Citation Nr: 21027464 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-19 379 DATE: May 5, 2021 ORDER Entitlement to service connection for a back disability is granted. Entitlement to a total rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. A back disability had its' onset during service. 2. The Veteran's service-connected disabilities preclude substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 101, 106, 1101, 1110, 1112, 1113, 1117, 1131, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from January 1969 to April 1976 and September 1990 to August 1991. The record also shows that during the first period of service the Veteran served in the Republic of Vietnam and was awarded the Combat Infantry Badge (CIB) and during his second period of service he served in South West Asia. The Veteran also had approximately 14 years of intervening service with a Reserve Component. In April 2017 the Veteran withdrew his request for a hearing before a Veterans' Law Judge (VLJ). In February 2019 the Board of Veterans' Appeal (Board), among other things, remanded a claim for a compensable rating for right ear hearing loss and the claim for a TDIU. In September 2019 a Veterans' Law Judge other than the undersigned issued a decision that, among other things, denied the claim of service connection for a back disability, granted a 10 percent rating for bilateral hearing loss from June 2013, and remanded the claim for a TDIU. As to the claim of service connection for a back disability, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's September 2019 decision to the extent that it denied service connection for a back disability. As to the claim for an increased rating for bilateral hearing loss, the September 2019 decision is final. Moreover, the Veteran did not appeal the September 2019 decision to the Court. Therefore, the Board finds that no further action is required as to this issue at this time despite the regional office (RO) in June 2020 issuing a supplemental statement of the case that listed as an issue on appeal a claim for a compensable rating for right ear hearing loss. Similarly, the record includes an October 2019 Appeals Modernization Act (AMA) notice of disagreement (NOD) as to the claim of service connection for a back disability and an increased rating for bilateral hearing loss. However, the Board finds that it need not take any further action as to the AMA NOD because the cited rating decision it not the proper subject of an AMA NOD. The Service Connection Claim The Veteran claims, among other things, that his current back disability is due to combat in the Republic of Vietnam when he injured his back when a nearby soldier stepped on a booby trap and he had had low back pain since that time. See statement in support of claim dated in January 2021. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1110. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, the law also provides that, in the case of any veteran who engaged in combat with the enemy, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, condition, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) held, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases like the current appeal in which Veterans have served in the Persian Gulf since August 2, 1990. Therefore, the Board finds that it is also required to consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. See 38 C.F.R. § 3.117 (d)(1) and (2) (a "Persian Gulf veteran" is defined as "a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. The "Southwest Asia theater of operations" includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations). In this regard, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the Veteran's DD 214s show that he served in the Republic of Vietnam during the Vietnam War with an occupational specialty of infantry man and the award of the CIB. Under such circumstances, the Board concludes that he meets the criteria to be considered a "Combat veteran" and the presumptions found at 38 U.S.C. § 1154(b) apply to the current claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Next, the record shows the Veteran being diagnosed with a current disability-degenerative joint disease, reversal of lordosis of the lumbar spine, and mild osteophyte formation of the lumbar spine. See, e.g., VA treatment record dated in June 1978 (documenting complaints of back pain); VA X-ray dated in July 2017 (diagnosing back disabilities); VA examination dated in April 2019. Additionally, the Veteran's service personnel records show he served in the Republic of Vietnam and, as discussed above, he provided VA with competent and credible claims regarding an observable problems(i.e., pain) in his back following an incident in which a fellow soldier stepped on a booby trap while in Combat in the Republic of Vietnam. See Davidson, supra. Furthermore, the Board finds that the Veteran's injury is consistent with the circumstances of his service. See 38 U.S.C. § 1154(b); Reeves, supra. Given the above record the Board finds that the evidence, both positive and negative, as to whether the Veteran had an in-service injury is at least in equipoise. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he did. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Further, the Board finds that the Veteran is both competent to report observing pain in the back during and since his first period of service where he served in Republic of Vietnam during the Vietnam War with an occupational specialty of infantry man with the award of the CIB and that his account of having this problem since his combat in the Republic of Vietnam is credible. See Davidson, supra; Owens, supra. On the other hand, the April 2019 VA examiner opined that the Veteran's low back disorders diagnosed via diagnostic imaging are not at least as likely as not related to an in-service injury, event, or disease, including environmental hazards and reports of back pain. However, the Board finds that the VA examiner's negative etiology opinion is not credible because symptoms of back disabilities are observable by a lay person, because the examiner did not appear to consider the Veteran's competent and credible lay claims of observable adverse symptomatology, because the opinion does not address the question of whether the Veteran's current back disability is directly due to his first period of active duty which included combat in the Republic of Vietnam, and because the examiners did not consider fully the fact that the claimant's status as a combat Veteran means that not only is the combat injury presumed but so is the disability due to the in-service combat injury (see Reeves, supra.). See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. Therefore, the Board finds that the question of whether the Veteran's back disability had continued since service is in equipoise and with affording him the benefit of the doubt the Board concludes that it did, and service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. The TDIU Claim The Veteran claims, in substance, that he is entitled to a TDIU because his service-connected disabilities prevent him from working. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran's service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). 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. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record shows that the Veteran is service-connected for the following disabilities: posttraumatic stress disorder (PTSD) rated as 50 percent disabling from October 14, 2015, and 70 percent disabling from February 20, 2018; right shoulder disability rated as 20 percent disabling from June 10, 2013; left shoulder disability rated as 20 percent disabling from June 10, 2013; tinnitus shoulder disability rated as 10 percent disabling from June 29, 2001; right knee disorder rated as 10 percent disabling from June 10, 2013; left knee disorder rated as 10 percent disabling from June 10, 2013; right elbow disorder rated as 10 percent disabling from June 10, 2013; left elbow disorder rated as 10 percent disabling from June 10, 2013; bilateral hearing loss rated as 10 percent disabling from June 10, 2013; and back disability not, as yet, rated. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher and he has a combined rating of 70 percent or higher from April 6, 2011. The next question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the Veteran's VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), dated in January 2018 and April 2019, reported that he had not worked full-time and became too disabled to work in May 2012 because of his service-connected disabilities. As to his work history, the Veteran reported that from 1976 to 2012 he worked 40 hours a week for the United States Government/Defense Logistics Agency. As to his education, the Veteran reported that he had 2-years of college. He also reported that he had training in law enforcement and electronics. As to the Veteran's being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment as a mail handler at the United States Government/Defense Logistics Agency as well as other possible employment that could make use of his work experience and 2-years of college as well as his law enforcement and electronics training, the Board finds that the medical records show that the problems caused by his service-connected PTSD, right and left shoulder disabilities, right and left knee disorders, right and left elbow disorders, back disability, bilateral hearing loss, and tinnitus adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers due to pain, and carry out the tasks required by employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected PTSD, right and left shoulder disabilities, right and left knee disorders, right and left elbow disorders, back disability, bilateral hearing loss, and tinnitus would make it dangerous for the Veteran and his co-workers for him to work in most non-sedentary employments. Id. Similarly, the Board finds that that the PTSD, right and left shoulder disabilities, right and left knee disorders, right and left elbow disorders, back disability, bilateral hearing loss, and tinnitus would make it very difficult to learn the new skills needed to work in most sedentary employments, sit for prolonged periods of time, and interact with his co-workers as well as any customers, and carry out the duties required by such employment. Id. Given the above, the Board finds that the Veteran's service-connected disabilities prevent him from securing or following a "substantially gainful" occupation given his prior vocational history, work experience, and the impact his service-connected PTSD, right and left shoulder disabilities, right and left knee disorders, right and left elbow disorders, back disability, bilateral hearing loss, and tinnitus have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment with the United States Government/Defense Logistics Agency, because of the problems they would cause in any work environment. Further development of this issue is simply not warranted in light of the history of this case. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.