Citation Nr: 1603353 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 13-31 792 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for lumbar spine fusion, arthritis of the lumbar and cervical. 2. Entitlement to service connection for lumbar spine fusion, arthritis of the lumbar and cervical. 3. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April and December 2011 rating decisions issued by the RO. The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) in a video-conference hearing in September 2015; a transcript of the hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. In August 2009, the AOJ denied the claim for entitlement to service connection for lumbar spine fusion, arthritis of the lumbar and cervical. The Veteran did not appeal this decision and new and material evidence was not received within one year of the rating decision. 2. The evidence associated with the claims files subsequent to the August 2009 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for lumbar spine fusion, arthritis of the lumbar and cervical. 3. The Veteran's lumbar spine disability onset due to disease or injury sustained in service. 4. The Veteran's service-connected PTSD is shown to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background. CONCLUSIONS OF LAW 1. The August 2009 rating decision, which denied service connection for lumbar spine fusion, arthritis of the lumbar and cervical is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. The evidence received subsequent to the August 2009 rating decision is new and material, and the claim for service connection for lumbar spine fusion, arthritis of the lumbar and cervical is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. Lumbar spine fusion, arthritis of the lumbar and cervical was incurred in service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 4. By extending the benefit of the doubt to the Veteran, the criteria for the assignment of a TDIU rating are met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). In light of the favorable decision in this case, the Board finds that any VA deficiency that may exist in complying with the VCAA is harmless error. Laws and Regulations - Claim to Reopen Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis In this case, the RO previously considered and denied service connection for lumbar spine fusion, arthritis of the lumbar and cervical in an August 2009 rating decision. In particular, the RO found that although there was current osteoarthritis of bilateral knees, there was no evidence of problems with the back documented on the service treatment records or evidence of arthritis within the one year presumptive period following the Veteran's separation from service. To that end, the RO observed that the earliest evidence of spine disability was a February 2007 treatment record (approximately 38 years after his period of service). The Veteran was informed of the decision and his appellate rights, but he did not perfect a timely appeal. There was also no evidence received that pertained to the claim within one year of the issuance of the decision. Therefore, the August 2009 rating decision became final. 38 C.F.R. § 20.1103. In April 2011, the Veteran requested that his claim be reopened. The evidence received since the August 2009 rating decision includes various lay statements submitted by the Veteran, private treatment records, VA treatment records, a June 2011 statement from the Veteran's treating physician, the November 2011 report of VA examination and his September 2015 Board hearing testimony before the undersigned. In the various lay statements and in his hearing testimony, the Veteran asserted that he injured his back in 1969 while on active duty. The June 2011 statement from the Veteran's treating physician and the November 2011 report of VA examination offer opinions as to etiology of the claimed lumbar spine fusion, arthritis of the lumbar and cervical. This evidence is not cumulative and redundant of the evidence previously considered in August 2009, as there had been no such opinion as to etiology at that time. The Board must also presume the credibility of this evidence for the purpose of determining whether it constitutes new and material evidence. See Justus, 3 Vet. App. at 513. Therefore, the Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for lumbar spine fusion, arthritis of the lumbar and cervical. Laws and Regulations - Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Service connection may also be granted for a disease first 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis At the outset, the Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not apply, as it has not been claimed that the disability was incurred while engaging in combat. The Veteran asserts that his current lumbar spine disability onset due to injury sustained during his period of active service. In this regard, the Veteran asserted that he injured his back in 1969 (June 1969). June 1969 service treatment records document that the Veteran was prescribed medication to be taken every four hours as needed for his complaints of back ache. He was also given hot packs to be applied to his back as needed for his back ache. It was noted that he was scheduled for lumbosacral spine x-ray. An April 2007 treatment record reflects that the Veteran had a long standing history of lumbar pain problems for a number of years. He had undergone all conservative treatment. On examination the diagnosis was herniated disc at L4-5. Subsequently, the Veteran underwent surgical intervention for his lumbar spine disability. In a June 2011 statement, the Veteran's treating physician indicated that the Veteran had chronic low back pain since an injury he sustained during his military service. The treating physician reported that the Veteran had developed lumbar spinal stenosis. He concluded that the injury sustained in 1969 triggered degenerative changes that had developed over the last 40 plus years. The November 2011 report of VA examination documents a diagnosis of lumbar fusion. The Veteran reported that he was kicked in the back in the stockade and that he did not receive any long-term treatment in the stockade related thereto. Subsequent to service, reportedly he was working in a carpenter shop and fell off a one story roof. The examiner documented review of the service and opined that the Veteran's lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that there was no documentation found in review of the Veteran's claims file to substantiate that his disc herniation with subsequent fusion was an acute or chronic condition during the his military service. To that end, the examiner noted that the Veteran's lumbar spine fusion was performed approximately 48 years subsequent to his discharge from service. In this case, the Board finds that service connection for lumbar spine fusion, arthritis of the lumbar and cervical is warranted. Here, there is current lumbar spine disability. Further, the Veteran has provided competent and credible lay assertions of in-service injury. Additionally, the Veteran's treating physician found that injury sustained in 1969 triggered degenerative changes that had developed over the last 40 plus years. Given the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for lumbar spine fusion, arthritis of the lumbar and cervical is warranted. TDIU Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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 as totally disabled. The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her 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 v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant 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. Analysis In this case, irrespective of the grant of service connection for the lumbar spine disability awarded by this Board decision herein above (and the rating to be assigned related thereto), the Veteran meets the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for award of a TDIU rating on a schedular basis as service connection is in effect for PTSD (rated as 70 percent disabling). Thus, the Board turns its focus to consideration of whether the Veteran is unemployable due to his service-connected disabilities. An October 2013 psychiatric evaluation documents mental status examination showing the Veteran maintained fair eye contact and had good hygiene and grooming. His speech was hesitant at times but clear and coherent. His thought processes were logical and goal directed with significant frustration concerning the denial of his unemployability claim. The Veteran's affect was anxious, irritable and his mood was depressed, angry and disappointed. He exhibited some passive suicidal wishes but had no homicidal ideations. He had no delusions or hallucinations but did have paranoid ideations and hypervigilance. His memory was limited due to anxiousness and cognition was slowed with problems with concentration and attention. Judgment and insight were considered fairly intact. The diagnosed PTSD was confirmed. The psychiatrist opined that the Veteran was unemployable due to his PTSD symptoms and his significant medical problems. The psychiatrist concluded that there was no way for the Veteran to get gainfully employed. In this case, the Board finds that the evidence documented above demonstrates that the Veteran is unable to maintain gainful employment, due to his service-connected PTSD. In light of this evidence and considering the Veteran's (and other lay witnesses) competent and credible report of the impact his service-connected PTSD had on his occupational functioning, the Board is not convinced that the Veteran could be gainfully employed. On this record, the Board finds that the evidence documented above shows that the Veteran's service-connected PTSD precludes him from realistically obtaining and maintaining any form of gainful employment, consistent with his work and education background. Accordingly, the Board finds that a grant of a TDIU rating is warranted. ORDER The application to reopen a claim for service connection for lumbar spine fusion, arthritis of the lumbar and cervical is granted. Entitlement to service connection for lumbar spine fusion, arthritis of the lumbar and cervical is granted. Entitlement to a TDIU rating is granted. ____________________________________________ R. FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs