Citation Nr: 21068952 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-28 659 DATE: November 17, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1952 to June 1954 and from September 1954 to April 1961. The Veteran also served from April 1961 to June 1962, but his character of discharge during this period was determined to be under dishonorable conditions. See November 2007 Administrative Decision. As a result, entitlement to VA benefits cannot be established based on that period of service. See 38 C.F.R. § 3.12. Unfortunately, the Veteran died in July 2016. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated August 2011, April 2012, September 2012, and November 2016 of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, in pertinent part, the Board remanded the Veteran's petition to reopen his claim for service connection for a lumbar spine disability and the issue of entitlement to a TDIU. In August 2019, the appellant testified at a videoconference hearing before a Veterans Law Judge (VLJ). A copy of the hearing transcript is of record and has been reviewed. In September 2021, the appellant was notified that the VLJ before whom she testified was no longer employed by the Board and she was provided an opportunity to request another hearing. In October 2021, the appellant notified the Board that she did not wish to appear at another hearing, and she requested that the case be considered on the evidence of record. Accordingly, the Board will proceed with adjudication. In June 2020, in pertinent part, the Board granted the Veteran's petition to reopen his claim for service connection for a lumbar spine disability and remanded the issues of entitlement to service connection for a lumbar spine disability, entitlement to service connection for the cause of the Veteran's death, entitlement to DIC benefits under 38 U.S.C. § 1318, and entitlement to a TDIU. In a March 2021 rating decision, in pertinent part, the RO granted entitlement to DIC benefits under 38 U.S.C. § 1318. This represents a full grant of the benefits on appeal for that claim, and accordingly, it is no longer before the Board for appellate consideration. The RO also determined that entitlement to a TDIU was rendered moot because the Veteran had a combined disability rating of 100 percent for the entire period on appeal. The Board observes that the appellant submitted additional lay evidence after the RO's adjudication in a March 2021 Supplemental Statement of the Case (SSOC), without a waiver of initial RO consideration. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). 1. Entitlement to service connection for a lumbar spine disability is remanded. The appellant asserts that service connection is warranted for the Veteran's lumbar spine disability. The Board finds that additional development is necessary prior to appellate review of this claim. In an October 2003 letter, the Veteran's private provider, Dr. R.M., opined that the Veteran's bilateral shoulder and knee conditions were at least as likely as not due to his strenuous activities in the military, to include walking, marching, lifting, pushing, and pulling. In a handwritten note at the bottom of the letter, it says, "Old letter but feel it is relative to back problems." In an April 2021 lay statement, the appellant wrote, "[The Veteran] served as a Combat Aidman (Medic) and a certified Rotor Wing and Wheel Mechanic. [He] was one of the soldiers that was privileged to serve in the 1st test Pilot Paramedic Program in the US Army. He assisted in rescuing injured soldiers causing injuries to his back. As his spouse and caretaker, I am fully aware that he had major health issues that were connected to his service and to his country because of the visible scars on his body." To date, no medical opinion has been requested as to whether the Veteran's lumbar spine disability had its onset during his active service or was otherwise related to it. The Board acknowledges that in the March 2021 VA medical opinions, the VA examiner seemed to provide positive nexus opinions as to direct service connection. However, the examiner was only asked to provide opinions as to service connection for the cause of the Veteran's death, and the examiner incorrectly stated in the rationale for those opinions that "the veteran was service connected for multilevel DDD (degenerative disc disease) [of the] lumbar spine." For these reasons, the Board finds that remand is necessary to obtain an adequate medical opinion addressing the theory of direct service connection. 2. Entitlement to DIC based on service connection for the cause of the Veteran's death is remanded. The Board finds that entitlement to DIC based on service connection for the cause of the Veteran's death is inextricably intertwined with the Veteran's claim for service connection for a lumbar spine disability, given the March 2021 VA examiner's opinion that the Veteran's lumbar DDD materially contributed to the lumbar spinal abscess which ultimately resulted in the Veteran's death. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is not rendered moot by the award of a combined disability rating of 100 percent for the entire period on appeal. This is because the award of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered with another disability or disabilities independently ratable at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). VA's duty to maximize benefits requires VA to assess all the claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114(s). See Bradley, 22 Vet. App. at 294 (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). While the record is clear that the Veteran did not have gainful employment for the entire period on appeal, the Board requires further information as to the duties involved with the Veteran's former occupations as a truck driver and a minister, and how each of his service-connected disabilities impacted his ability to perform those duties. Therefore, remand is required to request this additional information from the appellant. (Continued on the next page) Accordingly, the matters are REMANDED for the following actions: 1. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran's lumbar spine disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. After a review of the entire claims file, the examiner is asked to provide an opinion as to whether the Veteran's lumbar spine disability at least as likely as not (50 percent probability or greater) had its onset during or is otherwise related to the Veteran's active service. * Specifically, consider the following evidence: ** In an October 2003 letter, the Veteran's private provider, Dr. R.M., opined that the Veteran's bilateral shoulder and knee conditions were at least as likely as not due to his strenuous activities in the military, to include walking, marching, lifting, pushing, and pulling. In a handwritten note at the bottom of the letter, it says, "Old letter but feel it is relative to back problems." ** In an April 2021 lay statement, the appellant wrote, "[The Veteran] served as a Combat Aidman (Medic) and a certified Rotor Wing and Wheel Mechanic. [He] was one of the soldiers that was privileged to serve in the 1st test Pilot Paramedic Program in the US Army. He assisted in rescuing injured soldiers causing injuries to his back. As his spouse and caretaker, I am fully aware that he had major health issues that were connected to his service and to his country because of the visible scars on his body." 2. Request additional information from the appellant regarding the duties involved with the Veteran's former occupations as a truck driver and a minister, and how each of his service-connected disabilities impacted his ability to perform those duties. 3. Then, readjudicate the remanded claims. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.