Citation Nr: 21011707 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-60 755 DATE: March 2, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to service connection for diverticulitis is remanded. FINDINGS OF FACT 1. A lumbar spine disability did not manifest and was not aggravated during a period of active duty for training (ACDUTRA) or any other qualifying period of service. 2. The Veteran's service-connected disabilities do not render him incapable of obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for a lumbar spine disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria also are not met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February to November 1986 and had additional periods of service in the National Guard. This appeal to the Board of Veterans’ Appeals (Board) is from December 2013 and July 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has testified in support of these claims during a hearing in October 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In December 2019, the Board denied the claim of entitlement to service connection for diverticulitis but remanded the claims of entitlement to service connection for a lumbar spine disability and for a TDIU for further development – including to obtain all outstanding treatment records relevant to these claims and to determine whether the Veteran had qualifying service during several particular times, in question. Then, if confirmed he did, a medical opinion would be needed concerning the nature and etiology of his claimed lumbar spine disability, including insofar as whether any qualifying period of service aggravated it. Still yet, that determination, in turn, would require ascertaining the functional impact of his service-connected disabilities to assist VA adjudicators also in determining whether he is entitled to a TDIU. Regarding the denial of the claim of entitlement to service connection for diverticulitis, the Veteran appealed the decision concerning that claim to the higher U.S. Court of Appeals for Veteran’s Claims (Court/CAVC). And, in September 2020, the CAVC granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the Board’s decision denying this claim and remanding it back to the Board for further development and readjudication pursuant to agreement in the JMPR. In granting the September 2020 JMPR, the CAVC agreed the Board had erred in failing to ensure that VA had satisfied its duty to assist by providing an adequate medical opinion regarding the etiology of the Veteran’s diverticulitis disability. So, to comply with Court-granted JMPR, the Board, in turn, is remanding this claim for diverticulitis back to the Agency of Original Jurisdiction (AOJ). As for the remaining claims of entitlement to service connection for a lumbar spine disability and for a TDIU, the Board is now deciding these other claims since there was compliance – certainly the acceptable substantial compliance, with the Board’s prior remanded directives concerning these claims, including in terms of verifying whether additional periods of service listed in the Veteran’s Retirement Credit Record are qualifying active military service to, in turn, establish eligibility for VA benefits. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).   1. Entitlement to service connection for a lumbar spine disability is denied. The Veteran asserts that his lumbar spine disability is the result of injuries he sustained in a motor vehicle accident (MVA) in March 1987. Service connection is granted for disability due to disease or an injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. To substantiate a claim of service connection, there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a relevant disease or an injury in service; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its competency and credibility to, in turn, determine its ultimate probative value in relation to other evidence. Baldwin v. West, 13 Vet. App. 1 (1999). It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or from injury – though not also disease – incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131. ACDUTRA, among other things, is full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e).   In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the Veteran became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the Veteran would not qualify as a "Veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24); see also Acciola v. Peake, 22 Vet. App. 320, 324 (2008). National Guard duty is distinguishable from other Reserve service, however, in that a member of the National Guard may be called to duty by the Governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times . . . serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316 , 502, 503, 504, or 505. Id. It is indisputable that the Veteran has a current lumbar spine disability. A private treatment record from May 1988 shows had an X-ray and resulting diagnosis of mild bulging of the intervertebral disc at L3-4 and disc herniation at L4-5. However, there still must be probative evidence of relevant injury or disease during a period of qualifying service and, aside from that, attribution of the current lumbar spine disability to the relevant injury or disease during the qualifying period of service. And, unfortunately, the Board finds that the lumbar spine injury he alleges to have sustained in the MVA in March 1987, as cause for his current lumbar spine disability, did not occur during a period of qualifying service. In his October 2019 hearing testimony, the Veteran attested that, during periods of ACDUTRA that he had subsequent to that low back injury, he was directed by his military superiors to engage in activities that were against his doctor’s orders and consequently aggravated his low back disability. The Veteran’s service personnel records (SPRs) show that he served in the Maryland National Guard. His SPRs also confirm that he was in an MVA in March 1987, just as he claims, but it was not during a period of qualifying active military service as this term is defined in the governing statutes, VA regulations, and caselaw. That notwithstanding, a “Retirement Credits Record” received by VA in March 2015 shows a period of either AD, ACDUTRA, or full-time training duty after the March 1987 MVA, so sometime between September 13, 1987 and September 3, 1991. Resultantly, the Board remanded this claim in December 2019 to determine whether the time periods listed qualify as active periods of active military service making him eligible for VA benefits for disability incurred during or aggravated by that service. In response to the Board’s remand directives, the RO made two attempts to obtain any additional DD Form 214 from the Veteran that might tend to show qualifying service during the times at issue. But, to date, he has not responded to the requests. The RO also solicited information from the Veterans Information Solution (VIS), which confirmed that the only period of active duty service was from February to November 1986, so before any injury sustained in March 1987 or any possible aggravation of that injury during any subsequent period of qualifying service. The Board, consequently, must conclude the Veteran did not sustain any relevant injury during a qualifying period of service and did not aggravate any pre-existing injury during any qualifying period of service. His service treatment records (STRs) are unremarkable for any complaints, treatment, or diagnosis of a low back or lumbar spine disability, including manifested by pain or other pertinent symptoms. The Board realizes that lack of an in-service diagnosis is not dispositive because service connection can be established for conditions initially diagnosed after discharge. See 38 C.F.R. § 3.303(d). Most significant, however, is that the Veteran does not assert that his low back injury was sustained during a qualifying period of service – whether on AD, ACDUTRA, or INACDUTRA – and there additionally is no indication of aggravation of an pre-existing low back disability during any subsequent period of qualifying service.   Furthermore, there is nothing in the record credibly indicating the Veteran was ordered into Federal service by the President of the United States to qualify for the needed designation as active military service as a member of a state (Maryland) National Guard. To reiterate, a person enlisted in a State National Guard unit is simultaneously enlisted in the National Guard of the United States; however, the person is only considered to be serving in the latter capacity when formally called into such service. See Allen v. Nicholson, 21 Vet. App. 54 (2007); Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003)). At all other times, the enlisted National Guard member is considered instead to be in the State militia or in civilian status, neither of which qualifies as active military service for purposes of Veterans’ benefits. To have basic eligibility for Veterans’ benefits based on a period of duty as a member of a State Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States or must have performed “full-time duty” under the provisions cited in 38 U.S.C. § 101(22)(C), (23)(C). For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim of entitlement to service connection for a lumbar spine disability. Accordingly, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Entitlement to a TDIU is denied. Also, in his October 2019 hearing testimony before this Board, the Veteran stated that his lumbar spine disability interferes with his ability to work. Consequently, the Board determined there additionally was an inferred claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). See also Mayhue v. Shinseki, 24 Vet. App. 273 (2011) (recognizing the derivative nature of a TDIU claim as an alternative means of obtaining additional compensation for service-connected disability or disabilities). But since, as already discussed, the Veteran’s lumbar spine disability is not the result of an injury or a disease incurred in or aggravated during a qualifying period of active military service, it is not a service-connected disability and, therefore, cannot factor into any TDIU determination. See 38 C.F.R. § 4.16(a). The Board, nonetheless, is still assessing whether the Veteran is entitled to this TDIU benefit but finds that he is not. A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). There are situations when VA adjudicators may consider multiple disabilities as one, collective, disability – such as when they arise from common etiology or single accident, affect both upper extremities or both lower extremities or the same bodily system. Id. The Veteran is service connected for chronic sinusitis at 10-percent disabling; a deviated nasal septum also at 10-percent disabling; and hemorrhoids at 0 percent disabling, so noncompensable. He has a combined 20 percent rating for these service-connected disabilities. See 38 C.F.R. § 4.25. As such, he does not have sufficient ratings for these service-connected disabilities to qualify for schedular consideration of a TDIU under § 4.16(a). When, as here, the TDIU schedular percentage requirements are not met, entitlement to benefits on an extra-schedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to his background including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extra-schedular TDIU in the first instance, however. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, the Board is required to refer all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a), to the Director of Compensation Service for extra-schedular consideration under § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). In other words, this situation does not preclude the Board from determining whether this referral is warranted. See Barringer v. Peake, 22 Vet. App. 242 (2008). Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); and Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The grant of an extra-schedular rating for a TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular Veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (August 16, 1996). Thus, before the Board can refer a TDIU claim to the Director of the Compensation Service for an extra-schedular evaluation, the Board must determine that a Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his service-connected disability or disabilities. Therefore, the ultimate question for the Board is whether a claimant is capable of performing the physical and mental acts required by employment, not whether he can find employment. Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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 or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, from the records available on file, the Board sees the Veteran has a high school diploma and some education or training in massage therapy. See April 2020 TDIU application (on VA Form 21-8940). During an April 2017 VA examination, the examiner indicated the Veteran’s hemorrhoids do not impact his ability to work. During a November 2018 sinusitis VA examination, the Veteran reported having headaches eight months out of a year and significant congestion. The examiner explained this would affect the Veteran’s ability to work around dust, fumes and other allergens, but it was not indicated he is unemployable. Upon consideration of the record, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. 38 C.F.R. §§ 4.16, 4.18. None of the VA examiners who have evaluated him have determined that any of his service-connected disabilities preclude substantially gainful employment. As for the more recent November 2018 sinusitis examination, the examiner found that the Veteran was limited in working around dust, fumes, and other allergen, but those limitations would not result in him being considered unemployable – especially since his schedular ratings for his chronic sinusitis and deviated nasal septum (so aside from the additional rating for his hemorrhoids) contemplate there is occupational impact owing to his service-connected disabilities, meaning acceptance they have some adverse effect on his employment in terms of his earning capacity. See 38 C.F.R. §§ 4.1, 4.15. This is not tantamount, however, to concluding he is unemployable. As such, the Board finds that him capable of performing the physical and mental acts required by employment. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Referral of this TDIU claim for extra-schedular consideration under § 4.16(b) resultantly is not warranted. REASONS FOR REMAND 3. Entitlement to service connection for diverticulitis is remanded. The Veteran contends that his diverticulitis onset while he was in service. A July 2015 VA examiner opined that it was less likely than not that the Veteran’s then current diverticulitis was related to his military service because the flexible sigmoidoscopy performed during his service showed no evidence of diverticulitis. But, in granting the JMPR, the CAVC since agreed that this VA examiner’s rationale is inadequate. The Court reasoned that the examiner’s one-sentence rationale indicates that the reason for his unfavorable nexus opinion was that the procedure in service did not reveal diverticulitis. In other words, the examiner relied on a lack of in-service diagnosis of diverticulitis to proffer the negative opinion. The Court found that a lack of an in-service diagnosis is not dispositive because service connection can be established for conditions diagnosed after discharge. See 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Thus, the opinion is inadequate in this regard. This deficiency in the opinion, in turn, obligates the Board to obtain additional (supplemental) medical comment to ensure the adequacy of the examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Court also found that the July 2015 VA examiner’s opinion was inadequate as the examiner also failed to address whether Veteran’s conceded diverticulitis is related to his rectal bleeding and abdominal pain in service. Moreover, the opinion is inadequate because it is conclusory. The rationale only provides a factual statement and provides no explanation of how a sigmoidoscopy during service that does not show diverticulitis addresses the relationship between any current condition and the claimed in-service symptoms. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that conclusory, contradictory, or incomplete analysis is not adequate); see also Nieves-Rodriguez, 22 Vet. App. 295, 301 (2008). Accordingly, this claim is REMANDED for the following action: Obtain an addendum medical opinion concerning the etiology of the Veteran’s diverticulitis. To assist in making this important determination, the examiner should review the relevant evidence in the file – including a complete copy of this decision and remand and the Court-granted JMPR. The examiner is asked to indicate whether it is at least as likely as not (50 percent or greater probability) the Veteran’s diverticulitis is related to his active service. To this end, the VA examiner must specifically address the relationship, if any, of the Veteran’s current diverticulitis and the rectal bleeding and abdominal pain he had in service, also provide further discussion of the significance of the flexible sigmoidoscopy performed during his service showing no evidence of diverticulitis. But, unlike the July 2015 VA examiner, the current examiner cannot rely solely or exclusively on the absence of a diagnosis of diverticulitis during the Veteran’s service as the only reason for disassociating this condition from his service. In other words, it is permissible to consider this as one factor, just not the only factor, in making this determination. So, the Veteran’s lay statements regarding the history of his symptoms and this disease also must be considered. Rationale for the opinion is essential, irrespective of whether favorable or unfavorable to the claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. The examiner cannot solely disassociate this claimed disability from the Veteran's service merely based on the absence of earlier treatment, although. If the examiner is unable to provide this requested additional medical comment without resorting to mere speculation, then the examiner must state this expressly and provide explanation of why a more definitive response is not possible or practical. In other words, merely saying he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.