Citation Nr: 21012427 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 09-45 210 DATE: March 4, 2021 ORDER Entitlement to service connection for a right foot disability is denied. Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU), prior to January 24, 2011 is denied. FINDINGS OF FACT 1. The Veteran’s right foot disability was not first manifested on active duty, is not otherwise shown to be the result is not the result of active service, or to be related to a service-connected disability. 2. The evidence of record does not establish that the Veteran’s service-connected disabilities prevented her from securing or maintaining substantially gainful employment prior to January 24, 2011. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right foot disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.310. 2. The criteria for entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU), prior to January 24, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1971 to December 1975 in the U.S. Air Force and from June 1976 to May 1992 in the U.S. Army. The Veteran had verified service in Southwest Asia from February 1991 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing held before the undersigned at the RO in June 2010. A transcript has been associated with the claims file. In July 2016, the Veteran revoked her Power of Attorney, which had appointed the Texas Veterans Commission (TVC) as her representative. The Board finds that the Veteran properly revoked TVC’s representation. See 38C.F.R. §14.631(f)(1). The Veteran has not filed a VA Form 21-22 or VA Form 21-22a designating another individual or accredited service organization as her representative. She therefore proceeds with the appeal pro se. This matter has been previously remanded by the Board in December 2010, February 2014, November 2014, November 2017, and September 2020. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  These duties have been satisfied in this case.  Appropriate notice was provided in January 2006.  The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file.  No other relevant records have been identified and are outstanding.  Appropriate and necessary medical opinions were obtained and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. Such includes the medical opinion ordered in the September 2020 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, VA has satisfied its duty to assist.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran contends that her right foot disability was related to her military service and secondary to her service-connected disabilities. Specifically, she asserts that her right foot disability was related to her in-service motor incident and running in combat boots on cobble stone streets. Service treatment records (STRs) demonstrated the Veteran complained of right foot pain. A June 1977 treatment record demonstrated that the Veteran complained of pain in her right foot. The Veteran had pain on palpation. The Veteran was assessed to have a ligamentous strain. On July 1984 and December 1992 medical history reports the Veteran marked “no” for foot trouble. On January 1992 retirement examination the Veteran marked “yes” for foot trouble. However, the Veteran had a normal clinical evaluation. Post service treatment records demonstrated that the Veteran was treated for a right foot disability. An October 2004 right foot joint MRI noted that the Veteran had a history of a mass, lateral aspect of the right foot. The Veteran complained that it was painful to walk. The Veteran had a negative study and was unchanged from the prior examination. There was no fracture or destructive lesion seen. There was no soft tissue mass or fluid collection identified. A November 2005 consultation documented that the Veteran complained of swelling of her right foot. She was diagnosed with chronic metatarsalgia. In February 2016 and January 2018, a medical addendum opinion was obtained. However, the medical opinion was inadequate because the examiner provided an inadequate rationale and did not provide an opinion as to secondary service-connection. In October 2020, an addendum opinion was obtained. The VA examiner noted that the Veteran’s records were reviewed. She noted that the Veteran’s STRs contained a bone scan of the right foot in September 1989 with an uptake suggestive of degenerative changes at the right malleolus. She noted that plain film X-rays were reported as normal. The Veteran’s records contain X-rays of her right foot in May 2017 with hallux valgus (bunion) with mild osteoarthritis changes in the first digit. While the Veteran’s bone scan in 1989 was suggestive of degenerative changes in the right foot, the location was about the malleolus, which was the ankle bone. The Veteran’s films that year (1989) was normal. The Veteran’s X-rays in May 2017, 25 years after service showed mild arthritis in the 1st digit and a bunion. The examiner noted that those findings were not related to the in-service findings, she concluded that the Veteran’s current right foot condition was less likely than not related to, caused, or aggravated by the in-service right foot findings and symptoms. In December 2020, an addendum opinion was obtained. The examiner opined that the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Further, he opined that the claimed condition was less likely than not (less than 50 percent probability due to or the result of the Veteran’s service-connected conditions. The examiner explained there was no evidence of a foot injury while in-service, including at the time of the motorcycle accident in 1972. He noted that there were documented right ankle complaints in-service. However, this was variously attributed to a softball injury in 1986 and a jump injury in 1990. He noted that the Veteran underwent a right ankle tendon repair in 1991 and the records did not reflect any foot involvement. The January 1992 separation examination addressed the Veteran’s right ankle condition, with no foot conditions identified. He noted a bone scan in 1989 showed the relative changes of the ankle, with no uptake in the foot. Therefore, it was less likely than not that the Veteran’s current foot conditions had its nexus in-service including an association with the 1972 and later events, regardless of dates. He noted that there was no evidence of a foot condition until 2010/2011. The May 2011 examination noted plantar fasciitis and the February 2016 examination noted metatarsalgia. A January 2017 podiatry note diagnosed bilateral osteoarthritis of the first MTP, bilateral tendinitis and calcaneal spur’s with plantar fasciitis. As the findings were bilateral and equal, it was unlikely any events in-service impacted the right toe/foot. These changes, more likely than not, represented a natural condition arising over time due to age and weight gain. He explained that none of the Veteran’s service-connected conditions (only orthopedic conditions addressed) caused these foot changes or impacting in any way. He noted that these conditions of one joint did not cause conditions of another joint. This would include knee, hip, back and the Veteran’s ankle conditions. He noted that this was supported by standard texts. He further explained that the absence of foot involvement had been addressed and the equal, bilateral distribution of the findings did not support a claim of gait accommodation. The medical evidence did not support a nexus for continuity’s in-service. The most likely onset of the Veteran’s current foot conditions was proximate to 2017. Therefore, it was less likely than not that the Veteran’s currently diagnosed foot conditions were due to or incurred in-service in general, or the two specified events reported by the Veteran. His rationale also applied to aggravation. He noted that there was no evidence of aggravation beyond the natural course of the Veteran’s foot conditions, due to any cause. These conditions tend towards gradual worsening over time. Non-orthopedic, or medical, service-connected conditions have no physiologic or anatomic mechanism by which they could cause or aggravate the Veteran’s foot conditions. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making a definitive clinical determination of the nature and etiology of the Veteran’s right foot disability. See Kahuna v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran can describe that she experiences a right foot disability, she is not able to provide competent evidence as to the etiology of her condition. There is no competent and credible evidence linking the Veteran’s right foot condition with service or a service-connected disability. No medical professional has rendered a nexus opinion, and in the absence of such, service connection is denied. The preponderance of the probative evidence of record weighs against the claim of service connection on a direct or secondary basis. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). TDIU~ Prior To January 24, 2011 The Board notes the issue of TDIU dates back to January 2008, the date the Veteran stopped working. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). “Substantially gainful employment” is an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income. Marginal employment may be held to exist, on a facts-found basis including, but not limited to, employment in a “protected environment” such as a family business or sheltered workshop when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a); Cantrell v. Shulkin, 28 Vet. App. 382 (2017). In a June 2016 rating decision, the RO granted TDIU effective from January 24, 2011, based on migraine headaches and cervical spine disability. He was also service-connected for sinusitis and a right ankle disability each rated 10 percent disabling, and noncompensable rhinitis and hemorrhoids. Since that time, the Veteran has been service connected for additional conditions, from dates prior to January 24, 2011. The current record reflects that prior to January 24, 2011, the Veteran is service-connected for status post hysterectomy at 50 percent disabling, the cervical spine disability at 30 percent disabling, depressive disorder at 30 percent disabling, intervertebral disc syndrome and degenerative lumbar spondylosis with herniated nucleus pulposus at 10 percent disabling, right lower extremity radiculopathy at 10 percent disabling, sinusitis at 10 percent disabling, residuals of right ankle injury at 10 percent disabling, scars right ankle at 0 percent, allergic rhinitis at 0 percent, and hemorrhoids at zero percent. The Veteran’s combined rating was 80 percent disabling. As such, the Veteran meet the schedular criteria for TDIU prior to January 24, 2011. According to the Veteran’s April 2009 VA Form 21-8940, the Veteran was not working during the appellate period prior to January 24, 2011. An August 2008 VA treatment note documented that the Veteran was prescribed Tramadol and Gabapentin. On November 2008 letter, Dr. PF indicated that the Veteran had chronic right ankle pain. The Veteran suffered from chronic back pain with a history of degenerative joint disease. She noted that the Veteran had intermittent episodes of debilitating migraines with aura. Dr. PF wrote that the Veteran’s medical conditions were chronic and permanent and would probably continue to deteriorate with time. A January 2009 private treatment note documented the Veteran’s ankle complaints. The Veteran reported that she went golfing during Christmas time and her ankle started to swell. The examination of the ankle showed a little bit of warmth over the area. However, there was no erythema, clinical indication of infection, or instability. In a March 2009 statement, the Veteran wrote that she had chronic low back pain, chronic neck pain, migraine headaches, and sinus infections. She noted that she had to take narcotic medications to alleviate her chronic pain. She indicated that she was no longer able to sit, walk, or stand more than 15 minutes. In a May 2009 letter, Dr. SP noted that the Veteran was treated for scoliosis of the spine and arthritis of the spine, right foot, and right ankle. He noted that the Veteran suffered from migraine headaches that was so severe that she had to take narcotic medication to calm the pain. He noted that the Veteran had headaches that lasted up to 4 days. He indicated that the Veteran suffered from chronic pain and depression. He wrote in his professional opinion the Veteran’s conditions prevented her from pursuing gainful employment as a logistics manger or a contracting officer. He noted that the Veteran’s conditions were chronic, severe, and permanent. On his April 2009 VA Form 21-8940, the Veteran wrote that her migraine headaches, lower back, and right ankle conditions prevented her from securing or following any gainful occupation. She noted that her disability affected full-time employment in February 2006, and she became too disabled to work in February 2006. She last worked full-time on January 4, 2008. The Veteran worked in security, fire and security, and transportation management as a government contractor. She had a college education. She indicated that due to her lower back pain she was not able to sit, walk, or stand more than 15 minutes. She wrote that she had chronic migraine headaches and had to take narcotic medication. She indicated that due to her medications she was not allowed to enter government contracts which was her job. Given the Veteran’s education, work experience, and remaining functional capacity from service-connected disabilities, the Board finds that the Veteran would be able to secure and follow substantially gainful employment. The Veteran retains the capacity to work in a “light duty or sedentary position” and she does have the necessary training and background that would potentially allow her to obtain substantial gainful employment in such a position. While the record indicates she has physical limitations due to service-connected disabilities, it fails to demonstrate that she lacks the mental or vocational capacity to perform less physically strenuous work. She argues that she is prescribed narcotic medication that would not allow her to continue her previous employment, such does not render her incapable of doing sedentary employment. Her use of narcotics while a contractor is barred by the need to keep a drug free workplace under Federal contracting law, and not limitations as to her capabilities caused by the medications. The record reflects that the Veteran was prescribed this narcotic medication while still working, and was able to accomplish her occupational tasks. The record does not reflect that the Veteran’s medication causes a functional impairment that interferes with her following substantially gainful employment. In other words, she could perform non-physical tasks for a non-government contractor. The Board notes that the Veteran has not reported that her medication impacted her working or functioning. She has only reported that her medication interferes with her being able to negotiate/enter contracts for the government as a government contractor. The Board also notes that the private examiner indicated that the due to her medication it prevented her from pursuing gainful employment as a logistics manger or a contracting officer. The private examiner only addresses her current and past employment and not any other employment, or ability to transfer basic office and organizational skills to different jobs and roles. The Veteran’s medication only interfered due to regulation to her as a government contractor but not her working in any other position in the private sector. The record demonstrates that the Veteran can secure and follow substantially gainful employment even on her prescribed medication. Moreover, the only true restriction noted is that she could not sit, walk, or stand for prolonged periods. The Veteran has not provided any other evidence that establishes she is incapable of maintaining gainful employment to support his claim. Accordingly, the preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a TDIU, prior to January 24, 2011 is denied. See 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.