Citation Nr: 1808553 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-18 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, for purposes of substitution. 2. Entitlement to a total service-connected disability evaluation rating based upon individual unemployability (TDIU), for purposes of substitution. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran served on active duty from December 1943 to September 1945. The Veteran died in June 2016. The appellant is the Veteran's surviving spouse and has been substituted into this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 decision by the Pittsburgh, Pennsylvania Regional Office (RO) of the United States Department of Veteran Affairs (VA). In September 2013 the Veteran's daughter testified at a hearing before the Board. A transcript is included in the claims file. The Board notes that the Veterans Law Judge who had previously presided in this matter is no longer at the Board. However, in a statement dated in September 2017 the appellant indicated she does not wish to have another hearing and, further, the Board is granting the benefits in appellate status. The claims were remanded in November 2013 for additional development. At that time, the claim for an earlier effective date for the award of compensation for dependent spouse was remanded in order for the AOJ to provide a Statement of the Case (SOC). A SOC was prepared in September 2016. The appellant had 60 days, or November 2016 in order to submit a substantive appeal. The appellant did not submit a substantive appeal until December 2016. The AOJ did not prepare a supplemental statement of the case and the claim was not certified to the Board. As the appellant did not timely file a timely substantive appeal, the matter is no longer before the Board, and will not be addressed further. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's cervical spine disability was a result of his military service. 2. The Veteran's service-connected disabilities precluded substantially gainful employment. CONCLUSIONS OF LAW 1. Service connection for a cervical spine disability is warranted. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2016). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The appellant essentially contends that the Veteran's cervical spine disability was caused by an in-service blast injury while service in World War II. In the alternative, the appellant has asserted the Veteran's cervical spine disability was due to being a paratrooper in service. The Board notes that the Veteran's service treatment records (STRs) are negative for complaints or diagnosis of a cervical spine disability. However, the STRs do indicate the Veteran suffered a blast injury which resulted in multiple sites of shrapnel removal in the face and neck in early 1945. The Board recognizes that the January 2017 VA examiner opined that the Veteran's neck disorder was less likely than not incurred in or due to active service. The examiner noted that although the Veteran had an injury in service, there was no evidence of a neck injury. Over the years, the Veteran completed a successful career with the U.S. Postal Service and retired. The examiner noted that although the Veteran underwent surgery on his neck in March 2005, this was 50 years after his injury in service. On the other hand, a June 2017 private opinion indicates that the Veteran was known to have severe cervical degenerative disc disease and arthritis causing chronic pain and contributing to his debilitation. As the Veteran sustained severe injuries to his face, head, and neck during his service, it was his opinion that it is as likely as not that these injuries contributed to the condition. Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for a cervical spine disability is granted. II. TDIU Total disability ratings for compensation based on 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Disabilities resulting from a common etiology or a single accident will be considered as one disability for TDIU purposes. Id. Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is, 'whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.' 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 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, 363 (1993). Prior to this rating decision, the Veteran was service-connected for adjustment disorder, multiple scars, partial right side facial paralysis, bilateral hearing loss, hysterical contracture of the index and middle fingers of the right hand, tinnitus, and structural changes of the right maxillary sinus. The Board notes the Veteran met the initial schedular standards for a TDIU in accordance with 38 C.F.R. § 4.16(a), given that the Veteran had a 80 percent disability rating for all service-connected disabilities from a common etiology and, therefore, one combined rating. In an October 2005 mental health examination, the examiner noted the Veteran had some abnormalities of gait in that he tended to become dizzy and slide to one side ever since his cervical spine surgery. The Veteran discussed being depressed over the pain in his face and neck, his chronic sinus problems, and the frustration with his increasing hearing deficit. After a mental status evaluation, the examiner reported adjustment disorder with depressed mood, mild to occasionally moderately intense. An August 2012 VA examination report indicates that straining the neck or overhead work could be detrimental. He only had sedentary work capability. An August 2012 VA examiner found no work restrictions due to scars, nerve trauma, or sinuses. In an August 2012 VA examination report, the examiner stated the Veteran had no gross functional problems due to his right hand contracture but indicated the Veteran's daughter stated he does not write well with his right hand anymore. In a September 2012 VA audio examination, the examiner indicated the Veteran's hearing loss affects his occupational functioning. As noted above, a June 2017 private opinion indicates that the Veteran was known to have severe cervical degenerative disc disease and arthritis causing chronic pain and contributing to his debilitation. Given the Veteran's physical and mental impairments, when the Veteran's occupational training and education are taken into consideration, it is apparent that his service-connected disabilities render him unemployable. The evidence of record indicates that his service-connected disabilities, in concert, prevent the employment. In sum, the Board finds that Veteran's service-connected disabilities precluded him from obtaining substantially gainful employment. Therefore, a grant of TDIU is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The AOJ will assign the effective date of this award and the appellant will have the opportunity to appeal the effective date of this award if she is in disagreement. ORDER Entitlement to service connection for a cervical spine disorder for substitution purposes is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to TDIU for substitution purposes is granted, subject to the law and regulations governing the payment of monetary benefits. ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs