteran is precluded by his service connected disability from obtaining and maintaining any form of gainful employment consistent with his education, experience, and skillset. The record shows that the Veteran's had attained a college education and was previously self-employed as a manager. During service, the Veteran's military occupational specialty (MOS) included supply clerk. The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Based on the foregoing, the Board finds that the Veteran is not entitled to a TDIU at any time prior during the period on appeal. The Board has carefully considered the Veteran's statements regarding the effects of the aggregate effects of impairment of his service-connected disabilities, to include hearing loss and tinnitus, on his employability. Although the Veteran experienced limitation as a result of his service-connected hearing loss and tinnitus, and these disabilities have been found to cause some impact on his daily functioning and earning capacity, that impact was considered in the schedular ratings currently assigned. Simply stated, if he did not have impairment with his service-connected disabilities, there would be no basis for the combined ratings during the period on appeal. Thus, such disabilities are not shown to render the Veteran unable to secure or follow a substantially gainful occupation. The fact that he was having impairments or difficulties does not provide a basis to grant TDIU. Further, the Veteran himself asserted that he was unable to obtain and maintain gainful employment as a result of his service connected bilateral hearing loss and tinnitus as well as nonservice-connected acquired psychiatric disorder. Therefore, based on the foregoing, the Board finds that, while the service-connected bilateral hearing loss and tinnitus result in some impairment in occupational functioning, which is represented by his currently assigned ratings, such do not render him unable to secure or follow a substantially gainful occupation, separately or in the aggregate. Therefore, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and a referral for extraschedular consideration for a TDIU is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.