Citation Nr: 1749033	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-27 077	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a back disability, to include as secondary to the service-connected disability of right hand laceration injury residuals (major).

2.  Entitlement to service connection for a neck disability, to include as secondary to the service-connected disability of right hand laceration injury residuals (major).

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 13, 2011.


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

J. Setter, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1976 to December 1976, with subsequent active service in the Army National Guard from June 13, 1987 to September 19, 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Board remanded the issues on appeal for additional development in January 2016. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998).

In August 2015, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing has been associated with the Veteran's claims file.

The Veteran is unrepresented.  The Veteran was formerly represented by the Texas Veterans Commission (TVC) and later by the Disabled American Veterans (DAV).  See VA Form 21-22 of January 2010 (TVC); VA Form 21-22 of May 2011 (DAV).  A September 2015 letter from the DAV stated that the Veteran revoked DAV representation on July 14, 2015 and that "DAV is no longer his representative per the veteran's request."

VA informed the Veteran by a letter of September 2015 that he had "90 days from the date of this letter or until the Board issues a decision in your appeal (whichever comes first) to request a change in representation . . .."  Furthermore, in December 2015, VA notified the Veteran that he had the right to appoint a representative, that action on his case would be delayed for 30 days, and that VA would assume that the Veteran wished to represent himself if he did not respond within 30 days of the date of the letter.  Because no VA Form 21-22 or VA Form 21-22a was submitted within 30 days (or thereafter), the Veteran is not represented.  As the Veteran is unrepresented in this case, VA has a duty to construe his claims liberally. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).


FINDINGS OF FACT

1.  A back disability was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease.

2.  A back disability was not caused or aggravated by a service-connected disability.

3.  A neck disability was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease.

4.  A neck disability was not caused or aggravated by a service-connected disability.

5.  Prior to May 13, 2011, the evidence of record does not show that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment consistent with his level of education and work history.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for a back disability are not met.  38 U.S.C.A. §§ 1101, 1110, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2017). 

2.  The criteria for service connection for a neck disability are not met.  38 U.S.C.A. §§ 1101, 1110, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2017). 

3.  The criteria for entitlement to a TDIU have not been met prior to May 13, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter pertinent to the instant claim in June 2010, before the initial unfavorable adjudication in August 2010. This letter advised the Veteran of what evidence was necessary to substantiate his claims, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined.  As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service, VA treatment records, and Social Security records with the claims file.  All private treatment records authorized for release or submitted are associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4).  Specifically, the information and evidence that has been associated with the claims file include service treatment records, post-service VA and private treatment records, VA examination reports from August 2010 and July 2016, and VA medical opinions from August 2011, July 2016, and August 2016.  

When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination and opinions are adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations, together with the medical opinions, are adequate with regard to the claim of service connection for sleep apnea.  The opinions expressed considered all the pertinent evidence of record, to include the statements of the Veteran, and provided sufficient rationale.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).  

As such, the RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  The appellant has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal.  Mayfield v. Nicholson, 444 F.3d. 1328 (Fed. Cir. 2006).  Hence, no further notice or assistance to the appellant is required to fulfill VA's duties to notify and assist in the development of the claim.

II. Service Connection - General

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a Veteran must show:  "(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 or aggravated during service-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 

For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that the service-connected disease or injury aggravated the nonservice-connected disability for which service connection is sought.  See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

After the evidence is assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. 

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Service Connection for a Back Disability

The Veteran is claiming service connection for a back disability, to include as secondary to a service-connected right hand disability.

The Veteran has asserted in a lay statement of May 2011 that "due to the injury to my right hand I have had to do all my lifting with my left hand and my back went out."  See Veteran's statement of May 2011.  He states that his back injury is "due to me not being able to use my right hand." Id.  He further alleges that his neck has also been injured as a result of his service-connected right hand disability.  See transcript of August 2015 Board hearing.  He describes a specific incident in which his need to favor his right hand while lifting pipes in a post-service, manual labor job threw him off balance and injured his neck and back.  Id.

The Veteran's service treatment records are silent for any back or neck injuries or disorders during active service, or within one year after active service.  The Veteran is service-connected for residuals of his right hand laceration injury (major), effective from March 6, 1989.

On December 31, 1989, the Veteran was involved in a motor vehicle accident and was treated at a private hospital for a possible head injury.  X-rays were taken of the head and spine with unknown results.  The Veteran was not admitted and told to rest at home for 2 days.

In January 1994, the Veteran received an evaluation from Workmen's Compensation, which noted the presence of low back pain due to an on-the-job injury in May 1993.  The diagnosis was lumbar facet syndrome, and an MRI scan was negative for disc disruption.

In August 2005, the Veteran was treated for a lumbar spine condition from a private medical provider, after complaints of back pain.  Muscle spasms were present and x-rays revealed "arthritic changes."  The back condition was treated conservatively with pain relievers and heat compresses.

In August 2010 the Veteran received a VA general compensation and pension examination to evaluate his claim for TDIU.  During this examination, the examiner noted the Veteran's service-connected right hand laceration injury residuals and also complaints of lumbar back pain, attributed to a work accident "ten years ago."  The examiner noted no surgery was required and there was no neoplasm.  The examiner mentioned a company doctor diagnosed a lumbosacral strain from this work accident and it created low back pain which was severe at times.  No additional limitation with flareups was noted.  

In August 2011, the Veteran received a VA opinion regarding service connection for his lumbar back complaints.  There was no formal examination.  In reviewing the Veteran's claims file, the examiner opined that his current back condition is less likely as not related to the military or his right hand injury, and that his right hand injury is not anatomically related to his back.  No further statement or rationale was provided.

The Veteran received VA examinations for his cervical spine, lumbar back, shoulder and arm, and hand and finger, all in July 2016.

The Veteran was diagnosed with a lumbosacral spondylosis (degenerative disc disease/degenerative joint disease) of the thoracolumbar spine.  Flareups were documented after prolonged standing, walking, stooping, bending, or heaving lifting.  The examiner noted there was no functional loss or impairment regardless of repetitive use.  Thus, the requirement for a current disability is met.

The July 2016 VA examiner provided an opinion that the Veteran's claimed lumbar back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The examiner's rationale was that the service treatment records do not indicate any abnormal condition with any part of the neck or back.  X-ray studies dated August 2005 from the East Texas Medical Center indicated a normal lumbar spine, 18 years after the last active service of the Veteran.  Current imaging studies done in July 2016 indicate lumbar spondylosis which, according to the examiner, are an age-related condition, and related to his occupation doing construction work and other labor-intensive jobs after military service.  The examiner continued, noting that the degenerative changes of the back occurred beyond the presumptive period after military service.

This July 2016 VA examiner also opined on the possibility of secondary service connection, saying the claimed back condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected hand disability.  The examiner opined that the Veteran's back condition is not related to the Veteran's service-connected right hand disability because the current examination and x-ray imaging findings are not consistent with a condition secondary to the right hand injury residuals.  The examiner noted that the x-ray imaging findings and limited range of motion of the lumbar back indicated an age-related and occupation-related condition, and not a condition tied back to service or related to another service-connected disability.  The examiner also opined that the Veteran's claimed back disability was not likely to have been aggravated beyond its natural progression by a service-connected hand disability.

The service treatment records do contain an annotation of an x-ray finding in March 1988, outside of the period of active service, of mild dextroscoliosis of the mid thoracic spine.  The August 2010 rating decision, which denied service connection for a back condition, termed this condition as congenital, though the actual March 1988 service treatment record did not.  A congenital or developmental defect is not considered a disease or injury for VA purposes.  See 38 C.F.R. §§ 3.303(c), 4.9.  A congenital defect, as distinguished from a disease, generally may not be service-connected as a matter of law.  Furthermore, the general presumption of soundness upon entry into service, as set forth in 38 C.F.R. § 3.304(b), does not apply to congenital defects.  Service connection may be granted, however, if a congenital defect is subject to, or aggravated by, a superimposed disease or injury during service that causes additional disability.  See 38 U.S.C.A. §§ 1110, 1111 (West 2014); VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); Quirin v. Shinseki, 22 Vet. App. 390 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996).

The July 2016 examiner also opined on the possibility that the Veteran had a congenital back condition that may have been aggravated in service.  This examiner stated that mild dextroscoliosis of the midthoracic spine was noted to be an incidental finding on chest x-ray, it is not a congenital condition as it is not associated with other congenital conditions such as Marfans syndrome.  It was not a developmental defect or disease entity as it is not associated with other diseases such as displacement of organs within the chest cavity. Cardiac silhouette and lungs were noted to be within normal limits on the x-ray dated March 1988.  The examiner noted in his rationale that because the service treatment records were silent any evaluation of a back condition or injury, that it was less likely than not due to a superimposed injury or disease during active military service.  Current examination and x-ray findings of the back are consistent with an age-related condition and occupation-related condition such as an on-the-job injury.  The Veteran's examination did not reveal associated dextroscoliosis abnormalities such as prominent scapula, hip elevation, or abnormal chest cavity.  The Board gives great probative weight to the VA opinion that the dextroscoliosis is not a congenital condition or developmental disease or defect, based on the extensive rationale provided.  The Veteran has not made a claim or an assertion otherwise.

The Board notes the evidence from the motor vehicle accident and subsequent treatment in December 1989 and January 1990, the Workmen's Compensation claim of January 1994 tied back to the job injury of May 1993, and the August 2005 private medical treatment of the back, and finds while those records support the finding of a current disability, none of those records establish an in-service injury or incident or explain a possible nexus back to service.

Upon review of the evidence of record, the Board concludes that entitlement to direct service connection is not warranted for a back disability.  Because the Veteran has no in-service back disability or related disease or injury that occurred in service or within one year after leaving active service, the Veteran fails the second prong of the test for entitlement to direct service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

The Veteran has asserted and testified that his back disability is secondary to his service-connected right hand injury.  Generally, lay evidence is probative with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007).  Lay evidence on its own can be sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id.  A layperson cannot provide evidence as to more complex medical questions and, specifically, cannot provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2).
	
To the extent that the Veteran can observe symptoms such as pain and limited motion, he is competent to comment on and endorse these symptoms.  However, the determination of the etiology of his back disability is a complex medical determination beyond his competence.  See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value.

The Board finds that the probative and competent opinions of the VA physicians and medical professionals who concluded that his back disability is unrelated to his service is and not caused or aggravated by his service-connected right hand disability outweigh the assertions of the Veteran.  While all of the medical evidence points to the Veteran's current diagnosis of a back disability, none of the examinations or opinions provide a nexus to service, or that the Veteran's back disability is caused or was aggravated by the Veteran's service-connected right hand injury.  The Board also finds that the one-time mention of the Veteran's dextroscoliosis in 1988 is neither a congenital condition or developmental disease or defect. There is no evidence that any of these examiners were not competent or credible, and as the opinions are based on the medical evidence of record the Board finds that they are entitled to significant probative weight concerning the etiology of the claimed back disability.  Nieves-Rodriguez, 22 Vet. App. at 302-306.

Upon review of the evidence of record, the weight of the competent and credible evidence demonstrates no back disability manifested in service or is caused or aggravated by a service-connected disability. Accordingly, the Board finds that service connection for a back disability, either on a direct or secondary basis, is not warranted.   Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Service Connection for a Neck Disability

The Veteran is claiming service connection for a neck disability, to include as secondary to a service-connected right hand disability.  

The Veteran's service treatment records are silent for any back or neck injuries or disorders during active service, or within one year after active service.  The Veteran is service-connected for residuals of his right hand laceration injury (major), effective from March 6, 1989.

On December 31, 1989, the Veteran was involved in a motor vehicle accident and was treated at a private hospital for a possible head injury.  X-rays were taken of the head and spine with unknown results.  The Veteran was not admitted and told to rest at home for 2 days.

The Veteran received a Workmen's Compensation evaluation in May 1993 for his back.  The record does not indicate the Veteran had any complaints about his neck or cervical spine.

In August 2010 the Veteran received a VA general compensation and pension examination to evaluate his claim for TDIU.  During this examination, the examiner noted the Veteran's service-connected right hand laceration injury residuals and also complaints of lumbar back pain, attributed to a work accident "about ten years ago."  This examiner did mention occasional neck pain in the discussion on the lumbar back. This examiner did note there was interference with daily activities of bending and stopping, but he had no incapacitating episodes in the past year.

During an August 2011 VA examination for the shoulder, MRI imaging accomplished for that purpose noted multilevel degenerative disc disease at C3-C4, C4-C5, and C6-C7 of the cervical spine.  The examiner noted there was limited flexion and extension but no abnormal motion.  No opinion was provided as to the etiology of the cervical spine medical findings.

The Veteran received a VA examination for his cervical spine, to include the neck, in July 2016.  The examiner diagnosed cervical spondylosis with degenerative disc disease and degenerative joint disease, and noted it had been present since 2011.  Flareups were noted with strenuous physical activity and sudden movement.  Thus, the requirement for a current disability is met.

The July 2016 VA examiner provided an opinion that the Veteran's claimed neck condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The examiner's rationale was that the service treatment records do not indicate any abnormal condition with any part of the neck or back.  Current imaging studies done in July 2016 indicate cervical spondylosis with degenerative disc disease and degenerative joint disease, which, according to the examiner, are an age-related condition, and related to his occupation doing construction work and other labor-intensive jobs after military service.  The examiner continued, noting that the degenerative changes of the neck occurred beyond the presumptive period after military service.  A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

This July 2016 VA examiner also opined on the possibility of secondary service connection, saying the claimed neck condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected hand disability.  The examiner opined that the Veteran's neck condition is not related to the Veteran's service-connected right hand disability because the current examination and x-ray imaging findings are not consistent with a condition secondary to the right hand injury residuals.  The examiner noted that the x-ray imaging findings and limited range of motion of the neck indicated an age-related and occupation-related condition, and not a condition tied back to service or related to another service-connected disability.  The examiner also opined that the Veteran's claimed neck disability was not likely to have been aggravated beyond its natural progression by a service-connected hand disability.

The Board notes the evidence from the motor vehicle accident and subsequent treatment in December 1989 and January 1990, and the Workmen's Compensation claim of January 1994 tied back to the job injury of May 1993, and finds while those records support the finding of a current disability, none of those records establish an in-service injury or incident or explain a possible nexus back to service.

Upon review of the evidence of record, the Board concludes that entitlement to direct service connection is not warranted for a neck disability.  Because the Veteran has no in-service neck disability or related disease or injury that occurred in service or within one year after leaving active service, the Veteran fails the second prong of the test for entitlement to direct service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

The Veteran has asserted and testified that his neck disability is secondary to his service-connected right hand injury.  Generally, lay evidence is probative with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007).  Lay evidence on its own can be sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id.  A layperson cannot provide evidence as to more complex medical questions and, specifically, cannot provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2).
	
To the extent that the Veteran can observe symptoms such as pain and limited motion, he is competent to comment on and endorse these symptoms.  However, the determination of the etiology of his neck disability is a complex medical determination beyond his competence.  See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value.

The Board finds that the probative and competent opinions of the VA physicians and medical professionals who concluded that his neck disability is unrelated to his service is and not caused or aggravated by his service-connected right hand disability outweigh the assertions of the Veteran.  While all of the medical evidence points to the Veteran's current diagnosis of a neck disability, none of the examinations or opinions provide a nexus to service, or that the Veteran's neck disability is caused or was aggravated by the Veteran's service-connected right hand injury.  There is no evidence that any of these examiners were not competent or credible, and as the opinions are based on the medical evidence of record the Board finds that they are entitled to significant probative weight concerning the etiology of the claimed back disability.  Nieves-Rodriguez, 22 Vet. App. at 302-306.

Upon review of the evidence of record, the weight of the competent and credible evidence demonstrates no neck disability manifested in service or is caused or aggravated by a service-connected disability. Accordingly, the Board finds that service connection for a neck disability, either on a direct or secondary basis, is not warranted.   Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

III. TDIU

The Veteran seeks entitlement to a TDIU, asserting that his right hand laceration injury residuals, back, and neck disabilities have rendered him unemployable for the period prior to May 13, 2011.  The Veteran has been granted TDIU as of that date forward.  For the period on appeal, the Veteran is service-connected only for the right hand laceration injury residuals.  

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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15.

TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

If the above percentage thresholds are not met, the Veteran's claim may still be referred to the Director, Compensation and Pension Service for consideration of an extraschedular rating, when the evidence of record shows that Veteran is "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities."  38 C.F.R. § 4.16(b).

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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363.

The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator.  See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

During the appeal period prior to May 13, 2011, the Veteran does not have a total combined evaluation of at least 70 percent.  It was only effective from that date that the Veteran's combined disability evaluation equaled the requisite 70 percent rating.  Retrospectively however, prior to that date, the Veteran was service connected for one disability, right hand laceration injury residuals (major), with a 50 percent evaluation from March 6, 1989.  The Veteran did not have one service-connected disability rated as at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent.  Therefore, the criteria for a TDIU under 38 C.F.R. § 4.16(a) prior to May 13, 2011 are not met.  However, entitlement to a TDIU on an extraschedular basis may be referred for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. §4.16(b).  The Board does not have the authority to assign an extraschedular TDIU in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).

Here, the RO obtained a formal opinion dated October 11, 2016 from the Director, Compensation Service regarding the Veteran's TDIU claim on an extraschedular basis prior to May 13, 2011.  38 C.F.R. §4.16(b).  The negative opinion stated there was no evidence the rating schedule has been shown to be impractical, and the Veteran has not been shown to be unemployable under any circumstances.  The medical evidence, per the opinion, indicates the Veteran's occupational activity is limited but not precluded.  The opinion concluded that the preponderance of evidence is not in the favor of the Veteran, and therefore entitlement to extra-schedular TDIU prior to May 13, 2011 is not warranted.  The Board is not bound by any determination of the Director. Anderson v. Shinseki, 22 Vet. App. 423 (2009).

For the period on appeal, prior to May 13, 2011, the medical and other evidence of record does not show the Veteran is precluded from securing and following gainful employment by his service-connected disability.  To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340.

In October 2002, the Veteran received a VA hand and fingers exam to evaluate his now-service-connected right hand laceration injury residuals.  Noting the Veteran is right-handed, the examiner remarked on the limited functioning and dexterity of the Veteran's right hand and mentioned that while he can grasp with his thumb and forefinger, the remaining three fingers of the right hand are permanently partially flexed and the Veteran is unable to grip or carry anything that requires a full grasp.  Repeated testing with repetitive motion did not additionally limit the function any further than previously noted.  No formal opinion on the occupational functioning beyond the medical description and evaluation of the hand injury was provided.

In August 2010, the Veteran received a general compensation and pension examination to evaluate the TDIU claim.  The examiner noted and continued the diagnosis for the Veteran's right hand injury and mentioned the Veteran's complaint that he has occasional numbness in the second through fifth fingers which sometimes radiates up the forearm.  This examiner did note there was interference with daily activities of bending and stopping, but he had no incapacitating episodes in the past year.  The examiner noted the Veteran worked full time installing lines for air conditioning units and uses no assistive devices.  The examiner opined that because the Veteran was working full time at the time of the examination that his hand did not hinder his ability to work.

Social Security records obtained in April 2016 show that the Veteran receives Social Security disability pay.  In an administrative law determination dated January 24, 2012, Social Security found the Veteran disabled under Social Security law and regulation from October 25, 2009 forward, based on the following severe impairments:  a tendon problem of the right hand, degenerative disc disease, depressive disorder, adjustment disorder, somatoform disorder, and paranoid personality disorder.  The Board notes that for the period on appeal for this TDIU claim that only the Veteran's right hand injury, noted by Social Security as a tendon problem of the right hand, was service-connected.  The remainder of the disabilities noted by Social Security in their determination are not service-connected disabilities during the period under consideration.  The Board may consider only service-connected disabilities in their adjudication of a TDIU claim. 38 C.F.R. § 3.340, Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The Veteran has completed three different VA Forms 21-8940 regarding his claim for individual unemployability, dated November 28, 2010, April 19, 2013, and October 24, 2014.  They contain three different dates for when the Veteran stopped working, the most recent being July 2009.  The Board notes the claims file contains a record indicating the Veteran was incarcerated beginning in January 2009 for an unspecified period of time.  The Veteran claims his right hand injury, his back injury, and his neck injury are the reasons he is unable to work or obtain gainful employment.  The most recent 21-8940 dated October 2014 noted the Veteran had completed 3 years of high school with no further education or training, and that he hadn't worked "in about ten years."  The Board notes the Veteran himself said in August 2010 that he was working full time, per a VA medical examination notation by the examiner.

The Board does not dispute that the Veteran's service-connected right hand laceration injury residuals results in some functional impairment, which could make it more difficult to find gainful employment. However, such interference is contemplated in the currently-assigned ratings for the Veteran's service-connected disabilities, and the evidence of record does not demonstrate that his service-connected disabilities result in unemployability.  The Board notes the Veteran was working full time during the period on appeal, as noted in the August 2010 VA examination, and the Veteran has claimed in part disabilities for which he is not service-connected as the reason he cannot work.  Additionally, while the Veteran correctly points out that Social Security has granted him Social Security disability, the criteria they use are significantly different and their findings are not binding on VA and the Board.  When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  While not binding on the Board, the Board notes with great probative weight the negative opinion regarding entitlement to a TDIU prior to May 13, 2011 from the Director, Compensation Service, as discussed above.

Based on the foregoing, the Board finds that the most credible, competent, and probative evidence of record does not reflect that the Veteran is unable to follow or secure substantially gainful employment due his service-connected disabilities; or, due to the combined effects of his service-connected disabilities for the period on appeal.  As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim.  See 8 U.S.C.A. § 5107; 38 C.F.R. § 3.102 .  See also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  


ORDER

Entitlement to service connection for a back disability, to include as secondary to service-connected hand disability, is denied.

Entitlement to service connection for a neck disability, to include as secondary to service-connected hand disability, is denied.

Entitlement to a TDIU prior to May 13, 2011 is denied.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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