Citation Nr: 0811790 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-05 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for an acquired psychiatric disorder, including major depressive disorder, obsessive compulsive disorder, neuropsychiatric disorder, and anxiety. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. (The issue of entitlement to waiver of recovery of an overpayment of improved pension benefits is the subject of a separate Board decision.) ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The veteran served on active duty from June 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 and July 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The March 2002 rating decision denied reopening of a previously denied claim for service connection for a psychiatric disorder and denied a TDIU; the veteran's notice of disagreement was received in April 2002; a statement of the case was issued in September 2007; and the veteran's substantive appeal was received in October 2007. Once the veteran entered a timely notice of disagreement to the March 2002 rating decision denial of reopening, he did not need to take any further action until a statement of the case was issued. In this case, the statement of the case was not issued until September 2007, and the veteran entered a timely substantive appeal in October 2007. These actions perfected an appeal of the March 2002 rating decision denial on the issue of reopening a previously denied claim for service connection for a psychiatric disorder and TDIU. Notwithstanding reference to an October 2005 statement as a new claim to reopen, and subsequent July 2006 rating decision, the veteran's purported August 2006 notice of disagreement, and procedural identification of these issues in the certification of the appeal as having arisen from an October 2005 claim to reopen, the issue of reopening a previously denied claim for service connection for a psychiatric disorder actually arose from March 2001 claim that was adjudicated in the March 2002 rating decision. The July 2006 RO rating decision denied the veteran's claim for TDIU. The veteran's notice of disagreement to the TDIU denial was received in August 2006. The statement of the case was issued in September 2007. The veteran entered a timely substantive appeal in October 2007. FINDINGS OF FACT 1. A May 1974 rating decision denied service connection for a psychiatric disorder (nervous condition), finding no evidence of complaints or treatment for a nervous disorder in service; the veteran did not enter a notice of disagreement with this decision. 2. The evidence associated with the claims file subsequent to the May 1974 rating decision denial of service connection for a psychiatric disorder (nervous condition), when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the veteran's claim for service connection a psychiatric disorder, variously claimed and diagnosed, and does not raise a reasonable possibility of substantiating the claim. 3. Service connection is currently in effect for pilonidal cyst, rated as noncompensably (0 percent) disabling, residuals of fracture of the right ring finger, rated as noncompensably disabling, and residuals of jaw fracture, rated as noncompensably disabling. 4. The veteran's service-connected disabilities are not of such severity as to render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The May 1974 rating decision that denied service connection for a psychiatric disorder (nervous condition) became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.302, 20.1103 (2007). 2. The evidence associated with the claims file subsequent to the May 1974 rating decision that denied service connection for a psychiatric disorder (nervous condition) is not new and material, and service connection for a psychiatric disorder, variously claimed and diagnosed, is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). 3. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 3.340, 3.341, 4.15, 4.16, 4.18 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). The Board finds that VA has met the notice and duty to assist provisions of the VCAA. Letters from the RO dated in May 2001, June 2005, October 2005, and July 2007 satisfied the duty to notify provisions. The veteran was apprised of the information and evidence necessary to establish claims to reopen previously denied claim for service connection for a psychiatric disorder, and for TDIU. The veteran was also advised of the evidence that VA would seek to provide; and of the information and evidence that he was expected to provide. In addition, he was specifically requested to provide any evidence in his possession that would support his claims. See 38 C.F.R. § 3.159(b)(1). The duty to notify provisions of the statute and implementing regulations apply to claims to reopen based on new and material evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The May 2001 letter specifically advised the veteran of the May 1974 prior final denial of service connection for a psychiatric disorder, the basis of the prior final denial, and what information or evidence is necessary to reopen the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Subsequent to the various notices provided to the veteran, VA readjudicated the veteran's claims and issued a statement of the case in September 2007 and a supplemental statement of the case in January 2008. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In the present appeal, such notice was provided to the veteran in the July 2007 letter. Moreover, because the claim to reopen service connection is being denied, and no effective date or rating percentage will be assigned regarding the issue of service connection for a psychiatric disorder, the Board finds that there can be no possibility of any prejudice to the appellant under the holding in Dingess, supra. VA has a duty to assist the veteran in the development of claims. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Regarding the duty to assist, VA reports of hospitalization and VA compensation examination reports are a part of the record. The veteran has submitted private medical evidence. In written responses received from the veteran in March 2006 and July 2007, the veteran indicated that he had no other information or relevant evidence to give VA to substantiate his claims. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of the claims. The Board is satisfied that VA has sufficiently discharged its duty in this matter. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Reopening Service Connection for Psychiatric Disorder In this case, in the March 2002 rating decision on appeal, the RO found that new and material evidence had not been received since a May 1974 prior final rating decision. The Board has a legal duty to address the "new and material evidence" requirement regardless of the actions of the RO. If the Board finds that no new and material evidence has been submitted, it is bound by a statutory mandate not to consider the merits of the case. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303(a) (2007). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). No compensation shall be paid if the disability resulting from injury or disease in service is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301 (2007). Drug usage. The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. (See paragraph (d) of this section regarding service connection where disability or death is a result of abuse of drugs.) Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(3) (2007). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. (1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. (3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n) (2007). The law provides that a claimant may reopen a previously final adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the U.S. Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant the claim. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is presented or secured with respect to a claim that has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. § 5108. In this case, a May 1974 rating decision denied service connection for a psychiatric disorder (nervous condition), finding no evidence of complaints or treatment for a nervous disorder in service. Because the veteran did not enter a notice of disagreement with this decision within one year of mailing of notice of the decision, the May 1974 rating decision denial of service connection for a psychiatric disorder (nervous condition) became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. The evidence of record at the time of the May 1974 rating decision included service medical records that were negative for complaints, findings, diagnosis, or treatment of a psychiatric disorder, including a service separation examination report that found the veteran to be psychiatrically normal. The evidence also included a March to April 1971 VA report of hospitalization that showed that the veteran was treated for drug dependency, and gave a six year history of drug dependency. The additional evidence received since the May 1974 final rating decision includes private treatment records that show various psychiatric diagnoses of drug dependence and paranoid type schizophrenia; evidence of psychiatric treatment since 1996 for symptoms reported to have begun in 1995, including June and December 1996 private medical opinions from Jose Juarbe, M.D., that the veteran's diagnosed severe major depression that started in 1995 was related to uncertainty of job security at work in 1995; evidence that the veteran applied for disability retirement from work beginning in June 1996, and retired from work in 1996, including the veteran's September 1996 claim for disability for work-related onset of psychiatric disorders in October 1995. The additional evidence also includes a May 1998 VA mental disorders examination report that shows a long history of drug dependency and later hospitalizations for alcohol dependency; current Axis I diagnoses of polysubstance dependence (in alleged remission) and dysthymia, and Axis II diagnosis of some anti-social personality features. Subsequent psychiatric treatment records reflect a history of hospitalization in 1975 or 1976 for schizophrenia; a history of onset of work-related difficulties and psychiatric symptoms since late 1994 or 1995; and treatment since 1996 for psychiatric disorder that includes symptoms of depression and anxiety, variously diagnosed as schizophrenia, dysthymia, obsessive compulsive disorder, and anxiety. After a review of all the evidence of record, lay and medical, whether or not specifically mentioned in this decision, the Board finds that the evidence associated with the claims file subsequent to the May 1974 decision that was not previously submitted to agency decisionmakers, when considered with previous evidence of record, does not relate to an unestablished fact of in-service injury or disease, including psychiatric injury or disease, including in-service psychiatric symptoms. The additional evidence relates all of the veteran's psychiatric symptomatology to drug dependency which, if occurred during service, would constitute willful misconduct in service, so may not be considered an in-service injury or disease for disability compensation purposes; or to post-service job-related problems in late 1994 or 1995 that led to depression; or to a personality disorder, which is not a disability for VA disability compensation purposes according to VA regulations 38 C.F.R. § 3.303(c) (2007) and 38 C.F.R. § 4.9 (2007). Because the additional evidence does not relate to an unestablished fact of in-service injury or disease, including psychiatric symptoms of disease, that is necessary to substantiate the veteran's claim for service connection for a psychiatric disorder, the Board finds that the evidence associated with the claims file subsequent to the May 1974 rating decision is not new and material, and a previously denied claim for service connection for a psychiatric disorder (nervous condition), variously claimed and diagnosed, is not reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). TDIU The veteran contends generally that, due to his service- connected disabilities, he is unable to obtain or maintain substantially gainful employment. He specifically contends that a psychiatric disorder, which he contends is related to service, rendered him unemployable in 1996. In order to establish entitlement to a TDIU due to service- connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry in determining whether a veteran is entitled to a TDIU is whether service- connected disabilities alone are of sufficient severity to produce unemployability. In determining whether the veteran is entitled to a TDIU, neither the veteran's non-service- connected disabilities nor advanced age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether, as a result of service-connected disabilities alone, the veteran is unable to secure or follow any form of substantially gainful occupation that is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; see Hatlestad v. Brown, 5 Vet. App. 524 (1993). VA regulations establish objective and subjective standards for an award of TDIU. When the veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned where the veteran has a single service-connected disability that is rated as 60 percent disabling or more; or when there are two or more disabilities, at least one disability is rated at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, under the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service- connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). In this case, the veteran does not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU. The veteran's service-connected disabilities are pilonidal cyst, rated as noncompensably (0 percent) disabling, residuals of fracture of the right ring finger, rated as noncompensably disabling, and residuals of jaw fracture, rated as noncompensably disabling. The combined disability rating is 0 percent. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. In this case, the evidence shows that the veteran was an electrical power line specialist, or electrician, in service from 1966 to 1970. After service, he was a federal employee, VA benefits counselor, from May 1979 to March 1996, when he retired. Much of the veteran's occupational impairment is shown by the weight of the competent evidence to be related to non- service-connected diagnosed disabilities or disorders, including psychiatric disorders for which he has claimed service connection, and for which service connection (or reopening) has been denied. The veteran's claim for service connection for a psychiatric disorder is final, and has not been reopened. The evidence of record shows the reason for the veteran's unemployability is due primarily to non- service-connected psychiatric disorders. For example, June and December 1996 private medical opinions from Jose Juarbe, M.D., reflect that the veteran's diagnosed severe major depression that started in 1995 was related to uncertainty of job security at work in 1995, and was the cause of the veteran's inability to engage in any gainful activity. The veteran himself has claimed and asserted that psychiatric symptoms that arose in late 1994 or 1995 during his federal employment caused him to be unemployable. Because such psychiatric symptoms are attributed to non-service-connected diagnosed psychiatric disorders, such assertions tend to weigh against his claim for a TDIU. Such a contention does not tend to show that the veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment. Finally, the evidence does not show that a referral for extraschedular rating is warranted. This case does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b). On the question of whether there is marked interference with employment, the veteran is retired, and the industrial impairment about which the veteran primarily complains is caused by his non-service- connected psychiatric disorders. The veteran has not been hospitalized for any of his service-connected disabilities. The regular rating schedule is adequate to rate the veteran's complaints or minimal clinical findings that include some loss of motion of the finger and hand, including due to pain, fatigue, weakness, and lack of endurance. The schedular rating criteria includes provisions for such symptoms. See 38 C.F.R. §§ 4.40, 4.45 (207). The United States Court of Appeals for Veterans Claims (Court) has held that, in order for a veteran to prevail in a claim for individual unemployability benefits, it is necessary that the record reflect some factor that takes his case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). For these reasons, the Board finds that the evidence shows that the veteran's service-connected disabilities, each rated as noncompensably disabling, are not of such severity as to render him unable to obtain or maintain substantially gainful employment. For these reasons, the Board finds that the preponderance of the evidence is against the claim for TDIU; there remains no reasonable doubt to be resolved; and TDIU is not warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence has not been received, and a previously denied claim for service connection a psychiatric disorder, variously claimed and diagnosed, is not reopened. A TDIU due to service-connected disabilities is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs