Citation Nr: 21014567 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 13-07 684 DATE: March 15, 2021 ORDER Service connection for degenerative disc disease (DDD), lumbar spine with scoliosis, as secondary to service-connected disability of the feet, is denied. A total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is denied FINDINGS OF FACT 1. A low back disorder was not shown in service, is not shown to have been incurred in or aggravated during service, and is not shown to be due to or aggravated by the Veteran’s service-connected foot disability. 2. The evidence of record does not demonstrate that the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for establishing a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16 (a), (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to October 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By an April 2020 rating action, the RO granted service connection for a psychiatric disability, which represents a complete grant of his appeal in regard to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This issue is no longer before the Board. These matters were previously before the Board in August 2018. At that time, the Board remanded the claims, in part, to have the Agency of Original Jurisdiction (AOJ) schedule the Veteran for a VA examination to determine the etiology of his low back disorder. In October 2019, a VA clinician examined the Veteran and provided an opinion as to the etiology of his low back disorder and its relationship to his service-connected disability of the feet. 1. Service connection for DDD, lumbar spine with scoliosis, as secondary to service-connected disability of the feet. The Veteran maintains that his low back disorder either began in service, or is secondary to his service-connected disability of the feet. He has argued that he was treated in service for a lumbar strain, arguing that every injury in service was classified as a “strain” as no effort was undertaken to determine the precise injury. He asserted that he had worked in supply where he had performed a lot of heavy lifting for years and he had continued to experience back pain since leaving the service. He believes that what was called “strain” in service was later correctly diagnosed as my disc. The Veteran has also argued that his service connected foot disability aggravated his already injured back. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for chronic disabilities if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for a chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran seeks service connection for a low back disability. On his VA Form 9, dated in February 2013, the Veteran contends that his current low back disability is the result of having performed a lot of heavy lifting during his eight years of military service. The Veteran alleges that he had received treatment for back trouble in service, but that it was misdiagnosed as a strain instead of a true orthopedic lumbar spine disability. In the alternative, he contends that his service-connected foot disability aggravated his already injured back beyond its natural progression. The Board will first address direct service connection. The Veteran has been diagnosed as having degenerative arthritis of the spine. See October 2019 Back Disability Benefits Questionnaire (DBQ). Thus, as there is evidence of a current disability, Shedden element number one (1) has been met. Turing to Shedden element number two (2), evidence of in-service disease or injury, the Veteran’s service treatment records (STRs) show that he was seen on several occasions for low back pain after lifting, and that assessments of rule out right lumbar (illegible) and muscle spasm. As there is evidence of in-service treatment for the Veteran’s back during service, the Board finds that Shedden element number two (2), evidence of in-service treatment, has been met. Thus, the claim hinges on Shedden element number three (3), evidence of a nexus to military service. There are VA treatment records that are supportive of the claim. For example, a June 2010 VA treatment record indicates the Veteran’s foot disability causes pain in his back, as well as numbness in one of his legs. The clinician reported that the Veteran limped when he walked and that he used a cane. Further, a March 2015 VA treatment record indicated years of persistent limping has caused pain in the Veteran’s lower extremities and back. There is one VA opinion that addresses the direct service connection element, but it is against the claim. In April 2012, a VA clinician examined the Veteran and provided an opinion as to the etiological relationship of his low back disorder to his period of military service. The examiner opined that the Veteran’s back condition was less likely than not to have been caused by or a result of his back treatment shown in service. He indicated the in-service treatment was for either acute muscular injuries (sprain/spasm) or aggravation of the acute muscular injuries. The examiner concluded that the injuries were transient and that they had resolved after conservative treatment, including physical therapy. Further, the examiner indicated the Veteran’s current diagnosis was DDD of the lumbar spine, for which he found no objective findings to support chronicity or continuity with the in-service back strain/spasm. The examiner further explained that back sprain and strain involved muscles and ligaments (soft tissues) of the spinal region, while degenerative processes involved the discs and vertebral bodies. The examiner concluded the one was not the cause of, or related to, the other. The examiner indicated that the Veteran ambulated with an obvious limp and reported increased pain to his feet when he walked or stood. Further, it was unclear if such limp was due to his back or feet condition. The Board finds the April 2012 VA examiner’s opinion to be of high probative value in evaluating the claim for service connection for a low back disability on a direct service connection basis. The VA examiner thoroughly discussed the Veteran’s in-service back treatment, as well as his theory of direct service connection, the opinion did not discuss the secondary service connection theory of entitlement. See October 2019 VA Back DBQ. In October 2019, and pursuant to the Board’s August 2018 remand, a VA examiner examined the Veteran and provided an opinion that is against the secondary service connection theory of the claim. The VA examiner opined that the available evidence indicated that it was more likely than not that the Veteran’s lumbar spine condition/diagnoses/disability was due to the natural process of aging together with congenital abnormality of the lumbosacral spine, and with probable etiological implication of a history of discitis as well, and was less likely than not aggravated by his service connected foot/feet disability, to include chronic pain and limping from the disability. Id. The Board finds the VA examiner’s October 2019 opinion to be of high probative value in evaluating the claim for secondary service connection for a back disorder, because he provided substantial reasoning and explanation as to why it was not caused or aggravated by his service connected foot disability. This opinion has not been undermined by any competent medical evidence and as such, the weight of the evidence is against service connection or either a direct or secondary basis, and therefore service connection for a back disability is denied. 2. Entitlement to a TDIU rating, to include on an extraschedular basis is denied. The Veteran seeks entitlement to TDIU. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16 (a). Disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor if applicable, as well as disabilities resulting from common etiology or a single accident, disabilities affecting a single body system, multiple disabilities incurred in action, and multiple disabilities incurred as a prisoner of war are considered as one with respect to the 60 percent and 40 percent requirements. Id. The 70 percent requirement is derived not by adding together the ratings for all disabilities but by use of a combined ratings table. 38 C.F.R. § 4.25. The Veteran is currently service connected for persistent depressive disorder associated with bilateral pes planus, evaluated as 10 percent disabling for the period from February 23, 2009, and 50 percent from October 17, 2019; and bilateral pes planus, evaluated as 30 percent disabling for the period from October 21, 1987 to November 24 ,1998; 50 percent from November 24, 1998 to November 1, 2016, and 50 percent therefrom. During the relevant period, the Veteran’s combined disability evaluation was 60 percent, effective February 23, 2009, and 70 percent effective October 17, 2019. When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16 (a) are not met, a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions, as well as those of private medical professionals, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran’s ability to obtain and maintain employment consistent with his or her education and experience. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the United States Court of Appeals for Veterans Claims (Court) interpreted the phrase “unable to secure and follow a substantially gainful occupation” to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, and the noneconomic component requires more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the Veteran’s ability to secure or follow that type of employment. The Court also provided that to determine whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. As the Veteran’s depressive disorder was rated as 50 percent disabling and his combined rating was 70 percent from October 17, 2019, the schedular requirements for the grant of a TDIU were met as of that date. 38 C.F.R. § 4.16 (a). The question remaining is whether the Veteran is or was unable to secure and/or follow a substantially gainful occupation due to his service-connected disabilities during the relevant period. In considering what constitutes substantially gainful employment the Board will consider 1) a veteran’s work history, education, and training; (2) his/her physical ability to perform types of activity; and (3) his/her mental ability to perform required activities. The Board finds that the weight of the evidence is against a finding that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities for the entire appeal period. Initially, in a precedential decision, the Court found that there was no mention or definition of “sedentary work” in the applicable statutes or regulations, and therefore, “the concept of ‘sedentary work’ is not necessarily part of a proper TDIU analysis.” Withers v. Wilkie, 30 Vet. App. 139 (2018). The Court declined to define the term. If the Board relies on the term “sedentary work” in making a determination of entitlement to TDIU, the Board must explain the meaning derived from that concept. Here, sedentary employment is considered by the Board to be as employment requiring or marked by much sitting (a sedentary desk job). Further, where a Veteran’s ability to perform sedentary work is a basis for the Board’s decision, the meaning of sedentary work must be determined from the particulars of the medical opinion in which it is used. That is, the Board must explain this meaning to the extent that it is not apparent from the Board’s overall discussion of the opinion as well as how the concept of sedentary work factors into the Veteran’s overall disability picture and vocational history, and the Veteran’s ability to secure or follow a substantially gainful occupation. The Board must consider the Veteran’s education, training, and work history. 38 C.F.R. § 4.16. The Veteran maintains that he can no longer perform gainful work, notably his previous labor/physical-type work due to his service-connected foot disability (bilateral pes planus). On VA Form 21-8940, received by VA in January 2009, he reported that he could not work secondary to his service-connected bilateral foot disability (i.e., bilateral pes planus). He reported that he could not stand for any period of time; that he had last worked in December 1992 in automotive detailing; and, that his other work history included other physical labor (machine operator/brick mason). The Veteran indicated that he had tried to obtain employment, but that no one would hire him. See VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, received by VA in January 2009. In support of the Veteran’s claim, there is evidence that his service-connected pes planus has affected his ability to engage in physical employment. To this end, an April 2012 VA examiner concluded that the Veteran’s feet had rendered him unable to engage in any physical employment which required prolonged standing or excessive walking. See April 2012 VA Feet Disability Benefits Questionnaire (DBQ). Evidence against the claim includes a March 2014 VA examiner’s conclusion that the Veteran’s feet did not impact his ability to work. Other evidence against the claim includes a decision of the Social Security Administration (SSA), dated in February 2018, reflecting that that agency determined that the Veteran was disabled as of December 2017, with a primary diagnosis of disorders of the back (disc/degenerative), and a secondary diagnosis of “affective/mood disorder.” SSA’s associated documentation shows that the Veteran asserted that he was disabled due to foot and leg problems; heart condition; back problems; and, sciatica. He indicated that he had been unable to work since July 1, 2015. It was noted that his work history primarily included unskilled, arduous and physical labor and that he had a high school education. The Veteran described having had back pain that radiated into his legs and feet that hurt when he walked or stood for a prolonged period. Of note, the SSA found the back disability to be severe, while it classified the psychiatric claim as non-severe. While SSA decisions regarding employability are clearly relevant and should be weighed and evaluated, they are not controlling with respect to VA determinations. Odiorne v. Principi, 3 Vet. App. 456, 461 (1992). The Board notes, however, that the SSA’s decision is bolstered by VA examiners’ conclusions in April 2012 and October 2019. These examiners collectively opined that the Veteran’s low back condition may limit and restrict his ability to engage in physical employment (i.e., work that involved prolonged sitting, standing, stooping, lifting, walking). However, based solely on the Veteran’s low back condition, he was found to have been able to engage in sedentary and modified/limited physical employment if he chose to do so. See April 2012 and October 2019 Thoracolumbar Spine Disability Benefit Questionnaires (DBQs). Other evidence against the claim is an October 2019 VA Mental DBQ. At that examination, the VA examiner concluded that the Veteran’s service-connected depressive disorder had caused difficulty in establishing and maintaining effective work and social relationships, but there was no finding that it had caused total occupational impairment. Additionally, VA treatment and private treatment records reflect that the Veteran had continued to seek treatment primarily for his non-service-connected back, neck and bilateral hip pain, and that he had received lumbar epidural steroid injections to relieve his back pain. Overall, the SSA determined that the Veteran was disabled with a primary diagnosis of a (non-service-connected) back disorder. Here, while an April 2012 VA examiner concluded that the Veteran’s feet had rendered him unable to engage in any physical employment which required prolonged standing or excessive walking, it was not the conclusion that his feet prevented all types of gainful activity. See April 2012 VA Feet Disability Benefits Questionnaire (DBQ). A March 2014 VA examiner concluded that the Veteran’s feet did not impact his ability to work. Furthermore, there are no medical records that reveal any hospitalizations or surgical procedures for the service-connected feet or depression. Evidence reveals no inpatient treatment or intensive outpatient treatment for the Veteran’s depression. A review of multiple outpatient treatment visits from VA and private providers reveal that the Veteran sought treatment primarily for non-service-connected back pain and associated radiculopathy. Service connection has not been established for his back. While the Veteran sought frequent treatment, very few visits for were for his feet or depression. A review of all available evidence does not show that the Veteran’s service-connected feet and depression prevented him from obtaining or maintaining substantially gainful employment at any time in the past or currently prevents previous types of work. That is, it is primarily the Veteran’s non service connected back disability that is preventing employment. It is the established policy of the Department of Veterans Affairs 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. None of the available objective medical evidence supports the Veteran’s contention that any of the service-connected disabilities or a combination of the effects of the disabilities prevents all types of gainful activity. The Veteran has a high school education. His primary employment has been in positions that include physical work. The sole factors warranting TDIU, to include on an extraschedular basis identified by the Veteran are that his feet and depressive disorder affects his employment. However, these factors are not shown to render him unable to maintain gainful employment. It is noted that “substantially gainful employment” does not require that the Veteran be able to return to previous employment, nor does it guarantee an income stream similar to what the Veteran was making when employed full-time. The Board, therefore, finds that the Veteran’s service-connected disabilities are not shown to have resulted in the inability to obtain or maintain substantially gainful employment. Accordingly, TDIU is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.