Citation Nr: 18160341
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 15-14 089
DATE:	December 28, 2018
ORDER
The application to reopen the previously denied claim for service connection for service connection for lumbosacral or cervical strain, claimed as mechanical low back pain, is granted.
Entitlement to service connection for lumbosacral or cervical strain, claimed as mechanical low back pain, including as secondary to the Veteran’s service-connected disability, is denied.
Entitlement to service connection for peripheral vestibular disorders, claimed as dizziness, including as secondary to the Veteran’s service-connected disability, is denied.
Entitlement to service connection for left hip condition, including as secondary to the Veteran’s service-connected disability, is denied.
Entitlement to service connection for right hip condition, including as secondary to the Veteran’s service-connected disability, is denied.
Entitlement to service connection for left knee condition, including as secondary to the Veteran’s service-connected disability, is denied.
Entitlement to service connection for right knee condition including as secondary to the Veteran’s service-connected disability, is denied.
Entitlement to total disability rating based on individual unemployability (TDIU) is denied.
FINDINGS OF FACT
1. In an August 1997 decision, the RO denied the Veteran’s service-connection claim for mechanical low back pain.  The claim was subsequently appealed to the Board three times.  The first two times the claim was appealed to the Board, the Board remanded the claim.  The third appeal to the Board, in June 2003, the Veteran’s claim was denied.  The Veteran did not appeal this decision, and it became final.
2. In a January 2005 decision, the RO confirmed the prior denial of service connection for mechanical low back pain after the RO received additional service treatment records (STRs) in December 2004.  The Veteran did not appeal this decision, and it also became final.
3. Evidence received since the January 2005 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with the evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for low back pain.
4. Lumbosacral or cervical strain, claimed as mechanical low back pain is not caused or aggravated by the Veteran’s service-connected chronic oral antral sinus fistula.
5. Peripheral vestibular disorder, claimed as dizziness is not caused or aggravated by the Veteran’s service-connected chronic oral antral sinus fistula.
6. Left hip condition is not caused or aggravated by the Veteran’s service-connected chronic oral antral sinus fistula.
7. Right hip condition is not caused or aggravated by the Veteran’s service-connected chronic oral antral sinus fistula.
8. Left knee condition is not caused or aggravated by the Veteran’s service-connected chronic oral antral sinus fistula.
9. Right knee condition is not caused or aggravated by the Veteran’s service-connected chronic oral antral sinus fistula.
10. The preponderance of the evidence is against a finding that the Veteran’s service-connected disability precludes him from securing and following substantially gainful employment.
CONCLUSIONS OF LAW
1. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for low back pain has been submitted since the January 2005 decision; the claim is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156. 
2. The criteria for service connection for peripheral vestibular disorders, claimed as dizziness; to include as secondary to a chronic oral antral sinus fistula, have not been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 
3. The criteria for service connection for a lumbosacral or cervical strain disorder, claimed as mechanical low back pain; to include as secondary to a chronic oral antral sinus fistula, have not been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017).
4. The criteria for service connection for a left hip disorder, to include as secondary to a chronic oral antral sinus fistula, have not been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017).
5. The criteria for service connection for a right hip disorder, to include as secondary to a chronic oral antral sinus fistula, have not been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017).
6. The criteria for service connection for a left knee disorder, to include as secondary to a chronic oral antral sinus fistula, have not been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017).
7. The criteria for service connection for a right knee disorder, to include as secondary to a chronic oral antral sinus fistula, have not been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017).
8. The criteria for entitlement to a TDIU are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army National Guard from December 1984 until June 1985 and the United States Navy from November 1990 until January 1991.  The Veteran also served in the Army National Guard from June to July 2004.
The Board notes that there was initially a hearing scheduled for this appeal; however, the hearing request was cancelled by the Veteran.
New and Material Evidence
1. New and material evidence to reopen the claim of service connection for mechanical back pain.
The Veteran applied for service connection for back injury in January 1997.  This claim was denied in the August 1997 rating decision, citing the Veteran’s pre-existing condition and a lack of evidence that the condition permanently worsened as a result of service.  The Veteran filed two timely notices of disagreement in October 1997 and June 1998.  Subsequently, in August 1998, the RO issued a statement of the case (SOC) affirming the denial of the Veteran’s claim and the Veteran promptly appealed the decision to the Board in August 1998.  
In the appeal, the Veteran requested a hearing at the Board in Washington, D.C., however in subsequent correspondence, the Veteran indicated that the Washington, D.C. hearing request was made in error, specifically that he had intended to request a local hearing with the Travel Board, rather than a hearing at the Washington, D.C. Board offices.  In a June 1999 decision, the Board remanded the case to the RO to schedule a travel board hearing.  In January 2001, the Veteran was afforded a Travel Board hearing and in March 2001, the Board remanded the case to the RO for further development.
After further development, the RO re-adjudicated the claim in March 2003 and issued a supplemental statement of the case (SSOC), which again denied the Veteran’s claim because there was no evidence of aggravation or injury to the pre-existing back injury from a 1989 motor vehicle accident.  The medical evaluation board found that the mechanical low back pain existed prior to service and that there was no physical disability incurred in or aggravated by any period of active military service.  The examiner further noted that X-ray and MRI results showed that the Veteran had a normal spine in both January 1998 and April 2002.  The Veteran timely appealed this decision back to the Board in March 2003.
In a June 2003 rating decision, the Board denied the Veteran’s appeal finding clear and unmistakable evidence that the low back disorder pre-existed service and that a preponderance of the evidence showed that the back disability was not aggravated by active military service.  The Veteran did not appeal this decision, and it became final.
In a January 2005 decision, the RO confirmed the prior denial of service connection for mechanical low back pain after they received additional STRs in December 2004.  The Veteran did not appeal this decision, and it also became final.
Evidence submitted since the January 2005 final decision includes the Veteran’s assertion that his back disability has worsened as secondary to his service-connected chronic oral antral sinus fistula.  Specifically, the Veteran asserted that his back condition had worsened because of falls that he attributed to his service-connected disability.  See September 2012 Statement in Support of Claim; October 2012 Statement in Support of Claim.
The Board finds that the Veteran submitted new and material evidence for the mechanical low back pain claim.  Specifically, the Veteran has provided a new theory of entitlement for a claimed worsening condition and underwent a VA examination in May 2013.  As this new evidence tends to show an in-service event to which his back condition may be related, the Board will reopen this claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim).  To this extent, the Veteran’s claim is granted and entitlement to service connection is addressed below.
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  To establish a right to compensation for a present disability, 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2017). 
Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability.  38 C.F.R. § 3.310(a) (2017).  Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995).
In order to prevail on the issue of secondary service condition, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.
The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.”  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  
Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
 
2. Entitlement to service connection for peripheral vestibular disorders, claimed as dizziness.
The Veteran alleges that his peripheral vestibular disorder, claimed as dizziness, is related to his service-connected chronic oral antral sinus fistula.  See September 2012 Statement in Support of Claim; October 2012 Statement in Support of Claim.  Specifically, the Veteran asserts that his service-connected disability causes dizziness that results in the Veteran falling and injuring himself.
First, the Board finds that there is a current disability.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).  The Veteran is diagnosed with dizziness.  See May 2013 VA Examination, p. 91.
Second, the Board finds that there is evidence of a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.  The Veteran is service-connected for chronic oral antral sinus fistula.
Third, the Board finds that the evidence of record does not support a finding that there is a medical nexus, evidence establishing a connection between the service-connected disability and the current disability.  
The VA examiner opined that the Veteran’s dizziness was less likely than not (less than 50 percent probability) due to or the result of the Veteran’s service-connected condition of oral antal sinus fistula because an oral antal sinus fistula would be expected to cause pain, but not dizziness as a symptom.  See May 2013 VA Examination, p. 105.  The examiner noted that the Veteran reported that his dizziness occurred when his ears felt congested and that there was no diagnosis of vertigo, nor signs or symptoms attributable to Meniere’s syndrome, nor a peripheral vestibular condition.  See May 2013 VA Examination, p. 91.  The examiner further opined that the Veteran’s vertigo-like dizziness would not be caused by the Veteran’s service-connected condition but would most likely be due to an inner ear problem, specifically the Veteran’s non-service connected diagnosis of allergic rhinitis is most likely the cause of the Veteran’s ear congestion, which the examiner opined could cause the Veteran’s mild vertigo-like dizziness.  Id.
The Veteran is competent to report the symptoms that he experiences.  The Veteran is not competent to diagnose the condition that causes the symptoms that he experiences.  Barr v. Nicholson, 21 Vet. App. 303 (2007), 38 C.F.R. § 3.159(a)(2).  In the present case, the Veteran is competent to assert that he suffers from dizziness.  However, the Veteran is not competent to assert that the cause of the dizziness is his service-connected chronic oral antral sinus fistula.
Similarly, the Board finds that competent medical evidence is required to support the claim of secondary service connection.  The effect one disability has upon another involves complex medical issues which generally require competent medical evidence to resolve.  Further, this finding is supported by Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held in the context of a claimant contending secondary service connection that the claimant’s own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination.  If such a contention is not sufficient to warrant a medical examination, it is clear that it is not sufficient to warrant a grant of service-connected disability.
As to direct service connection under 38 C.F.R. § 3.303, the Veteran does not claim and the record does not show that his disability is directly due to his military service.  In this regard, a review of the record on appeal does not show the Veteran being diagnosed with or complaints of his disability while on active duty.  See 38 C.F.R. § 3.303(a).  Likewise, neither the Veteran nor his representative have claimed otherwise.  See Davidson, supra.  Furthermore, the record does not contain a medical opinion linking the Veteran’s disability with his military service.  See 38 C.F.R. § 3.303(d).
Accordingly, because there is no evidence nor assertion for direct service connection, and there is no evidence of a secondary service connection, service connection is not warranted.
In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
3. Entitlement to service connection for lumbosacral or cervical strain, claimed as back pain.
The Veteran alleges that mechanical low back pain is related to his service-connected chronic oral antral sinus fistula.  See September 2012 Statement in Support of Claim; October 2012 Statement in Support of Claim.  Specifically, the Veteran asserts that his service-connected disability causes dizziness that results in the Veteran falling and injuring himself.
First, the Board finds that there is a current disability.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).  The Veteran is diagnosed with mechanical low back pain and mild degenerative disc disorder of the lumbar spine.  See May 2013 VA Examination, p. 37.
Second, the Board finds that there is evidence of a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.  The Veteran is service-connected for chronic oral antral sinus fistula.
Third, the Board finds that the evidence of record does not support a finding that there is a medical nexus, evidence establishing a connection between the service-connected disability and the current disability.
As noted above, the Veteran’s dizziness is not related to his service connected disability.  Therefore, the Veteran’s theory of worsening back condition due to falls caused by dizziness as secondary to his service connected chronic oral antral sinus fistula is not for application.
The VA examiner opined that the Veteran’s claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected condition because the Veteran has had low back pain intermittently for many years and has been diagnosed with mechanical low back pain.  See May 2013 VA Examination, p. 117.  The VA examiner also noted that the Veteran’s last MRI of the lumbar and thoracic spine in 2009 was normal and opined that there was no relationship between the Veteran’s sinus problem and his back condition.  Id.
The Veteran is competent to report the symptoms that he experiences.  The Veteran is not competent to diagnose the condition that causes the symptoms that he experiences.  Barr v. Nicholson, 21 Vet. App. 303 (2007), 38 C.F.R. § 3.159(a)(2).  In the present case, the Veteran is competent to assert that he suffers from back pain.  However, the Veteran is not competent to assert that the cause of the back is due to dizziness or to his service-connected chronic oral antral sinus fistula.
Similarly, the Board finds that competent medical evidence is required to support the claim of secondary service connection.  The effect one disability has upon another involves complex medical issues which generally require competent medical evidence to resolve.  Further, this finding is supported by Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held in the context of a claimant contending secondary service connection that the claimant’s own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination.  If such a contention is not sufficient to warrant a medical examination, it is clear that it is not sufficient to warrant a grant of service-connected disability.
As to direct service connection under 38 C.F.R. § 3.303, the Veteran does not claim and the record does not show that his disability is directly due to his military service.  In this regard, a review of the record on appeal does not show the Veteran being diagnosed with or complaints of his disability while on active duty.  See 38 C.F.R. § 3.303(a).  Likewise, neither the Veteran nor his representative have claimed otherwise.  See Davidson, supra.  Furthermore, the record does not contain a medical opinion linking the Veteran’s disability with his military service.  See 38 C.F.R. § 3.303(d).
Furthermore, as noted above, in the June 2003 Board decision, the medical evidence of record did not indicate any aggravation of the Veteran’s pre-existing low back disability during his military service.  See June 2003 Board Decision, p. 6.  As the application to reopen the claim was predicated on the secondary service connection theory of entitlement, the Board will not address this theory further.
Accordingly, because there is no evidence or assertion for direct service connection, there is no aggravation during service, and there is no evidence of a secondary service connection, service connection must be denied.
In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
4. Entitlement to service connection for left hip condition.
The Veteran alleges that his left hip condition is related to his service-connected chronic oral antral sinus fistula.  See September 2012 Statement in Support of Claim; October 2012 Statement in Support of Claim.  Specifically, the Veteran asserts that his service-connected disability causes dizziness that results in the Veteran falling and injuring himself.
First, the Board finds that there is a current disability.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).  The Veteran is diagnosed with left-hip trochanteric bursitis and mild left-hip degenerative joint disorder.  See May 2013 VA Examination, p. 73. 
Second, the Board finds that there is evidence of a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.  The Veteran is service-connected for chronic oral antral sinus fistula (claimed as sinus, left ear, headaches, and blurred vision). 
Third, the Board finds that the evidence of record does not support a finding that there is a medical nexus, evidence establishing a connection between the service-connected disability and the current disability.
As noted above, the Veteran’s dizziness is not related to his service connected disability.  Therefore, the Veteran’s theory of injury due to falls injuring his left hip caused by dizziness as secondary to his service connected chronic oral antral sinus fistula is not for application.
Furthermore, the VA examiner opined that the Veteran’s claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected condition because the Veteran was diagnosed with trochanteric bursitis in July 2011 and at the time, the Veteran asserted that the left hip pain developed over the prior month, without a fall.  See May 2013 VA Examination, p. 114.  Furthermore, the examiner opined that there was no relationship between the Veteran’s service connected disability and his left hip condition.  Id.
The Veteran is competent to report the symptoms that he experiences.  The Veteran is not competent to diagnose the condition that causes the symptoms that he experiences.  Barr v. Nicholson, 21 Vet. App. 303 (2007), 38 C.F.R. § 3.159(a)(2).  In the present case, the Veteran is competent to assert that he suffers from left hip pain.  However, the Veteran is not competent to assert that the cause of the left hip disorder is dizziness that is due to his service-connected chronic oral antral sinus fistula.  
Similarly, the Board finds that competent medical evidence is required to support the claim of secondary service connection.  The effect one disability has upon another involves complex medical issues which generally require competent medical evidence to resolve.  Further, this finding is supported by Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held in the context of a claimant contending secondary service connection that the claimant’s own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination.  If such a contention is not sufficient to warrant a medical examination, it is clear that it is not sufficient to warrant a grant of service-connected disability.
As to direct service connection under 38 C.F.R. § 3.303, the Veteran does not claim and the record does not show that his disability is directly due to his military service.  In this regard, a review of the record on appeal does not show the Veteran being diagnosed with or complaints of his disability while on active duty.  See 38 C.F.R. § 3.303(a).  Likewise, neither the Veteran nor his representative have claimed otherwise.  See Davidson, supra.  Furthermore, the record does not contain a medical opinion linking the Veteran’s disability with his military service.  See 38 C.F.R. § 3.303(d).
Accordingly, because there is no evidence nor assertion for direct service connection, and there is no evidence of a secondary service connection, service connection is not warranted.
In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
5. Entitlement to service connection for right hip condition.
The Veteran alleges that his right hip condition is related to his service-connected chronic oral antral sinus fistula.  See September 2012 Statement in Support of Claim; October 2012 Statement in Support of Claim.  Specifically, the Veteran asserts that his service-connected disability causes dizziness that results in the Veteran falling and injuring himself.
First, the Board finds that there is a current disability.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).  The Veteran is diagnosed with mild right-hip degenerative joint disorder.  See May 2013 VA Examination, p. 73.
Second, the Board finds that there is evidence of a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.  The Veteran is service-connected for chronic oral antral sinus fistula (claimed as sinus, left ear, headaches, and blurred vision). 
Third, the Board finds that the evidence of record does not support a finding that there is a medical nexus, evidence establishing a connection between the service-connected disability and the current disability.  
As noted above, the Veteran’s dizziness is not related to his service connected disability.  Therefore, the Veteran’s theory of injury due to falls caused by dizziness as secondary to his service connected chronic oral antral sinus fistula is not for application.
Furthermore, the VA examiner opined that the Veteran’s claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected condition because there was no relationship between the Veteran’s service connected disability and his hip condition.  See May 2013 VA Examination, p. 114.
The Veteran is competent to report the symptoms that he experiences.  The Veteran is not competent to diagnose the condition that causes the symptoms that he experiences.  Barr v. Nicholson, 21 Vet. App. 303 (2007), 38 C.F.R. § 3.159(a)(2).  In the present case, the Veteran is competent to assert that he suffers from right hip pain.  However, the Veteran is not competent to assert that the cause of the right hip pain is dizziness that is due to his service-connected chronic oral antral sinus fistula.
Similarly, the Board finds that competent medical evidence is required to support the claim of secondary service connection.  The effect one disability has upon another involves complex medical issues which generally require competent medical evidence to resolve.  Further, this finding is supported by Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held in the context of a claimant contending secondary service connection that the claimant’s own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination.  If such a contention is not sufficient to warrant a medical examination, it is clear that it is not sufficient to warrant a grant of service-connected disability.
As to direct service connection under 38 C.F.R. § 3.303, the Veteran does not claim and the record does not show that his disability is directly due to his military service.  In this regard, a review of the record on appeal does not show the Veteran being diagnosed with or complaints of his disability while on active duty.  See 38 C.F.R. § 3.303(a).  Likewise, neither the Veteran nor his representative have claimed otherwise.  See Davidson, supra.  Furthermore, the record does not contain a medical opinion linking the Veteran’s disability with his military service.  See 38 C.F.R. § 3.303(d).  
Accordingly, because there is no evidence nor assertion for direct service connection, and there is no evidence of a secondary service connection, service connection is not warranted.
In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
6. Entitlement to service connection for left knee condition.
The Veteran alleges that his left knee condition is related to his service-connected chronic oral antral sinus fistula, claimed as sinus, left ear, headaches, and blurred vision.  See September 2012 Statement in Support of Claim; October 2012 Statement in Support of Claim.  Specifically, the Veteran asserts that his service-connected disability causes dizziness that results in the Veteran falling and injuring himself.
First, the Board finds that there is a current disability.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).  The Veteran is diagnosed with left knee strain.  See May 2013 VA Examination, p. 53.  
Second, the Board finds that there is evidence of a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.  The Veteran is service-connected for chronic oral antral sinus fistula (claimed as sinus, left ear, headaches, and blurred vision). 
Third, the Board finds that the evidence of record does not support a finding that there is a medical nexus, evidence establishing a connection between the service-connected disability and the current disability.  
As noted above, the Veteran’s dizziness is not related to his service connected disability.  Therefore, the Veteran’s theory of injury due to falls caused by dizziness as secondary to his service connected chronic oral antral sinus fistula is not for application.
Furthermore, the VA examiner opined that the Veteran’s claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected condition because there was no relationship between the Veteran’s service connected disability and his knee condition.  See May 2013 VA Examination, p. 111.
The Veteran is competent to report the symptoms that he experiences.  The Veteran is not competent to diagnose the condition that causes the symptoms that he experiences.  Barr v. Nicholson, 21 Vet. App. 303 (2007), 38 C.F.R. § 3.159(a)(2).  In the present case, the Veteran is competent to assert that he suffers from left knee pain.  However, the Veteran is not competent to assert that the cause of the left knee disorder is due to dizziness that is due to his service-connected chronic oral antral sinus fistula.
Similarly, the Board finds that competent medical evidence is required to support the claim of secondary service connection.  The effect one disability has upon another involves complex medical issues which generally require competent medical evidence to resolve.  Further, this finding is supported by Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held in the context of a claimant contending secondary service connection that the claimant’s own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination.  If such a contention is not sufficient to warrant a medical examination, it is clear that it is not sufficient to warrant a grant of service-connected disability.
As to direct service connection under 38 C.F.R. § 3.303, the Veteran does not claim and the record does not show that his disability is directly due to his military service.  In this regard, a review of the record on appeal does not show the Veteran being diagnosed with or complaints of his disability while on active duty.  See 38 C.F.R. § 3.303(a).  Likewise, neither the Veteran nor his representative have claimed otherwise.  See Davidson, supra.  Furthermore, the record does not contain a medical opinion linking the Veteran’s disability with his military service.  See 38 C.F.R. § 3.303(d).
As to direct service connection under 38 C.F.R. § 3.303, the Veteran does not claim and the record does not show that his disability is directly due to his military service.  In this regard, a review of the record on appeal does not show the Veteran being diagnosed with his disability while on active duty.  See 38 C.F.R. § 3.303(a).  Likewise, neither the Veteran nor his representative have claimed otherwise.  See Davidson, supra.  Furthermore, the record does not contain a medical opinion linking the Veteran’s disability with his military service.  See 38 C.F.R. § 3.303(d).  
Accordingly, because there is no evidence nor assertion for direct service connection, and there is no evidence of a secondary service connection, service connection is not warranted.
In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
7. Entitlement to service connection for right knee condition.
The Veteran alleges that his right knee condition is related to his service-connected chronic oral antral sinus fistula, claimed as sinus, left ear, headaches, and blurred vision.  See September 2012 Statement in Support of Claim; October 2012 Statement in Support of Claim.  Specifically, the Veteran asserts that his service-connected disability causes dizziness that results in the Veteran falling and injuring himself.
First, the Board finds that there is a current disability.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).  The Veteran is diagnosed with status post right knee anterior cruciate ligament (ACL) tear.  See May 2013 VA Examination, p. 53.  
Second, the Board finds that there is evidence of a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.  The Veteran is service-connected for chronic oral antral sinus fistula (claimed as sinus, left ear, headaches, and blurred vision). 
Third, the Board finds that the evidence of record does not support a finding that there is a medical nexus, evidence establishing a connection between the service-connected disability and the current disability.  
As noted above, the Veteran’s dizziness is not related to his service connected disability.  Therefore, the Veteran’s theory of injury due to falls caused by dizziness as secondary to his service connected chronic oral antral sinus fistula is not for application.
Furthermore, the VA examiner opined that the Veteran’s claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected condition because there was no relationship between the Veteran’s service connected disability and his knee condition.  See May 2013 VA Examination, p. 114.  The examiner also provided that the Veteran sustained a worker’s compensation injury to his right knee in 2006 and had surgery to repair the injury.  Id.
The Veteran is competent to report the symptoms that he experiences.  The Veteran is not competent to diagnose the condition that causes the symptoms that he experiences.  Barr v. Nicholson, 21 Vet. App. 303 (2007), 38 C.F.R. § 3.159(a)(2).  In the present case, the Veteran is competent to assert that he suffers from right knee pain.  However, the Veteran is not competent to assert that the cause of the right knee disorder is due to dizziness that is due to his service-connected chronic oral antral sinus fistula.
Similarly, the Board finds that competent medical evidence is required to support the claim of secondary service connection.  The effect one disability has upon another involves complex medical issues which generally require competent medical evidence to resolve.  Further, this finding is supported by Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held in the context of a claimant contending secondary service connection that the claimant’s own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination.  If such a contention is not sufficient to warrant a medical examination, it is clear that it is not sufficient to warrant a grant of service-connected disability.
As to direct service connection under 38 C.F.R. § 3.303, the Veteran does not claim and the record does not show that his disability is directly due to his military service.  In this regard, a review of the record on appeal does not show the Veteran being diagnosed with or complaints of his disability while on active duty.  See 38 C.F.R. § 3.303(a).  Likewise, neither the Veteran nor his representative have claimed otherwise.  See Davidson, supra.  Furthermore, the record does not contain a medical opinion linking the Veteran’s disability with his military service.  See 38 C.F.R. § 3.303(d).  
Accordingly, because there is no evidence nor assertion for direct service connection, and there is no evidence of a secondary service connection, service connection is not warranted.
In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Entitlement to TDIU
The Veteran alleges that he is unable to maintain gainful employment due to his service-connected disability.  See September 2012 Statement in Support of Claim; October 2012 Statement in Support of Claim.
TDIU may 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 disabilities.  The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances.  38 C.F.R. § 4.16(a), (b).
If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  
Service connection is in effect for the following disability: Chronic oral antral sinus fistula, claimed as sinus, left ear, headaches, and blurred vision.  For the time period on appeal, the Veteran’s combined disability evaluation is 30 percent prior to May 1,2016, and a noncompensable rating since.  Thus, the percentage requirements for a TDIU are not met at any point during the appeal because the Veteran has only one service-connected disability, which is rated during the period on appeal at less than 60 percent and the claim for TDIU is not warranted.  38 C.F.R. § 4.16 (a).
Nevertheless, a TDIU may still be available if the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities.  38 C.F.R. § 4.16(b).  As such, pursuant to 38 C.F.R. § 4.16(b), consideration must be given as to whether the Veteran is entitled to a TDIU on an extraschedular basis.  
The Board notes that entitlement to a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), and an extra-schedular rating under 38 C.F.R. § 3.321(b)(1), although similar, are based on different factors.  See Kellar v. Brown, 6 Vet. App. 157 (1994).  An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disabilities.  Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required.  In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities.  See VAOPGCPREC 6-96.
In this regard, the Board notes that, for a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  Id.  This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  Id.  Significantly, however, the Board does not have jurisdiction to authorize an extraschedular rating in the first instance.  Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating).  It may, however, determine that a particular case warrants referral to the Director of Compensation and Pension for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16 (b).  
Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age.  38 C.F.R. § 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment.  Id. at 361.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor.  38 C.F.R. § 4.3. 
In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income.  In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.  The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances.  See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991).  In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.
Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination.  38 C.F.R. § 4.16 (a).  Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability.  38 C.F.R. § 4.17(a) (2017).
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) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).  Although VA must give full consideration, per 38 C.F.R. 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case).
In this case, the evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.  
Specifically, the February 2016 VA examiner stated that the oral antral sinus fistula disability does not impact the Veteran’s ability to maintain employment.  Further, a June 2017 VA examination conducted in connection with a claim for a psychiatric disorder noted the Veteran is currently unemployed.  However, comment as to the Veteran’s ability to work with respect to the service-connected disability only, was not provided.  
In the case of the Veteran, his VA Form 21-8940 noted he was previously employed as a cook in 2007 but also acknowledged he did not leave that position due to his service-connected disability.  The Veteran reported that he completed high school.  He identified his service-connected disability as the reason for his inability to maintain employment.  The Board acknowledges that the Veteran’s service-connected disability may, at times, prove to be a discomfort to him.  However, in light of the Veteran’s overall disability picture and specific education and vocational history, the evidence does not show that he is precluded him from securing or following any substantially gainful occupation as a result of his service-connected disabilities.  See Withers v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1054 (August 10, 2018).  
Based on the foregoing, the Board finds that the evidence fails to show that the Veteran is unable to secure and follow a substantially gainful occupation as a result of his service-connected disability, oral antral sinus fistula.  Rather, the evidence of record shows that, while the Veteran may be unemployed, it does not indicate that he is unemployable.  
In making this determination, the Board finds it significant that there are no opinions of record concluding the Veteran is unable to secure or maintain gainful employment as a result of the service connected oral antral sinus fistula.  
Based on the foregoing, the Board concludes that this case does not present any unusual or exceptional circumstances that would justify a referral of the total rating claim to the Director of the VA Compensation and Pension Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b).  As discussed above, the Veteran’s service-connected disability has not been shown to cause any impairment that is not already contemplated by the currently assigned rating criteria, and the Board finds that the rating criteria reasonably describe his disability.  Moreover, no medical professional has ever stated that the Veteran’s service-connected disability precludes him from securing or following a substantially gainful occupation.  As such, in the absence of any evidence of unusual or exceptional circumstances beyond that which is contemplated by the assigned schedular disability evaluations, the preponderance of the evidence in this case is against the claim.  
The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations.  See 38 U.S.C. §5107 (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).  Therefore, the Veteran’s claim for entitlement to a TDIU is denied.

 
T. BERRY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	G. DEEMER, Associate Counsel  

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