Citation Nr: 21023245 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 12-11 613A DATE: April 20, 2021 ORDER Entitlement to service connection for azotemia, to include as secondary to hypothyroidism, is denied. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran has not had an active, current diagnosis of azotemia at any point during the appeal period. 2. The most probative evidence does not reach the level of equipoise as to whether the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disorders. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for azotemia, to include as due to hypothyroidism, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1980 to April 1988, and from February 1990 to June 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Board previously remanded these matters in 2017, 2020, and 2021. In January 2021, the Board asked the agency of original jurisdiction (AOJ) to procure an addendum medical opinion addressing the possibility of a whether azotemia is proximately due to, a result of, or aggravated by a service-connected disorder, to include hypothyroidism. See 38 C.F.R. § 3.310; BVA Decision, January 2021. In January 2021, a VA medical examiner provided an opinion stating that the Veteran did not have azotemia, but not addressing the question of aggravation. Nevertheless, after reviewing the entirety of the record, the Board finds that the most probative evidence does not support an active diagnosis of azotemia at any time during the appeal period. Therefore, further remand of these matters would have no reasonable possibility of substantiating the claim and needlessly delay adjudication without benefit to the Veteran. See 38 U.S.C. § 5103A(a)(2) (“The Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim”); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). As no further issues pertaining to the claims have been raised by the record, the Board will now adjudicate the claims on the merits. Legal Criteria – Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a VA compensation claim. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 1. Entitlement to service connection for azotemia, to include as secondary to hypothyroidism The Board finds that the most probative evidence does not reflect a current diagnosis of azotemia at any time during the appeal period. Therefore, the element of a current disability has not been met, and service connection must be denied. A brief discussion of the procedural history is necessary. The Veteran underwent a thyroid ablation procedure at a VA facility in March 2009. Thereafter, in July 2009, the Veteran sought treatment at a private facility after feeling weak, tired, fatigued, and dizzy. The impression listed was “rhabdomyolysis, hypothyroidism, hepatitis not otherwise specified…[and] azotemia.” The Veteran was admitted for further evaluation. Two days later, a discharge summary listed “azotemia that is resolved.” The physician did not document current azotemia at that time. The Veteran submitted a claim for service connection for azotemia in January 2010. He submitted an authorization for VA to obtain records of private treatment relating to azotemia on July 9, 2009. He did not endorse further private treatment for azotemia during the appeal period or indicate that he was currently being treated for the disorder. The Veteran underwent a VA examination in December 2010. The examiner did not diagnose current azotemia. After reviewing the Veteran’s medical records from 2009, he opined that “the transient azotemia was likely due to dehydration and has no residuals.” The Board notes that the AOJ granted service connection for hypothyroidism and rhabdomyolysis in October 2019. See Rating Decision – Narrative, October 2019. However, there was no medical evidence to support a diagnosis of azotemia, and the claim of service connection remained denied. The Veteran’s attorney submitted a brief in November 2019. He asserted, among other things, that azotemia may occur as a consequence of hypothyroidism. However, he did not submit evidence that the Veteran currently had azotemia or had it at any time during the rating period. The Veteran underwent a VA examination in June 2020. The examiner opined that “review of laboratory data from 2009-2015 reveals no evidence of azotemia or persistent/recurrent rhabdomyolysis (though nonspecific elevations of [creatine phosphokinase] in the 300s are noted, down from >1700 during the acute episode of rhabdo in 2009).” She found that the “claimed azotemia (which is an elevation in [blood urea nitrogen] or creatinine levels, often caused by dehydration) resolved with appropriate thyroid treatment and iv hydration at the time. Available labs since July of 2009 have shown no evidence of either rhabdomyolysis or azotemia to support a current claim or impairment from these conditions.” The Veteran underwent another VA examination in November 2020. The examiner conducted relevant diagnostic testing and concluded that the Veteran “does not have azotemia. His [blood urea nitrogen] is 9 which is normal.” He found that there is no “objective evidence to warrant a diagnosis” for the claimed azotemia. The attorney submitted additional arguments in December 2020. He contended that the Veteran has asserted that he suffers from fatigue and loss of muscle mass, which are symptoms that are attributable to azotemia. He criticized the VA examiner’s conclusion that there was “no objective evidence” to support azotemia. In February 2021, the attorney asserted that the Board had previously conceded the existence of a diagnosis of azotemia in the record when it stated that the November 2020 examiner “did not based [sic] his conclusion on the full claims record, since as mentioned above, the record shows a diagnosis for azotemia.” See Third Party Correspondence, February 2021. The Board has reviewed VA and private medical records. However, there is no evidence within such records that the Veteran has been diagnosed with azotemia at any time during the appeal period. After careful review of the record, the Board finds that the most probative evidence does not support a diagnosis of azotemia at any time during the appeal period. See McClain, 21 Vet. App. at 321. Rather, the medical evidence indicates that the Veteran had transient azotemia that resolved before he filed a claim for benefits. In reaching this conclusion, the Board observes that VA examiners in December 2010, and June and November 2020, found that the objective medical evidence did not support a diagnosis of azotemia during the appeal period, with the December 2010 examiner describing it as “transient” and having “no residuals”, and the June and November 2020 examiners concluding that objective laboratory testing did not support the existence of current azotemia. The Board can see no evidence in the record that the Veteran was diagnosed with azotemia at any time between January 2010 to the present. Thus, the record does not support a current disability, and, thus, service connection must be denied. See Brammer, 3 Vet. App. at 225. The Board has considered lay assertions from the Veteran and his attorney. However, the ability to diagnose azotemia requires specialized diagnostic testing and knowledge that is beyond the capacity of lay persons. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Although the attorney contended that the Veteran’s fatigue and muscle weakness are due to azotemia, lay persons do not have the complex medical knowledge to attribute general symptoms of fatigue and muscle weakness to an azotemia disorder. Moreover, such contentions conflict with the objective laboratory findings in 2010 and 2020, which found that the medical evidence did not support a diagnosis of azotemia. As such, the Board affords the competent medical evidence higher probative weight. Lastly, the Board is aware that it previously stated that the record shows a diagnosis for azotemia in February 2010, and cited to private medical records received on June 7, 2010. See BVA Decision, January 2021. However, after reviewing the entirety of the record, the Board concludes that the previous finding was erroneous. The cited records show that the Veteran was hospitalized with suspected azotemia on July 8, 2009. Two days later, the discharge report listed “azotemia that has resolved” which does not, as a matter of fact, show azotemia during the appeal period. See Medical Treatment – Non-Government Facility, June 2010. Moreover, the Board is not bound by prior factual findings in a remand, as such is in the nature of a preliminary order. See 38 C.F.R. § 20.1303; Prillaman v. Principi, 346 F.3d 1362 (Fed. Cir. 2003) (“the jurisdiction of the Board is plenary, as are its responsibilities to conduct a full review”); Breeden v. Principi, 17 Vet. App. 475, 478 (2004) (a Board remand “does not represent a final decision over which this Court has jurisdiction”). In sum, the record does not show a diagnosis of azotemia within the appeal period as is required for a valid claim of service connection. See Brammer, 3 Vet. App. at 225. As the element of a current disability has not been met, the claim of service connection for azotemia must be denied. See 38 U.S.C. § 5107(a). Legal Criteria – TDIU A TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. In adjudicating the issue of entitlement to a TDIU, the Board may not consider any nonservice-connected disabilities or advancing age. However, 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. It is established VA policy 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. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards in this section. 38 C.F.R. § 4.16(b). The Board may not grant an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). However, once the Director issues a decision, the Board must adjudicate the matter without deference to the earlier decision. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). VA is responsible for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that disabilities make 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). 2. Entitlement to a TDIU The Board finds that the most probative evidence does not reach the level of equipoise in the claim of entitlement to a TDIU. Therefore, the claim is denied. As of March 2021, the Veteran’s service-connected disorders consist of: right shoulder bicipital tendonitis, rated as 20 percent from January 13, 2010; low back strain with degenerative changes, rated as 20 percent from January 13, 2010; left lower extremity radiculopathy, rated as 20 percent from August 21, 2020; hypothyroidism, rated as 10 percent disabling from December 21, 2010; and right lower extremity radiculopathy, rated as 10 percent disabling from August 21, 2010. He receives a non-compensable rating each for gastroesophageal reflux disease, rhabdomyolysis, and scars of the right shoulder. See Rating Decision – Codesheet, March 2021. His combined rating is 60 percent, and he does not have any disorder separately ratable as 40 percent. Therefore, he does not meet the schedular rating criteria for a TDIU. 38 C.F.R. § 4.16(a). Thus, the remaining question for the Board is whether the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disorders to the extent that a referral for extraschedular consideration is warranted. Id. at § 4.16(b). The Veteran’s DD Form 214 shows military occupational specialties of correctional specialist, aviation supply clerk, recruiter, and career planner. He took a number of military education courses during his career, including a 10-week course in aviation supply and a 6-week course in “reserve procurement.” After service, he endorsed two years of college, but no other advanced education. He most recently worked full-time as a correctional officer from 2005 to 2017. His employer stated that he “applied for regular retirement when eligible” in June 2017. The Veteran reported that he was paid $48,500 during his last year of employment. The Board has reviewed the medical evidence. In May 2019, a VA examiner opined that the Veteran’s shoulder disorder would cause him to have limited range of motion and be unable to lift heavy objects. Regarding the back disorder, the examiner noted that the Veteran stated he had to retire early from his job due to back pain. The VA examiner found that the Veteran would be unable to stand for prolonged periods of time or walk long distances without a significant increase in pain. However, the VA examiner also noted that objective sensory, muscle strength, reflex, and straight leg testing were normal, and that the Veteran’s subjective reports of intermittent tingling and left lower leg numbness are consistent with sciatica. The May 2019 VA examiner also completed an individual employability statement. The VA examiner concluded that it is at least as likely as not that the Veteran would be able to perform sedentary work involving “exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.” In July 2020, the Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. He wrote that he was unable to work due to “hypothyroidism, high [blood pressure], type II diabetes, neuropathy of feet, cramping in legs, [and] muscle tissue loss in left leg/arm.” The Board notes that the Veteran is not service-connected for any of the above disorders except hypothyroidism. See Rating Decision – Codesheet, March 2021. In December 2020, a VA examiner concluded that the Veteran’s lower extremity radiculopathy would render him unable to work in any job occupation requiring walking or standing for extended periods of time. However, she did not indicate that the Veteran would be unable to do an occupation with primarily seated duties. The Veteran’s attorney submitted arguments in support of the claim for TDIU. For example, in February 2021, he asserted that the AOJ failed to address an increased rating for the Veteran’s left leg radiculopathy and grant of service connection for right leg radiculopathy as considerations for entitlement to TDIU. He contended that further development is needed to address whether these grants, made after issuance of the relevant Supplemental Statement of the Case (hereinafter “SSOC’), affected entitlement to TDIU. After careful review of the record, the Board finds that the most probative evidence does not suggest that the Veteran is unable to secure and follow substantially gainful employment in a low-skilled occupation with primarily seated duties. See Geib, 733 F.3d at 1354. This finding is consistent with the evidence of record, including the May 2019 VA examination report and employability statement, which indicated that the Veteran’s service-connected back and shoulder disorders would not prohibit him from occupations with primarily seated duties. Moreover, although the December 2020 examiner found that the Veteran would be unable to perform occupations with extended periods of walking and standing, she did not indicate that he would be unable to perform a primarily seated occupation. The Board has considered the Veteran’s educational and occupational history. Although the Veteran does not have an extensive educational background, a higher education degree is not a prerequisite for an occupation with primarily seated duties. See Pederson v. McDonald, 27 Vet. App. 276, 287 (2015). Thus, the Veteran would not be prohibited from working in low skilled occupations with primarily seated duties such as data entry, dispatching, telemarketing, seated assembly work, or similar positions, due to his service-connected disabilities. The Board has considered arguments from the Veteran’s attorney. However, the Board notes that even with the assigned ratings for lower extremity radiculopathy, the Veteran does not meet schedular requirements for a TDIU. 38 C.F.R. § 4.16(a). Moreover, the December 2020 examiner did not indicate that the lower extremity disorders would prohibit the Veteran from an occupation with primarily seated duties, and the May 2019 examiner noted that objective muscle strength, sensory, reflex, and straight leg testing were normal. Lastly, although the Veteran was granted additional benefits for his lower extremity radiculopathy in a rating decision dated two days after a February 2021 SSOC, the Board notes that the evidence that served as a basis for the grants of benefits was available to the AOJ at the time the SSOC was issued. See 38 U.S.C. § 7104(a). The Veteran’s lay reports were considered. Nevertheless, the relevant question for the Board is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether his disabilities affect his ability to work. See Van Hoose, 4 Vet. App. at 364 (a high schedular rating is itself a recognition that service-connected disabilities impede a veterans’ occupational performance). Under the facts of this case, the most probative evidence does not reach the level of equipoise that the Veteran is incapable of securing and following substantially gainful employment in a low skilled occupation with primarily seated duties. As such, the claim of entitlement to a TDIU may not be granted. 38 U.S.C. § 5107(a). B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.