Citation Nr: 22015235 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 18-24 801 DATE: March 16, 2022 ORDER Service connection for a low back disorder is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) beginning April 5, 2013 is granted. FINDINGS OF FACT 1. There is no evidence of a chronic low back disorder during military service, or within one year after the Veteran's discharge from service, and no competent evidence linking the Veteran's post-service low back disorders with his military service. 2. The evidence is in equipoise as to whether he has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities since April 5, 2013, the date of an informal claim for a TDIU, as well as the date he met the schedular criteria for a TDIU. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a TDIU have been met since April 5, 2013, but no earlier. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1984 to July 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned Veterans Law Judge at a Virtual Board hearing in May 2021. A transcript of this proceeding has been associated with the claims file. This case was previously before the Board in August 2021 at which time the Board dismissed claims for increased ratings for the Veteran's service-connected cervical spine as well as associated psychiatric and radiculopathy disabilities, reopened a previously denied claim of entitlement to service connection for a low back disorder, granted a TDIU effective April 22, 2014, and remanded the above issues for additional development. 1. Service connection for a low back disorder is denied. Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38C.F.R. §§ 3.303, 3.304. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, such as arthritis, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Veteran contends that service connection is warranted for a low back disorder. Specifically, during the May 2021 Board hearing he testified that he injured his back on two separate occasions during his service, once in 1988 and again in 1991, resulting in a low back disorder and that he aggravated this low back disorder after service when he injured it again in 2005 while playing basketball. Service treatment records (STRs) confirm that the Veteran was treated for back pain in March 1988 and November 1991, assessed with muscle strain on each occasion. However, a December 1991 examination shows a normal spine. The earliest indication of a chronic low back disorder is a December 2010 claim for service connection for a low back disorder followed by an April 2011 magnetic resonance imaging (MRI) scan of the lumbar spine showing multilevel degenerative changes in the lumbar spine with varying degrees of stenosis. In connection with this claim, the Veteran was afforded a VA spine examination and diagnosed with arthritis of the lumbar spine. Significantly, the examiner opined that the Veteran's low back disorder was less than likely as not related to his military service. As rationale for this opinion, the examiner noted that the Veteran's arthritis of the spine was degenerative in nature and that these findings more than likely represent an age related natural progression of the spine without significant consequence having occurred independent of in-service treated muscle strain of the low back in 1986. Subsequently, the Veteran submitted a March 2015 statement from Dr. J.W. wherein the physician noted that the Veteran has a diagnosis of chronic back pain and that this back pain is as likely as not related to the March 1988 back injury during service. In support thereof, Dr. J.W. stated the basis of his opinion was "records and exam." Pursuant to the August 2021 Board remand, the Veteran was afforded a second VA spine examination in September 2021. Significantly, the examiner diagnosed both degenerative joint disease (DJD) as well as degenerative disc disease (DDD) of the lumbar spine and opined that there was a less than 50 percent probability that the low back disability currently diagnosed as lumbar DDD/DJD with radiculopathy (s/p laminectomy) is related to the in-service injuries of 1988 and 1991 that were separate instances of strain with full range of motion upon examination and that were not stated in the record as persistent or associated with structural disease such as disc, bone, or were associated with the current radiculopathy. Furthermore, the follow-up examination in December 1991 was benign for musculoskeletal issues. There were decades of physical exertion including being a dock-worker and driver in the interim. The back pain was, per the Veteran's statements repeatedly, not an issue until the injury while playing basketball at the dome (while at work) in 2005. The September 2021 VA examiner also opined that there was a less than 50 percent likelihood that the Veteran was predisposed to have back problems following his in-service back injuries. As rationale for this opinion, the examiner noted that the records show a muscle strain in 1988 and 1991 with apparent resolution by December 1991; there was apparently successful deployment after, then a statement in 2010, many years after service to the primary care physician relating back complaints. As the Veteran relates successfully working as a driver and working on the docks in the interim, it is unlikely that there was an instability or predisposition of the back that led to an injury during basketball many years later. Also of record are VA and private treatment records dated through October 2021 which show treatment for the Veteran's cervical spine disorder but do not provide any additional insight into the etiology of this disorder. Initially, the Board notes that while arthritis is included as a chronic condition under 38 C.F.R. § 3.309(a), there is no indication of lumbar spine arthritis within one year of his discharge from service. As above, the earliest indication of arthritis of the lumbar spine is dated in 2011, approximately 19 years after the Veteran's discharge from service. As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The Board also finds that service connection for a low back disorder is not warranted on a direct basis. The Board notes that the record contains conflicting medical opinions on the question of whether the Veteran's back disorders are related to his military service. On one hand, the March 2015 statement from Dr. J.W. related the Veteran's chronic back pains to his military service based on the basis of back problems beginning during and continuing since service. On the other hand, the September 2011 and September 2021 VA medical opinions found that it was less likely than not that the Veteran's low back disorders are related to his military service on the basis that the Veteran's in-service back complaints were acute and not chronic conditions and were, instead, related to the Veteran's advanced age or decades of post-service physical exertion including being a dock-worker and driver. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. See also Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this regard, the Board notes that the March 2015 opinion from Dr. J.W. is based on a finding that the Veteran's claimed low back disorder began during service and has continued since service. However, a review of the record does not support this fining. Instead, the record shows acute complaints of back pain in service with no back complaints from 1992 to at least 2005. While failure to review the claims file is not fatal to the opinion (see Nieves-Rodriguez, 22 Vet. App. at 304), consideration of the relevant history is a factor in assessing the probative value of medical opinions. This opinion is based on inaccurate facts; therefore, it is not probative. By contrast, the Board finds highly probative the September 2021 VA opinion on the medical nexus question. In opining that the Veteran's current low back disorders are not related to his in-service complaints of back pain, the September 2021 VA opinion distinguishes between the in-service and post-service diagnoses and finds that such are not related given the 13 years between the Veteran's in-service back complaints and his post-service complaints. Significantly, the September 2021 VA opinion provides a convincing rationale. Thus, the most persuasive medical opinion on the question of etiology of the Veteran's claimed skin disorder weighs against the claim. The Board has considered the Veteran's assertions that his current back disorders are related to his service. While he is competent to report current observable symptoms and an injury in service; as a lay person, he is not competent to offer an opinion regarding the etiology of his current back disorders. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such an opinion would necessarily require consideration of the etiology of the Veteran's current back disorders, which requires specialized testing. Moreover, such an opinion would require knowledge of the back and the impact of one back disability resulting in another. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the Board finds that, as a current low back disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from active duty, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the persuasive evidence weighs against the Veteran's claim of entitlement to service connection for a low back disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. A TDIU beginning April 5, 2013 is granted. A total disability rating may be assigned when the schedular rating is less than 100 percent where a 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, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Initially, as was noted in the August 2021 Board remand, on the Veteran's April 22, 2014 application for a TDIU, the Veteran asserted that his service-connected disabilities, as well as his back pain, precludes employment. As such, it was determined that, while the Veteran did not submit a formal claim for a TDIU until April 22, 2014, a claim for a TDIU had been initially raised beginning April 5, 2013 (the date of the Veteran's claim for service connection for a low back condition and for an increased rating for a neck condition) pursuant to Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). The Veteran has established service connection for depressive disorder, currently rated as 70 percent disabling; ulnar neuritis of the right upper extremity, currently rated as 30 percent disabling; degenerative arthritis of the cervical spine, currently rated as 20 percent disabling; and ulnar neuritis of the left upper extremity, currently rated as 20 percent disabling. Pertinent to the period on appeal beginning April 5, 2013, the Veteran's combined rating for compensation purposes was 60 percent beginning April 5, 2013, 80 percent beginning April 22, 2014, and 90 percent beginning January 7, 2015. 38 C.F.R. § 4.25. Beginning April 5, 2013, the Veteran met the schedular requirements for the assignment of a TDIU based on a combined etiology of his service-connected depressive disorder, ulnar neuritis, and cervical spine disorders, stemming from an in-service cervical spine injury (making the combined rating for these disorders 60 percent). 38 C.F.R. § 4.16(a)(2) ("For the above purpose of one 60 percent disability rating... the following will be considered as one disability (2) disabilities resulting from common etiology or a single accident."). The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A review of the record shows that the Veteran last worked full-time in January 2013. Specifically, in an April 2014 formal claim for a TDIU, the Veteran reported that he last worked fulltime on January 4, 2013 due to his service-connected psychiatric and cervical spine disabilities. A review of the record includes a September 2013 statement from the Veteran's treating VA physician, Dr. E.H. Significantly, Dr. E.H. noted that the Veteran had had difficulty working since his return from Desert Storm because of psychiatric disability. He also had degenerative arthritis of the spine that caused chronic pain and, in February 2013, he quit working because the pain had gotten so much worse. Also, in a January 2016 statement, the Veteran's treating VA physician wrote that, due to his psychiatric disability, the Veteran had trouble with anger control in the context of physical, social and occupational limitations which remained major causal factors for chronicity of current disorder. Unemployability is a factual determination, not a medical one. The Board is tasked with, first, reviewing the medical evidence to glean the Veteran's service-connected impairment, and second, determining as a legal matter whether that impairment is sufficient to render him unable to maintain substantially gainful employment. As above, the medical evidence shows that the Veteran's service-connected disabilities, particularly his service-connected psychiatric and cervical spine disabilities, significantly impact the Veteran's ability to work. Such findings support the Veteran's assertion that his service-connected disabilities affect his ability to secure substantially gainful employment. Therefore, the Board finds that it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities and, therefore, a TDIU is warranted effective April 5, 2013, the date he last worked full-time and met the schedular criteria for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.