Citation Nr: 21031028 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-18 435 DATE: May 20, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) is granted, effective March 18, 2016. Entitlement to special monthly compensation (SMC) at the rate authorized by 38 U.S.C. § 1114(s) is granted, effective March 18, 2016. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current lumbar spine disability is proximately due to or the result a fall caused by dizziness associated with his service-connected residuals of TBI. 2. Since March 18, 2016, the evidence is at least evenly balanced as to whether the Veteran's service-connected psychiatric disorder alone prevented him from securing and following a substantially gainful occupation. 3. In addition to a single service-connected disability justifying a TDIU rating, the Veteran, since March 18, 2016, has had additional service-connected disabilities independently rated at a combined 60 percent or more, which are separate and distinct from the psychiatric disability which renders him unemployable. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Since March 18, 2016, the criteria for criteria for a total disability rating based on individual unemployability due to service-connected disorders (TDIU) have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321(b), 3.340, 4.16. 3. Since March 18, 2016, the criteria for special monthly compensation (SMC) at the housebound rate have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350(i), 4.16(a), 4.25; Bradley v. Peake, 22 Vet. App. 280, 293 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to September 1967. This case comes to the Board from a July 2016 decision of the Agency of Original Jurisdiction (AOJ). In March 2020, the Veteran and his spouse testified before the undersigned at a Travel Board hearing. A transcript of that hearing is of record. In May 2020, the Board issued a decision and remand, which granted an increased 70 percent disability rating for residuals of the Veteran's in-service traumatic brain injury (TBI) and granted a separate 50 percent rating for headaches associated with TBI. Finding that the Veteran had submitted new and material evidence, the Board also reopened a previously denied claim for service connection for a lumbar spine disability. The reopened lumbar spine claim, a separate service connection claim for an acquired psychiatric disorder, and the TDIU claim were remanded for further development. In March 2021, the AOJ granted service connection for posttraumatic stress disorder (PTSD) with major depression and generalized anxiety disorder, with initial disability rating of 70 percent, effective March 18, 2016. Because the psychiatric claim was resolved in his favor, the only remaining issues expressly raised by the Veteran are the lumbar spine and TDIU claims. Under 38 U.S.C. § 1114(s), however, a claimant may be entitled to receive special monthly compensation (SMC) at the "housebound rate" if he has at least one disability rated at 100 percent disabling and another disability or disabilities rated at least a combined 60 percent. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that a TDIU award can meet the requirement for a single disability rated at 100 percent, but only if the claimant is unable to work based on one single disability. See Id., 22 Vet. App. at 293-94. Because the record raises the issue of whether a single disability makes the Veteran unemployable, and also because his TDIU claim is moot unless a single disability makes him eligible to receive SMC at the housebound rate, see Herlehy v. Principi, 15 Vet. App. 33, 35 (2001), the Board will also consider the issue of whether the Veteran is eligible for SMC based on the existence of a single service-connected disability makes him unemployable. Service Connection for a Lumbar Spine Disability Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Depending on the facts of the individual case, service connection may be proven directly "by affirmatively showing inception or aggravation during service or through the application of statutory presumptions . . ." 38 C.F.R. § 3.303(a). A veteran may also establish a right to compensation on a secondary basis if the claimed disability is proximately due to, the result of, or aggravated by, a disease or injury which is service-connected. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 449 (1995). According to an x-ray report in his VA treatment records, the Veteran's lumbar spine is status post bilateral L3 laminectomies with L3-L4 posterior fusion and intervertebral spacer/graft placement. At the hearing, the Veteran testified that he injured his back in 1978, when he fell down a flight of stairs after experiencing dizziness. Dizziness has been documented as one of the residuals of his in-service TBI. If the Veteran's current back disability is proximately due to, or the result of, the dizziness associated with his TBI, he will be eligible to receive compensation for his back disability pursuant to 38 C.F.R. § 3.310. This evidence, as the May 2020 decision and remand explained, triggered the need for a medical opinion on the issue of secondary service connection. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Thus, the Board instructed the AOJ to schedule an examination of the lumbar spine and to obtain an opinion from the examiner addressing the probability that symptoms of TBI, specifically dizziness, caused a fall resulting in the current lumbar spine disability. The AOJ arranged the requested examination in October 2020. According to the examiner's report, the Veteran had degenerative arthritis, intervertebral disc disease and stenosis of the lumbar spine, status post spinal fusion. The examiner prepared an opinion in December 2020, which concludes that it was less likely than not that these disabilities were the secondary result of a service-connected disability, including dizziness related to TBI. This opinion acknowledges "documented headache and dizziness" following trauma to the head. But the medical records referred to multiple head injury incidents. According to the examiner, it was impossible for him "to separate which of the incidents were most likely, at least with 50 percent or greater probability, to have contributed to a sense of dizziness that, in turn, may have contributed to the claimant falling down a set of stairs in 1978 and injured his back. Was it the 1963 motor vehicle accident? The prior-to-service incident having struck his head on a post and resulting in 'severe headaches'? The non-active duty 1966 motorcycle accident with head injury where he was knocked unconscious 'for a few minutes'? The falling incident at Camp Pendleton in February 1967? Or the football injury in April 1967?" The examiner also noted the absence of medical records documenting treatment for a back disability before 2007. The Veteran submitted a letter from his former spouse, dated January 2018, which indicates that the author was married to the Veteran between 1969 and 1983. According to the letter, "In 1978, [the Veteran] suffered a dizzy spell while descending a staircase and subsequently fell injuring his back. We lived in Oklahoma at the time. Between the headaches and his back injury, he was completely debilitated and unable to work." The rationale for the unfavorable December 2020 opinion is inconsistent with Mittleider v. West, 11 Vet. App. 181, 182 (1992) (When differentiating the symptoms of a service-connected disability from the symptoms of a disability unrelated to service is impossible, the Board must assume that the symptoms are attributable to the service-connected disability). VA granted service-connected compensation for a cerebral concussion in May 1968. A June 2016 report from a VA physiatrist indicates that dizziness was one of the symptoms associated with the Veteran's in-service head injury. And because the examination report at the time he joined the Marines described his head as normal and his neurologic and psychiatric conditions as normal, the most recent examiner's suggestion that dizziness could be the result of a pre-service head injury conflicts with the statutory presumption that the Veteran was in sound condition when his service began. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). For these reasons, the unfavorable December 2020 opinion is inadequate to support a decision denying the lumbar spine claim. Nevertheless, "even if a medical opinion is inadequate to decide a claim, it does not follow that the opinion is entitled to absolutely no probative weight." Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). While the opinion's conclusion conflicts with the legal principles described above, the statement that both pre-service and in-service head injuries could explain dizziness which, by causing him to fall, could have caused the Veteran's lumbar spine disability carries the clear implication that the Veteran's theory of secondary service connection is a plausible one i.e., that his theory is consistent with the medical evidence. The January 2018 letter from the Veteran's former spouse, who apparently was married to him at the time of the injury in 1978, supports his claim. Although it would certainly be better to have contemporaneous medical records of treatment for the 1978 injury, the Veteran has testified that he did receive treatment at the time and, when he tried to obtain copies of the records, he was told that, because of their age, the records were no longer available. The long interval of time since the injury is a reasonable explanation for their absence. Under these circumstances, it is at least as likely as not that the Veteran developed his current lumbar spine disability as a result of a fall caused by his service-connected TBI symptoms. By law, the doubt resulting from this equipoise in the evidence is resolved in the appellant's favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only 'an approximate balance of positive and negative evidence'. . . , the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). Thus, service connection for a lumbar spine disability is granted. TDIU VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran's earned annual income is below the poverty threshold and in other limited circumstances. Id. Before the Board's favorable ruling on the lumbar spine claim, the Veteran had three service-connected disabilities: (1) residuals of TBI (rated as 70 percent disabling); (2) PTSD with major depression and generalized anxiety disorder (70 percent); (3) headaches associated with TBI (50 percent). For the period since March 18, 2016, the Veteran's combined disability rating has been 100 percent. Thus, even before the assignment of an initial rating for his lumbar spine disability, the Veteran satisfied the schedular criteria of 38 C.F.R. § 4.16(a). However, as the Board explained in the introduction to this decision, the Veteran's combined 100 percent rating makes his claim for TDIU moot, see Herlehy, 15 Vet. App. at 35, unless a single service-connected disability justifies an award of TDIU and additional service-connected disabilities authorize a combined rating of at least 60 percent. See Bradley, 22 Vet. App. at 293-94. In his TDIU application, the Veteran indicted he was unable to work because of his TBI residuals and spinal injury. According to the Veteran, the largest sum of money he received for paid work in a single year was $271,346 in 2001 when he was selling automobile warranties and insurance. He wrote that his disabilities first interfered with employment in January 2004. The application indicates that he last performed full-time work in April 2008 and that July 2008 was the date he first became too disabled to work. The other evidence is consistent with this information i.e., there is no evidence suggesting he performed paid work after 2008. Based on the Board's review of the record, it seems clear that his service-connected psychiatric disorders are associated with symptoms which would likely make it impossible for him to perform regular, paid work on a full-time basis. The November 2020 psychiatric examination questionnaire describes PTSD, major depressive disorder and generalized anxiety disorder as severe, chronic, and recurrent. According to the examiner, psychiatric symptoms caused occupational and social impairment with deficiencies in most areas, including work. The examiner listed symptoms including near-continuous panic and depression affecting the ability to function independently and appropriately, difficulty understanding complex commands, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a worklike setting, obsessional rituals which interfere with routine activities, spatial disorientation, and intermittent inability to perform activities of daily living including the maintenance of minimal personal hygiene. It is difficult to imagine that, when experiencing near-continuous panic and depression affecting the ability to function independently and appropriately, when observing obsessional rituals which interfere with routine activities, or when unable to perform activities of daily living including the maintenance of minimal personal hygiene, the Veteran would also be capable of securing and following a substantially gainful occupation. Thus, the Board finds that his service-connected psychiatric disorder alone has prevented the Veteran from securing and following a substantially gainful occupation since March 18, 2016 (the currently assigned effective date for his psychiatric disorder). For the same period, in addition to his psychiatric disorder, the Veteran has been awarded a 70 percent rating for TBI residuals and a 50 percent rating for headaches. Thus, the Veteran has been eligible to receive SMC at the rate authorized by 38 U.S.C. § 1114(s) since March 18, 2016. The TDIU application suggests that TBI symptoms and the Veteran's spinal injury first prevented him from performing full-time work in July 2008, several years before he filed his increased rating claim for service-connected residuals of TBI (March 18, 2016). His subsequent TDIU request is considered part of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). But there are at least two obstacles to awarding TDIU and SMC prior to March 18, 2016. First, as the Board has explained, his psychiatric disorder, which has an effective date of March 18, 2016, is the single disability which prevents him from working. The effective date of an award of TDIU cannot be earlier than the effective date of the award of service connection for the disability or disabilities on which the award of TDIU is based. See Delrio v. Wilkie, 32 Vet. App. 232, 236 (2019). Even if TDIU might be justified solely based on residuals of TBI, including headaches, the effective date of an increased rating can be earlier than the date the claim is received only if the relevant increase in disability took place within one year of the receipt of the claim. 38 U.S.C. § 5110(b)(3); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Because the Veteran's written TDIU application indicates that the relevant increase in disability occurred in July 2008, more than one year before he filed the pending claim (March 18, 2016), the law clearly does not authorize an effective date before March 18, 2016 for TDIU or for SMC at the housebound rate. Thus, both the Veteran's request for a TDIU rating and his inferred claim for SMC at the housebound rate are granted, effective March 18, 2016. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.