Citation Nr: 1341479 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 07-10 264A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to a total disability rating based on individual employability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from August 1960 to January 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in June 2006 (back) and August 2012 (TDIU). The issue of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's low back disorder is attributable to his active military service. CONCLUSION OF LAW A low back disorder was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this decision, the Board grants service connection for a low back disorder. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. II. Decision Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In regard to element (1), current disability, the Veteran was shown to have a "degenerative change of the lumbar spine" at a June 2006 VA examination. This element is satisfied. In regard to element (2), in-service incurrence, the VA examiner found the Veteran's service treatment records (STRs) detail treatment for low back pain in June 1964. This resulted from "load shifting" two months prior to treatment. He was "diagnosed with back pain, intermittent for several months." Accordingly, this element is satisfied. The evidence relating to element (3), causal relationship, consists of the VA examiner's opinion in June 2006 and a medical opinion from the Veteran's VA primary care physician, Dr. Irons. The VA examiner opined that, because the Veteran was "all normal" upon separation from service and that he did not seek treatment for his back for many years thereafter, "it is not more likely than not that his present degenerative low back is related to military service." Subsequent to the VA examination, the Veteran submitted an opinion from Dr. Irons. Dr. Irons detailed the Veteran's service as a loadmaster and his in-service complaints. He noted that since "this original injury, [the Veteran] has had persistent and progressive back pain." This, together with the Veteran not engaging in "laborious work during the past forty years," led Dr. Irons to opine that "the original back injury during [the Veteran's'] military service in Vietnam is more likely than not the cause of his persistent back pain." Further medical inquiry could be undertaken with a view towards development of the claim, but the Board finds such would not materially assist it in its determination. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52 (1993); see also Massey v. Brown, 7 Vet.App. 204 (1994). The Veteran's statements and post-service medical records are consistent with his claim. The medical evidence reveals divergent opinions as to whether the Veteran's service caused his current low back disorder. The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. This point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied and service connection for a low back disorder will be granted. See Alemany v. Brown, 9 Vet.App. 518 (1996); Brown v. Brown, 5 Vet.App. 413 (1993). ORDER Entitlement to service connection for a low back disorder is granted. REMAND The Veteran requested a TDIU in July 2011. The RO denied his request in an August 2012 rating decision. Given the favorable action above, the Veteran's service-connected disabilities have changed from when he was evaluated in June 2012. Therefore, remand for another VA examination is necessary to account for these changed circumstances. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should update the record with any VA treatment records pertaining to the Veteran's service-connected disabilities. In particular, it must obtain all treatment records from the Auburn Community Based Outpatient Clinic, dated since December 2008. 2. The RO/AMC should also ask the Veteran to identify all recent private sources of treatment or evaluation he has received for his service-connected disabilities and should secure copies of complete records of the treatment or evaluation (not already of record) from all sources appropriately identified. 3. After completing the above, schedule a VA examination by an appropriate medical professional to determine whether the Veteran is unemployable due to his service-connected disabilities (i.e., low back disorder, tinnitus, coronary artery disease, and adjustment disorder). The following considerations will govern the examination: a. The entire claims folder and a copy of this remand must be made available to the examiner in conjunction with the examination. The examination report must reflect review of pertinent material in the claims file. b. After REVIEWING THE CLAIMS FILE and conducting an interview with, and an examination of, the Veteran, the examiner must provide an opinion as to whether the Veteran is unable to secure or maintain substantially gainful employment by reason of the COMBINED EFFECTS of ONLY his service-connected disabilities (i.e. low back disorder, tinnitus, coronary artery disease, and adjustment disorder). ("Substantially gainful employment" means employment sufficient to obtain a living wage.) The examiner may take into account the Veteran's prior education and work experience but may not take into account the Veteran's advanced age or the effect of any non-service connected disabilities. The examiner should note that the Veteran is NOT currently service connected for cerebrovascular accidents. He was denied service connection in an August 2012 rating decision. Therefore, the examiner may not consider these accidents or any associated side effects in his analysis. * If the examiner finds that consultation with another specialist is required to determine whether the Veteran is unemployable by reason of the COMBINED EFFECTS of his service-connected disabilities (if, for example, consultation with a mental health professional is required), such consultation must be achieved. c. The examiner must identify and explain the medical basis or bases for all conclusions, with identification of the pertinent evidence of record. 4. Readjudicate the issue of entitlement to a TDIU, including whether referral for extraschedular consideration is indicated. If the benefit sought remains denied, provide the Veteran a SUPPLEMENTAL STATEMENT OF THE CASE and an appropriate period of time for response. 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). ______________________________________________ Kelli A. Kordich Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs