Citation Nr: 1752220	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  14-06 094	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for purposes of accrued benefits.

2.  Entitlement to service connection for cervical spine condition associated with lumbar laminectomy residuals for purposes of accrued benefits.


ATTORNEY FOR THE BOARD

Steven D. Najarian, Associate Counsel





INTRODUCTION

The Veteran served on active duty from October 1967 to July 1979.  He died in September 2011.  The Appellant is the surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of October 2009 and April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.

In July 2008, the Veteran filed a service connection claim for a cervical spine disability as due to his service-connected disability of the lumbar spine.  After a March 2009 rating decision denied the claim, and a subsequent rating decision of October 2009 confirmed and continued the denial, the Veteran initiated an appeal by a notice of disagreement (NOD) filed in November 2009.  The statement of the case (SOC) was issued in December 2013.  In January 2014, the Appellant filed a VA Form 9 in substitution of the Veteran.

The Veteran's TDIU claim was denied by a rating decision of April 2010.  The Veteran filed an NOD in June 2010.  The SOC was issued in March 2013, following the Veteran's death in September 2011.  In January 2014, the Appellant filed a VA Form 9 in substitution of the Veteran.

The claims have been certified to the Board for adjudication based upon substitution of the Appellant as the claimant.  See VA Form 8 of April 2017.  Upon the death of a claimant, a person who would be eligible to receive accrued benefits due to the claimant may be substituted as the claimant for the purpose of processing the claim to completion.  See 38 U.S.C. § 5121A (2012).  The RO has recognized the Appellant, the surviving spouse, as a substitute.  See deferred rating decision of December 2012; SOC of March 2013; SOC of December 2013.

Dependency and indemnity compensation (DIC) is payable to a surviving spouse of a veteran if the veteran died of a service-connected disability.  See 38 U.S.C. §  1310 (2012); 38 C.F.R. §§ 3.5, 3.312 (2017).  The Appellant applied for DIC by filing VA Form 21-534 in October 2011.  A rating decision of May 2012 denied service connection for cause of death.  By a filing of February 2016, the Appellant requested that the RO reconsider her case for DIC benefits.  Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits.  A request to reopen must be made on a specific VA claim form, which is available online at https://www.ebenefits.va.gov/ebenefits or at a regional office.

By a filing of July 2015, the Appellant withdrew her request for a Board hearing.

The paperless record of Legacy Content Manager Documents (formerly Virtual VA) and the Veterans Benefits Management System (VBMS) has been reviewed.

The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ).


FINDING OF FACT

The Veteran's cervical spondylosis with myelopathy was caused by his service-connected lumbar spine disability.


CONCLUSION OF LAW

Cervical spondylosis with myelopathy was proximately due to service-connected lumbar laminectomy residuals.  38 C.F.R. § 3.310 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION

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.  See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004).  Service connection may 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.  See 38 C.F.R. § 3.303(d) (2017).

For veterans who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, if the disability manifested to a compensable degree within one year of discharge from service.  See 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).

Service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury.  See 38 C.F.R. § 3.310(a) (2017).  Any increase in severity of a nonservice-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected.  See 38 C.F.R. § 3.310(b) (2017).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  For a claim to be denied on the merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

In July 2008, the Veteran filed a service-connection claim for a disability of the cervical spine as secondary to his service-connection lumbar spine disability.  The Veteran was service-connected for lumbar laminectomy residuals.  See rating decision of December 1979.

The Veteran had cervical spondylosis with myelopathy.  See VA treatment record of June 2011.

Although the Veteran's lumbar spine was examined by VA in August 2008, January 2009, and June 2010, there was no VA examination report or VA opinion with respect to the cervical spine.

A positive nexus opinion by a VA doctor who initially treated the Veteran in October 2007 is of record.  See May 2009 letter of Dr. C. G.  The letter explains the history of the Veteran's fall in 2007, when the Veteran felt leg weakness and numbness, fell, hit his face on the side of the sofa, and reported a snapping motion to his head and neck.  A few days later, the Veteran began to experience neck pain and arm paresthesias.  In October 2007, the Veteran underwent an emergency cervical laminectomy at C3-T1 with fusion.  In the doctor's opinion, the Veteran's leg weakness and numbness were a direct result of the Veteran's back condition.  The doctor further states that, based on her review of the Veteran's medical records, it is as likely as not that the Veteran's service-connected lumbar spinal injury caused his cervical spine injury which resulted in subsequent cervical laminectomy and fusion.

There is no evidence in the claims file indicating that the Veteran did not fall and strike his face on a couch as a result of his leg weakness and numbness which has been linked to his service connected low back disability.  The Veteran's allegations are found to be credible regarding the fall.  

VA may undertake the development of additional evidence if necessary to render an informed decision on a claim.  See Douglas v. Shinseki, 23 Vet. App. 19 (2009).  The Board should not undertake further development or seek an additional medical opinion where favorable evidence in the record is unrefuted.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  In this case, there is no competent opinion of record that disassociates the Veteran's cervical spine disability from his service-connected lumbar spine disability.  The Board may consider only independent medical evidence to support its findings and is not permitted to base decisions on its own medical conclusions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).

The May 2009 letter of Dr. C. G. indicates that the doctor reviewed the Veteran's medical records in arriving at her medical opinion.  The doctor offered a rationale that referenced specific events in the Veteran's medical history.  Because competent and probative evidence of record links the Veteran's cervical spine disability to his service-connected lumbar spine disability, and no contrary medical opinion is of record, service connection is warranted.


ORDER

Service connection for cervical spondylosis with myelopathy for purposes of accrued benefits is granted.


REMAND

A TDIU 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 service-connected disabilities, provided that one of those disabilities is ratable 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) (2017).  Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. §  3.321.

Because the Veteran's one service-connected disability of lumbar laminectomy residuals was rated at 20 percent, the threshold percentage criteria for the award of a TDIU under 38 C.F.R. § 4.16(a) are not currently met.  Here the appellant's claim of entitlement to TDIU on a schedular basis is inextricably intertwined with the rating to be assigned for the Veteran's now service-connected cervical spine disability.  Two or more issues are inextricably intertwined if one claim could have significant impact on the other.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED for the following action:

1. After the issuance of a rating decision that grants service connection for a cervical spine disability and assigns a disability rating and effective date, undertake any warranted development with respect to the TDIU claim on appeal, and readjudicate the TDIU claim.

2. If the sought benefit remains denied, issue an appropriate supplemental statement of the case and provide the appellant with the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

The Appellant and her representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded.  See 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. §§ 5109B, 7112 (2012).




______________________________________________
G. A. Wasik
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs