Citation Nr: 1638629 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 05-17 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to a pension, including eligibility for a nonservice-connected pension and a special monthly pension (SMP), based on the need for aid and attendance or housebound status. 3. Entitlement to an increased initial disability rating for major depressive disorder, currently rated as 50 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU). 5. Entitlement to special monthly compensation based on the need for aid and attendance or housebound status. (CONTINUED ON NEXT PAGE) REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1966 to June 1969 and in the Marine Corps from June 1971 to February 1976. The character of the Veteran's discharge for his second period of active duty service was under other than honorable conditions. According to a final, unappealed administrative decision, dated October 1976, the second discharge was due to willful misconduct. Thus, when considering the pending service connection claim, the Board will determine whether a claimed lumbosacral spine disability had its onset during the Veteran's first period of active duty or is otherwise related to a disease, injury or event which occurred during that period. This case comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. The RO denied requests to reopen a previously denied claim for service connection for a lumbar spine disability and separate claims for special monthly pension and entitlement to TDIU. These decisions also concerned a separate claim for service connection for PTSD. In its January 2012 decision and remand, the Board granted the Veteran's motion to withdraw his appeal of that issue. In a separate September 2010 rating decision, the RO granted service connection for major depressive disorder and assigned an initial disability rating of 50 percent. The Veteran also appealed the denial of a rating higher than 50 percent. In June 2011, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issues of entitlement to an increased rating for major depressive disorder, TDIU and special monthly compensation based on the need for aid and attendance are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is approximately evenly balanced as to whether the Veteran's lumbar spine disability is related to in-service injury. 2. The Veteran served on active duty for ninety days or more during a period of war; without the regular aid and attendance of another person he would be unable to dress or undress himself or keep himself ordinarily clean and presentable; and as of February 4, 2004, his combined household income was less than the applicable maximum annual rate of special monthly pension benefits for aid and attendance. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, his lumbar spine disability was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.303 (2015). 2. The criteria for establishing entitlement to a pension, including eligibility for a nonservice-connected pension and SMP, are met subject to the financial eligibility requirements. 38 U.S.C.A. §§ 1502, 1521 (West 2014); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In this decision, the Board is granting the claims for service connection for a lumbar spine disability and for special monthly pension, which are the only claims decided today. Further discussion of the VCAA is therefore unnecessary. See Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Service Connection for a Lumbar Spine Disability 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; 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 or "nexus" between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection is warranted 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). The Veteran has been diagnosed with intervertebral disc syndrome, with low back pain and spasms. He attributes this disability to an injury which occurred during his military service. When serving in the Army in Korea, the Veteran explained, he was repairing a telephone line and fell off of a telephone pole. In his hearing testimony, he said that he fell approximately ten feet, landed on his feet, and then fell onto his buttocks. He said he experienced back pain the following day and sought medical treatment. Service treatment records include numerous references to lower back pain in August 1967. His diagnosis, service treatment records and credible statements satisfy the current disability and in-service disease or injury requirements of his claim. Thus, the success of his claim depends on whether a causal nexus exists between the Veteran's current disability and military service. See Fagan, 573 F.3d at 1287. To help decide whether the required nexus exists, the RO arranged for the Veteran to be examined by a VA nurse practitioner in May 2012. The diagnosis was intervertebral disc syndrome. The report described a history of back surgery in 1984 and again in approximately 2000, with complaints of constant pain and fatigue. In the nurse practitioner's opinion, the current diagnosis was not related to military service. To explain her conclusion, the examiner relied on normal x-rays in August 1967, after the date of the Veteran's in-service back injury. The Veteran injured his back again when lifting a piano while working as a mover in April 1984, but he remained capable of work requiring heavy lifting even after this injury. To support his claim, the Veteran submitted a letter from a physician in private practice. The letter indicates that the physician based his opinion on his review of the claims file. In his review of the records, the physician noted "many times in service" when the Veteran was examined for back pain. Most significantly, the service treatment records noted "a positive straight leg raise test also known as a positive Lasegue's test" in August 1967. According to the physician's letter, in the event of a positive straight leg raise test "a herniated disc is the likely source of the pain." In the physician's professional experience "the vast majority of patients with a positive straight leg test do have a damaged disc. Simple muscle strain or sprains do not produce a positive straight leg raise test. The very reason you perform a straight leg raise test is to differentiate between a muscle problem and a disc problem." In March 2015, the Board requested an expert opinion from a Veterans Health Administration (VHA) neurosurgeon, who reviewed the conflicting opinions of the VA examiner and the private physician. In August 2015, the neurosurgeon indicated that, in his opinion, the Veteran's current back pain was not related to service. The neurosurgeon relied on a report of medical history from the Veteran's second period of enlistment (June 1971 to February 1976) indicating no history of recurrent back pain: "While he had treatment in the 1970's, he claimed in the 1980's that he was without a medical issue. I feel that while he had had irritation in the past that that [sic] had cleared as the appellant stated without reservation when he re-enlisted. He is the best representation of his condition and he felt that he was without a problem at all." In September 2015, the Board requested clarification concerning the Veteran's in-service history for sciatic nerve irritation and report of a 5-year history of low back pain in December 1972. The Board asked the neurosurgeon to discuss potential causes of the sciatic nerve irritation in service and the areas of agreement or disagreement with the favorable August 2014 opinion of the private physician. The VHA neurosurgeon provided the following response in April 2016: "The Veteran had a chronic low-back, injury in December 1972, with a history of chronic low-back pain. While this might be a chronic injury, the patient, upon re-enlistment in the 1980's, claimed he was without medical issue; therefore, the previous issue in 1972 had completely resolved or the patient is lying." The neurosurgeon further indicated that a positive straight leg raise test "does not constitute clear evidence of a herniated disc. Many patients have a positive straight leg raise sign without a herniated disc." In response to the VHA expert's opinion, the Veteran provided an opinion letter from a second physician in May 2016. The letter indicates that the author reviewed the earlier opinions of the VHA expert. The physician then describes the significance of the positive straight leg test: "a positive straight leg raising test is almost always an indication of a damaged disc. Once a disc is damaged bad enough [sic] to put enough pressure on a nerve when it exits the spine, the disc has clearly suffered permanent damage." The letter then responded to the VHA expert's statement that "[m]any patients have a positive straight leg raise sign without a herniated disc." The physician acknowledged that a positive test result can be explained by other problems, but insisted that "[t]he only medical problem this [V]eteran had which could reasonably have caused the positive straight leg raise test in service is a damaged disc." According to the May 2016 letter, "If by using the word 'many' [the VHA neurosurgeon] meant 10% to 15% then he would be correct. . . . about 90% of positive straight leg test[s] indicated a damaged disc if other medical problems (such as a tumor) can be excluded. In this veteran's case, other problems were considered and excluded." A positive straight leg test, the physician explained, "can be caused by a damaged disc that is not totally and completely herniated. However, if a disc is damaged bad enough [sic] to cause a positive straight leg raise test it is only a matter of time before it will herniate and require surgery. A disc damaged bad enough [sic] to cause a positive test will never resolve - it is sure to get worse." Finally, the letter indicates that the author personally performed many low back surgeries on patients with similar medical histories. In light of this experience, "I have very little doubt the back problems he has today are directly caused from the problem demonstrated on the positive straight leg test he had in service." In addition to the medical evidence, the Board has considered the Veteran's written statements and hearing testimony. At the hearing, he described his in-service back injury. The Veteran's wife testified that she met him in 1975, prior to his piano-moving injury and, even then, "he always complained . . . his back was hurting." Each