Citation Nr: 22011545 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 19-19 698 DATE: March 1, 2022 ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for sciatica of the left lower extremity. 4. Entitlement to service connection for sciatica of the right lower extremity. ORDER Entitlement to a TDIU is granted, subject to laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for sciatica of the left lower extremity is remanded. Entitlement to service connection for sciatica of the right lower extremity is remanded. FINDING OF FACT For the entire period on appeal, the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a finding of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(a), 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from December 1967 to November 1969, with service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2021 Video Conference Board Hearing. A transcript of that hearing has been associated with the claims file. The Board notes that included in the June 2019 Statement to the Case (SOC) is the issue of entitlement to service connection for diastasis recti (claimed as abdominal issue). However, on the July 2019 VA Form 9 (substantive appeal), the Veteran did not list this issue as one he wished to appeal to the Board. As such, the Board does not have jurisdiction of this issue and the issue of entitlement to service connection for diastasis recti (claimed as abdominal issue) will not be discussed herein. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). Importantly, in a May 9, 2019 VA 21-4138 Statement in Support of Claim, the Veteran withdrew his appeals currently before the Board. This cancelled his hearing scheduled for that same day. The Veteran has not specifically requested a rescheduling of the cancelled hearing. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). TDIU Entitlement to a TDIU is granted, subject to laws and regulations governing the payment of monetary benefits. The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. See August 2017 Application for Increased Compensation Based on Unemployability; see also April 2021 Hearing Transcript; see also August 2017 Correspondence. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. 38 C.F.R. § 4.16 (a). For the entire period on appeal, the Veteran is service connected for PTSD at 70 percent, adenocarcinoma of the prostate at 60 percent, diabetes mellitus type II at 20 percent, fibrosarcoma rated noncompensable, erectile dysfunction rated noncompensable, and scar associated with fibrosarcoma rated at noncompensable. Therefore, for the entire period on appeal the Veteran's combined rating was 90 percent, and this combined rating of 90 percent meets the threshold requirement of 38 C.F.R. § 4.16 (a). In determining whether the Veteran is capable of obtaining and maintaining gainful employment, the Board must consider the Veteran's education, special training and work history. In this case, the Veteran's MOS during service was a section chief working as a gunner. Post service, the Veteran earned a bachelor's degree in finance and previously worked as an accountant. Prior to the period on appeal, the Veteran worked at the same office for 20 years before leaving under unfavorable conditions. Following that employment, the Veteran sought employment at several different offices for a number of years. See August 2017 Correspondence; see August 2017 Application for Increased Compensation Based on Unemployability. At the April 2021 hearing, the Veteran explained that he suffers from leakages and rashes due to his prostate disability. The Veteran explained that this prevents him from working as the leakages are often and create a smell, causing him to go to the bathroom and change often. The Veteran further explained that his PTSD prevents him from engaging with colleagues or engaging with supervisors, and that he does not handle stressful environments well. The Veteran testified that at his previous employments he did not get along well with his supervisors and colleagues and that he found it hard to follow their rules. He explained that sometimes he gets triggered, agitated, and aggravated and that this also caused problems in his marriage, which has resulted in a separation. Moreover, the Veteran testified that his sleep problems only allow him to sleep two to three hours at time and that he urinates about four to five times a day. This causes him to nap on and off during the day and become irritable. At the hearing, the Veteran explained that his former work was very detail-oriented and required a great deal of consistent attention. Given the Veteran's service-connected disabilities and their functional impacts, the Veteran said that is not able to concentrate well enough to sustain the job. Of record is an August 2019 opinion from C.A.Y., M.A, C.R.C., a vocational expert. The examiner note that the Veteran previously held the same job for 20 years but that his PTSD symptoms caused him to have difficulty handling the stress of the job. The examiner explained that the Veteran has difficulty adapting to stressful conditions, difficulty adapting to work, lack of concentration, occupational and social impairment with occasional decrease in work efficiency, and difficulty establishing and maintaining effective work and social relationships. The examiner stated that the Veteran is restricted because of his lack of ability to work with detail and responsibility due to his PTSD. In fact, the examiner noted that the Veteran has a work tolerance of about two hours per day. In addition to his PTSD symptoms, the examiner reported that the Veteran has urinary problems that cause him to plan his activities around use of the bathroom. His urgency causes him to talk off the job with no notice to maintain his hygiene. For these reasons, the examining vocational expert concluded that it is at least as likely as not that the Veteran is unable to secure or follow a gainful occupation as a result of his service-connected disabilities. Of record is a March 2019 lay statement from D.J.T, one of the Veteran's previous employers. D.J.T. explained that the Veteran slowly became more and more confrontational with staff and with herself when information he needed was not prepared on time or in the manner he had asked for. She explained that the Veteran had problems working to meet deadlines for reports. She noted that in the fall of 2012 they mutually decided that it was best for him to stop working for her business. Of record also is an August 2017 lay statement by T.S., the Veteran's next-door neighbor. T.S. explained that since moving in next door, the Veteran has had an issue with his dog's barking and has been irritable. In an August 2017 lay statement, the Veteran's wife, S.L.W., explained that the Veteran became more easily irritated over the years and lost interest in his job. She explained that he suffered from panic and anxiety attacks daily and eventually was terminated from a job in 2001. Thereafter, his employments never lasted more than a couple of years and their marriage took a turn for the worse and they have separated. In an August 2017 correspondence, the Veteran explained that he had difficulty finding positive references when applying for position, which made getting other jobs difficult. The Veteran has included a lengthy list of medications and medical materials he uses on a daily basis Upon taking into consideration the Veteran's level of education, work experience, and the functional impairment resulting from his service-connected disabilities, the Board finds that the Veteran is unable to work due to his service-connected disabilities. As noted at the hearing and in the opinion provided by the vocational expert, the Veteran's career field requires much concentration and attention to detail. The Veteran's service-connected disabilities, to specifically include his PTSD and prostate disability, prevent the Veteran from managing details, working under stress, concentrating, and maintaining healthy work relationships. The Board finds the opinion provided by the vocational expert to be highly probative. The examining expert provided his credentials which show significant experience and expertise. Moreover, in providing the opinion, the examining expert supported his opinion with a thorough rationale noting the Veteran's work history, disability and functional impairments, and education. Additionally, the Board also finds the Veteran's testimony to be credible and of probative value. In corroboration of the Veteran's testimony are several credible lay statements, to include one from his prior employer. The Board finds this highly probative in support of the Veteran's claim. Therefore, when considering the record in its entirety, to include lay statements, testimony, expert opinion, and medical evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's overall and consistent disability picture establishes that for the entire period on appeal, he is unable to obtain or retain substantially gainful employment due to his service-connected disabilities. As such, the requisite criteria for entitlement to a TDIU and entitlement to a TDIU is granted, subject to regulations applicable to the payment of monetary benefits. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran asserts that his current back disability is the result of his service. At the April 2021 Board Hearing, the Veteran testified that he served as a gunner in Vietnam and that he worked with artillery as a section chief. He explained that he performed fire missions on a daily basis, which required loading shells along with powder into artillery pieces, which were very heavy. He noted that a shell weighed approximately 109 pounds and the powder weighed at least 100 pounds. The Veteran recalled a particular instance when he was trying to get the round up as he was being fired upon with sniper fire, and when he listed his artillery shell his back popped and almost disabled him. He explained that medics were not around, so he had to use the Marine Division's medic crew, which was not available very often. He testified that he did go see the medic and was given military aspirin. Here, the Veteran's DD-214 indicates that the Veteran served as a chief section in the Republic of Vietnam and that he has been awarded the National Defense Service Medal, Vietnam Service Medal, Bronze Star Medal, and the Republic of Vietnam Campaign Medal. As such, the Board has confirmed that the Veteran was in the Republic of Vietnam, and that he is a combat veteran for the purposes of 38 U.S.C. § 1154 (b). His report of an in-service back injury is consistent with the circumstances of his service. The Board thus finds that the second prong of service connection, an in-service incurrence or aggravation of a disease or injury, and in this case pursuant to the combat presumption language of 38 U.S.C. § 1154 (b), to be satisfied. The third requirement of direct service connection is a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The Board notes that section 1154(b) deals with the question of whether a particular disease or injury was incurred or aggravated in service that is, what happened then and not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required. Caluza v. Brown, 7 Vet. App. 498 (1995). Although a Veteran is competent to describe the symptoms of his left knee disability and the injury that occurred in service, he is not competent to provide an etiological link between the current diagnosis and the in-service injury. Clyburn v. West, 12 Vet. App. 296 (1999). Likewise, section 1154(b) does not relieve the Veteran of submitting competent medical evidence suggesting a nexus between the current disorder and the claimed combat service. Id. Regarding nexus, in this case, the Veteran was afforded a VA examination in October 2017. The VA examiner noted a diagnosis of degenerative arthritis of the spine with the right sciatic nerve affected. However, the examiner opined that "it is less likely as not that veteran has a diagnosis of back condition with sciatica that is caused by inservice/symptoms during service." The examiner supported his rationale by stating the following: "There is no evidence that Veteran has a diagnosis of back condition with sciatica that is caused by inservice/symptoms during service. During separation in 11/25/69 he was not diagnosed with back condition or sciatica. On Report of Medical History in 11/69 Veteran stated that he is in good health and there was no back pain with sciatica documented. There is no evidence of chronicity. During VA clinic visits from 2/11 to 10/16 he did not complain about back pain with sciatica nor was he diagnosed/treated for this condition." The Board finds this opinion to be inadequate, as its rationale relies solely on the absence of treatment in service and post-service and does not consider the Veteran's assertions. The Board is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board also notes that a significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis, but that such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Thus, the Board remands this matter for an additional VA examination and opinion, and the examiner is again asked to consider the totality of the record, and not just the absence of clinical treatment. See id. Moreover, the Board notes that upon entrance into service the Veteran reported back pain and upon physical examination the examiner noted back pain with an explanation regarding postural pain. See December 1967 Service Treatment Record. If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In a claim for aggravation, the burden falls on the Veteran, not VA to establish aggravation. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2019); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Should an increase be established, the presumption of aggravation under section 1153 applies, and the burden shifts to the Government to show through clear and unmistakable evidence a lack of aggravation by establishing that the increase in disability is due to the "natural progress" of the disease. 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, while the Veteran noted back pain at induction, he did not report any abnormalities with his back upon discharge or elsewhere in his service treatment records. However, given the above discussion regarding the provision under 1154(b), the Board finds the Board concedes that the Veteran met his burden. Since the Veteran met this burden, then an increased burden shifts to VA to show lack of aggravation by establishing by clear and unmistakable evidence that the increase in disability was due to the natural progress of the condition. 38 U.S.C. § 1153 (2015); 38 C.F.R. § 3.306 (b) (2019); Wagner, supra. Therefore, on remand, the examiner should provide an opinion which addresses whether or not it is clear and unmistakable that the Veteran's preexisting back disability was not aggravated by service and support such an opinion with adequate rationale. 2. Entitlement to service connection for sciatica of the left lower extremity is remanded. 3. Entitlement to service connection for sciatica of the right lower extremity is remanded. As the Veteran is asserting entitlement to service connection for sciatica of the bilateral lower extremities, secondary to the Veteran's claim for entitlement to service connection for a back disability, the Board finds that these issues are inextricably intertwined with the resolution of the remanded issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Obtain any pertinent and outstanding VA and/or private treatment records. Should such exist, associate them with the claims file. Specifically ensure that all VA treatment records from the 2000s, to include the early 2000s, are obtained and associated with the claims file. See April 2021 Hearing Transcript. 2. Thereafter, obtain an addendum opinion from the October 2017 VA examiner or an appropriate medical professional if the examiner is unavailable. The Veteran's electronic claims folder, including a copy of this remand, must be available to the examiner for review. The examiner must report that he/she has reviewed the claims file. If the examiner feels another examination is necessary, another examination should be scheduled. The examiner is requested to offer an opinion as the following: Whether it is clear and unmistakable (obvious, manifest, and undebatable) that a pre-existing back disability WAS NOT aggravated (i.e., worsened) during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress. The Board observes that the Court has held that any increase/aggravation is sufficient, permanent aggravation is not required. See Ward v. Wilkie, 31, Vet. App. 233 (2019). The examiner should note that the Board has conceded an increase in severity in service. For the purposes of the opinion, the Board is requesting that the examiner concede that the Veteran's increase in severity during his active service. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. The examiner is directed to the Veteran's December 1967 induction examination where he reported recurring back pain and the examiner noted back pain with a notation regarding postural pain. Please provide a complete explanation and rationale as to any opinion reached. A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is advised that the Veteran is competent to report his symptoms and history, to include his April 2021 testimony before the undersigned VLJ. 3. Undertake any other development deemed warranted, and then readjudicate the Veteran's claim on the basis of the additional evidence. If a benefit sought on appeal is not granted, provide the Veteran and his representative with a Supplemental Statement of the Case, then return the appeal to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.