Citation Nr: 1736635	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-06 233A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for chronic lichen simplex.

2.  Entitlement to service connection for a lumbar spine disability, to include spondylolysis with spondylolisthesis of L5-S1.

3.  Entitlement to service connection for right lower extremity sciatica, to include as secondary to spondylolysis with spondylolisthesis of L5/S1.

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


ATTORNEY FOR THE BOARD

A. Faverio, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1965 to September 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In an April 2016 decision, the Board reopened a previously denied claim of service connection for a low back disability and remanded the underlying claim for additional evidentiary development.  In addition, the Board remanded the claims of service connection for sciatica, the claim for an increased rating for chronic lichens simplex, and the claim for TDIU, for additional evidentiary development.  Finally, the Board remanded the claims of entitlement to service connection for hearing loss, tinnitus, and an acquired psychiatric disorder for the issuance of a Statement of the Case, pursuant to Manlincon v. West, 12 Vet. App. 234 (1999).  

The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd Dyment v. Principi, 287 F.3d 1377 (2002).

While the matter was in remand status, in a February 2017 rating decision, the RO granted service connection for hearing loss and tinnitus and assigned initial zero percent and 10 percent ratings, respectively, effective June 21, 2010.  The grant of service connection constitutes a full award of the benefits sought on appeal with respect to these claims.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  The record currently available to the Board contains no indication that the Veteran has initiated an appeal with the initial ratings or effective dates assigned.  Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned).  Thus, those issues are not in appellate status at this juncture.

In addition, in February 2017, the RO issued a Statement of the Case regarding the claim of service connection for a psychiatric disability.  The record currently available to the Board indicates that the Veteran did not thereafter submit an appeal of that issue.  Thus, the matter is not in appellate status.  


FINDINGS OF FACT

1.  The Veteran's chronic lichen simplex affects his bilateral legs and low back in an area covering less than 20 percent of his entire body and exposed areas, and has not required systemic therapy such as corticosteroids or other immunosuppressive drugs. 

2.  A chronic lumbar spine disability was not present in service, arthritis of the lumbar spine did not manifest to a compensable degree within one year of service, and the most probative evidence establishes that the Veteran's current lumbar spine disability, spondylolysis with spondylolisthesis of L5-S1, is not causally related to active service or any incident therein.  

3.  The Veteran's right lower extremity sciatica was not present in service, was not manifest to a compensable degree within one year of service, and the most probative evidence establishes that the Veteran's current right lower extremity sciatica is not causally related to active service or any incident therein, nor is it caused or aggravated by another disability. 

4.  The Veteran's service-connected disabilities do not render him incapable of securing or following a substantially gainful occupation.



CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 10 percent for chronic lichen simplex have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2016).

2.  The criteria for service connection for a lumbar spine disability, to include spondylolysis with spondylolisthesis of L5-S1, have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 

3.  The criteria for service connection for right lower extremity sciatica have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.307, 3.309 (2016).

4.  The criteria for TDIU have not been met.  38 U.S.C.A. §§ 1155, 5110(a), (b)(2) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Due Process

The Veteran has raised no issues with the duty to notify or the duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).


Background

The Veteran initially applied for disability benefits in 1976.  In September 1976, he filed a claim for service connection for a skin condition.  He was granted service connection for his skin condition, chronic lichen simplex of the legs, in January 1977, and assigned a 10 percent disability rating with an effective date of September 9, 1976, the date his claim was filed.

In June 2010, the Veteran filed for an increased rating of his skin condition, stating that it had worsened and was covering a large area of his body.  The Veteran underwent a VA examination in November 2010.  The VA examiner found that the Veteran's skin condition required constant use of a topical corticosteroid in the previous 12 months.  The examiner also found that greater than 5 percent but less than 20 percent of the total body area was affected.  Other skin findings included crusting, erythematous areas with some scabbing and a few excoriations, scattered with some healed red areas.  The Veteran had had no other treatment for his skin condition, nor had he experienced any side effects from the topical medication.  The diagnosis was lichen simplex chronicus, lower extremities and low back.  

Pursuant to the Board's April 2015 remand, the Veteran underwent another VA examination in May 2016 by a different VA examiner.  The Veteran reported that his skin is not a problem in the summer, but that in winter his legs and lower back itch such that he will scratch the affected areas until they bleed.  The examiner noted that the Veteran has been treated with topical corticosteroids in the previous 12 months on a constant or near-constant basis.  He had not required any other treatments or procedures, nor had he had any debilitating episodes.  The Veteran also had other pertinent findings:  mild erythema with excoriations anterior shins and right lower back.  Zero percent of exposed skin was affected and less than 5 percent of total body area was affected.  The examiner indicated that the Veteran's skin condition did not affect his ability to work.  

The Veteran's treatment records show, as recently as June 2016, that he is prescribed topical medication for his skin, to be applied twice a day as needed.

Regarding the Veteran's back condition, the Veteran reports that he suffered a back injury in service in May 1966 when he and a fellow service-member were assigned to lift and load a 16 foot boat from a body of water into a truck.  In his June 2010 VA 21-4138 Statement in Support of Claim, the Veteran reports that he was subsequently put on light duty and given medication.  The Board notes that the low back disability has been diagnosed as spondylolysis with spondylolisthesis of L5-S1.

The Veteran's service treatment records (STRs) show that in May 1966, he complained of pain in the lower portion of his back that disturbed his sleep and caused pain when bending.  He was assessed with having a low back syndrome.  A few days later, the Veteran was seen again with additional symptoms such as a stiff back and that the low back pain was radiating.  The examiner noted that the pain was dull and aching but the Veteran had no parasthesias.  The Veteran was prescribed bed rest.  In June 1966 the Veteran was seen for lower back spasms and was placed on light duty for a week.  The remaining service treatment records are negative for complaints or abnormalities pertaining to the low back.  At the Veteran's September 1967 Separation Examination, he denied having arthritis, bone or joint deformity, and neuritis.  In addition, his spine, lower extremities, neurological and other musculoskeletal system were examined and determined to be normal.   

The Board notes that in its April 2015 remand, the Veteran had an x-ray in December 1967 that demonstrated spondylolysis with first degree spondylolisthesis at L5-S1; however, upon review of the record, the Veteran was diagnosed with spondylolysis with first degree spondylolisthesis at L5-S1 during a December 1976 VA examination where x-rays were performed and a radiographic report completed that same date.  At that time, the Veteran reported back trouble since 1966.  The December 1976 examination did not provide a nexus opinion on whether the Veteran's back condition was related to his May 1966 service injury.

In a January 1977 statement, a private physician indicated that the Veteran had been treated for acute lumbosacral strain in August 1972.

The Veteran underwent a VA examination in December 1977 for his back condition.  Here, the Veteran reported that he had been treated for a back strain in service.  With respect to current symptoms, he indicated that his back did not bother him while doing strenuous work such as construction and carpentry, but would arise with back stiffness in the mornings.  He denied paresthesia down the thighs.  The examination did not note whether his back condition was related to his May 1966 service injury.

Medical treatment records from December 1982 show that the Veteran fell from a ladder and was experiencing back pain.  Treatment records from February 1993 reflect that the Veteran's back was progressively giving him problems and causing pain when stationary, but gradually relieved when walking.  The Veteran reported on this visit that he was injured in service, but the examiner did not opine as to whether the back condition was related to that in-service injury.  X-rays were performed on this visit and showed chronic L5-S1 narrowing and some osteophyte formation along the vertebral edge.  The Veteran was assessed with chronic degenerative joint disease and referred to an orthopedic clinic to perform a CT scan of the L-S spine.

In May 2003, the Veteran phoned the medical center to request pain medication because his back pain was beginning to bother him again.  In March 2008 the Veteran was assessed with chronic low back pain secondary to lumbar DDD.  The examining doctor noted that the Veteran reported that he had had low back pain upon discharge from service.  A June 2009 primary care note reports that the Veteran reported chronic pain since injury in service.

In January 2013, the Veteran underwent a VA examination for his back disability and the examiner concluded that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury.  In the April 2015 remand, the Board ultimately found that this examination was inadequate because the VA examiner incorrectly stated that the Veteran was not diagnosed with DDD until 2009.

Pursuant to the April 2015 remand, a new VA examination and medical opinion were completed regarding the Veteran's back disability in May 2016.  The Veteran recalled his in-service injury in May 1966 and being placed on light duty but did not recall getting any other treatment in service.  He reported that he originally experienced pain from his lower back radiating down the back of the right leg to the calf, but the pain resolved and he now only got some numbness in the area with prolonged sitting.

Here, it was again stated that the Veteran's back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury.  In his rationale, the examiner noted that there was no evidence of a chronic back condition from 1966 to 1976, when the Veteran was first diagnosed with spondylolysis with first degree spondylolisthesis at L5-S1.  The medical opinion further indicated that x-ray changes noted in 1976 and 1993 are most likely secondary to his civilian occupation performing manual labor and construction.  The Veteran reported that he is no longer working and has had shots in his back so his back does not bother him as much as it did in the past.  Additionally, the examiner noted that in 1976, the Veteran had been working in construction for over 9 years, and after his retirement, his back condition improved.

The Veteran was filed a claim for service connection of sciatica of the right lower extremity in June 2010.  Here, the Veteran stated that he has sciatica in his right lower extremity and that it is secondary to his lumbar spine disability.  

In April 2004, the Veteran was seen at the Clarksburg VA Medical Center (VAMC) for an urgent care visit with complaints of low back pain and right leg numbness and pain over the past few days.  The diagnostic impression was low back pain with radiation into right leg. 

In the May 2016 VA examination and medical opinion, the Veteran reported flare-ups that did not allow him to sit or stand for prolonged periods of time without his right leg getting numb.  The examination report reflects that the Veteran has mild radiculopathy in the right side, exhibited by mild paresthesias and/or dysesthesias in the right lower extremity and mild numbness in the right lower extremity.  Involvement of the right sciatic nerve root was noted.  The examiner noted that the Veteran does not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition.  

The examiner determined that the condition claimed was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.  Specifically, the examiner noted that there was no evidence of sciatica or radiculopathy in the STRs.  In the September 1967 Separation Examination, all relevant body systems, including neurological, were marked as normal.  


Analysis

Entitlement to a Disability Rating in Excess of 10 Percent for Chronic Lichen Simplex, Bilateral Legs

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b) (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's service connected disability is rated under Diagnostic Code (DC) 7806.  Under DC 7806, a noncompensable evaluation is warranted where dermatitis or eczema covers less than 5 percent of the entire body or less than 5 percent of exposed areas affected and no more than topical therapy was required during the previous 12-month period.  A 10 percent evaluation is assigned when dermatitis or eczema is at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period.  38 C.F.R. § 4.118, DC 7806.  A 30 percent evaluation is assigned when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period.  Id.  A 60 percent evaluation is assigned when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the previous 12-month period.  Id.

As stated above, the Veteran underwent his most recent VA examination in May 2016 for his chronic lichen simplex.  Here, the examiner noted that the Veteran is being treated with topical corticosteroids on a constant or near constant basis within the past 12 months.  The Veteran had a VA examination in November 2010 in which the examiner also noted that the Veteran has been using a topical corticosteroid treatment on a constant basis within the previous 12 months.  

Laid out above are the ratings under DC 7806.  This DC provides that a 60 percent evaluation is assigned when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the previous 12-month period.

Significantly, the Board notes that on July 14, 2017, the Federal Circuit issued an opinion in Johnson v. Shulkin, where the issue on appeal was the question of whether criteria for a 60 percent rating under DC 7806, which requires "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs," is inclusive of topical corticosteroids.  When the issue was before the Court of Appeals for Veterans Claims (Court), it read the phrase "systemic therapy such as corticosteroids" as unambiguously encompassing any topical application of corticosteroids for treating a skin condition, in addition to a therapy that impacts a patient's entire body system, such as when a drug is administered orally or parenterally.  Johnson v. McDonald, 27 Vet. App. 497 (2016).  VA disagreed with the Court's decision and appealed it to the Federal Circuit.

The Federal Circuit's July 14, 2017 decision reversed the Court's decision and found that it erred when it "read DC 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of 'systemic therapy.'"  Johnson v. Shulkin, No. 16-2144, 2017 U.S. App. LEXIS 12601, at 8.  The Federal Circuit noted that DC 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code."  Id. at 9-10.  The Federal Circuit went on to explain that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied."  Id.  

Applying the Federal Circuit's newly-issued decision to the matter of the Veteran's skin condition in this case, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for his chronic lichen simplex.

The Veteran's skin condition was determined to cover greater than 5 percent but less than 20 percent of the total body area affected in the November 2010 VA examination.  The May 2016 VA examination report reflected that zero percent of exposed skin was affected and less than 5 percent of the total body area was affected.  The Veteran's treatment records and the VA examinations show that he is prescribed topical medication for his skin, to be applied twice a day as needed, but has not been prescribed systemic therapy for his service-connected skin condition.  He has not contended otherwise nor does the record contain any indication that the topical corticosteroids he uses are applied in such a manner that would adhere to the Federal Circuit's definition of "systemic therapy," which is treatment pertaining to or affecting the body as a whole.  Based on the examinations, the Veteran's use of topical corticosteroids more closely approximates the definition the Federal Circuit set forth for "topical therapy," which is treatment pertaining to a particular surface area, affecting only the area to which it is applied.  

The Board acknowledges the reports that the Veteran experiences severe itching, specifically in the winter months, and requires constant use of a topical corticosteroid to achieve relief.  Although the Board finds these statements to be credible, it finds that these factors do not provide sufficient evidence on which to award a higher rating.  The Board affords great probative value to the VA examinations as they were conducted by medical professionals after an in-person examination and review of the claims file and have described in detail the portion of the Veteran's body which is affected by his service-connected skin condition.  As such, the preponderance of the evidence is against the Veteran's claim for a higher rating.  Consequently, the benefit of the doubt rule does not apply.  38 U.S.C.A. § 5107(b).
 

Entitlement to Service Connection for a Low Back Disability, to include Spondylolysis with Spondylolisthesis of L5-S1, and Right Lower Extremity Sciatica

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service.  38 U.S.C.A. § 1110.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for certain chronic diseases, including arthritis and organic diseases of the nervous system, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307(a).

To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service.  The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may be granted for a disability which is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a).  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Applying the legal criteria set forth above to the facts surrounding the Veteran's back condition, the Board concludes that the preponderance of the evidence is against the claim.

As set forth above, the Veteran's service treatment records confirm that between May and June 1966, he was treated for radiating back pain which he now reports stemmed from a lifting injury.  That an injury occurred during service, however, is not enough to establish service connection.  Rather, there must be chronic disability resulting from the injury.  In this case, the Board finds that the most probative evidence shows that a chronic lumbar spine disability was not present in service.  

In that regard, the Veteran's service treatment records show that following his treatment for low back pain in 1966, the remaining service treatment records are negative for complaints or abnormalities pertaining to the low back.  At the Veteran's September 1967 Separation Examination, his spine was examined and determined to be normal.  In addition, the post-service record is negative for any indication of arthritis of the lumbar spine in the first post-service year.  

Although this evidence establishes that a chronic low back disability was not present during the Veteran's period of active service or manifest to a compensable degree within one year of separation, service connection may nonetheless be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).  In this case, however, the record weighs against finding that the Veteran's current low back disability is causally related to his active service.

As set forth above, the RO obtained a VA medical examination report and a medical opinion where the examiner concluded that it is less likely than not that the Veteran's current lumbar spine disability is causally related to his active service or any incident therein.  The examiner explained that the Veteran's low back disability is more likely related to the many years of strenuous work in his civilian occupation in construction.  Specifically, from the time of his in-service injury in 1966 until he was first diagnosed in 1976, the Veteran had already spent approximately 9 years working construction.  As evidence to support this assertion, the examiner further noted that since retirement, the Veteran's back condition has improved.

The Board assigns this medical opinion great probative weight.  It was rendered by a qualified medical professional who examined the Veteran and reviewed the Veteran's electronic claims file, which includes the Veteran's STRs and the medical history since his time in service.  See Bloom v. West, 12 Vet. App. 185, 187 (1999).  Moreover, the examiner provided a rationale for the conclusion reached, including reference to the pertinent evidence of record.  There is no other clinical evidence of record which contradicts this medical conclusion.

The Board has carefully considered the contentions of the Veteran that the currently diagnosed low back disability was incurred during his military service.  To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4.  In this case, the Veteran's assertions as to diagnosis and etiology concern an internal medical process, arthritis, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses.  Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  Questions of competency notwithstanding, the Veteran's lay theory regarding the etiology of his low back disability is contradicted by the conclusion of the VA examiner.  The Board finds the specific opinion of the trained health care provider who conducted the VA examination to be of greater probative weight than the more general lay assertions of the Veteran.

The Board has considered that lay evidence concerning continuity of symptoms after service is competent, regardless of the lack of contemporaneous medical evidence.  Additionally, the Board recognizes that as with "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  The Board recognizes that the Veteran has been diagnosed with arthritis of the low back, which is a chronic disease.  38 C.F.R. §§ 3.307, 3.309.  However, there is no evidence that he was diagnosed with arthritis of the low back in service or for years thereafter.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Rather, he was not diagnosed as having arthritis until 1976, approximately nine years after separation.  

The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise.  Considering the record, including the service treatment records, the post-service medical evidence, the VA medical examinations, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight.

In conclusion, the preponderance of the evidence is against the claim.  Thus, the benefit-of-the-doubt rule does not avail the Veteran.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

The Board also finds that service connection for right lower extremity sciatica is not warranted.  Upon review of the record, there is no contention by the Veteran or indication in the record that his right lower extremity sciatica had onset in service or within one year of separation.  The Veteran was first seen for lower back pain radiating into his right leg in April 2004.  As stated above, in the May 2016 VA examination, the examiner noted that the Veteran has mild radiculopathy in the right side, exhibited by mild paresthesias and/or dysesthesias in the right lower extremity and mild numbness in the right lower extremity.  Involvement of the right sciatic nerve root was noted.  

Review of the STRs does not reveal evidence that the Veteran was treated for right lower extremity sciatica in service.  In fact, in a May 1966 treatment record, days after the Veteran's in-service back injury, the examiner noted that the Veteran did not exhibit paresthesias or weakness.  While he did report low back pain with radiation, no numbness was noted. 

The Board notes that the May 2016 examiner did not opine on whether the Veteran's right lower extremity sciatica was caused by his spondylolysis with spondylolisthesis of L5-S1; however, such an opinion is immaterial because the Board has found that the evidence does not establish that the Veteran's spondylolysis with spondylolisthesis of L5-S1 was incurred during or as a result of his period of service, therefore there is no factual basis for a finding that his right lower extremity sciatica is due to or caused by spondylolysis with spondylolisthesis of L5-S1.  In the absence of an award of service connection, service connection for right lower extremity sciatica, as secondary to a service-connected disability is precluded by the terms of governing statute and regulations.  Since compensation cannot be granted for primary service connection, and there is no factual support for a grant of service connection as secondary to a service-connected disability, the claim must be denied.

Entitlement to TDIU

VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.10 (2016).  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  Id.

Where the schedular rating is less than total, a total disability rating may nonetheless 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, 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(a), 4.16(a).

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16 (b).

Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment.  See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016).  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).  For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation.  VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992).  Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion.  Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age.  38 C.F.R. §§ 3.341 (a), 4.16, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose, 4 Vet. App. at 363.

Initially, the Board notes that the Veteran does not meet the schedular requirements for a grant of TDIU because he does not have 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(a), 4.16(a).  At this time, the Veteran is service connected only for chronic lichen simplex of the legs, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, noncompensably rated.  His combined evaluation for compensation is 20 percent.  

Although the Veteran does not meet the percentage standards for TDIU under section 4.16(a), it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b).  

In this case, however, the Board finds that referral is not warranted.  Entitlement to a TDIU must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment.  See 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability."  In this case, the record does not show, nor does the Veteran contend, that his service-connected chronic lichen simplex, tinnitus and bilateral hearing loss prevent him from obtaining or maintaining substantially gainful employment.  Rather, he attributed his inability to work to his nonservice-connected back and radiculopathy disabilities.  In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities alone render him unable to secure or follow a substantially gainful occupation.  Thus, referral for extraschedular TDIU consideration is not warranted at this time.


ORDER

Entitlement to a disability rating in excess of 10 percent for chronic lichen simplex is granted.

Entitlement to service connection for spondylolysis with spondylolisthesis of L5-S1 is denied.

Entitlement to service connection for right lower extremity sciatica, to include as due to spondylolysis with spondylolisthesis of L5-S1, is denied.

Entitlement to TDIU is denied.




____________________________________________
K. CONNER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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