Citation Nr: 21039744 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-56 444 DATE: July 1, 2021 ORDER Service connection for back disability is denied. Service connection for respiratory disability is denied. Service connection for bilateral leg disability is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's back disability began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran's asthma clearly and unmistakably preexisted service and was not aggravated therein. 3. The preponderance of the evidence is against finding that the Veteran has a respiratory disability other than asthma which began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that the Veteran's bilateral leg disability began during active service or is otherwise related to an in-service injury or disease. 5. The Veteran does not have any service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a respiratory disability are not met. 38 U.S.C. §§ 1110, 1131, 1153, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for service connection for a bilateral leg disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from November 1982 to September 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020 this case was before the Board and the issue was remanded to the agency of original jurisdiction (AOJ) for additional development to include obtaining addendum opinions regarding the etiology of the claimed back and respiratory disabilities. This case has now been returned to the Board for further appellate action. There has been at least substantial compliance with the Board's remand directives, and the Board will proceed to address the merits of these claims. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 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, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Back Disability The Veteran initially filed his claim for a back disability in March 2012. At this time the Veteran indicated that his back disability began in 1982. The Veteran specifically points to his 34 parachute jumps as the reason for the pain in his back. He also submitted a medical article to support his contention that his back disability is related to parachute jumping during service, "Degenerative Disease of the Lumbar Spine in Military Parachuting Instructors." The Board acknowledges that the Veteran's service records reflect he participated in parachute jumps during his active service. However, while the aforementioned article provides evidence that a back disability may be related to such, the Board also notes that a review of the Veteran's service treatment records (STRs) is silent for complaints of back pain while in service. Likewise, the Veteran's medical records from his time post-service are silent for any complaints of back pain until 2007. The Veteran notes that his prior doctor who treated him passed away and he has been unable to obtain these records. The Veteran does have complaints of back pain from January 2012. However, these records indicate that the Veteran was injured while lifting a 55-gallon drum. At this visit the Veteran denied any history of back problems. In light of the foregoing, the Board finds that competent medical evidence is required to determine whether his current back disability was incurred in or otherwise the result of his active service, to include parachute jumps therein. The Veteran underwent a VA examination in October 2016. At this examination the Veteran was diagnosed with degenerative arthritis of the spine and lumbar radiculopathy of the right lower extremity. The Veteran described the pain as constant and also that it felt like someone stabbing him in the back. He indicated that at times the pain was so bad that he was forced to use a wheelchair. The Veteran was found to have abnormal range of motion as well as intervertebral disc syndrome (IVDS). However, the examiner found no medical link between these conditions and the Veteran's time in service. The examiner pointed to the lack of back complaints from 1985-2011. Following this examination, the Board remanded the case for an addendum opinion, in part to address the Veteran's contention the back disability was related to in-service parachute jumps and the medical article he submitted in support thereof. The Board acknowledges the Veteran submitted a private opinion from his pain doctor in February 2019 finding that his back was service-connected to his time in service. However, no rationale was provided for this opinion. Therefore, that opinion is inadequate and does not support a grant of service connection. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (An examination that provides an etiology opinion without a rationale is inadequate.). In October 2020 the Veteran was provided an addendum opinion for his back condition. The examiner noted the lack of any acute injury in his STRs from his parachute jumps. The Veteran had submitted an article regarding a link between parachute jumping and back problems. The examiner discussed this article and noted that the article does not find a conclusion but instead only that additional study on the topic is needed. While the current data shows a possibility of injury there is no evidence of late onset back conditions relating to parachute jumps. Given the lack of back complaints until 2011 the examiner found the injury was less likely than not related to the Veteran's time in service. Nothing in the record causes the Board to doubt the qualifications of the October 2020 VA examiner to provide competent medical evidence, nor does the Veteran contend otherwise. The examiner's opinion was supported by stated rationale, to include an accurate summary of the Veteran's pertinent medical history. Further, no competent medical evidence is of record which refutes the VA examiner's opinion in this case. Consequently, the Board concludes this opinion is adequate, persuasive, and entitled to significant probative value in the instant case. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a back disability is not warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Respiratory Disability The Veteran filed a statement in support of his claim for a respiratory disability in March 2013 and stated that he was told while in service that he had COPD. The Veteran's STRs do include various issues with breathing including pneumonia and productive coughs, however they are silent for any diagnosis of COPD. Further, it is not clear from the in-service complaints whether they were due to a chronic disability as opposed to acute conditions. Therefore, competent medical evidence is required to resolve whether the Veteran currently has a chronic respiratory disability that was incurred in or otherwise the result of active service. In October 2016 the Veteran underwent a VA examination for his claimed respiratory disability. The Veteran was reported to be a smoker with his habit varying from 1-2 packs a day for numerous years. The Veteran was incarcerated for several years and was unable to smoke. He indicated that the smoking cessation had caused his lung issues to stabilize. The Veteran reported having asthma as a child though this was not mentioned on his entrance examination. The examiner found that the asthma had pre-dated his entry into service but that there was no evidence that the asthma had been aggravated beyond its natural progression by his time in service. The Board sought clarification of this opinion in its August 2020 remand. Specifically, the Board was seeking to determine if the Veteran's asthma clearly and unmistakably existed prior to his time in service. See 38 U.S.C. § 1153, Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In accord with the Board's remand directives, a new examination was ordered and completed in October 2020. The examiner noted that the Veteran was inconsistent with his statements about his asthma. In 2013 he denied any respiratory condition but in both 2016 and 2018 he stated he had childhood asthma. After a review of the Veteran's treatment history as well as the Veteran's statements the examiner found that the asthma clearly and unmistakably existed prior to service but clearly and unmistakably was not aggravated beyond its natural progression by his time in service. The Board finds nothing in the record to doubt the qualifications of the aforementioned VA examiners to provide competent medical evidence, nor does the Veteran contend otherwise. The VA examiners opinions on the etiology of the respiratory disability were supported by stated rationale consistent with the Veteran's medical history. Further, the October 2020 VA examiner's opinion is consistent with the standard for disabilities that were not noted at the time of entrance into service. See Harris v. West, 11 Vet. App. 456, 461 (1998). Moreover, no competent medical evidence is of record which explicitly refutes these opinions. Therefore, the Board finds they are adequate, persuasive, and entitled to significant probative value in this case. In light of the foregoing, the Board finds the Veteran's asthma clearly and unmistakably preexisted service and was not aggravated therein; and that the preponderance of the evidence is against his having a respiratory disability other than asthma which began during active service or is otherwise related to an in-service injury or disease. Accordingly, the claim must be denied. Bilateral Leg Disability The Veteran initially filed his claim for a bilateral leg disability in March 2012. This was related to his back condition as the pain radiated from his back to his legs. The pain was worse in the right leg versus the left. The Board acknowledges that service connection may be established for a disability that was caused or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. However, as detailed above, the Board has determined service connection is not warranted for a back condition, then service connection clearly cannot be established for any disability that was caused or aggravated by such. The Board further finds that service connection is not warranted for a bilateral leg disability as directly related to the Veteran's active service. The Veteran underwent a VA examination in October 2016. At this time the examiner pointed out that the Veteran had no diagnosis associated with his legs. There was no functional impact or loss reported. The examination was completed and found no ankylosis, recurrent subluxation, lateral instability, shin splints, stress fractures, meniscus conditions, or tibial fibula impairments. Additionally, there was no arthritis of the knees documented. The only complaint for the knee complaint prior to 2016 was some knee swelling in 2008 which was resolved. The Veteran also does not have any hip or thigh conditions. The examiner found no connection between the Veteran's bilateral leg conditions and his service. The October 2020 examiner found a similar result and noted that the first knee complaints were in 2008. The examiner reviewed the Veteran's STRs and found no acute injuries related to his parachuting. X-rays completed in 2008 and 2010 were normal. The Veteran's lay statements were not supported by the available evidence. The examiner again discussed the possibility of injury to the knees from parachuting but concluded similarly to the back issue that there is no evidence of late onset conditions associated with parachute jumping. Given the lack of leg complaints since the Veteran exited service in 1985 to 2008 the examiner concluded that the Veteran's claimed condition was less likely than not related to his time in service. The Board finds that nothing in the record causes it to doubt the qualifications of the aforementioned VA examiners to provide competent medical evidence, nor does the Veteran contend otherwise. Further, the findings on these examinations are consistent with the other evidence of record. Moreover, no competent medical evidence is of record which explicitly refutes the October 2020 examiner's opinion against direct service connection. Therefore, the Board finds the opinion to be adequate, persuasive, and entitled to significant probative value in the instant case. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a bilateral leg disability is not warranted. TDIU The Veteran indicated that he has been unable to work since 2009. He previously was working while masking his pain with various pain medications. The Veteran does receive SSI benefits. Entitlement to a total rating must be based solely on the impact of a veteran's service-connected disabilities on her ability to secure and follow substantially gainful employment. See 38 C.F.R. § 4.16 (a). 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). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). 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, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to show unemployability. A high rating in and of itself is recognition that the impairment makes it difficult to secure or follow employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether she can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran's case, apart from any nonservice-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. § § 3.341 (a), 4.16, 4.19. Van Hoose, 4 Vet. App. at 363. A 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). At this point the Veteran does not have any service-connected disabilities. Therefore, he is not eligible to receive TDIU benefits. Therefore, the claim for a TDIU is denied. John Kitlas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.