Citation Nr: 21072477 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 14-34 870 DATE: December 3, 2021 ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to compensation under 38 U.S.C. § 1151 for additional bilateral knee disability due to a fall at the Oklahoma City VA Medical Center (VAMC) in April 2011 is denied. Entitlement to compensation under 38 U.S.C. § 1151 for right arm paralysis due to improper treatment at the Oklahoma City VAMC is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a temporary total rating for neck surgery is denied. Entitlement to special monthly compensation (SMC) for loss of use of the right upper extremity is denied. Prior to November 3, 2017, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. FINDINGS OF FACT 1. There were no complaints or findings of a low back disorder in service and the Veteran does not currently have a low back disorder that was caused or aggravated by service, and arthritis was not manifested during the first post-service year. 2. The Veteran's fall on steps at the Oklahoma City VAMC in April 2011 is not a valid claim encompassed under the provisions of 38 U.S.C. § 1151; in any event, the Veteran does not have additional disability of either knee due to a fall. 3. The Veteran had C5 palsy in the right upper extremity after his September 2015 neck surgery, but there is no evidence that the additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault at the Oklahoma VAMC in diagnosing or furnishing treatment by any provider to include his primary care physician and the surgeon; the C5 palsy was an event that was reasonably foreseeable. 4. Throughout the appeal, the Veteran's bilateral hearing loss was manifested by no worse than Level III hearing loss in the right ear and Level II hearing loss in the left ear. 5. The Veteran's September 2015 neck surgery was not for a service-connected disability nor has he been awarded compensation under 38 U.S.C. § 1151 for residuals of the surgery. 6. The Veteran's service-connected hearing loss and residuals of left hand trauma are not manifested by deafness or loss of use of his left hand, and he was not awarded compensation under 38 U.S.C. § 1151 for the loss or loss of use of his right arm or hand. 7. Prior to November 3, 2017, the Veteran's service-connected disability met the schedular requirements for a TDIU, but the disabilities did not preclude him from securing or following substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for additional bilateral knee disability due to a fall at the Oklahoma City VAMC in April 2011 have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 3. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for right arm paralysis due to improper treatment at the Oklahoma City VAMC have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 4. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 5. The criteria for entitlement to a temporary total rating for neck surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 4.30. 6. The criteria for entitlement to SMC for loss of use of the right upper extremity have not been met. 38 U.S.C. §§ 1114, 5107(b); 38 C.F.R. §§ 3.350(a)(2), 4.3. 7. Prior to November 3, 2017, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to April 1974. This appeal to the Board of Veterans' Appeals (Board) is from August 2013, April 2015, and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran provided testimony during a hearing before the undersigned. A transcript of the hearing is of record. In May 2018, the Board remanded these matters. The Board also remanded the claim for entitlement to service connection for residuals of a left hand injury and for a psychiatric disability. Since rating decisions in March 2021 and May 2021, respectively, granted service connection for these issues, those claims are no longer before the Board. The Board also notes that an August 2021 rating decision granted a TDIU, effective November 3, 2017; however, since the Veteran's claim was raised in November 2014, the period prior to November 3, 2017 remains on appeal. 1. Entitlement to service connection for a low back disorder. VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish compensation for a present disability, a veteran must show: (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). In addition, service connection for certain chronic diseases, such as arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2017). Although these diseases need not be diagnosed within the presumption period, they must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the diseases to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran's military occupational specialty ( MOS ) in service was outside wire and antenna maintenance repairman. He contends that his current low back disorder is due to standing on ladders all day while working on towers while in service. He stated that his back was always sore in service. See November 2017 Hearing Transcript. The Veteran's service treatment records are silent for low back complaints, findings, or diagnosis. Notably, his March 1974 separation examination found no back abnormality and the medical history report showed he denied having recurrent back pain. See July 2000 and August 2014 STR Medical. The earliest available post-service medical records date back to 1984 but there was no reference to back problems until November 1999 when the Veteran reported he had been in a car accident in April 1995 that resulted in a low back injury. The clinician reviewed an MRI of the thoracic and lumbar spine that indicated there were no surgical lesions. The Veteran complained of radiating pain to the right lower leg and the assessment was chronic lumbosacral strain. A March 2001 treatment record also noted that the Veteran initially injured his low back in May 1995 and the assessment was chronic back pain status post motor vehicle accident five years prior. See May 2019 CAPRI records. A November 2012 CT urogram revealed prominent degenerative changes in the lumbar spine, with spinal canal narrowing due to disk osteophyte complex at the lumbosacral junction. See September 2014 CAPRI records. More recently, a November 2020 VA examination showed he was diagnosed with having lumbar degenerative disc disease, bilateral lower extremity radiculopathy, and spinal stenosis. See November 2020 C&P Exam. Based on the record, the evidence weighs against a finding of lumbar arthritis within the first year after the Veteran's separation from service since degenerative changes were not found until November 2012. Thus, service connection for arthritis as a chronic disease is not available under 3.307, 3.309(a). The Board also finds that there is no nexus evidence that links the Veteran's current low back disorders to his service. As noted, a VA treatment record indicated the Veteran's lumbosacral strain was due to a post-service motor vehicle accident and the November 2020 VA examiner offered an opinion that the diagnosed disorders were less likely than not related to service. The examining clinician noted that the Veteran's service treatment records were silent for complaints or diagnosis of thoracolumbar conditions and that the Veteran denied recurrent back pain during service on the April 1970 enlistment and March 1974 separation examinations. He also observed that medical records showed that the Veteran injured his lower back in April 1995 in a motor vehicle accident and that this contributed to the current symptoms. A March 2001 physical therapy outpatient note stated that the Veteran reported he had the motor vehicle accident in 1995 and was told he had three bulging discs in the lower spine. The Veteran also reported having radiation of pain down both legs. The clinician further noted that medical records also showed the Veteran had a 100 pack year history of smoking, which contributed to the development of spinal stenosis, and that smoking was well known in the medical community to cause vasoconstriction and narrowing of the blood vessels (Knuttson. Et al, 2018). Furthermore, heavy smoking was associated with a moderate risk of spinal stenosis (Knuttson. Et al, 2018). There was also no chronicity of treatment, since the Veteran's first documented back treatment was in 1995 after the accident, nearly 20 years after service. Age-related changes also contributed to the thoracolumbar conditions. See November 2020 C&P Exam. The VA examiner gave an accurate account of the Veteran's medical history and provided an opinion that was adequately supported by the rationale, so the Board finds the opinion probative. Notably, there are no opinions to the contrary. May 2013 correspondence from Dr. Ellis stated that the Veteran had a fall in 2011 at a VA facility that probably aggravated the Veteran's back, but the Veteran has not pursued a claim for compensation for the back under 38 U.S.C. § 1151 and his attorney acknowledged this fact during the November 2017 Board hearing. See November 2017 Medical Treatment Record Non-Government facility. Even though the Veteran's statements are inconsistent with what he reported on his separation medical history report, the Board acknowledges that he is competent to report having had a sore back in service. See Washington v. Nicholson, 19 Vet. App. 363 (2005); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Thus, if he had back pain, then it was not significant enough to report. He is not competent to link it to service as he does not have the medical training or experience to offer an opinion on whether such symptomatology is related to his current back disorders, particularly in light of the intercurrent injury. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Bruce v. West, 11 Vet. App. 405 (1998); Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Thus, the VA medical opinion is more probative. For the reasons stated, the Board finds that a preponderance of the evidence is against the claim, so service connection for a low back disorder must be denied. 1151 Eligibility In determining whether there is evidence of additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. However, a mere showing of additional disability following the receipt of VA care, treatment, or examination will not establish cause; the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in VA hospital care or medical or surgical treatment is established when such care or treatment caused the veteran's additional disability and VA either "failed to exercise the degree of care that would be expected of a reasonable health care provider" or furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1)(i), (ii). Alternatively, to establish that the proximate cause of a disability was an event not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. 38 C.F.R. § 3.361(d)(2). The event does not have to be "completely unforeseeable or unimaginable" but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." 38 C.F.R. § 3.361(d)(2); see Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). 2. Entitlement to compensation under 38 U.S.C. § 1151 for additional bilateral knee disability due to a fall at the Oklahoma City VA VAMC in April 2011. The Veteran stated that his shoe became caught on the bottom step of stairs at the Oklahoma VAMC and that he fell on his knees, landing first on the left and then the right knee. He contends that he has additional disability as a result of the fall and reported having pain and weakness as if his knees were going to give out. See November 2017 Hearing Transcript. Any injury the Veteran may have incurred as a result of falling on steps at a VA medical facility did not fall within the scope of a claim under 38 U.S.C. § 1151 because it did not involve carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in VA hospital care or medical or surgical treatment. In Viegas v. Shinseki, the Veteran fell in a VA bathroom when a handicap grab bar became loose from the wall. Although the Federal Circuit found that 38 U.S.C. § 1151 did not require a veteran's additional disability to be directly caused by the actual provision of hospital or medical care by VA employees, this case has limited application. They stated, "VA could not reasonably furnish hospital care or medical treatment to disabled veterans without also providing access to handicapped accessible restrooms" and noted that such bars are a necessary component of health care service VA provided because without such equipment veterans would not be able to take advantage of VA medical care. See Viegas v. Shinseki, 705 F.3d 1374, 1379 (Fed. Cir. 2013). In the present case, the Veteran's fall was not associated with any handicap related equipment, so it is outside the scope of a claim under 38 U.S.C. § 1151. Instead, there are other cases more appropriate to the current situation. In Sweitzer, the Court held that benefits under 38 U.S.C. § 1151 do not encompass an injury that was coincidental to an examination. See Sweitzer v. Brown, 5 Vet. App. 503, 506 (1993). In Loving, where a ceiling grate fell on a veteran's knee in the course of getting examined at a VA medical facility, the Court affirmed the Board's decision that concluded the Veteran's injury was due to an intervening cause, i.e., the falling grate, rather than any care or treatment he received at VA. See Loving v. Nicholson, 19 Vet. App. 96 (2005). It noted that the injury was coincidental to the examination rather than caused by it. Id. at 100. As suggested in Sweitzer, such claims are more appropriately raised under the Federal Tort Claims Act. See Sweitzer at 506. Notably, the Veteran in the present case did file a Tort claim. Even if the Veteran's claim was found to be valid, there is no evidence of additional disability when comparing the disability prior to the Veteran's fall and the disability after the fall. The Veteran's bilateral knee symptoms date back to June 2003 when he reported having arthritic pain in his knees. See March 2020 CAPRI records. Records in August 2009 show he reported having had bilateral knee pain for year and that it had worsened over the past few months. He had occasional mild knee swelling and while he denied locking, he reported that that his knees occasionally gave out on him. Bilateral knee X-rays showed mild narrowing of the medial joint space on the standing view of the right knee; the left knee appeared normal. See March 2020 CAPRI records. A March 2011 VA treatment record, prior to the fall, showed the Veteran reported having a lot of knee pain. See July 2021 Medical Treatment Record Furnished by SSA. Records show he was at the Oklahoma City VAMC on April 13, 2011 when he tripped and fell on stairs. See December 2012 Medical Treatment Record Government Facility. An April 13, 2011 VA treatment record shows that he asked to see his primary care physician after his fall. He had no complaints other than that he had fallen on his knees earlier. The physician found a superficial abrasion on the left knee that was without bleeding or discharge. There was also no laxity to stressing, effusion, or pain to palpation other than the abrasion. The right knee showed mild swelling over the distal medial aspect of the patella. There was no joint line tenderness and there was full range of motion without pain. All tests were negative for both knees and the assessment was that there had been a fall with bilateral knee pain. Knee X-rays were negative for fracture. See March 2020 CAPRI records. Other records in the file include an April 14, 2011 entry by the Patient Safety Manager that noted a brief description of the fall and that the Veteran had a left knee strain, and a May 10, 2011 record that indicated the Veteran's knees hurt but he was not sure if it was radiation from his back pain. See July 2021 Medical Treatment Record Furnished by SSA. A May 2012 tort claim showed the Veteran reported that he still had problems with his knees. See July 2021 Medical Treatment Record Furnished by SSA. In May 2013, the RO obtained a VA opinion to essentially determine if the Veteran had any worsened or additional knee disability due to the fall, and the opinion was that it was less likely than not. The clinician noted that the Veteran had an almost 30 year history of knee pain and he reported it had gradually worsened. The clinician noted the complaints and findings on April 13, 2011 as well those on April 14, 2011 and May 10, 2011 (for clarification purposes, the Board notes that the clinician incorrectly identified year of the latter two records as 2013 instead of 2011). The clinician commented that there were no further follow up visits for knee problems since that date in VAMC records. Health records indicate that the Veteran was in a car accident in April 1995 when he injured his right knee. Health records in August 2009 indicate he complained of bilateral knee pain and that X-rays indicated he had bilateral degenerative arthritis. It was documented that the Veteran had chronic knee pain several years prior to the fall and had degenerative arthritis in his knees prior to the fall. Following the fall, he had a very superficial abrasion that did not require any special precautions besides Tylenol. X-rays were negative. The Veteran continued to attend VAMC for various medical concerns within days and months of the fall, but the knee condition has not been an area of main concern on any of the subsequent visits, which indicated the fall did not cause or worsen his knee condition in any way. See May 2013 VA Examination. The VA examiner offered an accurate account of the Veteran's medical history and offered a probative opinion that was adequately supported by a rationale. The examiner showed that even two years after the fall the Veteran's pre-existing bilateral knee arthritis had not worsened or that there was evidence of additional knee disability. The Board finds the opinion is very probative. With regard to the May 2013 private evaluation, Dr. Ellis diagnosed bilateral knee arthritis and stated the Veteran's fall did not cause it but probably aggravated the Veteran's chronic knee pain. The physician also stated that the Veteran was currently asymptomatic. See November 2017 Medical Treatment Record Non-Government Facility. The physician's opinion has diminished probative since the clinician did not offer any support or explanation for his conclusion that the knee pain was aggravated. To the extent his knee pain was aggravated due to the fall, the Board finds it did not amount to additional disability. As VA explained and as shown in the record, there was no real evidence of worsening pain or other symptomatology immediately after the initial injury. In November 2017, the Veteran testified that since the fall he had pain and, at times, swelling or weaking that felt like his knee would give out, but the record showed that these same symptoms were reported prior to the April 2011 fall, as he complained of these symptoms in August 2009. In April 2017 he had additional right knee pain, but this was associated with increased activity. See May 2019 CAPRI records. In short, a preponderance of the evidence is against finding that the Veteran's fall at the VAMC on April 13, 2011 resulted in additional disability, to include worsening of his pre-existing bilateral knee arthritis. There was no substantial change in the quality or severity of his knee disorder prior to the fall to after the fall. In May 2011, when he reported that that he was unsure if his knee pain was radiation from his back, the Veteran's primary care physician instructed him to notify the physician if his symptoms persisted or worsened, and there is no record that the Veteran did so. See September 2014 CAPRI records. For these reasons, the claim is denied. 3. Entitlement to compensation under 38 U.S.C. § 1151 for right arm paralysis due to improper treatment at the Oklahoma City VAMC. The Veteran is also seeking compensation under 38 U.S.C. § 1151 for a right arm disability on the basis that his VA physician did not timely diagnosis or treat his neck disorder and that the delay led to his right arm paralysis. During the November 2017 hearing, the Veteran testified that he had neck surgery in September 2015. Before the surgery, he had no problem with either arm but after he woke up from the surgery his right arm was "dead." He reported having physical therapy for six months after the surgery and that he has since gotten some use but not all use of his arm back. Although he was told he should have use of his arm in two years, he was at the point where he had a little use of the arm and no strength. He has gone from having total paralysis to partial paralysis and could not lift his arm over his shoulder. The Veteran did not blame the surgeon for his paralysis; instead, he blamed the physician for ignoring the problem. See November 2017 Hearing Transcript. The Veteran's claim essentially must show that VA failed to treat or diagnose a disorder, a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and that the Veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. As for the threshold requirement, the evidence shows there was additional disability after the September 30, 2015 neck surgery. In August 2015, the Veteran had an orthopedic surgery consult due to a history of bilateral hand numbness and weakness for more than seven years that had worsened during the past two to three years. The examination revealed weak grips, bilateral hand intrinsic atrophy, and diminished sensation in both hands. Studies/radiographs revealed severe stenosis C4-C6, moderate stenosis C3-C4, and cord signal changes. See March 2020 CAPRI records. An August 2015 treatment record shows the Veteran was interested in surgical intervention, so the surgeon discussed with him all risks and benefits, to include alternatives to surgery. Risks included but were not limited to death, loss of limbs, stroke, infection, joint/range of motion limitation, DVT and embolic complications, potential for surgery failure, neurological injury, dural tear, spinal palsy, pneumonia, blindness, and loss of functionality. The Veteran was aware of the risks, understood them, and wanted to proceed. The September 30, 2015 operation report again showed the benefits and risks of the surgery were discussed with the Veteran and his wife, which included, but not limited to, bleeding, infection, neurological injury, nonunion and need for repeat surgery, C5 nerve root palsy leading to shoulder weakness, wound healing problems, DVT, pulmonary embolism, stroke, prolonged ICU stay, pneumonia, urinary infection, blindness, and even death. He understood the risks and wished to proceed. See July 2021 Medical Treatment Records Furnished by SSA. The day after his surgery, an October 1, 2015 treatment record showed that he stated he was doing well except that he could not lift his right shoulder, which was his strong arm. The Veteran also stated that he had a posterior neck "pull" when he tried to lift his right arm; he denied pain, paresthesia, and tingling. He was unable to abduct past 40 degrees. An addendum showed he reported he had been able to lift his shoulder the previous night but not currently. The assessment was pure motor unilateral deltoid involvement that indicated C5 palsy. An October 2, 2015 treatment record noted only a little improvement in right upper extremity weakness. An MRI noted status post C3-C6 posterior interbody fusion and revealed the spinal canal was unroofed at the same levels. Cord atrophy was seen at these levels and there was abnormal cord signal seen at the C5-C6 level. Findings were likely due to previous cord insult. The clinician noted that wound healing and physical therapy would hopefully resolve the palsy. An addendum noted the Veteran was advised that smoking cessation was important and that he was to wear his neck collar at all times. An October 13, 2015 treatment record noted the Veteran was instructed to continue to wear his cervical collar for another four weeks. See March 2020 CAPRI records. The Veteran started occupational therapy on October 20, 2015, and the record noted he had deficits in opening containers, bathing, sleeping, and driving. His pain was 8/10 and he was essentially unable to use his arm. Active range of motion on the right was flexion to 30 degrees, extension to 20 degrees, and abduction to 10 degrees, and he had impaired internal and external rotation. The clinician noted that the Veteran was alone and had driven himself there from his home, which was over 40 miles away. He was not wearing his cervical collar and did not have the collar with him. The Veteran had his last occupational therapy appointment on June 16, 2016. Active range of motion on the right showed flexion to 110 degrees, extension to 60 degrees, and abduction to 115 degrees, and he had impaired external and internal rotation. The Veteran reported good gradual gains but still had pain. He continued to attempt to use his arm more and had more pain with heavier tasks. The Veteran felt that he currently functioned well below shoulder level. He was discharged at the end of the session with a 24 week home exercise program. See March 2020 CAPRI records. The evidence, to include the December 2015 opinion of a VA physician, indicated the Veteran had some C5 nerve palsy after to his surgery. See December 2014 C&P Exam. Thus, the threshold element of additional disability is shown. As for whether that additional disability was due to delayed diagnosis or treatment of the Veteran's cervical spine disorder, the evidence weighs against the claim. In December 2015, a VA physician reviewed the Veteran's records and offered opinions that the claimed disability was less likely than not caused and/or worsened as a result of VA treatment at issue; there was no additional disability due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the attending VA personnel; there was no additional disability that could not have been reasonably foreseen by a reasonable healthcare provider; and that it was less likely than not that there was a failure on the part of VA to timely diagnose and/or properly treat the claimed disease/disability that allowed the disease/disability to continue to progress. According to the clinician, the documentation indicated that due to the severity of the cervical stenosis, prior to surgery, the Veteran had been informed and appeared to understand that there was a risk of C5 nerve palsy. Subsequently, the Veteran did develop the right arm C5 palsy postoperatively. Improvement in the left arm and in other areas was satisfactory. There was no lack of skill or faulty care on the part of the surgeons evident in the treatment records. The physician found that the C5 palsy was an unfortunate but expected risk of the procedure. See December 2015 C&P Exam. The Board finds the above opinion is very probative and consistent with the record. The finding that the C5 palsy was a foreseeable consequence of the Veteran's surgery is consistent with record since and August 2015 treatment record and the operation report specifically stated the Veteran was informed that it was a risk. In April 2018 correspondence, Dr. Ellis noted the Veteran's neck injury in the 1984/85 time period and what he observed in the previous examinations in May 2013 and October 2014. He indicated that, prior to the surgery, the Veteran bought a new house and put in new floor joints and was preparing to install plywood despite the objective weakness and numbness in his upper extremities. The Veteran had been able to move his arms and though there was weakness on movement he was able to drive with both hands. The Veteran reported that within a few days after the September 30, 2015 surgery that he had marked weakness down his right arm and was unable to move his right arm. He could no longer drive or use a hammer with his right hand and could not elevate his right shoulder. His left upper clavicle began to protrude after the neck surgery when it had not done so before the surgery. He opined that it was more likely than not that the Veteran needed surgery much sooner than September 30, 2015 and it was more likely than not that the delay in doing the surgery on his neck made him more prone to develop more impingement of the spinal nerves down his right arm. There was slight improvement on the left side after the surgery but the spinal nerves on the right were already being impinged when he had the surgery. Dr. Ellis then provided exam findings for the cervical spine and extremities and then he went on to state it was his medical opinion that the impairments and disabilities set forth in the report were more likely than not due to and a consequence of the Veteran's military service. See July 2021 Medical Treatment Records Furnished by SSA. The Board finds that the private opinion is less probative than the VA opinion. Dr. Ellis did not acknowledge or address evidence that C5 palsy was a foreseeable risk of the surgery, which was noted twice in the record prior to the surgery. His correspondence also contained inaccurate evidence where he reported the Veteran stated he had a protrusion to the clavicle that was not present prior to his surgery, since a July 2015 record showed he reported that his collar bone was sticking out more. See May 2019 CAPRI records. He also indicated the Veteran was unable to drive due to the disability; however, the occupational therapy records show he drove himself to the appointments. The Board also notes that with regard to the delay in surgery, the physician did not appear to consider evidence in 2006 that indicated the neurosurgery department did not want to perform surgery until after the Veteran stopped smoking and that he continued to smoke two packs a day for years. The Board also notes that the physician also offered an opinion that the right arm disorder was directly related to service even though the Veteran had not raised a claim for service connection, and there is no evidence in support of such assertion. The Board also finds that the substance of the Veteran's claim, as asserted in his November 2017 testimony, is not supported by the record and it is, in fact, inconsistent with the evidence. The Veteran asserted that his primary care physician did not do anything about his symptoms and that after he filed a lawsuit, he was given a new physician who gave him an MRI. The new doctors showed him that the nerves were dead in his neck due to waiting. He complained about his neck for a long time but was only told to take medicine. See November 2017 Hearing Transcript. The Veteran fell in April 2011 and his tort claim was filed in May 2012. The record shows he had neck complaints in June 2003 and hand complaints as early as June 2005, so there was some evidence of neck and hand problems years before his surgery. See March 2020 CAPRI records and July 2021 Medical Treatment Record Furnished by SSA. The Veteran was assigned a new primary care physician in January 2006 who then ordered a series of tests, which was six years before his tort claim. A March 2006 EMG showed severe acquired spinal stenosis superimposed on congenital spinal stenosis; atrophy of spinal cord extending from C4-C6 and myelomalacia at C4-C5; degenerative spondylosis with multilevel neural foraminal stenosis; and multilevel cord compression affecting C4-C5. March 2006 X-rays of his cervical spine showed significant osteoarthritis in the neck. An April 2006 MRI of the neck revealed severe spinal stenosis with cord compression and even some atrophy of the spinal cord from C4-C6. As shown, the Veteran's neck disorders were diagnosed several years prior to surgery and as a result of the findings he was referred for a neurosurgery consult. An April 2006 neurosurgery consult showed he was seen for evaluation of an abnormal cervical spine MRI. The Veteran reported intermittent neck pain since 1984 that worsened after a motor vehicle accident in 1985. Over the past two years, he developed numbness and weakness and muscle wasting in his hands with the left greater than the right. He had a history of smoking two packs a day for the past 36 years. The clinician noted the Veteran reported that either he or his primary care physician would notify the neurosurgery clinic once he completely quit smoking so that further evaluation for cervical decompression/ulnar release/CTR could be done. The Veteran saw his primary care physician later that same day and she noted that the Veteran originally told her that he thought that neurosurgery told him there was nothing that could be done to help his neck. His physician reviewed the neurosurgery note and saw that it revealed the following statement: "-PT OR HIS PCP WILL NOTIFY NS CLINIC ONCE HE HAS COMPLETELY QUIT SMOKING SO THAT FURTHER EVAL FOR CERVICAL DECOMPRESSION/ULNAR RELEASE/CTR CAN BE DONE." She advised him to stop smoking. See March 2020 CAPRI records. A July 2006 treatment record showed that he continued to smoke two packs per day. The Veteran indicated that nothing had helped him in the past and he currently did not want to quit smoking. An April 2008 assessment noted the Veteran had a neurosurgical consult in 2006 and that he was advised to quit smoking for six months and then return for surgical consideration but that he continued to smoke. An October 2008 interdisciplinary evaluation showed that the Veteran presented with complaints of numbness in both ring and little fingers, and neck pain. He reported having had an accident in 1984 while trying to fix the engine of a truck. The hood of the truck hit him in the neck twice with his face pinned against the engine. Since then, he noticed a progressive numbness of both little and ring fingers in both hands. He had EMGs in 2006 and was found to have CT Syndrome. In March 2009, the Veteran reported a desire to quit but nothing had helped. He knew he needed surgery but could not get it as long as he was smoking and overweight. Shortly after this, he was assigned another primary care physician. An April 2009 note from his new physician stated that the Veteran had known spinal cord injury with cervical spinal stenosis. Surgery has been deferred due to continued nicotine use and obesity. The Veteran continued to have paresthesias in both hands. Treatment records in June 2010 and April 2011 showed he had no interest in trying to quit tobacco. See March 2020 CAPRI records. Thus, contrary to his assertion that his symptoms were ignored, the records from 2006 to 2009 show the Veteran knew surgery was an option and that it was put off due to his weight and smoking history. The Veteran was seen in July 2014 by a new primary care physician who noted the Veteran complained of neck pain, throbbing, and aching with moderate to severe radiating to arms, and numbness of hands, more with raising arms high and that it was better with naproxen and tramadol. The physician indicated the Veteran wanted to get an MRI of his neck to know if he needed surgery; he did not want physical therapy. See September 2014 CAPRI records. This record showed that in addition to surgery, the Veteran has the option of physical therapy, which he declined. An April 2015 cervical spine MRI showed slightly progressed severe degenerative changes within the cervical spine with an area of evolved abnormal T2/STIR signal within the cord between C4 and C6. There was associated volume loss, favoring myelomalacia. There was critical canal stenosis with significant displacement and flattening of the cord at C4-C5 that was stable dating back to 2008. Severe neural foraminal narrowing was noted at all levels between C2 and C7. The record noted that he saw neurosurgery in the past and a neurology consult was requested to see if he needed an epidural injection or neurosurgery. See March 2020 CAPRI records. The July 2015 neurology consult indicated the history of the Veteran's cervical stenosis was reviewed with him. The clinician noted that the Veteran had been to the spinal cord injury clinic in 2006 but had no follow-up appointment made and that he would be presented to the spine conference for review for surgical consult vs re-enrollment in the spinal cord injury clinic. An August 2015 treatment record showed he had reduced his smoking to one pack per day. The Veteran had an orthopedic surgical consult in August 2015 and the assessment was that he had progressive symptoms and advanced signs of cervical myelopathy with cord signal changes and that he would benefit from cervical decompression and fusion. He was counseled to quit smoking and surgical options were discussed to which the Veteran agreed. He was not cleared for surgery, but it was to be expedited to within four to six weeks. As the record showed, the diagnoses of the Veteran's cervical spine disorders did not correspond to when he filed a lawsuit or with a change in doctors. Instead, his diagnoses date back to 2006 when his complaints were investigated, and testing was completed to determine the cause. Upon establishing a diagnosis, surgery was considered an option at that time, but he was advised to first quit smoking which he did not do. Thus, he was aware for several years that surgical intervention was an option but not desirable until he stopped smoking. He also declined physical therapy. While it is true that the Veteran was treated with medication only, his assertion that VA healthcare providers ignored his symptoms and delayed in diagnosis him are inconsistent with the record. In short, the December 2015 opinion found no evidence of carelessness, negligence, lack of proper skills, error in judgment or similar instance of fault on the part of the attending VA personnel, to include his primary care physicians and his surgeon, and that the C5 palsy was a foreseeable result of the surgery. The Board finds that opinion is based on an accurate understanding of the medical history and is adequately supported, so it is probative. Since a preponderance of the evidence is against the claim, compensation under 38 U.S.C. § 1151 is denied. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The criteria for rating hearing impairment requires the consideration of the results of examinations using controlled speech discrimination tests (Maryland CNC) with the results of pure tone audiometry tests. The results are charted on Table VI and Table VII, as set forth in the Rating Schedule. In order to establish entitlement to a higher rating for hearing loss it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. 38 C.F.R. § 4.85. Hearing tests will be conducted without hearing aids. An exceptional pattern of hearing impairment exists when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. When this occurs, a different method for rating hearing loss may be used involving Table VIa. 38 C.F.R. § 4.86. 4. Entitlement to a compensable rating for bilateral hearing loss. The Veteran contends that his hearing loss should have been assigned a compensable rating. In November 2017, the Veteran testified that he could not hear his wife when she was speaking from a different room or hear his dogs when they are outside. See November 2017 Hearing Transcript. On November 2012 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 40 50 60 LEFT 45 45 45 55 70 The average pure tone threshold was 48 in the right ear and 54 in the left ear. The Maryland CNC speech recognition score was 96 in the right ear and 92 in the left ear. The Veteran reported that he had trouble hearing instructions and that he could not hear noises when his car or truck was malfunctioning. See November 2012 VA Examination. When the results of the VA examination are input into Table VI, the Veteran is shown to have Level I hearing impairment in both ears. Where these two levels intersect on Table VII shows that a zero percent rating is assigned. On May 2019 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 40 45 65 LEFT 25 30 35 45 70 The average pure tone threshold was 46 in the right ear and 45 in the left ear. The Maryland CNC speech recognition score was 82 in the right ear and 86 in the left ear. The Veteran reported having difficulty understanding speech in quiet, noise, on the telephone, and the television. See May 2019 C&P Exam. When the results of the VA examination are input into Table VI, the Veteran is shown to have Level III hearing impairment in the right ear and Level II hearing impairment in the left ear. Where these two levels intersect on Table VII shows that a zero percent rating is assigned. While the Board acknowledges that the Veteran's bilateral hearing loss offers some challenges in communication and even some decrease in hearing when the 2012 findings are compared to the 2019 findings, his hearing evaluations do not demonstrate his hearing loss is at a compensable level at any time during the appeal. Further, the record does not show that his hearing loss affects him in a way not contemplated by the rating criteria. Thus, a preponderance of the evidence is against the claim, so the appeal for a higher rating must be denied. 5. Entitlement to a temporary total rating for neck surgery. The Veteran seeks a temporary total (100 percent) rating for a period of convalescence after his September 2015 neck surgery. During the hearing, the Veteran's attorney noted the Veteran's contention was that if compensation was granted for the right arm disability then he should be awarded convalescent benefits for the neck surgery since the two were related. See November 2017 Hearing Transcript. A temporary total rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that treatment of one or more service-connected disabilities resulted in surgery necessitating at least one month of convalescence; surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. Since the Veteran is not service connected for a neck or right arm disorder and compensation for a right arm disorder was denied under 38 U.S.C. § 1151, there is no legal basis for awarding a temporary total rating for convalescence. According, the claim is denied. 6. Entitlement to SMC for loss of use of the right upper extremity. The claim for SMC is also based on the claim involving partial paralysis of the right arm. See November 2017 Hearing Transcript. SMC under 38 U.S.C. § 1114(k) is payable, in pertinent part, if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of various body parts, including one hand. 38 C.F.R. § 3.350(a). In the present case, the Veteran's service-connected disabilities consist of posttraumatic stress disorder (PTSD), tinnitus, traumatic arthritis of the left hand, and bilateral hearing loss. His right arm paralysis is not service connected and compensation under 38 U.S.C. § 1151 was denied. Since he only attributed his claim to the right arm disorder, there is no legal basis to grant the claim. Although under the same regulation SMC can also be granted for deafness, his service-connected hearing loss is not severe enough to have resulted in deafness as evidenced by the VA examinations previously discussed. Furthermore, the evidence shows his service-connected left hand disability did not lost the use of his left hand. An October 2010 VA examination show he had limitation in dorsiflexion and painful motion, but he could tie his shoelaces and fasten buttons with his left hand. X-rays showed minimal degenerative arthritis. See December 2010 C&P Exam. October 2015 treatment records also showed he had full grip strength in the left hand and in January 2016 his left upper extremity was 4+/5 overall. See May 2019 and March 2020 CAPRI records. On February 2021 VA examination, the Veteran had left hand flare-ups that were moderate in severity and they lasted from a few minutes to hours. The left hand flare-ups were precipitated by holding a steering wheel and pushing a lawn mower, and they were alleviated by rest. His functional loss was difficulty with his hand grip., which was 3/5. There was no ankylosis in his fingers. See February 2021 C&P Exam. There is no indication from the record that he had no use of his left hand. For the reasons stated, the Board finds SMC must be denied. 7. Prior to November 3, 2017, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the veteran can find employment generally, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. In August 2021, the RO granted a TDIU based on a November 2020 VA examination that found he had difficulty twisting and turning his neck even though the Veteran did not and does not have a service-connected neck disability. See August 2021 Rating Decision Narrative. The award was effective the date of the hearing when TDIU was discussed. However, since the Veteran filed his claim for TDIU in November 2014, the period prior to November 3, 2017 has remained on appeal. The Veteran's only service connected disabilities are PTSD, rated 70 percent disabling; tinnitus, rated 10 percent disabling; traumatic arthritis of the left hand, rated 10 percent disabling; and bilateral hearing loss, which is assigned a zero percent rating. The combined rating for those disabilities has been 80 percent since May 2012, so the schedular requirements for a TDIU are met. During the November 2017 hearing, the Veteran stated that he last worked in January 2006. At the time he had been a backhoe operator and had difficulty operating the equipment when his right leg went numb, and he had difficulty grabbing levers with his hands. See November 2017 Hearing Transcript. Notably, the Veteran does not have a service-connected right leg disability. In April 2006, the Veteran reported that he quit his job as a backhoe operator in January 2006 due to carpal tunnel syndrome. He had also worked as an apprentice plumber and truck driver for the past three years. See March 2020 CAPRI records. The Board observes that the Veteran's carpal tunnel syndrome is not service connected. In April 2009, the Veteran reported that he joined the Air Force after he completed high school and that his MOS was installing communication towers. His primary occupation after the military was as a backhoe operator and he remained at this job until he retired in 2006. The Veteran also reported completing approximately 96 hours of college classes, attended two vocational technical schools, and was a volunteer fireman. See March 2020 CAPRI records. In October 2014, a private physician evaluated the Veteran and offered an opinion on the Veteran's employability. Dr. Ellis noted that the Veteran developed spinal stenosis with severe atrophy of the thenar eminence of the thumb of both hands; severe weakness in both hands; and numbness in both hands, thumbs and fingers, especially the middle, right, and little fingers of both hands. He noted the Veteran fell at a VAMC in 2011 and that he still had back pain along with numbness and weakness in both legs. He also had some right knee swelling. Dr. Ellis stated that the combination of the spinal stenosis in the Veteran's neck with weakness of his arms; severe injuries to the left hand involving the index, middle, ring, and little fingers; back injury; and PTSD have rendered the Veteran unable to work in sustained gainful employment since January 2006. The right finger did not have as much difficulty, but the little finger developed ankylosis and the Veteran remained unemployable. His examination indicated that the greater grip strength loss in the left hand was due to decreased range of motion of the left index and middle fingers and ankylosis in the little finger in the PIP joint at 36 degrees of flexion and DIP joint at 6 degrees of flexion. See November 2014 Medical Treatment Record Non-Government Facility. Since Dr. Ellis offered an opinion that considered both service connected and nonservice-connected disabilities and even though he included PTSD as a disability contributing to unemployability the clinician did not note any PTSD symptoms and how they impacted the Veteran socially or occupationally. In short, Dr. Ellis did not adequately explain how the service-connected disabilities rendered the Veteran unemployable, so the opinion has no real probative value in determining the Veteran's unemployability based solely on service-connected disabilities. The Veteran's VA examinations in November 2012 and May 2019 showed that his hearing loss and tinnitus, which are service connected, caused some difficulty in hearing in certain environments or under circumstances, but the impact was not shown to be so severe that it would have a significant impact on his ability to perform adequately in jobs consistent with his education and his previous occupations. His service-connected left hand disability was shown to have no significant impact on his ability to work. On February 2021 VA examination, the Veteran reported having left hand flare-ups that were moderate in severity and lasted from a few minutes to hours. The left hand flare-ups were precipitated by holding a steering wheel or pushing a lawn mower and they were alleviated by rest. Functional loss involved difficulty with his hand grip. The examination showed his hand grip strength was 3/5 and there was no ankylosis in his fingers. The clinician found there was no functional impact on the Veteran's ability to perform occupational tasks. The examiner also noted that the Veteran was right hand dominant. See February 2021 C&P Exam. The Veteran is compensated at a 10 percent rating for his left hand. His service-connected PTSD is rated 70 percent disabling and despite the high rating the RO assigned, the Board's review of the evidence indicates that the disability is not so severe that it precludes the Veteran from engaging in substantial gainful employment. On August 2013 VA examination, he reported that he volunteered a couple of hours a week at a food bank. The clinician noted that treatment providers indicated his symptoms were depression and anxiety. The Veteran was on medication and participated in biofeedback sessions to reduce anxiety. He avoided activities that increased his anxiety. One son lived with him, but they did not get along. He had a generally positive relationship with his wife, siblings, and parents and demonstrated a fair ability to maintain relationships with employers in the past. He reported working as a truck driver for four years and as a volunteer fireman as an assistant chief for 16 years. See August 2013 VA Examination. In December 2015, the Veteran reported that his medication for insomnia and nightmares worked well. The Veteran reported that the medication he took for his symptoms kept him stable. See May 2019 CAPRI records. Treatment records, such as those in July 2014, December 2015, June 2016, and April 2018, showed the Veteran symptoms were primarily sleep impairment with nightmares, depression, and anxiety. They also showed he received ongoing treatment for anxiety through bio feedback and he continued to be on medication for his other symptoms. See September 2014, May 2019, and March 2020 CAPRI records. Mental status examinations in December 2015, October 2016, October 2017, and April 2018 revealed nothing unusual was noted for speech, thought content, or thought process. He was cooperative and answered questions appropriately, and his affect was consistently euthymic. His judgment and insight were good. See May 2019 CAPRI records. In November 2018 his memory, insight, and judgment were good. See March 2020 CAPRI records. The Board finds nothing in his treatment records, during the period pertinent to the appeal, that suggests the Veteran's PTSD would produce any significant mental or physical impairment in his ability to work in any of his former occupations. He did not leave any of his former jobs due to his PTSD or any other service-connected disability. The August 2013 VA examiner indicated that the severity of the Veteran's disability was only productive of 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 the hearing, he stated that his PTSD made him grouchy and nervous, but his symptoms were not shown to be severe enough to preclude employment consistent with prior jobs or that would be attainable for someone with two years of college. He was generally able to maintain good relationships with family and there is nothing that suggests his symptoms result in him having significant difficulty being around people, communicating with others, or cause problems with supervisors to the point where it would jeopardize employment. Furthermore, medication has also been shown to effectively manage his symptoms and keep them stable. Based on the above and in consideration of his prior employment and level of education, the record shows that either singularly or in combination, the Veteran's service-connected disabilities do not produce sufficient impairment to preclude him from substantial gainful employment. Since a preponderance of the evidence is against the claim, a TDIU is denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.