Citation Nr: 1806424 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-09 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran had active duty from July 1973 to January 1975. This appeal is before the Board of Veterans' Appeals (Board) on appeal from June 2010 and July 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia As the record reflects several diagnosed psychiatric disorders, in various guises, this claim has been expanded to include all of these diagnoses. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In a March 2013 VA Form 9, Appeal to the Board, the Veteran requested a Board videoconference hearing. However, in March 2017 the Veteran, through his attorney, withdrew his hearing request. Accordingly, the Board considers his request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(d), (e). This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The issue of entitlement to a TDIU 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 acquired psychiatric disorder is at least as likely as not caused by his service-connected back disorder. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted on a direct or secondary basis. Service connection on a direct basis is merited if there is 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 on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran was afforded a VA medical examination in March 2010, and the examiner provided a negative nexus opinion regarding whether the Veteran's acquired psychiatric condition is related to his service-connected back condition. The examiner reasoned that there was no clear etiology for the onset of the Veteran's major depressive disorder. The examiner based this opinion upon the information provided by the Veteran and his girlfriend and the information in the Veteran's claims file. The Veteran has submitted a September 2017 private medical opinion from Dr. J.M. showing that the Veteran's service-connected back disorder is the major contributor to his major depressive disorder with psychotic features. Dr. J.M. disagreed with the VA examiner's opinion that the Veteran's mental health state was not directly caused by his back pain and that there was no clear etiology for the onset of the Veteran's major depressive disorder. Dr. J.M. instead found that the Veteran has consistently referred to his back pain as the reason why he was depressed. As the evidence is at least in equipoise, the benefit-of-the-doubt doctrine is for application and service connection for a lumbar spine disability is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER Service connection for an acquired psychiatric disorder is granted. REMAND Unfortunately, a remand is required in this case for the issue of entitlement to a TDIU. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The Veteran's claim for a TDIU is inextricably intertwined with the Veteran's acquired psychiatric disability. Therefore, this claim should be remanded to the AOJ for adjudication once the Veteran's acquired psychiatric disability is awarded a disability rating. Accordingly, the case is REMANDED for the following action: Once the Veteran's acquired psychiatric disability has been awarded a disability rating, readjudicate the Veteran's TDIU claim. If the benefits sought remain denied, issue an appropriate supplemental statement of the case (SSOC) and provide the Veteran and his attorney the requisite period of time to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112. ______________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs