Citation Nr: 21024631 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-21 384 DATE: April 23, 2021 ORDER Entitlement to service connection for multiple sclerosis is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. REMANDED The appeal as to the claim of entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is remanded. The appeal as to the claim of entitlement to SMC based on the need for housebound status is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that multiple sclerosis began during active service, manifested to a compensable degree within the applicable presumptive period, or is otherwise related to an in-service injury or disease. 2. The Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for multiple sclerosis, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1997 to February 1999 and from January 2003 to December 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal of November 2014 (TDIU) and February 2016 (multiple sclerosis and SMC) rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in December 2019 to obtain outstanding treatment records and a medical opinion regarding the etiology of the Veteran’s multiple sclerosis disability. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In this decision, the Board grants entitlement to TDIU. The AOJ will set an effective date for the grant of entitlement to TDIU after determining the date on which the Veteran became unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for multiple sclerosis is denied. The Veteran contends that he has multiple sclerosis that is directly related to his active service. Specifically, the Veteran reported that he developed fatigue and memory loss during his active service, that has continued to the present. Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The question for the Board is whether the Veteran has a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has multiple sclerosis, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Private treatment records show the Veteran was not diagnosed with multiple sclerosis until 2015, 12 years after his separation from service and five years outside of the applicable presumptive period. The Veteran has alleged that he manifested symptomatology of multiple sclerosis, such as fatigue and memory loss, within the seven-year period. The Board acknowledges the December 2015 private treatment record from L.L., which noted a diagnosis of multiple sclerosis with the first major attack in 2015. Doctor L.L. also noted that the Veteran reported symptom onset of severe fatigue in 2002 that did not resolve with adequate sleep and trouble with short-term memory at work starting in 2005. L.L. noted that the Veteran’s wife, whom he met in 2009, endorsed difficulty multitasking since their meeting. L.L. noted that the Veteran reported onset of poor coordination, most noticeable in 2004/2005. In providing the diagnosis, L.L. noted that the Veteran underwent magnetic resonance imaging of the brain in April 2015, which demonstrated a lesion, and since that time, the Veteran has been prescribed Gilenya. However, while L.L. noted the Veteran’s reported onset of severe fatigue in 2002 and memory loss/poor coordination in 2005, which would be within the seven-year presumptive period, she did not provide an explanation as to how such fatigue or memory loss or poor coordination was related to the Veteran’s April 2015 diagnosis of multiple sclerosis. The Board remanded this matter in December 2019 for clarification. Following an extensive review of the claims file and the Veteran’s reported history, in a December 2019 opinion, a VA examiner indicated that she found no record of chronic or recurrent symptoms that represented multiple sclerosis or its precursor symptoms beginning in service. The examiner noted that issues with fatigue and memory loss could simply have represented depression/anxiety-related issues, over-work, lack of sleep, or other conditions. The examiner indicated that there is no way to simply associate these very common symptoms to multiple sclerosis without completely speculating. The examiner found that no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by the evidence following service until 2015. Service connection for multiple sclerosis may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s multiple sclerosis and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The only probative medical evidence in the claims file discussing the etiology of the Veteran’s multiple sclerosis is the December 2019 VA opinion, as discussed above. The only evidence indicating an association between the current multiple sclerosis and active duty are the Veteran’s own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159(a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of multiple sclerosis is not a simple question that can be determined based on personal observation by a lay person, the Veteran’s lay statements are not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current multiple sclerosis had its onset during active duty or within the seven-year presumptive period does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of multiple sclerosis. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). After reviewing all evidence of record, the Board finds that the uncontradicted opinion from the VA examiner is the most persuasive evidence regarding the etiology of the Veteran’s multiple sclerosis. The examiner’s conclusion followed an extensive review of his claims file, as well as consideration of reported history; therefore, the December 2019 VA opinion is afforded great probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the medical expert’s access to the claims file and the thoroughness and detail of the opinion). In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran’s current multiple sclerosis and his active military service. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Entitlement to TDIU. The Veteran seeks entitlement to TDIU. TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. “Substantially gainful employment” contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). During the period on appeal, the Veteran is service-connected for major depressive disorder, rated as 30 percent disabling, prior to February 28, 2015, and 70 percent disabling therefrom; lumbar strain, with degenerative disc disease, stenosis, and IVDS, rated as 40 percent disabling; left lower extremity radiculopathy, rated as 20 percent disabling; left knee instability, rated as 20 percent disabling; right lower extremity radiculopathy, rated as 10 percent disabling prior to February 7, 2017, and 20 percent disabling therefrom; and left knee osteoarthritis, rated as 10 percent disabling from February 7, 2017. In a February 2014 VA Form 21-8940, the Veteran reported that he last worked in January 2014 as a mechanic due to his service-connected lumbar spine disability, depression, and sciatica. The Veteran reported that due to constant pain and lack of motion it has become too difficult to continue work. In August 2014, the Veteran’s former employer reported that the Veteran last worked February 5, 2014, as a paint technician and that the Veteran quit for medical reasons. The Veteran was provided a VA mental disorders examination in December 2016. The VA examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, gross impairment in thought process or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation. The VA examiner noted that the Veteran’s depression has become a significant impairment in his life. The Veteran was provided a VA back examination in February 2017. Upon examination, the Veteran demonstrated forward flexion to 25 degrees, extension and right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, and bilateral lateral rotation to 30 degrees. The VA examiner noted that the Veteran had moderate bilateral lower extremity radiculopathy and that he constantly used crutches and a walker. The VA examiner opined that due to the Veteran’s low back disability, all types of work would be very difficult. The VA examiner explained that the Veteran’s increased pain and radiculopathy is not conducive to any type of full-time labor since he cannot tolerate prolonged standing or sitting, and cannot bend forward without immediate increase in pain. The VA examiner further explained that the Veteran’s decreased range of motion and radiculopathy make him unable to do tasks in sedentary jobs because he cannot reach away from his body without increased pain, his balance is poor and his strength is decreased. Additionally, the Veteran takes daily medication due to back pain that makes concentration difficult. The Board finds that the Veteran’s depressive disorder, low back disability, and bilateral lower extremity radiculopathy would require special accommodations not generally provided in the competitive workforce. As such, the Board concludes that the Veteran would require a sheltered environment within a narrow occupational range to accommodate his substantial service-connected limitations. Such work constitutes marginal employment, which cannot be considered substantially gainful employment. See 38 C.F.R. § 4.16. As such, the evidence is at least in equipoise as to whether the Veteran is entitled to TDIU. Therefore, entitlement to TDIU is warranted. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. The Board again notes that the AOJ will set an effective date for the award of TDIU. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). REASONS FOR REMAND The issue of entitlement to an SMC based on the need for regular aid and attendance or at the housebound rate is remanded. The Veteran seeks entitlement to an SMC based on the need for regular aid and attendance or at the housebound rate due to his service-connected disabilities. The Veteran was provided an examination for housebound status or permanent need for regular aid and attendance in October 2015. The Veteran reported that he is in need of SMC based on his multiple sclerosis and low back disability. The examiner provided opinions related to the Veteran’s need for an SMC based on his service-connected low back disability and bilateral lower extremity radiculopathy and his nonservice-connected multiple sclerosis. However, SMC can only be awarded based on the Veteran’s service-connected disabilities. In the above decision, the Veteran was denied entitlement to service connection for multiple sclerosis. As such, the Veteran should be provided an examination to ascertain whether he is so helpless as to be in need of regular aid and attendance of another person due solely to his service-connected disabilities. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA aid and attendance examination to address whether the following are present as a result of his service-connected disabilities: (1) inability to dress or undress himself or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this does not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacking at the back, etc.); (3) inability to attend to the wants of nature; (4) inability to feed himself through loss of coordination of the upper extremities or through extreme weakness; or (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. The examiner should limit his or her consideration to the effects of the Veteran’s service-connected disabilities and should disregard the effects of the Veteran’s nonservice-connected disabilities. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether SMC for regular aid and attendance or for housebound status may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.