Citation Nr: 21075752 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-25 416A DATE: December 21, 2021 ORDER Service connection for a right leg disorder, claimed as secondary to service-connected back and/or left hip disabilities, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. A right leg disorder is not caused or aggravated by service-connected back or left hip disabilities. 2. The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for service connection for a right leg disorder, claimed secondary to service-connected back and/or left hip disabilities, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to October 1984. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2019 and July 2021, the Board remanded the claims for additional development and they now return for further appellate review. 1. Entitlement to service connection for a right leg disorder, claimed as secondary to service-connected back and/or left hip disabilities. As an initial matter, the Board notes that the evidence does not show, and the Veteran does not contend, that his right leg disorder, currently diagnosed as peripheral vascular disease (PVD) (see November 2016 VA treatment record and November 2020 VA examination), had its onset during service or is directly related to any aspect of his military service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, he alleges such disorder is caused or aggravated by his service-connected back and/or left hip disabilities. In this regard, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). As indicated previously, the record reflects a current diagnosis of PVD of the right lower extremity, and the Veteran is service-connected for lumbar strain with progression to degenerative disc disease (DDD) of L3-4 and L4-5 and degenerative arthritis of the left hip. Thus, the remaining inquiry is whether his current right leg disorder is caused or aggravated by such service-connected disabilities. In this regard, pursuant to the April 2019 Board remand, the Veteran underwent a VA examination in November 2020, at which time the examiner opined that his right leg disorder was less likely than not proximately due to or the result of his service-connected back or left hip disabilities. As rationale for the opinion, she stated that the Veteran's right leg disorder, and back and left hip disabilities, were not medically related, and his right leg disorder was a separate entity entirely from his back and left hip disabilities. Additionally, the examiner indicated that a thorough review of the medical literature failed to demonstrate a causal relationship. However, as the November 2020 VA examiner did not address whether the Veteran's PVD resulted from an altered gait due to his back and/or left hip disabilities, or address whether such disorder is aggravated by his service-connected disabilities as requested in the April 2019 remand, the Board remanded the claim in July 2021 in order to obtain an addendum opinion addressing such matters. Thereafter, an addendum opinion was obtained from another VA examiner in September 2021. After a review of the record, the examiner opined that the Veteran's right leg disorder was less likely than not proximately due to, the result of, or aggravated by, his service-connected back or left hip disabilities. In support thereof, she reported that the Veteran's PVD, and lumbar strain with DDD and osteoarthritis of the left hip with an altered gait, were not medically related, and his PVD was a separate entity. Here, the examiner indicated that a thorough review of the medical literature failed to demonstrate a causal or aggravation relationship between such disorders. Additionally, she explained that the Veteran had a documented history of smoking 20 cigarettes per day (one pack) for 36 years, hypertension, and atherosclerosis, which were known medical causes of PVD. She further explained that the most common cause of PVD was atherosclerosis, and risk factors included age over 50 years, history of heart disease, male gender, family history, coronary artery disease, high cholesterol, hypertension, overweight, physical inactivity, and smoking. Here, the examiner noted that individuals who smoked or had diabetes had the highest risk of complications from PVD as such risk factors also caused impaired blood flow. The Board affords great probative weight to the September 2021 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the Veteran's statements and his medical history, and a provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. The Board also considered the Veteran's assertion that his right leg disorder is caused or aggravated by his service-connected back and/or left hip disabilities; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of PVD involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the cardiovascular system and how orthopedic disabilities of the back and left hip affect circulation. Thus, such matter may not be competently addressed by lay statements. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the etiology of his right leg disorder is not competent evidence and, consequently, is afforded no probative weight. Based on the foregoing, the Board finds that the Veteran's right leg disorder is not caused or aggravated by his service-connected back and/or left hip disabilities. Thus, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a right leg disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extra-schedular 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). 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); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." The Court also defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In Snider v. McDonough, No. 19-6707, (Vet. App. Nov. 19, 2021), the Court held the Board must address the Ray standard, i.e., whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities" to require referral of the issue of entitlement to a TDIU to the Director of Compensation under 38 C.F.R. § 4.16(b), prior to reaching the question of whether the Veteran's service-connected disabilities render him unemployable. Although VA did not receive the Veteran's Application for Increased Compensation Based on Unemployability (VA 21-8940), until February 1, 2011, the appeal period before the Board stems from receipt of the Veteran's claim for an increased rating for his service-connected back disability on November 24, 2010, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As of such date, the Veteran is service-connected for bipolar disorder, evaluated as 30 percent disabling prior to March 25, 2014, and 70 percent thereafter; lumbar strain with DDD, evaluated as 10 percent disabling prior to January 3, 2020, and 20 percent thereafter; degenerative arthritis of the left hip, evaluated as 10 percent disabling; limitation of extension of the right hip, evaluated as 10 percent disabling; limitation of flexion of the right hip, evaluated as 10 percent disabling; right hip thigh impairment, evaluated as 10 percent disabling; and right lower extremity radiculopathy, evaluated as 10 percent disabling as of September 8, 2015. Consequently, his combined rating is 60 percent prior to March 25, 2014, and 80 percent thereafter. Thus, he meets the schedular threshold for consideration of a TDIU as of March 25, 2014; however, prior to such date, he does not and, thus, a TDIU is only available on an extra-schedular basis. Therefore, the remaining inquiry is whether there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of such service-connected disabilities, such that the case may be referred to the Director of Compensation Service for extra-schedular consideration prior to March 25, 2014, and whether such disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of such date such that an award of a TDIU is warranted. With respect to the Veteran's education, his February 2011 VA Form 21-8940 reflects that he completed high school and two years of college. Such also reflects education or training in electronics technology. Additionally, at his October 2018 Board hearing, the Veteran testified that he had supervisory skills and had previously held a supervisory position. As pertinent to his work history, the Veteran indicated that he last worked full-time in 2004 as a framing carpenter and became too disabled to work in 2007. Such also reflects that he worked as a heavy equipment operator and in light labor. From 2005 to 2007, his type of work was varied as he worked as an electronic technician, in construction labor, and as a carpenter and truck driver. In February 2005, the Social Security Administration (SSA) found the Veteran to be disabled under Social Security Laws and Regulations due to osteoarthrosis and allied disorders, and human immunodeficiency virus (HIV) infection as of December 2004. However, the Board is not bound by SSA's findings, and moreover, the SSA decision is based on disabilities that are not service-connected, and thus, is afforded little probative weight in the Board's determination regarding entitlement to TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA); Martin v. Brown, 4 Vet. App. 136, 140 (1993). At his October 2018 Board hearing, the Veteran indicated he could no longer work because of his nerve pains, unpredictability related to his acquired psychiatric disorder, and immobility. In this regard, he indicated that he did not have the use of his legs to operate heavy equipment, such as an excavator crane, and his bipolar disorder affected his ability to work/be around people as he could become easily aggravated, and experience mood swings and a lack of impulse control. In regard to the functional impairment associated with the Veteran's service-connected disabilities, a May 2011 VA examiner found that his back and left hip disabilities resulted in limitations in ambulation, standing, running, exercising, and lifting. Another May 2011 VA examiner determined that, with respect to the Veteran's bipolar disorder, he was capable of working from a mental health point of view. Here, he indicated that the Veteran's symptoms were fairly well-controlled; he was in therapy on a regular basis; he would perform his work best if he were relatively isolated; and he would have difficulty working collaboratively with co-workers and superiors on a sustained basis. A March 2014 VA examiner indicated that the Veteran's back and bilateral hip disabilities did not impact his ability to work. Another March 2014 VA examiner noted that the Veteran's bipolar disorder resulted in occupational and social impairment with reduced reliability and productivity. A September 2015 VA examiner found that the Veteran's back disability with associated right lower extremity radiculopathy resulted in difficulty bending, and limitations with prolonged walking, standing, and climbing. A January 2020 VA examiner determined that the Veteran's: (1) left hip disability resulted in severe pain after walking for 5-10 minutes; and (2) back disability resulted in an inability to bend, lift over 5 pounds, or stand more than 5 minutes without severe pain. Based upon a review of the foregoing, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with her education and work history. In this regard, the record reflects that the Veteran's musculoskeletal disabilities limit him in regard to his ability to perform physical work, to include difficulty with bending and lifting, and prolonged standing, walking, and climbing. However, the Board finds the foregoing limitations would not interfere with the Veteran's ability to successfully secure and follow a substantially gainful occupation consistent with his education and work history in a sedentary position. In this regard, the Board notes that sedentary employment has the common meaning in society of non-physical, white collar, office-type work. Withers v. Wilkie, 30 Vet. App. 139 (2018). Specifically, given the Veteran's education, training, and experience, to include experience in supervisory roles, the Board finds that he is capable of performing the mental and physical acts necessary for the successful performance of such type of position as such do not require physically intensive activities and are performed while sitting or standing at a desk. In this regard, such would allow the Veteran to alternate between sitting and standing, and would not require that he stand for more than 5 minutes at a time, which the Board finds is consistent with the functional limitations associated with the Veteran's service-connected musculoskeletal disabilities as reflected by the medical and lay evidence of record. Additionally, VA examiners determined the Veteran's bipolar disorder symptomatology resulted in no more than occupational impairment with reduced reliability and productivity at any point during the pendency of the appeal. Here, although the Veteran clearly experiences functional impairment due to his bipolar disorder, and in fact, has been awarded a 70 percent rating since March 2014 in light of such impairment, such does not result in total occupational impairment. In this regard, the May 2011 VA examiner specifically considered the Veteran's reports of difficulty working/being around people due to his psychiatric symptomology, and found that he was capable to work from a mental health point of view and would perform his work best if he were relatively isolated. Further, VA treatment records throughout the appeal period reveal that VA clinicians have consistently found the Veteran was generally oriented to time and place, communicated well, and possessed good cognition. Moreover, the evidence of record reflects that the Veteran consistently participated in psychotherapy and was very active with NA and AA meetings, which reduced the severity of his psychiatric symptomatology. Based on the foregoing, the Board finds that, for the appeal period prior to March 25, 2014, there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities such that referral for extra-schedular consideration is necessary. Furthermore, the evidence does not show that such service-connected disabilities, either alone or in combination, rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history at any point during the appeal period. Consequently, the Board finds that referral for consideration of a TDIU on extra-schedular basis, and entitlement to a TDIU, is not warranted. As there preponderance of the evidence is against the Veteran's claim, there is no doubt to be resolved and such must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.