Citation Nr: 21007420 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-02 792 DATE: February 9, 2021 ORDER Service connection for a left shoulder disability is denied. Service connection for a right shoulder disability is denied. Service connection for a back disability is denied. Service connection for a neck disability is denied. A total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not have a current left shoulder disability. 2. The Veteran’s current right shoulder disability is not related to her ADT. 3. The Veteran’s current back disability neither manifested during nor is related to her ADT. 4. The Veteran’s current neck disability neither manifested during nor is related to her ADT. 5. The Veteran’s service-connected disabilities have never been severe enough to render her unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 4. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1101, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 5. The criteria for a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ADT) from February 1980 to June 1980. This matter is on appeal from a May 2012 rating decision. In January 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board of Veterans’ Appeals (Board). The Board remanded all issues comprising this matter for additional development in November 2017. Then in September 2019, the Board granted service connection for bilateral hearing loss and tinnitus. Those issues accordingly are no longer on appeal. All other issues once again were remanded for additional development. As a result, an August 2020 rating decision granted service connection for a psychiatric disorder. That issue thus is no longer on appeal. Adjudication may proceed at this time with respect to all issues remaining on appeal. Service Connection Veteran status must be established before service connection may be granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). It is established with respect to a period of ADT when an injury or disease was incurred or aggravated during that period. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Service connection already has been granted for tinnitus and for bilateral hearing loss, in addition to for a psychiatric disorder, based on the Veteran’s ADT. Her Veteran status thus is established. Hill v. McDonald, 28 Vet. App. 243, 252 (2016). Service connection will be granted for a disability resulting from an injury or disease incurred or aggravated during active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection accordingly is established when there is a current disability, an injury or disease incurred or aggravated during active military, naval, or air service, and a nexus between them. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Active military, naval, or air service includes any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24)(B); 38 C.F.R. § 3.6(a). When the current disability is a chronic disease per 38 C.F.R. § 3.309(a), service connection is presumed under certain circumstances. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption does not apply to periods of ADT, however. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). Yet service connection still may be established when the chronic disease manifested during and after active military, naval, or air service without an intercurrent cause. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Continuity of symptomatology is required only if it was noted but not chronic or chronicity was questionable during active military, naval, or air service. Id. The claimant is afforded the benefit of the doubt when there is an approximate balance of positive evidence supporting a claim and negative evidence refuting it. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The applicable standard regarding service connection therefore is at least as likely as not. Finally, all evidence must be reviewed but discussion of only the most relevant evidence is required. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Left Shoulder Disability The Veteran contends she has a left shoulder disability as a result of running, marching, and carrying heavy backpacks during her ADT. She alternatively contends she has such a disability due to the “amount of work and stress” she was placed under during her ADT. To grant service connection, the first criterion that must be established is a current disability. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A disability qualifies as current if present near or at the time a claim is filed or at any time during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed an informal claim in April 2011, followed by a formal claim in May 2011. There is no indication from the available medical evidence that she was diagnosed with a left shoulder problem from any point near then to present. Indeed, none of the Veteran’s private treatment records reference her left shoulder. She does not have VA treatment records. The Social Security Administration (SSA) also has no medical records concerning her. Regarding lay (non-medical) evidence, only the Veteran’s complaints of substantial pain and spasms exist. She is competent to make these complaints because such symptoms would be personally experienced by her. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Her credibility in making them further is undisputed. Yet her complaints lack detail. They also are not specific to her left shoulder and instead concern her shoulders (left and right), back, and neck all together. As such, they are too vague to be very useful. The Veteran indeed did not diagnose herself was a simple and readily observable left shoulder disability, like a dislocation, as lay persons are competent to do. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). A symptom significant enough to result in functional impairment in earning capacity qualifies as a disability even absent a diagnosis. Wait v. Wilkie, 33 Vet. App. 8, 17 (2020); Saunders v. Wilkie, 886 F.3d 1356, 1367-1368 (Fed. Cir. 2018). Once again, however, the Veteran’s statements are too vague to ascertain that she has left shoulder symptoms which do so. She did not discuss how her substantial pain and spasms impact her ability to work. She noted in her formal clam only that she is unable to work due to numerous disabilities including her shoulder, but she did not specify which shoulder. Even assuming she meant the left shoulder, she did not discuss the significant symptoms experienced in it or how they impact her ability to work. In her notice of disagreement, the Veteran even more generically noted only that she is unemployable due to disability. She did not reference any specific body part, symptom, or impact on her ability to work. In sum, the Veteran has not been diagnosed with a current left shoulder disability or provided sufficient reports concerning her left shoulder to conclude she has such a disability. A VA medical examination has not been performed, as the duty to assist does not mandate one in this situation. 38 U.S.C. § 5103A(d)(2)(A); 38 C.F.R. § 3.159(c)(4)(i)(A); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds based on the preponderance of the evidence that the Veteran currently does not have a left shoulder disability. Service connection for such a disability accordingly is denied. Right Shoulder, Back, and Neck Disabilities The Veteran contends she has right shoulder, back, and neck disabilities as a result of running, marching, and carrying heavy backpacks during her ADT. She alternatively contends she has such disabilities due to the “amount of work and stress” she was placed under during her ADT. Unlike above, it is undisputed that she has current right shoulder, back, and neck disabilities. July and August 2011 private treatment records and statements contain diagnoses of right shoulder bursitis and impingement as well as lumbar and cervical spondylosis. A November 2019 private treatment record additionally reflects multilevel degenerative changes in the Veteran’s lumbar spine. While the amount of work and stress she was placed under during her ADT is not documented in her service treatment or personnel records, that she underwent physical training next is undisputed. Activities like running, marching, and carrying heavy backpacks indeed are consistent with ADT which lasts a few months. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). However, there is no indication that the Veteran experienced any right shoulder, back, or neck problems during her ADT whether due to her engagement in physical training activities or otherwise. There are very few service treatment records from then, and they concern routine lab work and vaccinations rather than any problems. No documentation exists relating to a separation examination. Although the Veteran was not discharged from the Reserves until December 1985, only one service treatment record is dated after her ADT. This likely is attributable to the numerous unexcused absences from training assemblies documented in her service personnel records. In any event, the aforementioned service treatment record is irrelevant here because it concerns June 1982 dental treatment. Service personnel records finally note that the Veteran certified to the best of her knowledge and belief that she had no medical condition or physical defect that would prevent her performance of active military service in August 1982. No right shoulder, back, or neck problem accordingly was evident during the Veteran’s ADT or a little over two years thereafter. She has not disputed this by contending that she experienced any such problem then. She also has not contended that she has had back or neck symptoms ever since then. This forecloses service connection based on chronicity or continuity of symptomatology for the chronic disease arthritis, which encompasses the Veteran’s diagnosed lumbar and cervical spondylosis as well as her lumbar spine degenerative changes. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Dorland’s Illustrated Medical Dictionary 1754 (32nd ed. 2012). In fact, the Veteran has not specified when any of her relevant symptoms/problems started. Lengthy gaps exist between her ADT and the first documentation of them. A SSA letter notes that disability benefits have been in effect since March 1993 for her back. For her neck, a July 1996 private treatment record reflects a disc herniation. There is nothing prior to the July 2011 private treatment records on her right shoulder. A negative inference may be drawn from the absence of relevant complaints for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). However, there must be a proper foundation to demonstrate that such absence “has a tendency to prove or disprove a relevant fact.” Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). This foundation is evident, at least with respect to the Veteran’s right shoulder and neck through March 1993. It is expected that she would have divulged all of her symptoms/problems to the SSA at that time, given that doing so would have increased her chances of being awarded disability benefits. As such, that these benefits were awarded based only on her back is telling. This holds true, albeit in a diluted capacity, even though the SSA records upon which that determination was made are not obtainable. The Veteran did not have a significant right shoulder or neck disability by March 1993, in other words. Although the Veteran believes that her current right shoulder, back, and neck disabilities have a nexus to her ADT, she is not competent to render opinions in this regard. Doing so indeed is medically complex, requiring knowledge of the musculoskeletal system as well as how it is impacted by various factors. The Veteran lacks this knowledge as a lay person with no medical background. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). No competent nexus opinion from a medical professional exists with respect to her current neck disability. For her current right shoulder disability, her private physician indicated in an August 2011 statement only that how and when her relevant symptoms started cannot be determined. The lack of access to her past medical records to give additional information was cited as a factor in this regard. Though not mentioned, it also is notable that the Veteran was unable to identify a clear start date for her symptoms in a July 2011 private treatment record from that physician. Regarding the Veteran’s current back disability, her private physician once again noted in an August 2011 statement that how and when her relevant symptoms started cannot be determined. The lack of access to her past medical records to give additional information also once again was cited as a factor in this regard. However, the physician additionally noted that her disability is of the type that can be present for years before becoming symptomatic. It thus was opined that it “could have as likely as not been caused or aggravated by the Veteran’s” ADT. Use of the phrase “could have” is speculative and, as it is merely an acknowledgement that such a nexus is possible, does not meet the applicable standard of at least as likely as not. Bostain v. West, 11 Vet. App. 124, 127-128 (1998); Warren v. Brown, 6 Vet. App. 4, 6 (1993); Obert v. Brown, 5 Vet. App. 30, 33 (1993). The opinion accordingly is worth no probative weight. There, in sum, are no private medical opinions supporting a nexus between the Veteran’s ADT and her current right shoulder or neck disabilities. Her statements in this regard are insufficient by themselves to mandate a VA medical opinion. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). While the private medical opinion regarding her current back disability supports the bare possibility of a nexus to her ADT, it also conveys that a definitive conclusion cannot be reached. The lack of records indeed is a substantial problem in this matter. A remand for a VA medical opinion thus is not warranted. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In conclusion, the Board finds based on the preponderance of the evidence that the Veteran’s current right shoulder, back, and neck disabilities are not related to her ADT. Service connection for these disabilities therefore is denied. TDIU A TDIU is appropriate if a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disability or disabilities rated less than 100 percent. 38 C.F.R. § 4.16(a). It may be granted on a schedular basis when there is one such disability rated at 60 percent or more or when there are two or more such disabilities with a combined rating of 70 percent or more and one is rated individually at 40 percent or more. Id. While a veteran’s education, training, and previous work experience are for consideration, his/her age and the effect of nonservice-connected disabilities are not. 38 C.F.R. §§ 3.341(a), 4.16(b), 4.19; Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). If neither percentage threshold is met, a TDIU may be granted on an extraschedular basis provided referral first is made to the Director of the Compensation Service. 38 C.F.R. § 4.16(b). The claimant is afforded the benefit of the doubt when there is an approximate balance of positive evidence supporting a claim and negative evidence refuting it. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. The applicable standard regarding a TDIU therefore is at least as likely as not. Finally, all evidence must be reviewed but discussion of only the most relevant evidence is required. Gonzales, 218 F.3d at 1380-81. In her May 2011 formal claim, the Veteran indicated that her back, neck, shoulders, hearing loss, and tinnitus prevent her from working. She stated that she is permanently disabled and unemployable “due to disability” in her August 2011 notice of disagreement. Her claimed disabilities at that time included the aforementioned as well as depression. The Veteran therefore contends that she cannot work due to her back, neck, shoulders, hearing loss, tinnitus, and depression. Only her hearing loss, tinnitus, and persistent depressive disorder with anxious distress can be taken into account, however. They indeed are service-connected, whereas service connection was denied above for right shoulder, left shoulder, back, and neck disabilities. The Veteran’s bilateral hearing loss has had a 0 percent rating throughout the period on appeal. Her tinnitus has had a 10 percent rating throughout this period. The Veteran’s persistent depressive disorder with anxious distress finally has been assigned a 0 percent rating through July 29, 2020, and a 70 percent rating beginning July 30, 2020. Together, all her service-connected disabilities have a rating of 10 percent through July 29, 2020, and of 70 percent beginning July 30, 2020. 38 C.F.R. § 4.25 (ratings are not simply added together but are combined using a table). It follows that neither the required 60 percent individual threshold nor the 40 percent individual threshold along with the 70 percent combined threshold are met through July 29, 2020. A TDIU therefore can be granted for this period only on an extraschedular basis following referral to the Director of the Compensation Service. For the period beginning July 30, 2020, a TDIU can be granted on a schedular basis. The Veteran’s persistent depressive disorder with anxious distress indeed meets the 60 percent individual threshold. It also meets the 40 percent individual threshold, and the combined 70 percent threshold also is met. Like above, the lack of records is a substantial problem. Much indeed is unknown. The Veteran’s service personnel records reference her completion of high school, but there is no indication of whether or not she ever attended college. These records also show that she received a military police school diploma for completing an almost three month training course during her ADT. No mention whatsoever has been made to any specialized civilian training. With respect to work history the Veteran has reported working at a restaurant in high school. She also has reported a job as a recreation therapist from September 1973 to May 1975 and as a corrections officer for 7 years. Which years were not specified, but they were prior to March 1993 when she was deemed unemployable by the SSA due to her nonservice-connected back problems. She stated that she stopped working because of these problems as well as neck problems, though she primarily emphasized that her tinnitus made noise in the prison difficult to manage. The Veteran accordingly has not worked at any point during the period on appeal. Regarding the functional impairment attributable to her service-connected bilateral hearing loss and tinnitus if she had worked or tried to work, a March 2014 private treatment record includes her report that keeping her telephone on vibrate because she cannot hear it ring and that the noise in her ears is so loud it interferes with her ability to sleep. Her word recognition ability, with amplification, was 100 percent bilaterally. A July 2018 VA medical examination similarly documents her report of trouble hearing on the telephone and the noise in her ears making it almost impossible to sleep. She also reported only hearing the speaker mumble if there is noise in the same room. Her speech discrimination, without amplification, was 96 percent bilaterally. At a July 2020 VA medical examination, she finally reported difficulty hearing and comprehending others as well as isolating herself due to her hearing loss and tinnitus. Concerning the functional impairment attributable to the Veteran’s service-connected persistent depressive disorder with anxious distress if she had worked or tried to work during the period on appeal, there are no relevant treatment records. This corresponds with her noting at a VA medical examination performed on July 30, 2020, that she has only seen a psychiatrist once via telephone. She was found to have occupational and social impairment with deficiencies in most areas, including work, due to a host of symptoms. They include chronic sleep impairment, mild memory loss, depressed mood, disturbance of motivation and mood, anxiety, panic attacks that occur weekly or less often, impaired judgment, near-continuous panic or depression affecting her ability to function, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, passive thoughts of death (suicidal ideation), and intermittent inability to perform activities of daily living. The Veteran additionally reported sadness, loneliness, hopelessness, bouts of crying, fatigue, worry, irritability, and problems with concentration and making decisions. With respect to all her reports, she is competent. Layno, 6 Vet. App. at 469-470. Her credibility in making them, save for one exception, further is undisputed. That exception concerns the reason she quit her position as a corrections officer. The primary emphasis she placed on her tinnitus causing her to quit this position specifically seems misplaced, given the SSA’s determination that she was unemployable due to her back problems. That agency indeed would be expected to render a decision based on the disability causing the Veteran’s most significant functional impairment. Nothing more can be said, however, since the SSA records upon which the determination was made are not obtainable. The credibility exception is notable but not highly significant, in other words. (Continued on the next page)   Given her apparently limited previous work experience, education, and training, the Veteran is qualified for unskilled or entry level positions. Her bilateral hearing loss and tinnitus preclude only such positions that are noisy or require extensive verbal communication, especially over the telephone but also somewhat in person. The Veteran’s persistent depressive disorder with anxious distress precludes only such positions that involve frequent interaction with others or require a fast pace. Indeed, limiting contact with others would mitigate the impact of many of her symptoms. These include not only her difficulty dealing with relationships but also those concerning her mood, anxiety, irritability, and mild memory loss. A slower speed would mitigate the impact of her difficulties concentrating and adapting to stress as well as, potentially her impaired judgment. In sum, the Veteran needs a job in a quiet environment that entails little to no verbal interaction with others and allows her to take her time. At least some such jobs exist at entry level. Lots of beginning positions are in relatively quiet settings. Communicating electronically, as opposed to verbally, further is commonplace today. There are considerably fewer options for solitary or near-solitary work at an unhurried pace. All that matters, however, is that there are options. Importantly, there are no medical opinions to the contrary. The Veteran indeed has not been deemed her unable to work in any position as of any date due to her service-connected bilateral hearing loss, tinnitus, and persistent depressive disorder with anxious distress. The Board, in sum, finds based on the preponderance of the evidence that these disabilities have never been severe enough to render her unable to secure or follow a substantially gainful occupation. A remand for referral to the Director of the Compensation Service to consider an extraschedular TDIU for the period through July 29, 2020, thus is not warranted. A TDIU for this period is denied, as is a schedular TDIU for the period beginning July 30, 2020. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becker 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.