Citation Nr: 22012506 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 14-30 058 DATE: March 4, 2022 ORDER Entitlement to service connection for a back disability is denied. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS) is not causally or etiologically related to service, nor was it shown to a compensable degree within one year of service and symptoms of a back disorder were not continuous since service. 2. During the relevant period on appeal, the Veteran did not meet the schedular criteria for TDIU and the evidence of record does not show that the Veteran's service-connected disabilities caused a level of impairment sufficient to warrant extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1971 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans' Law Judge in April 2019. A transcript of the hearing has been associated with the claims file. These matters were previously remanded for further development in August 2020 and November 2021 and return to the Board for appellate consideration. Service Connection Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. 1. Entitlement to service connection for a back disability is denied. The Veteran contends that his back disability is related to an injury in service. See April 2019 Hearing Transcript. A review of service treatment records (STRs) reflects a January 1989 complaint for low back pain and an assessment for mild back/muscle strain. A February 1989 STR shows the Veteran reported his back pain subsided. STRs in September 1990 concurrently show an assessment for right thoracic syndrome and removal of a mass on the right back (lipoma). In a September 2010 statement, the Veteran reported that he suffered a back injury which was treated with physical therapy, and symptoms persisted following discharge from service where he continued to receive physical therapy treatments. In 2000, an MRI revealed spinal/lumbar stenosis and further testing showed that he would require back surgery. The Veteran reported the back surgery was ineffective as it did not help alleviate some of his symptoms, including radiculopathy in his lower extremities. Private treatment records demonstrate the Veteran's complaints for low back pain since 2000 and lower extremity pain and numbness treated with epidural injections. In February 2010, the Veteran was diagnosed with lumbar spondylosis and stenosis and underwent central and bilateral foraminal decompression and posterior spinal infusion of the L2-3, L3-4, L4-5 spine. In an October 2010 statement, the Veteran reported onset of his back problems since January 1987 and that he was treated by different chiropractors from 1991 to 1999; those doctors have since retired and closed their practices. Social Security Administration (SSA) records demonstrate the Veteran was considered disabled since February 21, 2010 due to degenerative disc disease (DDD) of the lumbar spine status post decompression and fusion. A May 2011 VA examination report demonstrated a diagnosis of spinal lumbar stenosis. The examiner concluded that the Veteran's spinal lumbar stenosis, disc disease, and residuals of surgery with radicular symptoms of the lower extremities are a result of service but could not resolve the issue without resorting to mere speculation. In a June 2011 addendum opinion, the VA examiner concluded the Veteran's back disability was less likely than not caused by or the result of service due to the lack of persistence of a one-time complaint and diagnosis of strain sacroiliac joint rather than lumbar stenosis. In addition, the examiner noted other conditions stemming from spinal lumbar stenosis and disc disease did not require further evaluation if spinal lumbar stenosis and disc disease were not service connected. A September 2012 private opinion from Dr. H.B. noted his surgical treatments of the Veteran's back disability, i.e., decompressive and reconstructive lumbar spinal surgery for degenerative stenosis of the spine, and concluded it was conceivable and possible that his service experience contributed to onset of the Veteran's symptoms and current back condition. In August 2014 correspondence, the Veteran continued to report chiropractic treatments from 1991 to 2000 and that the severity of his back pain has continued since despite surgical treatment. At his April 2019 Board hearing, the Veteran reported his initial back injury in service occurred in England and then he subsequently reinjured his back while moving office furniture. He asserted that he was treated with Motrin but continued to experience back problems. A May 2019 private opinion from Dr. M.L.P. noted she had been providing treatment for the Veteran's back disability since 2015 and that he continued to experience chronic back pain and lumbar radicular symptoms. She concluded it is conceivable and possible that the Veteran's military service contributed to onset of his symptoms and ongoing current condition. A May 2019 private DBQ demonstrated diagnoses of lumbar spinal stenosis, chronic low back pain, and lumbar DDD. The examination also reflected the Veteran's history of low back pain since 1989 and functional limitations posed by his back disability. A March 2021 VA examination reflected a negative nexus opinion while noting review of the August 2020 remand and April 2019 hearing transcript. The examiner indicated the Veteran was seen once in January 1989 but that there were no other available records for review other than the October 1990 separation examination which did not evidence a lumbar spine condition; therefore, the examiner concluded it is likely than not the Veteran's back disability began in service. Finally, a December 2021 VA examination demonstrated a diagnosis for degenerative arthritis of the lumbar spine with IVDS and radiculopathy of the bilateral lower extremity. The examiner provided a negative nexus opinion and concluded it is less likely than not the Veteran's back disability began during or related to active service. The examiner reasoned that STRs evidenced an assessment for muscle strain twice during service for which he received treatment but that records failed to show a progressive continuation of muscle strain and/or back pain during service or within an extended period following separation. The examiner noted the September 1990 STR for right shoulder pain revealed right rhomboid muscle with full range of motion which was more likely caused by a simple strain from overhead activities or poor posture. Additionally, STRs in September 1990 evidenced excision of small subcutaneous lipoma with no additional documented sequel. Furthermore, the examiner indicated that there was no medical pathophysiological relationship between a rhomboid muscle strain or lipoma to degenerative arthritis, DDD, or IVDS. Lastly, the examiner noted that medical evidence does not support a causal relationship between the Veteran's isolated incidents of muscle strain and his current back condition. The examiner cited to medical literature in support of this conclusion. The Board finds the competent and credible evidence of record does not support a service connection for a back disability. The Board finds the December 2021 VA examination the most probative objective evidence of record as the examiner provided a thorough review of the claims file, as well as STRs and post-service treatment records which lend support to the examiner's opinion that there is no causal relationship between the claimed back disability and service. Moreover, the VA examiner provided a thorough rationale and cited to medical literature in support of the conclusion. The Board assigns the September 2012 and May 2019 private opinions less probative value as they are premised on speculation and not definitively conclusive. More specifically, these clinicians stated that it is "conceivable and possible" that the Veteran's service contributed to his back disability. It is well established that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service-connected disorder "may or may not" have prevented medical personnel from averting a Veteran's death was not sufficient). Furthermore, DDD of the lumbar spine is a chronic disease under 38 C.F.R. § 3.309 (a) and presumptive service connection will be considered. However, while DDD has been shown, it did not manifest to a compensable degree in service or within one year of service. Specifically, as noted above, a chronic back disability was not shown in service aside for complaints of low back pain and muscle strain in 1989 and 1990. Additionally, while the Veteran's active service ended in February 1991, he did not seek treatment for back pain until 2000. The medical evidence does not show a diagnosis of DDD until February 2010, 19 years after the Veteran's separation from service. As such, the back disability did not manifest itself to a compensable degree in service or within the presumptive period. The Board has considered the Veteran's lay statements and contention that his back disability was caused by service and has continued since then. However, he is not competent to offer an opinion as to the relationship between his back disability and service due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. The Board has no reason to doubt the Veteran's contentions that he sought continued treatments with a chiropractor following service, but those records are unavailable for review. The Board attaches greater probative weight to the VA examination report and clinical findings. As such, after a careful review of the evidence, the benefit of the doubt rule is not applicable, and the appeal is denied. 2. Entitlement to TDIU is denied. The Veteran contends that his service-connected disabilities preclude him from obtaining gainful employment. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran 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 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). However, a total rating based on individual unemployability may still be assigned to a Veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a Veteran is found to be unemployable solely due to his service-connected disabilities, then the case is to be referred to the Director of Compensation and Pension (C&P) for extraschedular consideration. The question therefore becomes whether or not the Veteran is unable to secure or follow a substantially gainful occupation solely due to service-connected disabilities. 38 C.F.R. § 4.16 (b). The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). While the Board is required to refer a claim for a TDIU award on an extraschedular basis to the Director for initial consideration, the Director's decision is not binding on the Board, nor must it be afforded the probative value of a medical opinion. Rather, it is to be considered an administrative decision that the Board reviews de novo, and the Board may grant a TDIU on an extraschedular basis after the issue has first been considered by the Director. 38 C.F.R. § 4.16; see Wages v. McDonald, 27 Vet. App. 233 (2015) (Board is authorized to award an extraschedular TDIU after obtaining the Director's decision). The Veteran is service connected for hypertension, rated 10 percent disabling; status post removal several lipomas over extremities, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and bilateral hearing loss, rated noncompensable. The evidence of record showed that the Veteran last worked in February 2010 at Lowes Home Center. See March 2011 VA 21-8940. In his application, the Veteran stated that his spinal lumbar stenosis prevented him from securing or following substantial gainful employment. The Veteran reported his symptoms of pain and numbness were so bad following his back surgery that was unable to work. A March 2011 VA 21-4192 from Lowe's Home Center Inc. confirmed that the Veteran last worked in February 2010 and was terminated due to disability. A May 2011 VA General Examination demonstrated the service-connected lipomas and hypertension have no effects on employment and do not prevent the Veteran from performing part time/full time work on a daily basis. The examination also demonstrates that his spinal lumbar stenosis would affect employment and cause absenteeism, decreased mobility, weakness/fatigue, and inability to lift or carry objects. However, the back condition is not service connected. A June 2011 VA 21-4192 from H&H equipment confirmed that the Veteran last worked as a parts manager in June 2007 and was terminated due to his temper and inability to get along with other employees. A June 2011 VA 21-4192 from Direct TV (Bruster & Associates Inc.) confirmed that the Veteran last worked as a cable installer in November 2007 and was terminated because "he could not do the work." SSA records demonstrated that the Veteran was considered disabled from February 13, 2009 due to coronary artery disease (CAD) and DDD of the knee, and from February 21, 2010 due to DDD of the lumbar spine status post decompression and fusion and lumbar spondylosis. An August 2017 VA audiological examination demonstrated that the service-connected tinnitus and bilateral hearing loss affected occupational functioning as the Veteran had difficulty hearing others and would cause irritation and distractions. During his April 2019 Board hearing, the Veteran asserted that his spinal lumbar stenosis and hypertension prevented his ability to obtain gainful employment. With regard to hypertension, the Veteran argued that hypertension caused him to be dizzy and fall. In this case, after careful review of the evidence of record, the Board finds that the weight of the competent and credible evidence is against a finding for a TDIU and referral to the TDIU claim to the Director of Compensation and Pension (C&P) for extraschedular consideration is not warranted. The Board accepts as credible the Veteran's contentions that his service-connected disabilities impacted his work. However, the level of impairment caused by the Veteran's service-connected disabilities was contemplated by his assigned disability ratings. Furthermore, while SSA records evidenced the Veteran's spinal lumbar stenosis affected his ability to be gainfully employed and the May 2011 VA 21-4192 from Lowe's Home Center shows reason for termination as due to a "disability," the Veteran is not service connected for his spinal lumbar stenosis. Additionally, the May 2011 VA 21-4192 from H&H equipment and Direct TV noted the reasons for termination were due to the inability to get along with other employees and/or perform job functions. Lastly, the August 2017 VA audiological examination indicated the Veteran's tinnitus and hearing loss affected his ability to communicate and/or hear others; however, the examiner never concluded that the Veteran's tinnitus and hearing loss precluded his ability to maintain employment in any way. In sum, after careful review of the evidence of record, the Board finds that the weight of the competent and credible evidence is against a finding for TDIU and a finding for referral to the Director of Compensation and Pension for extraschedular consideration by reason of his service-connected disabilities. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.