Citation Nr: 18153653 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 10-03 768 DATE: November 29, 2018 ORDER Entitlement to service connection for a surgical scar of the anterior trunk (abdomen) as secondary to service-connected postoperative lumbar intervertebral disc syndrome on the basis of substitution is granted effective from October 10, 2013. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on or after December 31, 2013, on the basis of substitution is denied. REMANDED Entitlement to an evaluation in excess of 40 percent for postoperative lumbar intervertebral disc syndrome on the basis of substitution is remanded. Entitlement to an initial compensable evaluation for a surgical scar of the lumbar area prior to January 26, 2013, on the basis of substitution is remanded. Entitlement to an initial evaluation in excess of 10 percent for a surgical scar of the lumbar area on or after January 26, 2013, on the basis of substitution is remanded. Entitlement to an initial evaluation in excess of 20 percent for sciatic neuropathy of the left lower extremity on the basis of substitution is remanded. Entitlement to an initial evaluation in excess of 20 percent for sciatica of the right leg on the basis of substitution is remanded. Entitlement to TDIU prior to December 31, 2013, on the basis of substitution is remanded. FINDINGS OF FACT 1. The Veteran had a surgical scar of the anterior trunk (abdomen) as a result of an October 10, 2013, surgery for his service-connected postoperative lumbar intervertebral disc syndrome. 2. Since December 31, 2013, the Veteran was in receipt of a total (100 percent) evaluation for major depressive disorder secondary to the service-connected postoperative lumbar intervertebral disc syndrome. The remainder of his service-connected disabilities (bilateral lower extremity neurological disorders and surgical scars) were also related to the service-connected postoperative lumbar intervertebral disc syndrome. 3. The Veteran’s service-connected disabilities were considered as one disability for TDIU basic eligibility purposes under 38 C.F.R. § 4.16(a) as disabilities resulting from a common etiology or single accident. 4. The Veteran did not have any separate service connection claims pending at the time of his death. CONCLUSIONS OF LAW 1. A surgical scar of the anterior trunk (abdomen) was proximately due to or the result of service-connected postoperative lumbar intervertebral disc syndrome. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.102, 3.159, 3.310 (2017). 2. Since December 31, 2013, the criteria for TDIU on the basis of substitution have not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to December 1994. He died in August 2017, and the appellant is continuing the appeal as his surviving spouse and substitute claimant. See May 2018 decision granting substitution and notification letter. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA). In an April 2013 rating decision, the agency of original jurisdiction (AOJ) increased the lumbar area surgical scar evaluation to 10 percent, effective from January 26, 2013. Because this evaluation does not represent the highest possible benefit, the issue is in appellate status and has been recharacterized as stated above. AB v. Brown, 6 Vet. App. 35 (1993). The AOJ also granted separate evaluations for sciatic neuropathy of the left lower extremity effective from January 26, 2013, and sciatica of the right leg (right lower extremity) effective from April 14, 2016, associated with the service-connected postoperative lumbar intervertebral disc syndrome. See April 2013 and May 2016 rating decisions. The left and right lower extremity issues are addressed in the remand section below. A hearing was held before the undersigned Veterans Law Judge in December 2013. A transcript of the hearing is of record. The undersigned Veterans Law Judge held the record open for a 60-day period following the hearing to allow for the submission of additional evidence. Thereafter, the Veteran submitted additional evidence, along with a waiver of initial AOJ consideration. The Board remanded the case for further development in November 2014. While the case was in remand status, an informal conference was held before a Decision Review Officer (DRO) in March 2016. A conference report is of record. The case has since been returned to the Board for appellate review. The Board notes that there is evidence that was added to the claims files after the August 2016 supplemental statement of the case (SSOC) (titled as an SOC but addressing issues for which an appeal was already perfected). The additional evidence does not materially alter the outcome of the case as to the issues decided herein. The grant of service connection for the surgical scar of the anterior trunk (abdomen) constitutes a full grant of that benefit, and the TDIU claim for the period of the appeal on or after December 31, 2013, is precluded as a matter of law based on the facts in this case. As such, the Board finds that remand for initial AOJ review of this evidence in relation to these claims is not necessary, and there is no prejudice to the appellant in proceeding with adjudication of the claims. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Law and Analysis For the issue of entitlement to TDIU on or after December 31, 2013, VA’s notification and assistance duties are not applicable in this case because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff’d, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). The facts are not in dispute; instead, resolution of the claim is wholly dependent on the application of the laws and regulations related to the basic eligibility criteria for entitlement to TDIU. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 23, 2004). I. Service Connection – Surgical Scar Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is warranted for a surgical scar of the anterior trunk (abdomen) as secondary to the service-connected postoperative lumbar intervertebral disc syndrome effective from October 10, 2013. In the July 2008 rating decision, the AOJ granted service connection for a lumbar area surgical scar based on an earlier surgical procedure, the initial evaluations of which are on appeal, as noted above. The record shows that the Veteran had another lumbar spine surgery on October 10, 2013. The operation involved anterior exposure of the lumbosacral spine at L3-L4 and L4-L5 for internal fixation, including making a midline incision from above the pubic symphysis to above the umbilicus. See October 2013 Northside Hospital private operative report. The March 2015 and August 2015 VA examination reports describe the resulting scar from that procedure. See also, e.g., VA examination reports from November 2007 and January 2013 (described posterior trunk scar in lumbar area already separately evaluated). Based on the foregoing, the Board concludes that service connection is warranted for the second surgical scar that was located on the Veteran’s anterior truck (abdomen). It appears that the AOJ may have inadvertently considered this scar as the one that is part of the original appeal in the August 2016 SSOC, without readjudicating the appeal as to the initial evaluations for the lumbar area surgical scar. Nevertheless, the Board has granted service connection for the second scar in this decision for purposes of clarity; the AOJ will have an opportunity to assign the appropriate initial evaluation after receipt of any additional treatment records while the case is in remand status. II. TDIU – On or After December 31, 2013 All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, 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. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident, among other things, will be considered as one disability. 38 C.F.R. § 4.16(a). In an August 2016 rating decision, the AOJ granted service connection for major depressive disorder as secondary to the service-connected postoperative lumbar intervertebral disc syndrome and assigned a total (100 percent) evaluation effective from December 31, 2013. The remainder of his service-connected disabilities (bilateral lower extremity neurological disorders and surgical scars) were also related to the service-connected postoperative lumbar intervertebral disc syndrome. See June 1995, July 2008, April 2013, and May 2016 rating decisions and this decision. The Veteran did not have any separate service connection claims pending at the time of his death. In other words, the Veteran’s service-connected disabilities (including the 100 percent schedular evaluation) were considered as one disability for TDIU purposes under 38 C.F.R. § 4.16(a) as disabilities resulting from a common etiology or single accident, and there were no additional service-connected or potentially service-connected disabilities to provide a basis for entitlement to TDIU for this period for a schedular rating less than total. The issue of entitlement to TDIU for the earlier period in which service connection was not in effect for major depressive disorder is being remanded for any necessary further consideration by the AOJ. Based on the foregoing, the claim must be denied for failure to meet the basic eligibility criteria for entitlement to TDIU. REASONS FOR REMAND On review, the Board finds that additional development is necessary prior to final adjudication of the appellant’s remaining claims. Specifically, it appears that there may be outstanding private treatment records, as detailed in the directives below. Regarding the lumbar spine claim, the Veteran was most recently provided a VA examination in March 2015; however, the examination does not satisfy the requirements under Correia v. McDonald, 28 Vet. App. 158 (2016) (concluding that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing). An examiner should review the claims file to determine whether it is possible to provide a retrospective medical opinion in this regard. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). In addition, the TDIU claim prior to December 31, 2013, is inextricably intertwined with the pending increased evaluation claims, and a remand is therefore required. Regarding the left lower extremity claim, the Board referred the issue to the AOJ in the its prior remand to clarify the nature of the Veteran’s May 2013 written statement expressing disagreement with the April 2013 rating decision granting a separate evaluation for the disorder. See also August 2013 AOJ letter acknowledging receipt of written disagreement (i.e., notice of disagreement (NOD)). The March 2016 DRO conference report indicates that the initial evaluation for the disability was one of the issues on appeal (which appears to be based on an inaccurate February 2016 deferral for necessary post-remand actions) and that the AOJ would review the additional evidence, including the VA examinations for peripheral nerves. Nevertheless, the resulting August 2016 SSOC (titled as an SOC but addressing issues for which an appeal was already perfected) does not address this issue. Regarding the right lower extremity claim, the AOJ acknowledged receipt of a June 2016 NOD with the May 2016 rating decision granting a separate evaluation for the disorder in July 2016 and August 2017 letters. The record indicates that the AOJ accepted this NOD as a disagreement with the initial evaluation assigned for the disability. See August 2016 SSOC (indicated receipt of NOD for evaluation assigned for right leg sciatica, but does not adjudicate issue itself); October 2016 DRO conference report (indicates that NOD was for initial evaluation assigned and that DRO would review claims file, including VA treatment records, for the issue). Based on the foregoing, and considering the unique procedural history of this case, the Board finds that the Veteran had submitted timely NODs with the April 2013 and May 2016 rating decisions, challenging the initial evaluations assigned for the sciatic neuropathy of the left lower extremity and the right lower extremity sciatica. The issues remained pending in appellate status before the AOJ at the time of the Veteran’s death, and the appellant has been granted substitution. 38 C.F.R. § 3.1010. Thus, a remand is required for the AOJ to issue an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). The case is REMANDED for the following actions: 1. The AOJ should request that the appellant provide the names and addresses of any and all health care providers who provided treatment to the Veteran for the claimed disorders, including the non-VA hospitals in Blue Ridge and Jasper, Georgia for which he sought treatment in 2016 and 2017. See VA treatment records from April 2016 and July 2017 (Veteran reported visits to those facilities for treatment, including after a fall). After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The claims file does contain earlier private treatment records from multiple facilities, including Apple Medical Center, North Georgia Pain Clinic, Appalachian Physician Group, St. Joseph’s Hospital, Peachtree Neurosurgery, Northside Hospital, Peachford Behavioral, North Georgia Medical Center, and CardioVascular Group, as well as the Veteran’s Social Security Administration documents. 2. After completing the foregoing development, the AOJ should refer the claims file to a VA examiner for a retrospective opinion as to the severity and manifestations of his service-connected postoperative lumbar intervertebral disc syndrome. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran was competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should address whether range of motion measurements on active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated where not actually measured for the VA examinations conducted during the appeal period in November 2007, January 2013, and March 2015. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should provide an explanation for this determination in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ on the basis of additional evidence – including consideration of the lumbar area surgical scar claim (separate from the anterior trunk/abdomen surgical scar from the October 2013 surgery). If the benefits sought are not granted, the appellant and her representative should be furnished an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 4. The AOJ should issue an SOC addressing the issues of entitlement to an initial evaluation in excess of 20 percent for sciatic neuropathy of the left lower extremity on the basis of substitution and entitlement to an initial evaluation in excess of 20 percent for sciatica of the right leg on the basis of substitution. See April 2013 rating decision and May 2013 NOD; May 2016 rating decision and June 2016 NOD; procedural history discussion, pages 8-9 above). Thereafter, the appellant should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the appellant that the claims file will not be returned to the Board for appellate consideration of these particular issues following the issuance of the SOC unless she perfects an appeal. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Postek, Counsel