Citation Nr: 21015752 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-43 077 DATE: March 18, 2021 ORDER Entitlement to service connection for degenerative joint disease of the cervical spine is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Giving the Veteran the benefit of the doubt, the Veteran’s in-service injury at least as likely as not caused the Veteran’s cervical spine disability. 2. The Veteran meets the schedular requirement for a TDIU, and his service-connected disabilities render him unable to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative joint disease of the cervical spine have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2003 to April 2006. This matter comes to the Board of Veterans' Appeals (Board) from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in August 2019; a transcript of that hearing is associated with the claims file. In November 2019 and September 2020, the Board remanded these claims for additional development. The Board notes that, in a December 2020 rating decision, the Veteran’s claims for service connection for degenerative arthritis of the lumbar spine and bilateral knee strain were granted. Service Connection Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). Mere transcription of medical history does not transform information into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The provisions of 38 C.F.R. § 3.304(b) clarify that the term "noted" denotes "[o]nly such conditions as are recorded in the examination reports" and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Crowe v. Brown, 7 Vet. App. 238, 245 (1994); Cotant v. Principi, 17 Vet. App. 116 (2003). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Court has held that lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition); Leshore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional.) A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board recognizes that the Court has held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the disease resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non-precedential). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is considered competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App. 370, 374 (2002). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. 1. Entitlement to service connection for degenerative joint disease of the cervical spine The Veteran and his representative claim that in-service events caused his current degenerative joint disease of the cervical spine. In February 2020, the Veteran was afforded a VA examination for his claimed cervical spine disability, pursuant to the November 2019 Board remand. The VA examiner diagnosed the Veteran with cervical spine degenerative joint disease, cervical strain, and myofascial pain syndrome. Therefore, the first element necessary to establish service connection has been demonstrated. During the February 2020 VA examination, the Veteran reported the onset of the cervical spine disability during basic training with prolonged ruck march with heavy sack on his back, and then had pain around his shoulders. The examiner noted that the Veteran was seen at medical call in Korea and treated with medication and profile, then returned to full duty. Then while serving in Iraq, the Veteran was involved in a car crash with his humvee while he was in the turret and got thrown around; the examiner also noted that the Veteran experienced pressure in his neck and had a headache. While noting the Veteran’s in-service neck pain history, the VA examiner opined that there was no data that can support a nexus of injury to his neck, noting that the effects of "wear and tear" on the neck that were claimed by the Veteran were not apparent until 2010, 4 years after discharge from active duty. The examiner also focused on a 2010 report, noting a history of a high school football injury with paralysis for 3 hours and several injuries after service. The examiner also noted that the Veteran worked in construction after service, lifting heavy weights, and had pulled muscles. The VA examiner concluded that it is more likely that these events before and after service are related to his current neck disability. The Veteran's induction examination from October 2002 showed no complaints of cervical pain or any cervical disability, and noted that the Veteran was in good health. The Veteran is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated (i.e. increased in severity beyond its natural progression) by service. If this burden is met, then the veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In this case, the Veteran is entitled to the presumption of soundness. Accordingly, in order to rebut this presumption, there must be clear and unmistakable evidence that the Veteran’s degenerative joint disease of the cervical spine preexisted service and was not aggravated during service. As noted in a March 2008 VA memorandum, the Veteran's service treatment records are unavailable. In cases where service records are missing or presumed destroyed VA has a heightened duty to assist with the development of evidence in support of the claim and an obligation to carefully consider the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In September 2020, the Board found that the February 2020 VA examiner disregarded the Veteran’s assertions that his current cervical spine disability originated during his active duty service and opined that the Veteran’s disability arose prior to service. Aside from this, the Board also found that the examiner failed to address whether the disability was aggravated during his active duty service. Pursuant to the September 2020 Board remand, VA addendum opinions were obtained in November 2020. The November 2020 VA examiner opined that there was no mention of a neck injury prior to service, and concluded that the Veteran’s cervical spine disability did not exist prior to service. Given this finding and the heightened duty caused by the unavailable service records, the Board finds that the presumption of soundness cannot be rebutted. Therefore, the Board's analysis must turn to the question of whether the Veteran’s current degenerative joint disease of the cervical spine began in or is otherwise due to his military service. The Board now turns to the other opinion offered by the November 2020 VA examiner, which noted that during the Veteran’s active duty service he was seen and treated for neck pain that has continued to the present. The examiner noted that there is evidence of current, chronic and continuous treatment and care, and that a nexus had been established between his current disability and his active duty service. The VA examiner concluded that given that these symptoms have been present since service, continuously and progressively, his neck conditions are at least as likely as not to represent a continuation of the same disease process, The VA examiner’s medical opinion is probative because it is based on a review of the record and contain a clear conclusion with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). The evidence contained in this opinion further supports the existence of a nexus between the Veteran’s degenerative joint disease of the cervical spine and the Veteran’s active duty service. Therefore, giving every reasonable doubt to the Veteran with respect to this claim, the Board finds that the in-service injury at least as likely as not caused or the Veteran’s degenerative joint disease of the cervical spine, and that service connection for degenerative joint disease of the cervical spine is therefore warranted. TDIU Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. When the schedular rating is less than total, a total disability rating for compensation may be assigned when the disabled person is considered to be 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An award of a TDIU "does not require proving 100 percent unemployability." Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, an award of TDIU requires that the claimant show that he or she has an inability "to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). When making this determination, "the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). The Board additionally "must take into account the individual veteran's education, training, and work history" but "may not consider nonservice-connected disabilities or advancing age." Id. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Additionally, in determining whether unemployability exists for a TDIU, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by any nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes his case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Neither the effect of nonservice-connected disabilities nor of the veteran's age may be considering in determining whether TDIU is warranted. Id. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran filed a claim for TDIU in April 2013. In his TDIU claim, the Veteran asserts that his psychiatric, lumbar spine and cervical spine disabilities render him unable to maintain gainful employment. During the entire appeal period the Veteran has met the schedular criteria for TDIU. His service-connected compensable disabilities include: posttraumatic stress disorder (PTSD), rated as 80 percent disabling (100 percent from December 5, 2014, to February 29, 2015); lumbosacral strain with degenerative arthritis, rated 10 percent disabling; right knee strain, rated 10 percent disabling; left knee strain, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; bilateral hearing loss, noncompensable; and degenerative joint disease of the cervical spine, not yet rated. The Veteran’s combined service-connected disability evaluation is at least 80 percent, except from the period of time from December 5, 2014, to February 29, 2015, when the Veteran had a 100 percent rating. Therefore, the Board finds that the Veteran has met the schedular rating criteria for TDIU. The Veteran asserts that his service-connected psychiatric, lumbar spine and cervical spine disabilities prevents him from following substantially gainful occupation. According to the Veteran’s filing of VA Form 21-8940, his last full-time employment was in February 2012. Most of the Veteran’s employment history includes construction and employment as an operator of machinery in factories. The Veteran has a noted history of losing employment due to time lost as a result of his service-connected disabilities. The Veteran has continued to try to get employment and has worked in part-time capacities. Regarding education, the Veteran completed a high school degree. During the August 2019 Board hearing, the Veteran provided additional information regarding his employment situation. The Veteran explained that the last worked in 2017 in a commercial management part-time job, and lost the position due to absences for treatment of his service-connected disabilities. The Veteran also explained that he tried taking college courses, however his PTSD seemingly impaired his ability to learn in an academic setting due to difficulty focusing, poor comprehension, memory issues, being anxious around other students, and being easily distracted, as noted in the October 2015 VA psychiatric examination. The remaining question, then, is whether the Veteran's service-connected disabilities render him unemployable. In this regard, as noted previously, the central inquiry is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board acknowledges that there are VA opinions whereby the examiners opined that the Veteran would have a significant difficulty performing a physically demanding job and would even be impaired for sedentary employment. In July 2013, during the Veteran’s hearing loss and tinnitus VA examination, the Veteran was noted as having functional impairments that result in miscommunication and periodic sleep impairment due to his feeling as if there is water running in his ears. In the October 2015 psychiatric VA examination, as previously noted, the was noted as being unemployed for the previous two years, and that his academic attempts at college and community college had been impacted by his PTSD symptoms resulting in difficulty focusing, poor comprehension, memory issues, being anxious around other students, and being easily distracted. In the February 2020 knee VA examination, the Veteran was noted as being unable to do prolonged standing, walking, climbing ladders and steps, and feeling weak and shaky; also noting that the Veteran would have to adjust positions in sedentary employment. In the February 2020 lumbar spine VA examination, the Veteran was noted as taking longer to complete tasks and having to take breaks to treat the pain in his back, and having reduced endurance for prolonged sitting, bending over, lifting, pushing and pulling, also noting that, in sedentary employment, the Veteran would have to change position frequently and had reduced concentration due to chronic pain. In the February 2020 cervical spine VA examination, the Veteran was noted as having reduced endurance for lifting, pushing, pulling, carrying, prolonged standing and walking; while also noting that, in sedentary employment, the Veteran would have to change positions frequently and have reduced concentration due to pain. The Board finds the Veteran to be competent and credible regarding his assertions as to the impact of his service-connected disabilities. The Board also finds that the Veteran's assertions as to the occupational impact related to his service-connected disabilities is consistent with the VA examiners’ evaluations. Therefore, based on all of the foregoing, the Board finds that the weight of the evidence shows that the severity of the Veteran’s service-connected disabilities renders him incapable of obtaining and retaining substantially gainful employment given his level of education, training, and work experience. Accordingly, the Board finds that a TDIU is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.