Citation Nr: 21009943 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-32 259 DATE: February 23, 2021 ORDER Entitlement to service connection for arthritis of the bilateral arms, hips and legs is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU), to include upon an extraschedular basis, is denied. FINDINGS OF FACT 1. The probative medical evidence of record does not show that arthritis of the bilateral arms, hips and legs is the result of military service. 2. The Veteran’s service-connected disabilities have not been shown to prevent the Veteran from engaging in a substantially gainful occupation at any time during the period of appeals. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis of the bilateral arms, hips and legs are not met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for a total disability rating based on individual unemployability due to service-connected disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to April 1974. This appeal to the Board of Veterans' Appeals (Board) arises from March 2012 and August 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In July 2017, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the Veteran's claims file. The instant matter was last before the Board in April 2018 and February 2020, where it was remanded for additional development. A review of the record reveals that the Remand directives were substantially complied with, such that adjudication may proceed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). To establish a right to 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Veteran's service treatment records do not reflect any musculoskeletal complaints involving the bilateral arms, hips and legs and there were no notations of any arthritis. When formally examined for purposes of discharge, there were no findings of arthritis. Post service records show a February 2009 Pre-Operative note (“Neuromusculoskeletal arthritis site: knee/hip...anemia”) and February 2010 Physical Therapy consult (“shoulders hurt...diagnosis: osteoarthritis”), which appears to be when the Veteran experienced the first complaints and diagnoses of arthritis after service. The Veteran was provided with a VA examination in March 2020. At the examination, the Veteran was diagnosed with bilateral shoulder degenerative arthritis, bilateral hip degenerative arthritis, and bilateral knee strain. The examiner took account of the Veteran’s lay statements that he had first begun experiencing pain and aching while in service and attributed this to the rigors of his military duties. The examiner opined that it was less likely than not that the Veteran’s conditions were caused by or incurred in military service. In support, it was provided that the Veteran’s service treatment records did not show evidence of such early onset and that the most likely cause of the Veteran’s current disabilities were the natural aging process and normal wear and tear due to their earliest presentation and diagnosis so many years after military service. The Board accords the medical examiner’s opinion probative weight, since she has the competence to render such an opinion, she was aware of the Veteran’s history, and provided a reasonable explanation for concluding there was no link with service. No probative evidence counters the opinion. Because the evidence does not show the presence or early indicators of bilateral shoulder degenerative arthritis, bilateral hip degenerative arthritis, and bilateral knee strain in service, and no probative evidence links any post service bilateral shoulder degenerative arthritis, bilateral hip degenerative arthritis, and bilateral knee strain, to service, the greater weight of the evidence is against the claim. As such, a basis upon which to establish service connection has not been presented, and the appeal is denied. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16 (a). It is noted that, during the appeals period, the Veteran has had no single disability rated at least 60 percent disabling, nor did he have a combined disability rating of at least 70 percent. His service connected disabilities are lumbosacral muscular strain rated 10 percent disabling; tinnitus, rated 10 percent disabling; and hearing loss, evaluated at the non-compensable rate. Therefore, the criteria for a TDIU on a schedular basis are not met. Notwithstanding the above, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. See 38 C.F.R. § 4.16 (b). Where this is warranted, the claim must first be referred by the AOJ to the Director of the Compensation Service for extraschedular consideration. The Veteran has indicated that his service-connected lumbosacral muscular strain has resulted in his inability to work full-time gainful employment. In this regard, the Veteran has submitted employment statements in a September 2020 correspondence from his attorney as well as a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) in August 2020 that indicates that the Veteran has only had marginal employment since 2004. Additionally, in a December 2020 correspondence from the Veteran’s attorney, it was indicated that the Veteran suffers severe pain associated with his low back condition for which he has to take narcotic medication, Percocet, at least twice daily. It was implied that this medication makes it difficult for the Veteran to carry out any tasks that may be required in any employment setting in addition to being indicative of significant pain affecting the ability to work. VA examinations for the Veteran’s conditions have not shown that the Veteran has been unable to obtain or maintain a substantially gainful occupation at any time during the period of appeal due to his service-connected disabilities. A January 2012 VA spine examination found no functional limitations on occupation. A January 2013 VA hearing loss and tinnitus examination found that the Veteran’s functional effects were that he could not hear very well in crowds or if his head was turned away from the speaker as well as some distraction from the tinnitus, but nothing indicating any substantial impairment on the ability to work at all. A January 2013 VA spine examination found no functional limitations on occupation. During the period prior to September 2015, when the Veteran began receiving dedicated treatment for pain management, it appears that the Veteran was mostly taking anti-inflammatory medications and rest for pain relief. However, in September 2015, it appears that the Veteran began seeking treatment for pain management of his low back pain at Clearway Pain Solutions. Although the available records are sparse for the period prior to February 2018, treatment notes at that time indicated that the Veteran was taking Percocet and that this was part of on-going care, which is presumed to have been present since his initial visit in 2015. Additionally, treatment records beginning in March 2016 at the VA Medical Center also show that the Veteran had been taking Percocet for pain management. However, it appears that the aforementioned treatment was related to the Veteran’s lumbar spondylosis and laminectomy, for which he is not currently service-connected. Rather, prior to the lumbar spondylosis and laminectomy diagnosis, the Veteran had only been treated conservatively for his lumbosacral muscular strain without the use of narcotics and it was only after the diagnosis of the additional non-service-connected back disabilities in 2015 that the Veteran began to be prescribed the stronger pain medication discussed above. As such, it appears that the basis for which the Veteran claims that he is unable to work on account of his back disability is solely attributable to his non-service-connected lumbar spondylosis and laminectomy, as these latter disabilities require the narcotic medication which the Veteran indicated significantly interferes with his ability to obtain and maintain substantially gainful employment. There is no indication in the medical evidence of record that the Veteran’s service-connected lumbosacral muscular strain has, in and of itself, caused any significant loss or work or hospitalization, much less preventing the Veteran from being able to obtain and maintain substantially gainful employment. Accordingly, the Board finds that the evidence does not show the Veteran to be incapable of performing the tasks that comport with his education and occupational experience due to his service-connected disabilities. The Veteran indicated on his VA Forms 21-8940 that he had only 2 years of high school education, although his earlier education records in the 1970s and 1980s indicated that he had a high school diploma, and that he had worked in various sales jobs until 2004. Furthermore, his educational and occupational background, to include 4 years of high school and military training, as well as work for several decades in sales and limited functional effects of his service-connected disabilities as discussed above show that the Veteran is capable and suited for employment in both physical and sedentary contexts. In fact, the sole basis upon which the Veteran claims he cannot work appears to be the effects and medications taken for his non-service-connected lumbar spondylosis and laminectomy and not on the effects singularly or combined for his service-connected disabilities. Thus, a TDIU is not demonstrated by the record as the evidence of record fails to show that the Veteran is unemployable due to service connected disabilities. (Continued on the next page)   The Board has considered whether the Veteran's claim should be referred to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b), but given the foregoing, while he fails to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), there is no basis for such a referral since it is not shown he is unable to secure and follow a substantially gainful occupation by reason of service connected disabilities. As the evidence fails to establish that the Veteran's service-connected disabilities preclude substantially gainful employment, the criteria for a TDIU are not met, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for a TDIU, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.