Citation Nr: 21029269 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 19-22 380A DATE: May 13, 2021 ORDER Entitlement to service connection for a bilateral eye disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to August 27, 2018 is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's bilateral eye disability began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's left ankle disability began during active service or is otherwise related to an in-service injury or disease. 3. Prior to August 27, 2018, the Veteran did not meet the schedular criteria for a TDIU, and the preponderance of the evidence is against finding that the Veteran was unable to obtain or retain substantially gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Prior to August 27, 2018, the criteria for entitlement to a TDIU due to service-connected disabilities, including on an extraschedular basis, 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 from March 1970 to November 1998. This appeal comes before the Board of Veterans' Appeals (Board) from August 2018 and November 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in March 2020 for further development. The Board finds substantial compliance has occurred regarding its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Beyond the above, it is valuable to note that the Veteran has been found to be 100 percent disabled by VA and is receiving a 100 percent disability rating and special monthly compensation since August 27, 2018. Service Connection 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; 38 C.F.R. § 3.303. 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 based on 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 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). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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). 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). The Board is 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). 1. Entitlement to service connection for a bilateral eye disability The Veteran contends his bilateral eye disability is due to service, or in the alternative, secondary to his other service-connected disabilities. The Veteran has current diagnoses of bilateral cataracts, macular scar left eye with centrally located scotoma, and bilateral dry eye syndrome. Service treatment records show the Veteran reported that his eyes bother him sometimes and he needs glasses, as well as chronic photophobia on his separation examination in November 1997. The rest of the Veteran's service treatment records including the medical examinations in January 1974 and October 1988 are silent for diagnosis, treatment, or complaints of any eye conditions. Following service, there is no diagnosis of an eye disability until September 2020, which was nearly 23 years after discharge from service. The United States Court of Appeals for Veterans Claims (Court) has indicated that the absence of any medical records of a diagnosis or treatment for many, many, years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). Accordingly, competent evidence linking the current eye conditions to service is needed to substantiate the claim. The Veteran underwent a VA examination in October 2020. The VA examiner indicated it was less likely than not that the Veteran's eye conditions were due to service or secondary to any of the Veteran's service-connected disabilities. The Board finds the October 2020 VA examiner's report to be highly probative evidence against the claim. Here, the examiner had an opportunity to review the Veteran's service treatment records and reviewed his prior medical history, considered his lay statements, examined the Veteran in person, and reviewed diagnostic records. Furthermore, the Board has considered the statements from the Veteran asserting, that his bilateral eye disability is due to service or secondary to his other service-connected disabilities. While the Veteran is certainly competent to report as to the observable symptoms he experienced and his history, he is not competent to diagnose an eye disability or render an opinion as to the etiology of his current disability since service, because of the medically complex nature of such a diagnosis or opinion. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Put simply, there is no competent, credible, or probative evidence to find that a bilateral eye disability, first medically diagnosed in 2020 is etiologically related to service or secondary to a service-connected disability. The best evidence in this case provides evidence against this claim. Moreover, the most probative and persuasive evidence of record is against a finding that the bilateral eye disability is related to service or secondary to a service-connected disability. As such, the preponderance of the evidence is against the claim, and service connection is denied. Accordingly, the Board has considered the benefit of the doubt rule, however, since the preponderance of the evidence is against the claim, the rule is not applicable, and the claim for a left ankle disability must be denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see Gilbert, 1 Vet. App. at 54. 2. Entitlement to service connection for a left ankle disability The Veteran contends his left ankle disability is due to an injury in service when he jumped from a tugboat in 1972. In the alternative, he contends his ankle disability is secondary to his other service-connected disabilities. The Veteran has current diagnosis of left ankle sprain. Service treatment records show the Veteran suffered an ankle sprain in May 1972. The Veteran underwent an x-ray which came back normal. The rest of the Veteran's service treatment records including the medical examinations in January 1974, October 1988, and separation examination in November 1997 were silent for diagnosis, treatment, or complaints of a left ankle injury. Following service, there is no diagnosis of a left ankle disability until May 2018, which was nearly 21 years after discharge from service. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many, many, years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). Accordingly, competent evidence linking the current left ankle disability to service is needed to substantiate the claim. The Veteran underwent VA examinations in May 2018 and September 2020. The VA examiners indicated it was less likely than not that the Veteran's left ankle disability was due to service or secondary to any of the Veteran's service-connected disabilities. The Board finds the May 2018 and September 2020 VA examiners reports to be highly probative evidence against the claim. Here, the examiners had an opportunity to review the Veteran's service treatment records and reviewed his prior medical history, considered his lay statements, examined the Veteran in person, and reviewed diagnostic records. Furthermore, the Board has considered the statements from the Veteran asserting, that his left ankle disability is due to service or secondary to his other service-connected disabilities. While the Veteran is certainly competent to report as to the observable symptoms he experienced and his history, he is not competent to diagnose an ankle disability or render an opinion as to the etiology of his current disability since service, because of the medically complex nature of such a diagnosis or opinion. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Put simply, there is no competent, credible, or probative evidence to find that a left ankle disability, first medically diagnosed in 2018 is etiologically related to service or secondary to a service-connected disability. The best evidence in this case provides evidence against this claim. In summary, there is no competent evidence of arthritis of his left ankle, or any other disorder in service or within one year following discharge from service. Therefore, the provisions regarding continuity of symptomatology are not applicable. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Moreover, the most probative and persuasive evidence of record is against a finding that the left ankle disability is related to service or secondary to a service-connected disability. As such, the preponderance of the evidence is against the claim, and service connection is denied. Accordingly, the Board has considered the benefit of the doubt rule, however, since the preponderance of the evidence is against the claim, the rule is not applicable, and the claim for a left ankle disability must be denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see Gilbert, 1 Vet. App. at 54. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to August 27, 2018 Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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 disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). Prior to August27, 2018, the Veteran was service connected for the following: Actinic keratosis of arms, legs, chest, back and neck, rated as 30 percent disabling from March 29, 2017; Lumbosacral strain with degenerative arthritis of the spine, rated as 20 percent disabling from March 29, 2017; Left knee strain, rated as 10 percent disabling from March 29, 2017; Tinnitus, rated as 10 percent disabling from March 29, 2017; Multiple surgical scars secondary to basal cell carcinoma removal, rated as 10 percent disabling from March 29, 2017; Left arm upper back melanoma residual scarring, rated as 10 percent disabling from March 29, 2017; Radiculopathy, right lower extremity associated with lumbar strain, rated as 10 percent disabling from March 29, 2017; Radiculopathy, left lower extremity associated with lumbar strain, rated as 10 percent disabling from March 29, 2017; and Bilateral hearing loss, rated as 0 percent disabling from March 29, 2017. From March 29, 2017 to August 27, 2018, the Veteran's combined disability evaluation for compensation was 70 percent and he did not have any disabilities rated at 40 percent or more. Therefore, the Board finds that the Veteran did not meet the schedular criteria for TDIU at any time prior to August 27, 2018. See 38 C.F.R. § 4.16 (a). Thus, the claim of entitlement to TDIU on a schedular basis must be denied. However, the Veteran may still be entitled to a TDIU on an extraschedular basis if his service-connected disabilities nonetheless result in an inability to obtain and maintain substantially gainful employment. See 38 C.F.R. § 4.16 (b). Thus, the question becomes whether these disabilities, in and of themselves, precluded the Veteran from securing or following a substantially gainful occupation prior to August 27, 2018. The process for establishing entitlement to an extraschedular TDIU rating is described in 38 C.F.R. § 4.16 (b). That process requires first an adjudicative determination that the Veteran is rendered unemployable by virtue of service-connected disabilities, and if that determination is affirmative, followed by referral to the Director, Compensation System. In this regard, the Board has no authority to award TDIU under § 4.16 (b) in the first instance. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (citing Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996)). Rather, the Board's focus in this part of the current appeal is whether the Veteran meets the criteria for a referral of his claim to the Director, Compensation System, for extraschedular consideration. See 38 C.F.R. § 3.321 (b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). At the outset, it is noteworthy that disability ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from the service-connected disabilities in civil occupations. See 38 C.F.R. § 4.1. In other words, occupational impairment with respect to a specific type of employment is not dispositive; and if a Veteran is precluded by service connected disability or disabilities from participating in a specific type of employment in which the Veteran has primary experience but remains capable of maintaining other regular substantially gainful employment consistent with education and occupational experience, such Veteran is not deemed unemployable. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board is 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). Given the above criteria, the Board finds that the preponderance of the evidence shows that the Veteran does not meet the criteria for a referral of his claim to the Director, Compensation System under 38 C.F.R. § 4.16 (b) at any time during the pendency of the appeal. See Owens, 7 Vet. App. at 433. This finding does not suggest, in any way, that the Veteran did not have some occupational problems because of his service-connected disabilities (i.e. skin condition, back and knee strains, scars, neuropathies, tinnitus, and bilateral hearing loss); if he did not have any problems, there would be no basis for any compensation. The only question is whether his service-connected disabilities, caused him not to work. The Veteran stated that his service-connected back, knee, and tinnitus prevent him obtaining or maintaining employment. See VA Form 21-8940. The Veteran also indicated he has not had civilian employment since retiring from the military in 1998. Further, the Veteran has undergone VA examinations for his service-connected conditions, and while the VA examiners noted some limitations were present, none of them concluded any of the Veteran's service-connected disabilities render him unemployable. Taken together, the Board finds that the Veteran's service-connected disabilities were not of sufficient severity to produce unemployability. Given the above, the Board finds the most probative medical evidence of record shows that the Veteran's service-connected disabilities do not meet the criteria for a referral of his claim to the Director, Compensation System under 38 C.F.R. § 4.16 (b). See Owens, 7 Vet. App. at 433. Therefore, the Board finds that the claim for a TDIU is denied. 38 C.F.R. § 4.16. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.