Citation Nr: 1512867	
Decision Date: 03/26/15    Archive Date: 04/03/15

DOCKET NO.  12-22 138	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial rating in excess of 30 percent for depression.

2.  Entitlement to service connection for a lower back disability.

3.  Entitlement to a total disability rating due to individual unemployability (TDIU).  


REPRESENTATION

Veteran represented by:	Christopher Loiacono


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

L. S. Kyle, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1971 to December 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Veteran appeared at a hearing before the undersigned in January 2015.  A transcript of the hearing is of record. 

During the January 2015 hearing, the Veteran raised the issue of entitlement to TDIU.  TDIU is an element of all appeals of an initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As the Veteran has appealed his initial rating for depression, the Board also has jurisdiction over his TDIU claim.  

The issues of entitlement to a higher initial rating for depression and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A lower back disability was not noted on the Veteran's enlistment examination report and there is not clear and unmistakable evidence of a preexisting back disability that was not aggravated in service.

2.  The Veteran has a current lower back disability with a nexus to in-service chronic lower back pain.
CONCLUSION OF LAW

1.  The presumption of soundness on entry to service as to the Veteran's lower back disability has not been rebutted.  38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2014).

2.  The criteria for service connection for a lower back disability have been met.  38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303.  Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected.  Smith v. Shinseki, 24 Vet. App. 40, 45 (2010).  VA regulations expressly provide that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports."  38 C.F.R. § 3.304(b).  

A lower back condition is not noted on the Veteran's enlistment examination report.  A June 1971 examiner indicated that the Veteran's spine was normal on the examination form after a clinical evaluation.  Another physician physically examined the Veteran in August 1971 and found no spinal or musculoskeletal defects before certifying the Veteran was qualified for enlistment.  Therefore, the presumption of soundness applies in this case.

The presumption of soundness may be rebutted by clear and unmistakable evidence showing that the disability pre-existed service and that the disability was not aggravated by service.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also 38 C.F.R. § 3.304(b).  Thus, when the presumption of soundness applies, the Veteran is not required to show that a pre-existing injury or disease increased in severity during service.  Id.  Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service.  Id.  If VA fails to show a lack of aggravation by clear and unmistakable evidence, then the presumption has not been rebutted.  Id. at 1094 (holding that Congress intended to "convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111").  In that case, the claim will be considered as a normal claim for service connection.  Id. at 1096 (citing 38 C.F.R. § 3.322).  

In this case, there is evidence that the Veteran's lower back disability pre-existed active service.  Service treatment records from August 1971 indicate the Veteran had been experiencing intermittent lower back pain for at least nine months, which predates his entry into active service, as noted by a November 2010 VA examiner.  However, there is no evidence of record that clearly and unmistakably shows a lack of aggravation during service.  To the contrary, the Veteran continued to seek treatment for lower back pain on a routine basis following the initial treatment in August 1971 and was subsequently granted a profile for the condition in September 1971.  Therefore, the presumption of soundness has not been rebutted, and the Veteran's claim must be considered a normal claim for service connection without consideration of a pre-existing lower back disability at the time of entrance into active service.  See Wagner, 370 F.3d at 1096.  

The Veteran has credibly testified that he has continuously experienced lower back pain since separating from service.  He further testified he has had at least two surgeries on his lower back since separating from service, which was confirmed by the November 2010 examiner.  Therefore, there is evidence of nexus between the Veteran's in-service chronic lower back pain and his current disability.  

In light of the evidence of record, including the Veteran's lay statements, the service treatment records, and the November 2010 VA examination, the Board affords the Veteran the benefit of the doubt and finds that service connection is warranted for a lower back disability.  See 38 U.S.C.A. § 5107(b).  


ORDER

Entitlement to service connection for a lower back disability is granted.  


REMAND

A June 2013 award letter from the Social Security Administration (SSA) indicates the Veteran receives SSA disability benefits due in part to his service-connected depression.  There is no indication in the claims file that any records have been sought from that agency.  The Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant.  Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000).  As the Veteran's SSA claim includes depression, these records are relevant to his claim for a higher initial rating. 

Additionally, there is evidence that indicates the Veteran's depression has increased in severity since his last VA examination in November 2010.  Where the record does not adequately reveal the current state of disability, the fulfillment of the statutory duty to assist requires a new medical examination.  Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007).  

The Veteran's TDIU claim is also inextricably intertwined with the rating of his lower back disability.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined).

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to complete a formal application for TDIU.

2.  Request records related to the Veteran's application for SSA benefits.

3.  Rate the Veteran's service-connected lower back disability.

4.  Schedule the Veteran for an examination, preferably by a psychiatrist, to determine the current severity of his service-connected depression.  

The examiner should also address whether it is as least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment, based on his educational and occupational background.  The examiner should provide reasons for the opinion.

If the examiner is unable to provide the requested opinion without resorting to speculation, the reasons for the inability to provide the necessary opinion should be provided.  Any missing evidence that would enable the examiner to provide the opinion should be identified.  

5.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case.  Then, return the case to the Board, if otherwise in order.


The Veteran 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.




______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs