Citation Nr: 21014652 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 11-13 767 DATE: March 15, 2021 ORDER Service connection for a bilateral leg disorder, to include secondary to service-connected right ankle disability is denied. Service connection for a lumbar spine disorder, to include as secondary to service-connected right ankle disability is denied. Service connection for a psychiatric disorder, to include depressive disorder as secondary to service-connected right ankle disability is denied. A total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis is denied. FINDINGS OF FACT 1. The evidence does not show that the Veteran’s bilateral leg disorder occurred during or was otherwise caused by his service, or was caused or aggravated by his service-connected right ankle disorder. 2. The evidence does not show that the Veteran’s a lumbar spine disorder occurred during or was otherwise caused by his service, or was caused or aggravated by his service-connected right ankle disorder. 3. The evidence does not show that the Veteran’s psychiatric disorder occurred during or was otherwise caused by his service, or was caused or aggravated by his service-connected right ankle disorder. 4. The Veteran does not meet the schedular criteria for TDIU, and he is not precluded from securing and following substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral leg disorder, to include secondary to service-connected right ankle disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for a lumbar spine disorder, to include secondary to service-connected right ankle disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for service connection for a lumbar spine disorder, to include secondary to service-connected right ankle disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for entitlement to TDIU rating have not been met, and referral for extraschedular consideration is not warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May1981 to August 1981. Of note, in April 2013, the Veteran testified at a Board hearing. Unfortunately, the Veterans Law Judge who conducted the hearing had since retired from the Board. The VA sent a letter to the Veteran in January 2018 apprising him of his right to a second Board hearing. However, the Veteran responded in February 2018 that he did not desire an additional hearing. This appeal has previously been before the Board, most recently in April 2018 when the Board remanded the issues for further development to obtain records from the Social Security Administration (SSA). SSA records were added to the record in July 2020. Thus, the requested development has been accomplished, and the Board will proceed with its appellate review of the claims. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310 (a). 1. Legs At his April 2013 Board hearing, the Veteran testified that he suffered from bilateral peripheral neuropathy in legs, which he believed was related to his service-connected right ankle condition. In addition, the Veteran’s representative submitted a written argument in January 2021 stating that the Veteran also suffered from Reflex Sympathetic Dystrophy (RSD), which was defined by WebMD as a disorder that caused lasting pain, usually in arms or legs, and it showed up after an injury, stroke or a heart attack. Service treatment records (STRs) do not show any complains of or treatment for leg problems except for the right ankle. Private treatment records reflect that the Veteran had right-sided chest pain that started in September 2004 after an intense argument at work. Treatment records in November 2004 stated that the Veteran’s symptom represented a picture compatible with complex regional pain syndrome (CRPS) sustained by the allodynia and lack of other causative factors. No precipitating event was identified. The record also showed that a thoracic sympathetic block was performed. VA examination on peripheral nerves in June 2005 showed that the Veteran had onset of right-sided chest pain in August 2004, which later extended to both hands. The examiner diagnosed him with complex regional pain syndrome/RSD without any involvement the peripheral nerves. The examiner opined that the Veteran’s RSD was more than likely related to his coronary artery bypass grafting (CABG) in 2003, given that this event was the most close and near to the clinical painful syndrome. At a VA examination on peripheral nerves in August 2016, the Veteran reported having experienced cramps, numbness, inflammation and chronic pain, burning sensation on both legs, causing walking difficulty. The examiner noted diagnoses of mononeuritis of unspecified site (2006); bilateral mild peroneal neuropathies (2007); and mild neuropathies of the right tibial. The examiner opined that the Veteran’s neuropathies in his legs were less likely than not (less than 50 percent probability) proximately due to or result of the service-connected right ankle condition. The examiner explained that based on record review and in-person examination, the Veteran’s neuropathies in the lower extremities were diagnosed since 2007, and he had history of diabetes since 2006; therefore, his diabetes had caused his neuropathies. The evidence does not show that the Veteran’s bilateral leg disorder occurred during active service, or otherwise caused by his service, or was caused or aggravated by his service-connected right ankle disorder. The records show that the onset of his RSD (complex regional pain syndrome) can be traced back to August 2004, approximately 23 years after he separated from his service; and his peripheral neuropathy in the lower extremities can be traced back to 2007, approximately 26 years after he separated from his service. The Veteran did not allege, and the evidence does not show, that his bilateral leg disorder is caused by his service. Rather, the Veteran argued that his leg disorder is related to his service-connected right ankle problem. However, the June 2005 VA examiner opined that the Veteran’s RSD (which could arguably cause pain in the extremities) was more likely caused by his coronary artery bypass surgery. The private medical records show that the Veteran’s treating physician thought the complex regional pain syndrome/RSD was lack of other causative factors and no precipitating event was identified. The August 2016 examiner opined that the Veteran’s neuropathies in the legs were caused by his diabetes, a non-service connected condition. While the Veteran believes that his bilateral leg disorder is related to his service-connected right ankle problem, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of such a disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite nexus in this case. For that reason, two medical opinions were obtained, but as discussed above, both opinions were against the claim. No other medical opinion has been offered that challenges, undermines, or refutes the examiners’ opinions. Accordingly, service connection for bilateral leg disorder, to include secondary to service-connected right ankle disability is denied. 2. Back At his April 2013 Board hearing, the Veteran testified that he injured his back concurrently with his right ankle during service. Specifically, he contends that he stepped into a crater and fell onto his back and injured his right ankle. He also maintains that his back problems are related to his service-connected right ankle disability. STRs document a right ankle injury, but did not show any complains of or treatment for back problems at that time. A private magnetic resonance imaging scan (MRI) of the lumbar spine in June 2000 revealed spinal canal stenosis at L4-L5, secondary to central posterior disc protrusion; small diffuse posterior bulging disc at L5-S1, without evidence compression. No fracture or displacement. Private MRI in November 2004 showed mild wedging compression fracture deformity T-11 without retropulsion. These records are among the earliest diagnosis of the Veteran’s lumbar spine disorder, which were approximately 19 to 23 years after he separated from his service. Evidence in support of the Veteran’s claim is a February 2013 report, authored by Dr. R. Dr. R. reported that the Veteran had been a patient since January 2009, and in reviewing his pain history, it was likely that he injured his lower back concurrently with his right ankle fracture while in service. Evidence against the claim includes a November 2007 VA examiner’s opinion. At that examination, the Veteran reported having experiencing pain stiffness, weakness of lumbar spine with onset about three to four years before (2004-2005). He also complained numbness in his legs and reported that he had been unemployed since 2004 due to RSD. The examiner diagnosed him with lumbar strain, lumbar spondylosis, and herniated disc. The VA examiner opined that the Veteran back condition was less likely than not (less than 50 percent probability) related to his right ankle problem, and was most likely related to aging and not to actual gait biomechanics even if he had antalgia. Other evidence against the claim includes a July 2016 VA examiner’s opinion. ation. The examiner opined that the Veteran’s back condition was less likely than not (less than 50 percent probability) incurred in or caused by service because his STRs were silent for back problems during his active military service. The examiner also opined that the Veteran’s back condition was less likely than not (less than 50 percent probability) proximately due to or the result of, or aggravated (made worse) by his right ankle connected condition. The examiner explained that by definition, the right ankle condition and the lumbar condition were different disease entities with different pathophysiological processes unrelated to each other. The examiner also indicated that no objective evidence of aggravation was found as per the examination. The Board finds that the weight of the evidence is against the claim for service connection for a back disability, to include on a secondary basis. Although Dr. R. opined that the Veteran may have injured his back at the same time he injured his right ankle during service, it does not appear that the Dr. R. had reviewed STRs, which were devoid of any subjective complaints or clinical findings of any back problems, to include concurrently with his right ankle injury. A VA orthopedic examination was conducted in October 1981 during which the Veteran did not report and the examiner did not reveal any back problems. As such, the Dr. R.’s opinion will be deemed less probative than the November 2007 and July 2016 VA medical opinions which were given after the examiners reviewed the Veteran’s claims file to include STRs, and were supported with medical reasoning. Accordingly, service connection for a lumbar spine disorder, to include as secondary to service-connected right ankle disability is denied 3. Depressive Disorder At his Board hearing in April 2013, the Veteran stated that his psychiatrist had told him that he was depressed due to his right ankle condition. At his VA psychiatric examination in July 2005, the Veteran reported that he underwent an open heart surgery in 2002; that after an incident at work in August 2004, he suffered a severe chest pain and pain in his joints; that he was diagnosed with RSD; that he suffered from continuous pain, which did not respond to any type of treatment, causing him unable to sleep and rest; that he felt depressed, anxious, and desperate due to his continuous pain. The examiner diagnosed the Veteran with pain disorder due to RSD. VA psychiatric examination in November 2007 diagnosed him with major depressive disorder and found that his mental disorder had caused total occupational and social impairment. However, the examiner opined that the Veteran’s psychiatric disorder was not secondary to his service connected right ankle condition, rather, it may be secondary to other more disabling conditions such as low back pain with lumbar disc bulges, RSD and peripheral nerve disease, to include bilateral axonal common peroneal neuropathies. VA treatment records in December 2010 show that the Veteran reported that his motions would be more stable if he was in less pain, for which he is being considered for the spinal cord stimulator. The progress notes indicate that he associates his depressed mood with his pain condition. VA psychiatric examination in August 2016 diagnosed the Veteran with unspecified depressive disorder. The examiner opined that his psychiatric disorder was less likely than not (less than 50 percent probability) proximately due to or the result of his service or his service-connected right ankle condition. The examiner provided the following rationale: “There is no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment during the military service. There is no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment within one year after discharge from the military service. The Veteran sought formal psychiatric treatment around 2005, almost twenty-four years after the active military discharge. There is no relation between military service and the mental condition found in 2005. There is no relation between the Veteran’s unspecified depressive disorder and the service-connected right ankle limited motion… The Veteran sought psychiatric care in 2005, almost twenty-four years after the right ankle limited motion. There is no relation between the service-connected right ankle limited motion and the mental condition diagnosed around 2005. The above-mentioned conditions in terms of etiology or pathophysiology are not related one with the other. It is determined that Veteran’s, unspecified depressive disorder and the service-connected right ankle limited motion are in different time frames, different etiology, different pathophysiology and different anatomical system, no relation one with the other …… It is worth mentioning, that this Veteran was examined at C &P by Dr. M. in 2005, and his complaints were related to work and his open-heart surgery. The Veteran never mentioned his ankle.” At his VA psychiatry examination in March 2020, the Veteran reported that he had been dealing with chronic pain for a long time, and had a new medical condition related with his heart; that he had sleeping difficulties – (only slept four hours with current medications) and he could not tolerate CPAP. The examiner diagnosed him with major depressive disorder (MDD) and indicated that the Veteran was depressed and suffered from mood disorder due to chronic pain. The Board finds that the preponderance of the evidence is against the claim for service connection for a psychiatric disability, claimed as secondary to the service-connected right ankle disability. While the Veteran stated that a psychiatrist had told him that he was depressed due to his right ankle condition, he has not provided such opinion in writing. VA examination in July 2005 diagnosed him with pain disorder due to RSD. A VA examiner in November 2007 opined that his psychiatric disorder was not secondary to his service connected right ankle condition, rather, it may be secondary to other more disabling conditions such as low back pain with lumbar disc bulges, RSD and peripheral nerve disease. VA examiner in August 2016 opined that his psychiatric disorder was less likely than not (less than 50 percent probability) proximately due to or the result of his service or his service connected right ankle condition. VA examination in March 2020 also show that the Veteran was depressed from his chronic pain, sleeping impairment as well as his heart problems. The VA examiners’ opinions are well-reasoned and spurted by the evidence of the record, and have not been contradicted or undermined by other medical opinions on the record. As such they will be given great probative value. Accordingly, service connection for a psychiatric disorder, to include depressive disorder as secondary to service-connected right ankle disability is denied. 4. TDIU The Veteran filed a TDIU claim in February 2008, claiming that he last worked in August 2004, and that he could no longer work due to service-connected right ankle disability. 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). The Veteran is currently rated at 20 percent for his right ankle disability, 10 percent for his right knee disability and 10 percent for his left knee disability, with a combined rating of 40 percent. As such, he does not meet the rating threshold to be considered for TDIU under 38 C.F.R. § 4.16(a). At no point during the period on appeal did the Veteran meet the minimal schedular criteria for a TDIU. 38 C.F.R. § 4.16 (a). However, a total rating on an extraschedular basis, may nonetheless be granted in exceptional cases (and pursuant to specifically prescribed procedures) when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). Thus, consideration of whether the Veteran is, in fact, unemployable due to service-connected disabilities, is necessary in this case. Upon review of all of the evidence of record, both lay and medical, the Board finds that referral for an extraschedular consideration of a TDIU is not warranted. The Board has acknowledged and considered the Veteran’s lay statements addressing his employability. The Board notes that the Veteran is competent and credible to report the subjective symptoms and functional limitations he experiences regarding his service-connected disabilities. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nonetheless, the Board emphasizes that the Veteran’s description of his service-connected disabilities must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. The evidence reflects that the Veteran has a college education, and had a career at a financial institution in management until August 2004. The Veteran maintains that he cannot work secondary to his service-connected right ankle disability. Private record in March 2005 shows that the Veteran suffered from right-sided chest pain starting September 2004 after an intense argument at work, and records in May 2005 show that he had been out of work for nine months because of this chest pain and anxiety. VA knee examination in July 2016 show that the Veteran had degenerative arthritis of both knees, the knee condition impacted his work in that he could not perform prolonged standing or walking which exacerbated due to the knee condition. VA knee examination in January 2018 show that the Veteran has limited range of motion in his knees, that he was limited in carrying objects that weighed 10 or more pounds, or doing activities that require walking on irregular surfaces and repetitively going from sitting to standing and vice versa, climbing stairs or ladders, and that he was limited to sedentary or semi-sedentary type activities and should not participate in high-impact activities. Records from SSA show that the Veteran was found disabled from August 2004 due to primary disability of severe mood disorders and secondary disability of back disorders. Records show that the Veteran worked from 1991 to 2004 as a bank manager. SSA Physical Functional Capacity Assessment in December 2008 showed that Veteran had suffered from severe burning left thoracic pain with diagnosis of complex regional pain syndrome, degenerative disc disease DDD/spondylosis of lumbar spine, a compression fracture of thoracic vertebra and pain in the right ankle with normal MRI. SSA found that he was very restricted activities, did not drive, did not cook or do yard work. SSA Mental Functional Capacity Assessment in November 2008 showed that the Veteran was diagnosed with major depressive disorder, and that he did not retain the ability to learn, understand, remember and carry out simple or detailed instructions, or maintain attention and concertation for two hours periods without undue interruptions, or perform as per schedule and routine, or appropriately interact with supervisors, co-workers and others, or adequately complete a normal workweek and workday. At his VA psychiatry examination in March 2020, the Veteran reported that worked for more than 20 years until 2004 at a financial institution as billing manager, and that he had a Bachelor’s degree in business administration. The examiner opined that the Veteran’s psychiatry disorder caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Board notes that, for a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The Board does not find that the record demonstrates the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected bilateral knee and right ankle disabilities or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders, even when his disabilities are assessed in the context of subjective factors such as his occupational background and level of education. Nor does the evidence show the Veteran’s record places his case in a different category than other Veteran’s with an equal level of disability. While the Veteran has said he can no longer work in management, these statements must be weighed against the objective medical evidence of record. The Board notes a TDIU rating is not warranted where a veteran is unable to continue a chosen profession but, as already noted, the determinative question for purposes of TDIU is whether the Veteran’s level of disability, given his education, training, and experience, renders it impossible for the average person to obtain or retain substantially gainful employment of some type. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Simply stated, while perhaps the Veteran cannot work in his prior job or even in his prior vocation, the question is whether he can, in fact, work. This finding can, unfortunately, not take into consideration the Veteran’s age or his nonservice-connected disabilities. At the outset, the Board acknowledges that the Veteran contends, and the evidence supports, that he has functional impairment that limits his mobility. However, the weight of the probative evidence indicates that his functional impairment is due to, not only his service-connected bilateral knee and right ankle disabilities, but also his nonservice-connected psychiatric and back disorders and RSD. The evidence shows that while the Veteran’s service connected right ankle and bilateral knee condition may limited his capacity performing certain types of employment requiring physical strength, such as prolonged standing and walking, or carrying heavy objects, given that the Veteran has a bachelor’s degree and had worked for a financial institution as a manager for over a decade, his service connected physical conditions alone do not appear to render him unable to secure and maintain a substantially gainful employment, such as a sedentary job. While SSA has determined that the Veteran was disabled, this determination was based primarily on his psychiatric disorder and back conditions, which are not service-connected disabilities. Veteran himself admitted during his November 2007 VA back examination that he was unbale to work due to RSD, which is also not a service-connected disability. To the extent that the medical evidence of record, including the VA examinations, address functional impairment due to the left knee, the Board notes that there is no probative medical opinion of record indicating that the Veteran was unable to work due to solely his service-connected disabilities, and the Board does not find that these limitations would prevent all forms of employment. The Veteran has extensive experience in law enforcement, and while his physical limitations may indeed prevent his ability to engage in the same or similar employment to his previous work, there is no probative evidence of record indicating that the Veteran would be unable to secure and maintain work consistent with his education and occupational background. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this regard, the Board acknowledges that the Veteran’s bilateral knee and right ankle disabilities result in difficulty with prolonged standing and walking and the inability to run, jump, climb stairs, or engage in other forms of physical activity. However, the Board finds that these symptoms have been adequately considered under his currently assigned disability ratings. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321 (a), 4.1. Although the Board recognizes that the Veteran believes that his service-connected disabilities have rendered him unable to work, as noted above, the Veteran’s description of his service-connected disabilities must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. Here, after considering the evidence of record, both lay and medical, the Board finds that the preponderance of the competent and credible evidence does not reflect that the Veteran is unable to secure or follow substantially gainful employment due solely to his service-connected disabilities. The Board is sympathetic to the Veteran’s physical limitations, and acknowledges that the Veteran’s service connected bilateral knee and right ankle disabilities will cause him problems, and may cause him not to be able to function in some jobs; however, this fact, in and of itself, does not provide the basis to grant this case. The Board further recognizes that the Veteran believes that his psychiatric, leg and back disorders are related to his service-connected right ankle disability, and should therefore be considered in deciding the current claim; however, the Board must emphasize that the Veteran is not currently service-connected for these disabilities these disabilities and nonservice-connected disabilities may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. (Continued on the next page)   Based on the foregoing, the Board finds that the weight of the probative lay and medical evidence does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disabilities or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders, even when his disability is assessed in the context of subjective factors such as his occupational background and level of education. The Board does not doubt that the Veteran’s service-connected disabilities have an effect on his employability, as evidenced by his combined disability rating. The weight of the evidence, however, does not support a finding that his service-connected disabilities precluded his participation in substantially gainful employment. As such, the Board finds that referral for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b) is not warranted. Carole R. Kammel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.