medical opinion in the record contained some rationale and should be given some weight. See Nieves-Rodrigeuz v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). With respect to the decisive issue in this case, the May 2012 opinion of the VA nurse practitioner relied on normal x-ray reports in the service treatment records. This reasoning is undermined by the August 2014 letter from the Veteran's physician: "The [VA examiner] states the x-rays were normal on 8/6/1967, but those findings are not particularly relevant in this case: x-rays do not show soft tissue, such as disc material. If the Veteran had the same problem today, an MRI would be used; however MRI's were not developed in 1967 . . ." As for the dispute between the VHA expert and the two physicians concerning the significance of the positive straight leg raise test in service, the Board finds that the private physicians' opinions are more persuasive. The VHA expert argued that a positive test does not necessarily indicate that the patient has a herniated disc. But the second physician explained, in his May 2016 letter, that "about 90% of positive straight leg test[s] indicated a damaged disc if other medical problems (such as a tumor) can be excluded. In [the Veteran's] case, other problems were considered and excluded." The VHA expert did not claim that a tumor or other identified medical condition explained the August 1967 test result. Nor did he explain how he could rule out the possibility that a herniated disc explains the test result. These circumstances weaken the VHA expert's argument that a herniated disc was not present during the Veteran's active duty service. Moreover, the VHA expert failed to discuss potential causes of the sciatic nerve irritation in service. Accordingly, the Board finds that the evidence is at least evenly balanced as to whether a current lumbar spine disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a lumbar spine disability is warranted. 38 U.S.C.A. § 5107(b). Special Monthly Pension Based on the Need for Aid and Attendance Disability pension benefits will be paid to a veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements; and who is permanently and totally disabled from nonservice-connected disability not the result of willful misconduct. See 38 U.S.C.A. §§ 1502, 1503, 1521. Special monthly pension benefits are payable to veterans who need the regular aid and attendance of another person or by reason of being housebound. 38 U.S.C.A. § 1521(d) and (e); 38 C.F.R. § 3.351(a)(1). The purpose of VA pension benefits is to provide a subsistence income for veterans of a period of war who are totally disabled and who are otherwise unable to maintain a basic, minimal income level. Pension benefits are based upon total family income, and the amount of pension benefits is adjusted based upon the number of dependents the Veteran supports. Recipients of pension income are required to report any changes in income and number or status of their dependents in a timely fashion. 38 U.S.C.A. §§ 1521, 1522. The veteran meets the service requirements of the statute and regulation because he served on active duty for ninety days or more during a period of war. See 38°U.S.C.A. §§ 101 (11), 1521(j); 38 C.F.R. §§ 3.2, 3.3(a)(3). When the Veteran filed this claim, the maximum annual rate of special monthly pension benefits (with aid and attendance) for a veteran with one dependent (e.g., spouse) was $19,570. The relevant threshold became $20,099 effective December 1, 2004, $21,833 effective December 1, 2005, and $23,481 effective December 1, 2006. 38 C.F.R. § 3.23(a)(3); see VA Adjudication Procedures Manual M21-1, Part I, Appendix B. This decision will not cite every subsequent increase. However, when the Veteran submitted his most recent income information, the relevant threshold was $24,239. In April 2012, the Veteran submitted a VA Form 527 ("Income-Net Worth and Employment Statement"), which indicates that, at that time, he received benefits of $872 per month from the Social Security Administration (SSA). His wife received SSA benefits of $868. The Veteran received an additional $799 per month in service-connected disability benefits for himself and $75 per month for his dependent spouse. On an annual basis, the Veteran's household income was a combined $31, 368, which exceeds the eligibility requirements for pension. The scope of this claim, however, begins on February 4, 2004 - the day VA received the pending pension claim. Additional income information indicates that, between February and December 2004, the Veteran and his wife were not receiving any VA benefits and received combined SSA payments of $1,380 monthly or $16.563.60 per year. The Veteran had a dependent daughter who received SSA payments of $3,216. Since this sum is less than the maximum annual rate for a Veteran with two dependents in need of aid and attendance ($19,570 + $1,688), the Veteran met the financial eligibility requirements beginning February 4, 2004. In January 2004, a physician completed a form indicating that the Veteran had chronic weakness associated with severe degenerative disc disease status post fusion of L4-5 and L5-S1. According to the physician, "[the veteran] has to have assistance [with] dressing and bathing." In August 2013, the Veteran was examined by a VA nurse practitioner, who indicated that, although he was not bedridden or permanently hospitalized, the Veteran needed the help of his adult son to get out of bed and to put on his clothes. The examiner's report indicated that the Veteran remained unable to bathe on his own. When deciding whether a person requires regular and attendance, VA considers the inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable. See 38 C.F.R. § 3.342(a) (2015). It is not necessary that the evidence establish that the Veteran is in constant need of aid and attendance, only that he needs aid and attendance regularly. Id. The Veteran's June 2011 hearing testimony is consistent with both the January 2004 physician's note and the report of the August 2013 examiner, i.e., that he regularly needed help to get out of bed and to get in and out of the bath. For these reasons, the Board finds that the Veteran meets the criteria for a special monthly pension based the regular need for aid and attendance under 38 C.F.R. § 3.342(a). It is clear that at some time prior to April 2012, he no longer met the financial eligibility requirements for this benefit. When implementing this order, the RO should therefore proceed with any development necessary to determine the day when the Veteran's household income first exceeded the relevant amount. ORDER Entitlement to service connection for a lumbar spine disability is granted. Entitlement to special monthly pension based on the need for aid and attendance, is granted for the period beginning February 2004 and continuing subject to the income and net worth eligibility limitations. REMAND In September 2010, the RO granted service connection for major depressive disorder and assigned an initial disability rating of 50 percent. The Veteran timely appealed the assigned rating. Upon receipt of the Veteran's notice of disagreement, the RO issued a statement of the case (SOC) readjudicating the issue and continuing the 50 percent rating. In his substantive appeal (VA Form 9), the Veteran indicated that he wanted to testify at a Board hearing at a local VA office. Subsequent certification forms mistakenly indicated that the Veteran had not requested a Board hearing. Because he filed his substantive appeal in April 2012 - after the Travel Board hearing before the undersigned - the June 2011 hearing did not satisfy the request for a hearing on the Veteran's appeal of the denial of an increased rating for major depressive disorder. Thus, that claim must be remanded so that the requested hearing can be scheduled. Because the Veteran has already received a hearing on the other remanded claims, the new Travel Board hearing should concern only the increased rating claim and none of the other remanded issues. The issue of TDIU is inextricably intertwined with the Veteran's appeal of his increased rating for his psychiatric disorder because the resolution of the increased rating claim may affect the outcome of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the issue of TDIU will also be remanded. In an August 2014 rating decision, the RO denied entitlement to special monthly compensation based on the need for aid and attendance or housebound status. The Veteran appealed that decision in a notice of disagreement dated October 2014. Nevertheless, a statement of the case has not been issued with respect to the denial of special monthly compensation based on the need for aid and attendance or housebound status. The United States Court of Appeals for Veterans Claims has held that the filing of a notice of disagreement initiates the appeal process, and that the failure of the RO to issue a statement of the case is a procedural defect requiring a remand. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the Board is required to remand this issue for issuance of a statement of the case. Id. Accordingly, the case is REMANDED for the following action: 1. With respect to the issue of entitlement to an increased rating for the Veteran's service-connected major depressive disorder, the AOJ shall schedule a Travel Board hearing as requested before a Veterans Law Judge at the earliest available opportunity, in accordance with applicable procedures, and shall notify the Veteran of the date and time thereof. If the Veteran wishes to withdraw his request for the hearing, that should be done by written document submitted to the AOJ. 2. Issue the Veteran an SOC as to the issue of entitlement to special monthly compensation based on the need for aid and attendance or housebound status. The SOC must include notification of the need to timely file a substantive appeal to perfect his appeal on this issue. 3. Upon completion of the requested development and any additional development deemed appropriate, the AOJ should readjudicate the claims for entitlement to service connection for an increased initial rating for his service-connected major depressive disorder and TDIU. All applicable laws, regulations, and theories of entitlement should be considered. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a statement of the case. An appropriate period should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs