Citation Nr: 1340934 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 09-18 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including as secondary to service-connected disabilities. 2. Entitlement to service connection for a cervical spine disability, including as secondary to lumbosacral spine disability and bilateral lower extremity radiculopathy. 3. Entitlement to service connection for a right shoulder disability, including as secondary to lumbosacral spine disability and bilateral lower extremity radiculopathy. 4. Entitlement to service connection for ventral hernia. 5. Entitlement to a rating in excess of 40 percent for lumbosacral spine disability with disc extrusion at L4-5. 6. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy prior to December 13, 2011 and a rating in excess of 20 percent thereafter. 7. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy prior to December 13, 2011 and a rating in excess of 20 percent thereafter. 8. Entitlement to a temporary total disability rating for ventral hernia repair surgery with convalescence. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from November 1976 to August 1986. This appeal to the Board of Veterans' Appeals (Board) arises from August 2008 and December 2011 rating decisions of the Nashville, Tennessee Regional Office (RO) of the Department of Veterans' Affairs (VA). In October 2012, a Board hearing was held in Washington, D.C. before the undersigned Veteran's Law Judge; a transcript of the hearing is of record. The issues of entitlement to service connection for a cervical spine disability, right shoulder disability and ventral hernia; entitlement to a rating in excess of 40 percent for lumbosacral spine disability with disc extrusion at L4-5, rating in excess of 10 percent for right lower extremity radiculopathy prior to December 13, 2011 and a rating in excess of 20 percent thereafter, a rating in excess of 10 percent for left lower extremity radiculopathy prior to December 13, 2011 and a rating in excess of 20 percent thereafter; entitlement to a temporary total disability rating for ventral hernia repair surgery with convalescence; and entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran is reasonably shown to have an acquired psychiatric disability, diagnosed as mood disorder due to general medical conditions, which is at least in part due to his service connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, as secondary to service-connected disabilities, are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable disposition of the claim for service connection for an acquired psychiatric disorder, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability which is proximately due to or the result of a service- connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The evidence shows that the Veteran is service-connected for numerous physical disabilities, including low back disability, irritable bowel disease, right and left lower extremity radiculopathy, tinnitus, exertion induced asthma and hearing loss. He also has a number of nonservice-connected disabilities. Treating mental health professionals have assigned the Veteran a consistent Axis I psychiatric diagnosis of mood disorder secondary to general medical conditions. While these treating practitioners have not provided specific detail concerning the extent that this mood disorder is due to the Veteran's service-connected disabilities (and the extent due to non-service connected ones), as recently as July 2011, the Veteran's treating psychiatrist has included under Axis III (i.e. the medical conditions that are related to the diagnosis of mood disorder due to general medical conditions) the Veteran's service-connected lumbar spine disability, lower extremity radiculopathy (i.e. neuralgia of the internal popliteal nerve), spastic colon, tinnitus and hearing loss. Thus, in the absence of any specific evidence to the contrary (i.e. evidence tending to indicate that the Veteran's mood disorder is not at all related to these service connected conditions), and resolving any reasonable doubt in the Veteran's favor, service connection for mood disorder as secondary to the Veteran's service-connected disabilities is warranted. 38 C.F.R. §§ 3.102, 3.310; See also, Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (The Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so.). ORDER Service connection for an acquired psychiatric disorder as secondary to service-connected disabilities is granted. REMAND At the Veteran's October 2012 Board hearing, the record was held open for 60 days to allow him to submit Social Security Administration (SSA) records. The Veteran submitted a disc containing such records in December 2012. Unfortunately, the disc is largely unreadable. Unless it is clear that records in the possession of SSA are irrelevant to the claims on appeal, an effort must be made to obtain them. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Consequently, on remand, the RO/AMC should obtain from the SSA a copy of any decision regarding the Veteran's claim for disability benefits, as well as copies of all medical records underlying that determination. Also at the October 2012 hearing, the Veteran testified that he now has to use a walker to walk more than short distances, at least in part due to his low back disability and lower extremity radiculopathy. This suggests that these disabilities may have worsened since the previous VA examination conducted in December 2011, which indicated that the Veteran was not using any assistive devices. Consequently, on remand, the Veteran should be afforded with a current VA examination to assess the current severity of his low back disability and lower extremity radiculopathy. Additionally, concerning the claim for a TDIU, since the Veteran has now been service connected for an acquired psychiatric disability, he should also be afforded a general medical examination to determine whether he is unemployable due to his current combination of service-connected disabilities. Prior to arranging for the examinations, the RO/AMC should obtain all records of VA treatment or evaluation for the Veteran's service-connected disabilities, his neck and shoulder disabilities and his ventral hernia, from August 2011 to the present. The RO/AMC should also ask the Veteran to identify any sources of recent private treatment or evaluation he has received for his service-connected disabilities, his neck and shoulder disabilities and his ventral hernia, and should secure copies of complete records of the treatment or evaluation from all sources appropriately identified. Accordingly, the case is REMANDED for the following action: 1. Obtain from the SSA a copy of any decision regarding the Veteran's claim for disability benefits, as well as copies of all medical records underlying that determination. 2. Obtain all available records of VA treatment or evaluation for the Veteran's service-connected disabilities, his neck and shoulder disabilities and his ventral hernia, from August 2011 to the present. 3. Ask the Veteran to identify any sources of recent private treatment or evaluation he has received for his service-connected disabilities, his neck and shoulder disabilities and his ventral hernia, and secure copies of complete records of the treatment or evaluation from all sources appropriately identified. 4. Thereafter, schedule the Veteran for an appropriate VA examination of his lumbar spine and bilateral lower extremity radiculopathy. The claims file must be made available for review by the examiner. The examination should include any diagnostic testing or evaluation deemed necessary, including range of motion studies. The examiner should identify and describe in detail all manifestations and symptoms of the service-connected lumbar spine disability and service-connected bilateral lower extremity radiculopathy. 5. Schedule the Veteran for an appropriate VA general medical examination to assess whether the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities, in the aggregate, (i.e. lumbar spine disability, bilateral lower extremity radiculopathy, irritable bowel disease, psychiatric disability, tinnitus, exertion induced asthma and bilateral hearing loss). The Veteran's claims file, including the VA treatment records, VA examination reports (including from December 2011), SSA records and the assertions from the Veteran and his representative (including the Veteran's initial January 2008 claim for a TDIU with listed work history and educational level and the Veteran's October 2012 Board hearing testimony). In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The VA examination report must include a complete explanation of the opinion expressed. 6. Next, review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the requested reports do not include adequate responses to the remand instructions, they must be returned for corrective action. 7. Finally, readjudicate the claims on appeal. If any remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs