Citation Nr: 1332194 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-23 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as secondary to a service-connected disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant is represented by: Eric A. Gang, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from January to August 1979. This matter is on appeal from the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in April 2011. A transcript of the hearing is of record. In a decision dated in June 2012, the Board denied the issues listed above. The Veteran appealed that decision to the Veterans Claims Court. In January 2013, pursuant to a Joint Motion for Remand, the Court Clerk vacated the Board's decision, and remanded these issues back to the Board for development consistent with the Joint Motion. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the Virtual VA and VBMS system to insure a total review of the evidence. The issue of entitlement to TDIU is addressed in the REMAND below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT With resolution of all reasonable doubt in the Veteran's favor, an acquired psychiatric disorder is etiologically related to service-connected cold injuries and Raynaud's disease. CONCLUSION OF LAW An acquired psychiatric disorder is proximately due to or a result of a service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for an acquired psychiatric disorder, variously diagnosed. He does not contend that an acquired psychiatric disorder had onset in service or that it is directly related to service. His contention is that a current acquired psychiatric disorder was caused by pain associated with his service-connected disabilities. Service connection is in effect for residuals of left and right hand cold injuries with secondary Raynaud's phenomenon. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection may also be established for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App.439, 448 (1995). After a review of all of the evidence, the Board finds that the evidence in favor of a relationship between the Veteran's service-connected disabilities and an acquired psychiatric disorder has reached the point of relative equipoise with the evidence against such a relationship. The primary evidence against the asserted relationship comes from an October 2008 VA examination report, which includes the opinion that it is less likely than not that the Veteran's cold injury could have caused his diagnosed psychotic depressive symptoms. The examiner reflected that perhaps someone could be saddened by an injury, but psychosis was not usually the outcome of cold injuries. Additionally, there was a history of schizophrenia in the Veteran's family and his father died of alcoholism, so the examiner felt that there was probably a biological basis for some of the Veteran's psychiatric symptoms. In support of his claim, the Veteran submitted medical opinions by VA clinicians. An August 2008 medical opinion reflected that the Veteran had chronic depression that had developed with chronic pain in his hands following frostbite during service, and that it was more likely than not a result of the frostbite. An April 2011 medical opinion from a VA physician noted that the Veteran was under his care for depressive disorder. The physician reported that, during service the Veteran developed frostbite of his hands which caused pain and weakness and loss of sensation. Despite psychotherapy and medication, he remained severely depressed, anxious, and withdrawn. A diagnosis of depressive disorder NOS, was provided. Subsequent to the January 2013 Joint Motion, the Veteran's attorney submitted an opinion from a private psychiatrist, dated in August 2013. The private psychiatrist opined that it was more likely than not that, as a result of underlying problems with frostbite and pain problems, the Veteran developed comorbid psychiatric symptoms. He further opined that, with a reasonable degree of certainty, the Veteran's hand injuries resulted in his significant ongoing and current psychiatric problems, which he described as depressive symptomatology with a psychotic component. The rationale provided by the private psychiatrist is essentially that there is a close interrelationship between the portions of the brain (limbic system) responsible for processing pain and emotions. Moreover, the same neurotransmitters (serotonin and norepinephrine) are involved in regulation of mood and transmission of pain sensation. When pain is severe and chronic, as with Raynaud's disease, "it leads to changes in the functioning of the brain." This results in a cycle in which pain worsens depression, which in turn worsens the sensation of pain. The private psychiatrist noted that this effect was not immediate; it took time for chronic pain to develop following cold injury, and it took further time for the chronic pain to have an impact on the balance of neurotransmitters in the brain with resulting onset of psychiatric symptoms. The private psychiatrist directly disagreed with the October 2008 VA examiner regarding situational stressors, such as the Veteran's father dying and his mother having a stroke, as well as his being injured at work, having brought on the Veteran's psychiatric symptoms, noting that these stressors may cause an adjustment disorder, which would not necessarily be chronic; however, the Veteran's symptoms began much earlier, in 1980, and have persisted. He also disagreed with diagnoses of malingering rendered in VA hospital records, noting the inconsistency between this diagnosis and the prescription by the same clinician of a "heavy-duty major tranquilizer, Risperdal." The Board acknowledges several factual errors in the August 2013 report, but finds that they do not significantly degrade its probative weight. The private psychiatrist noted that the Veteran spent 6 months in the hospital following his in-service cold injury, and that he was subsequently discharged due to this disability. A review of the available records reveals that no hospitalization for frostbite was ever confirmed. In fact, the Veteran has been inconsistent regarding this assertion, telling a VA examiner in March 1980 that he had spent 1 month in the hospital and telling a VA clinician in April 1980 that he had spent 2 months in the hospital. In addition, available service personnel records reveal that the Veteran was not discharged due to disability, but due to repeated failure to pass basic proficiency examinations for advanced infantry training. The primary deficiency noted was a lack of English proficiency. Nevertheless, these factual errors are not material to the underlying opinion. While the Veteran was not discharged due to his service-connected disabilities, he was treated shortly after the cold injuries, at which time, psychiatric problems were at least suspected. Also supportive of the asserted nexus, the Veteran submitted an undated treatment report, which the Board finds was conducted 6 months after the cold injury, based on the examiner's notation to this effect, thus placing the date around or about July 1979. He complained of recurrent sharp pain in both hands. Examination was negative with the exception of cold, tender, and sweaty hands. The examiner found that there was no pathology involving the hands, but recommended a psychiatric evaluation. Also, an April 1980 treatment note reveals that the Veteran was observed to be anxious, nervous, and depressed when examined. These findings were noted by the August 2013 private psychiatrist in support of his opinion, and the Board finds that they support his opinion. Thus, the essential factual information upon which the opinion was based is correct. The Board acknowledges that, while there are numerous psychiatric diagnoses of record, the August 2013 private physician included only the diagnosis of personality change due to chronic pain, Raynaud's syndrome and frostbite of the fingers. The Board emphasizes that, despite the word "personality," the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) does not categorize this diagnosis (310.1) as a personality disorder. This is underscored by the fact that the private psychiatrist listed the diagnosis as an Axis I diagnosis, not under Axis II, and by the fact that, according to the private psychiatrist, the disorder was caused by service, and thus acquired, rather than a congenital condition. Thus, there appears to be no prohibition against establishing service connection for this diagnosis. In sum, while there is a VA opinion that is against the asserted relationship between the service-connected frost-bite residuals and the incurrence of an acquired psychiatric disorder, there is also significant competent and probative evidence in favor of the asserted relationship. In such instances where the evidence for and against a matter to be decided by the Board is in relative equipoise, all reasonable doubt must be resolved in favor of the claim. Accordingly, the Board concludes that service connection for an acquired psychiatric disorder is warranted. ORDER Service connection for an acquired psychiatric disorder is granted REMAND As the Board has granted service connection for an acquired psychiatric disorder, adjudication of the issue of entitlement to TDIU must be deferred pending the assignment of a disability rating by the RO, as this will likely impact the Veteran's schedular entitlement. In addition, the Board notes that there may be outstanding treatment records for the service-connected acquired psychiatric disorder, which, if they exist, are presumed to be pertinent to the issue of TDIU entitlement. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA clinical records from the New York Harbor Healthcare System for the period from January 2006 to March 2007, in particular, treatment records from the VA psychiatrist who provided the October 2007 and August 2008 opinions. 2. Readjudicate the remanded claim of entitlement to TDIU. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his attorney should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs