Citation Nr: 21010589 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-99 779A DATE: February 25, 2021 ORDER 1. Entitlement to service connection for a lumbar spine disability (claimed as lower back injury), to include degenerative changes, is denied. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s lumbar spine disability had its onset in service, was manifested within one year following service discharge, or is otherwise related to service. 2. The preponderance of the evidence is against a finding that the Veteran has been unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities for the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability, to include degenerative changes, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for referral for an extraschedular TDIU rating 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 had active duty service from June 1981 to June 1984 and from December 1990 to May 1991. The Veteran had a hearing before the undersigned Veterans Law Judge via a video teleconference in April 2018. A transcript of the hearing is associated with the claims file. In July 2018, the matters were remanded in order to perform additional development in relation to past treatment reported by the Veteran. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has alleged that he has suffered from lower back pain due to recurrent lifting since his time in service. He has alleged that he is unemployable due to chronic pain and mental stress resulting from his PTSD. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 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. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, which is also known as degenerative joint disease and degenerative changes, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, including arthritis, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an award of service connection. The reasons follow. 1. Entitlement to service connection for a lumbar spine disability The Veteran has a current lumbar spine disability. In March 2013, he was diagnosed with lumbar spinal stenosis and an MRI of the spine showed diffuse posterior disk herniation with facet hypertrophy, bilateral foraminal narrowing, and canal narrowing with compression on the cauda equina. In April 2019, he was assessed with advanced degenerative changes of the lumbar spine. However, the preponderance of the evidence is against a finding of an in-service disease or injury, or a nexus between the Veteran’s current disability and any alleged in-service incurrence of a lower back disability. The Veteran’s service treatment records show no reports of back pain and, instead, that he denied any history of recurrent back pain throughout his time in service. Additionally, the Veteran received only normal clinical evaluations of his spine through his separation from active duty. At his April 2018 hearing, the Veteran stated that he did not suffer a specific injury during service, but that he experienced lower back pain due to an accumulation of recurrent heavy lifting. He indicated that he might take a Tylenol or wrap his back to manage his symptoms, but other than reporting it to a field medic, he never sought specific treatment for his back pain during service. On separation examination relating to his first period of active duty in May 1984, the Veteran received a normal clinical evaluation of the spine and was described as a normal healthy male. In August 1990, on examination prior to the Veteran’s second period of active duty, the Veteran reported that he was in excellent health and denied a history of recurrent back pain. He received a normal clinical evaluation of the spine at that time. On separation examination in April 1991, the Veteran reported that he was in good health, again denied any history of recurrent back pain, and received a normal clinical evaluation of the spine. These findings are probative against the occurrence of an in-service back injury. Following service, the evidence of record does not show complaints of or treatment for back pain for more than 15 years. During treatment in September 2011, the Veteran reported that he experienced a significant back injury that stopped him from continuing to work two to three years earlier. Within this document, the Veteran reported he had been suffering from elevated pain in relation to slipped discs diagnosis in 2007. These facts tend to show the onset of the Veteran’s lumbar spine disability occurred more than 15 years after service discharge, which does not lend to a finding that the lumbar spine disability had its onset in service. The preponderance of the evidence is against an in-service disease or injury involving the lumbar spine. The Veteran’s service treatment records are absent documentation of low back pain, and the Veteran specifically denied recurrent back pain in August 1990 and April 1991 Reports of Medical History. He also denied an illness or injury other than those documented within the same Reports of Medical History. His spine was also found to be clinically normal in April 1991. Additionally, subsequent records show the Veteran reported a significant intercurrent back injury in that would be attributable for his present condition. As to presumptive service connection for the chronic disease of degenerative changes (arthritis), the record does not show evidence of a diagnosis of degenerative or arthritic changes in the Veteran’s lower back within one year following the Veteran’s discharge from service. As stated, there is no evidence of an in-service disease or injury, the Veteran denied any recurrent back pain or a specific back injury during service, and degenerative changes in the spine were not shown for more than 15 years following the Veteran’s discharge from active duty. Accordingly, entitlement to service connection on a presumptive basis for a chronic disease is not warranted. While the Veteran is competent to report symptoms that he has experienced in service and since service, he is not competent to directly link the current lumbar spine disability to service. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. At the present time, there is no competent evidence of a nexus between the current lumbar spine disability and service. VA has not provided the Veteran with an examination or opinion in connection with this claim for service connection. As noted above, VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In this case, the evidence does not show an event, injury, or disease occurred in service relating to the Veteran’s current lumbar spine disability or that the current disability may be related to service. For a VA examination and/or medical opinion to be warranted, all the McLendon criteria must be met, and at least one element is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for this service-connection claim. As the preponderance of the evidence is against the claim for service connection for a lumbar spine disability, the benefit of the doubt doctrine is not for application, and the Veteran’s claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service connected for post-traumatic stress disorder (PTSD) with a 70 percent disability rating, effective December 30, 2011; and tinnitus with a 10 percent disability rating, effective July 25, 2011. Thus, the Veteran has a combined rating of 70 percent since December 2011. The Veteran also has multiple conditions, for which he is not service connected, and, thus, cannot be considered for purposes of the Veteran’s TDIU claim, including the aforementioned lumbar spine disability; bilateral knee conditions; hypertension; and stomach problems. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). 2. Entitlement to a TDIU rating The Veteran received a Social Security Administration (SSA) disability decision dated in February 2013, which found that he is disabled and unable to sustain full-time employment due to his combined impairments effective in October 2011. It is noted that such a finding is not binding on any determinations made by the VA. VA and SSA use different definitions and standards for determining disability and SSA also considers limitations from all disabilities, whereas VA considers only disabilities that are related to service or a service-connected disability. In this instance, SSA found the Veteran to be disabled based on his lumbar spine disability for which he is not service-connected. Accordingly, the SSA disability determination has no bearing on this decision. On VA audiological examination in 2011, the Veteran reported that tinnitus sometimes causes him a headache and that it is nerve-racking; however, he stated that it does not cause him any problems with employment. Since that time, the record does not demonstrate recurrent treatment or increased complaints relating to his tinnitus, and the Veteran is not documented to have any communicative deficits relating thereto. As to the Veteran’s PTSD, he has variably reported symptoms as a reason for his unemployability and reason that he had to stop working in the past, but at other times he has primarily cited physical restrictions as the reason that he stopped working. In September 2011, he indicated that a significant back injury stopped him from continued work as a truck driver two to three years prior. In March 2014, he reported that the reason for leaving his job was a combination of chronic pain and mental stress. In March 2017, the Veteran reported that he had a mental breakdown in 2011 and that he “pretty much had to stop working.” While the Veteran’s treatment records do not indicate a mental breakdown, the Veteran began to receive mental health treatment in 2011 due to increased depressive symptoms, anxiety, nightmares, and social isolation. On mental status examination in December 2011, the Veteran easily engaged with the attending physician, and was found to be alert and oriented in all spheres with fair to good insight and judgment and no noted deficits in attention, concentration, memory, or cognition. He denied delusions, hallucinations, paranoia, and suicidal ideation. The Veteran reported working as a church director but receiving no income. He was noted to have close relationships with the church community and his family. Since that time, the Veteran has received some individual mental health counseling, but his primary treatment has come in recurrent PTSD group therapy sessions. He has reported continued symptoms of sleep difficulties with nightmares, anxiety, stress, and depression, but treatment records have attributed some of his symptoms to intercurrent family and financial difficulties. Specifically, the Veteran and his wife help care for their grown daughter who has acute sickle cell anemia. The daughter and her two children live with the Veteran and he adopted his two grandchildren to help care for them. However, despite the Veteran’s symptoms, he has routinely recorded normal findings on mental status examination, including being described as cooperative and attentive, and being found to be fully alert and oriented with a logical thought process, average intelligence, good judgment, fair insight, normal behavior, and no perceptual abnormalities or suicidal ideation. The Veteran was noted to actively engage during his group therapy sessions and during a 2017 session he reported that he has “come a long way” with treatment and that he has decreased anger and an increase in acceptance of self and others. The Veteran has not had required urgent or inpatient treatment and he has remained independent in his activities of daily living while continuing to care for his daughter and grandchildren. The Veteran underwent a VA examination for PTSD in August 2019. The examiner summarized the Veteran’s overall level of impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examination related primarily to service connection for PTSD and did not include a mental status examination to indicate the Veteran’s current functioning or otherwise contain a rationale to support the assessed level of social and occupational impairment. As such, the Board finds the concurrent examination findings during treatment throughout the record to be more probative in indicating the Veteran’s overall level of functioning. The Veteran submitted an opinion from a social worker in July 2020. The social worker indicated the Veteran to report having nightmares and flashbacks, and to experience hypervigilance, anxiety, and depression. He stated that PTSD and depression caused the Veteran to have difficulty organizing and following tasks, and that the Veteran was having psychosocial problems due to his daughter’s illness and adopting his grandchildren. He characterized the Veteran’s overall level of impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran underwent an additional VA examination in October 2020. The Veteran was assessed with an “Other Specified Trauma and Stressor Related Disorder,” which was changed from PTSD because the Veteran did not meet the full criteria for the disorder as he was not reporting ongoing trauma symptoms suggestive of PTSD. The Veteran reported a history of anger problems, as well as experiencing anxiety. It was noted that the Veteran was functioning well in his marriage/family and that he has a history of stable effective work functioning. He was noted to be pleasant and cooperative with coherent and organized thought, and intact insight and judgment. He was noted to maintain friendships and be active in family events. When asked to assess the Veteran’s ability to function in an occupational environment, the examiner indicated that, although the Veteran reported mental and physical limitations to his ability to work, he was not able to explain to the examiner reasons he could not continue working specifically relating to PTSD. The examiner stated that symptoms the Veteran reported were not consistent with actual PTSD symptoms in nature of description. The examiner stated that the Veteran’s primary issue is getting along with others. Although the findings of the July 2020 social worker and the October 2020 VA examiner are more probative than that of the August 2019 VA examiner, as they provide rationales that are supported by the Veteran’s longitudinal treatment record, even the findings of the August 2020 examiner did not indicate the Veteran to be unemployable due to PTSD. Regarding the Veteran’s education, training, skills, and work history, the Veteran is a high school graduate and reported attending one year of college to join the ministry. The Veteran has reported working as a truck driver for more than a decade following service. He has also indicated work as a pastor/church director in the past. The October 2020 VA examiner indicated that the Veteran has performed well in his civilian jobs. The Veteran’s education and work history indicate that the Veteran has the capacity for learning, training, and adaptation that would allow the Veteran to resume substantially gainful employment in a wide range of occupations. As to the Veteran’s physical capabilities, the evidence supports a finding that the Veteran is physically capable of performing substantially gainful employment. His only service-connected physical disability is tinnitus, which the Veteran has indicated does not limit his occupational functioning. Treatment notes do not show recurrent treatment relating thereto or any resulting communicative deficits. The Veteran is able to live independently and manages his own self-care. Accordingly, the weight of the evidence does not indicate the Veteran’s service-connected disabilities restrict his ability to perform substantially gainful employment. As to the Veteran’s mental capabilities, the record indicates him to be capable of performing substantially gainful employment. Despite recurrent reported symptoms of depression, anger, anxiety, social isolation, and sleep difficulties, the Veteran has routinely recorded normal findings on mental status examination, such as a logical thought process, average intelligence, good judgment, fair insight, normal behavior, no noted deficits in memory, concentration, or cognition, and no perceptual abnormalities or suicidal ideation. Although the Veteran has indicated a history of difficulty getting along with others, the record shows him to be described as cooperative and pleasant. He actively engages in PTSD group therapy with normal behavior. The Veteran has been noted to function well with close relationships in his marriage and family, to maintain friendships, and to be active in family events. He has continued to care for his daughter and grandchildren throughout the appeal period. Accordingly, it would appear that the Veteran’s PTSD can be accommodated by restricting the Veteran from work that requires frequent social interaction. As such, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran’s physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of full-time work that would result in income at the level of substantially gainful employment. For example, the Veteran’s service-connected disabilities would not appear to prevent the Veteran from pursuing his past work as a truck driver. The Veteran had stopped that occupation due to low back problems, which is a disability for which he is not service connected. Thus, his service-connected disabilities do not preclude that form of employment. Additionally, the Veteran’s service-connected disabilities would not preclude the Veteran from occupations such as a warehouse worker, or assembly line worker, positions that would be repetitive, have structure, and would not necessarily involve new tasks, novel concepts, or require significant social interaction. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment. For all the reasons described above, the Board finds that the preponderance of the evidence is against a finding that Veteran is precluded from all forms of substantially gainful employment and, therefore, is not entitled to a TDIU rating. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU rating is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.