Citation Nr: 21021948 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-11 612 DATE: April 14, 2021 ORDER For the period of appeal prior to June 18, 2012, entitlement to a total disability rating based on individual unemployability (TDIU) as due to service-connected disabilities, is denied. Entitlement to service connection for a lumbar spine disability, claimed as degenerative joint disease (DJD) and degenerative disc disease (DDD), is denied. FINDINGS OF FACT 1. For the period of appeal prior to June 18, 2012, entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities. 2. The Veteran’s lumbar spine disability is not caused by, due to, or otherwise related to his active duty military service; or aggravated beyond the natural progression of the disease by his other service-connected disabilities. CONCLUSIONS OF LAW 1. For the period of appeal prior to June 18, 2012 the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to December 1992. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) April 2013 rating decision of the AOJ. In September 2018 the Board remanded the case for additional development. 1. For the period of appeal prior to June 18, 2012, entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities The Veteran claims that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. The Veteran was granted entitlement to a TDIU in a November 2020 rating decision effective June 18, 2012. However, this decision is considered a partial grant of benefits sought on appeal for this issue. The period prior to June 18, 2012 remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from a common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). In determining whether the Veteran is entitled to TDIU, neither the Veteran’s non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341 (a). A TDIU rating is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). 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 (b). Rating boards should refer to the Director, Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The essential issue is whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a “living wage”). 38 C.F.R. § 4.16 (b); Moore v. Derwinski, 1 Vet. App. 356 (1991). The record must reflect that circumstances, apart from non-service-connected conditions, place him in a different position than other Veterans having the same compensation rating. The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he could find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As noted above, as the instant appeal was on remand the AOJ granted entitlement to a TDIU effective June 18, 2012. 38 C.F.R. § 4.16 (a). For the period prior to June 18, 2012, the Veteran had a combined disability rating of 40 percent with the following disabilities found to be service-connected: right knee sprain/strain (10 percent disability rating as of August 2010); left knee traumatic arthritis (10 percent as of August 2010); residuals of right ankle fracture (10 percent as of August 2010); bilateral tinnitus (10 percent disability rating as of August 2010); bilateral hearing loss (noncompensable, or 0 percent, disability rating as of August 2010); and left ankle degenerative arthritis associated with residuals of right ankle fracture (noncompensable disability rating as of August 2010). Therefore, for the period prior to June 18, 2012, the Veteran does not meet the schedular requirements for a TDIU. As such, the Board will examine whether his case should be submitted to the Director for extraschedular consideration. As noted above, referral is merited in cases where the evidence suggests the Veteran is precluded from substantially gainful employment by reason of service-connected disabilities. In a June 2012 treatment note, the Veteran stated he had not been working since 2010. He “just resigned” from his last job because he “realize[d] there is something wrong.” The Veteran’s medical treatment records show that the occupational difficulties faced by the Veteran prior to June 18, 2012, were related to any then-undiagnosed psychiatric conditions. The Veteran’s medical records do not show any instances where the Veteran complains that his service-connected disabilities, notably his bilateral knee and ankle disabilities, prevented him from obtaining or maintaining substantially gainful employment prior to June 18, 2012. In a June 2012 psychiatric examination, the Veteran said that his mental health condition made it “extremely difficult” for him to work. While the Veteran’s knee and ankle conditions caused him pain, he was able to cope with over-the-counter medication and boots for his ankles. He admitted to “daily” walks with his dogs, albeit the distance is limited due to pain. The Board finds that the medical evidence shows that, prior to June 18, 2012, the Veteran’s service-connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment. Prior to June 18, 2012, the Veteran’s service-connected disabilities, and the functional impact they caused, were contemplated by the rating schedules of the respective conditions. Therefore, referral to the Director, Compensation and Pension Services for extraschedular consideration is not warranted for the period prior to June 18, 2012. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for a lumbar spine disability, claimed as degenerative joint disease and degenerative disc disease The Veteran contends that his back disability is caused by, or due to, his active duty military service. In the alternative, the Veteran contends that his back disability is secondary to his service-connected disabilities, specifically his service-connected ankle disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309 (a) (and not merely diseases which are “medically chronic”), including arthritis, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word ‘chronic’), or manifests to 10 percent or more within one year of service discharge (under § 3.307). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303 (b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has current diagnoses of degenerative disc disease, degenerative joint disease, and arthritis of the spine. This fulfills the first Shedden requirement necessary for service connection. In September 1991 the Veteran was treated for lower back pain (LBP) while in-service. This fulfills the second Shedden requirement necessary to establish service connection. The Veteran’s service treatment records (STRs) only show two instances of being treated for back pain. In July 1987 the Veteran complained of back pain. In September 1991 the Veteran was diagnosed with “LBP mild strain,” which appears to have resolved. The Veteran was next seen at sick bay in December 1991, and made no complaints or comments regarding his back, nor did the physician note any back pain. The Veteran had no complaints of any back pain in his November 1982 enlistment examination. A June 1983 entry into the Veteran’s STRs stated that the Veteran had no medical problems. In a December 1987 physical, notably performed after his July 1987 injury, the Veteran denied any health problems generally, specifically denied back injuries or pain, and stated he was in “good health.” At his July 1992 separation examination, the Veteran stated that he is in “excellent health,” and denied any back pain. As with before, the examining physician found no evidence of back pain or problems. A February 2005 treatment note from Dr. R., a non-VA physician treating the Veteran, found that the Veteran had no arthritis and no complaints of any arthralgias, or joint pain. Dr. R. also noted that the Veteran had “recently” been seen for a physical examination at his local college “for admission into a weightlifting class.” At the time, the Veteran denied any type of prior medical history generally, and back issues specifically. A March 2005 treatment note showed that the Veteran was “negative for joint pains.” Similar findings were made in a July 2009 examination. In an October 2010 VA Form 21-4138 Statement in Support of Claim, the Veteran stated that it was “frowned upon” to seek medical treatment, and as a non-commissioned officer it was “especially frowned upon.” For those reasons, the Veteran did not seek treatment for his back pain. However, the Board notes that the Veteran’s STRs have many instances of him seeking medical treatment while in-service. In March 1983 the Veteran sought treatment multiple times, once for a sore throat and another time for a cough. Around January 1985 the Veteran sought treatment because a mole was bothering him. In December 1987 the Veteran sought treatment for a skin rash. In September 1991 the Veteran was treated for a bug bite. In February 1991 the Veteran received a physical profile for “knee pain,” which restricted the physical activities he could engage in. The doctor did not find any problems with the Veteran’s back, and even noted the Veteran would be able to perform back exercises such as “lower back stretch … upper back stretch,” and that he was able to carry a backpack. In May 1992 the Veteran received another physical profile for an ankle sprain. As with the February 1991 physical profile, the Veteran’s back was not noted to cause any limitations. Despite numerous instances of receiving treatment for medical conditions, the Veteran only sought treatment one time for an acute back injury. Furthermore, after the September 1991 back injury, there are numerous instances of the Veteran specifically denying experiencing back problems. The Board notes that Veteran’s current statements regarding the chronicity of his pain were submitted to the record many years after the in-service incident. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence); Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran; affirming Board decision that cited from MCCORMICK ON EVIDENCE (3rd ed.1984) for the proposition that “memory hinges on recency” and that earlier statements are generally more trustworthy than later ones). The Veteran’s medical record shows that he was diagnosed with arthritis in his back around 2012. A May 2012 treatment record showed that the Veteran had “moderate degenerative disc disease at L5-S1,” but no signs of “acute fracture or subluxation.” In May 2012 a VA examiner diagnosed the Veteran with DDD and DJD of his lumbosacral spine. In January 2016 the Veteran was seen for a VA examination to determine the etiology of his back disability. According to the examiner, the Veteran had “degenerative arthritis of the spine,” that had an onset around 2014. At the time the examiner noted that the Veteran’s “spinal condition is degenerative in nature, and not due to the ankle condition.” In September 2019 the Veteran was seen for another VA examination per the Board’s September 2018 remand directives. The examiner found that the Veteran’s back condition was “first documented via x-ray in 2012, 20 years after active duty.” Regarding the two instances of in-service back injuries, the examiner noted that they were “only minor back strains, without indication of chronicity or severity.” The examiner came to that conclusion on the basis that November 1986, July 1992, and December 1992 “Reports of Medical History … all indicate negative responses to ‘recurrent back pain?’.” As such, the examiner concluded that “the Veteran’s back condition therefore did not arise as a result of active duty.” The Board finds that the credible, competent, and probative evidence is against a finding that the Veteran’s current back disability is caused by, or due to, his active duty service. The Board notes that the Veteran has recently made contentions that his back pain began in service, and that he did not report his pain because of “machisimo.” See October 2010 VA 21-4138 Statement in Support of Claim. However, the Board finds that the Veteran’s statements made for contemporaneous medical treatment during his active duty service are more probative. Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010). Furthermore, the September 2019 VA examiner’s conclusion that the Veteran’s current back disability is less likely than not due to his military service is based on a complete review of the Veteran’s claims folder as well as an in-person examination of the Veteran, and is supported by a well-reasoned rationale. As the probative evidence is against finding a nexus between the Veteran’s current back disability and his in-service injuries in 1988 and 1991, the Board finds that the third Shedden requirement necessary to establish service connection has not been met. Therefore, the Veteran’s claim for entitlement to service connection on a direct basis for a lumbar spine disability is denied. The Board therefore turns to the question of whether the Veteran’s back disability is caused by, due to, or aggravated by another service-connected disability. In this case, the Veteran alleges that his back disability is due to his service-connected bilateral knee and ankle disabilities. As discussed above, the Veteran has a diagnosed back disability, and the following disabilities have been deemed to be service-connected: left-ankle degenerative arthritis; residuals of right-ankle fracture; left-knee traumatic arthritis; and, right-knee sprain/strain. As such, the first two Wallin requirements necessary to establish secondary service connection have been met. The Veteran has claimed that his bilateral knee and ankle disabilities have caused, or in the alternative aggravated, his back disability. The etiology of a condition such as spinal arthritis is a complex medical determination that can only be made by a qualified medical practitioner. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In January 2016, a VA examiner found that the Veteran’s back condition is not due to his other service-connected disabilities on the basis that his arthritis, DDD, and DJD were “degenerative in nature” and “not directly related” to his service-connected conditions. However, the examiner did not expand on his reasoning, and in a vacuum the conclusion is inadequate for adjudicative purposes. In September 2019 the Veteran was seen for another VA examination to determine the etiology of his back disability. The examiner concluded that “there is no indication” that the Veteran’s back disability “resulted from his ankle or knee condition.” The examiner noted that “while it is possible that altered biomechanics from ankle or knee conditions could adversely affect the spine, this would usually be caused by an altered gait.” The Veteran first complained of, and was treated for, an altered gait in 2012, well after he started experiencing back pain. As the Veteran’s back pain predates his altered gait (which “is only mentioned inconsistently” in the Veteran’s treatment records), the examiner concluded that there is no “plausible connection between ankle/knee conditions and the back condition,” and therefore it is “less tha[n] 50% likely” that the Veteran’s back disability is secondary to his bilateral ankle and knee disabilities. The examiner noted that, because the Veteran’s back pain predates his altered gait, “aggravation seems less than 50% likely.” The Board finds that the competent, credible, probative medical evidence is against finding that the Veteran’s currently diagnosed back disability is caused by, due to, or aggravated beyond the natural progression of the disease by his service-connected disabilities, specifically his bilateral knee and ankle conditions. As the preponderance of the evidence is against finding that the Veteran’s back condition is secondary to any of his service-connected disabilities, the third Wallin element necessary to establish service connection has not been fulfilled. Therefore, the Veteran’s claim for entitlement to service connection on a secondary basis for a lumbar spine disability is denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). SONJA S. AN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.