Citation Nr: 1032996 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 06-33 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected residuals of a through and through gunshot wound to the right abdominal wall and through the lumbar region with muscle damage to group XIX. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1947 to June 1949. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In June 2003, the RO denied entitlement to service connection for degenerative joint disease, L4-5 bulging disc, lumbar levoscoliosis, and bilateral degenerative sacroiliitis. In June 2006, this issue was remanded for issuance of a statement of the case (SOC). In August 2006, the RO denied entitlement to a TDIU rating. In May 2007, the RO denied service connection for depression, anxiety, a gastrointestinal condition and a cervical and thoracolumbar spine condition, all as secondary to service-connected residuals of a through and through gunshot wound to the right abdominal wall and through the lumbar region with muscle damage to group XIX. In March 2007, the appellant and his wife testified at a hearing before a Decision Review Officer (DRO); a copy of the transcript is associated with the record. In August 2009, the Board denied service connection for a gastrointestinal condition and a cervical and thoracolumbar spine condition, all as secondary to service-connected residuals of a through and through gunshot wound to the right abdominal wall and through the lumbar region with muscle damage to group XIX and remanded the issues of entitlement to service connection for a psychiatric disorder, depression, anxiety, to include as secondary to service-connected residuals of a through and through gunshot wound to the right abdominal wall and through the lumbar region with muscle damage to group XIX and entitlement to a TDIU rating, for additional development. These issues are again before the Board for further appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There is no competent medical evidence showing that the Veteran has an acquired psychiatric disorder which is related to service or is a result of, or proximately due to, a service- connected disability. 2. The Veteran has a college education and last worked in 1999 as a medical technician. The preponderance of evidence in the record shows that he is retired due to his age. 3. The medical and other evidence of record does not indicate the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education, training, and occupational experience. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was not incurred in, or aggravated by, active military service, and is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2009). 2. The criteria for entitlement to a TDIU due to service- connected disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 3.655, 4.15, 4.16, 4.19 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of letters sent to the appellant in May 2006 and February 2007 that fully addressed all notice elements and were sent prior to the initial AOJ decision in this matter. The letters informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice was not provided until May 2006, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA medical records and examination reports, non-VA medical records and lay statements have been associated with the record. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its August 2009 remand. Specifically, the RO was instructed to provide the Veteran with a VA psychiatric examination to determine if he had an acquired psychiatric disorder secondary to his service- connected disabilities. The Board further finds that the VA examination report substantially complies with the Board's August 2007 remand instructions. Stegall. Significantly, neither the appellant nor his or her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). Service Connection Under the applicable criteria, service connection may be granted for a disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in-service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that an appellant had a chronic condition in service or during the applicable presumptive period. Service connection also may 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). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Court has also held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. The Veteran's service treatment records do not reflect any treatment for or diagnosis of an acquired psychiatric disorder. A February 2007 VA examination report shows that the Veteran had a depressed mood, loneliness, and anxiety which he indicated had been present for a long time, but had worsened after the death of his wife in November 2005. He also indicated that he began feeling depressed after he broke up with his girlfriend. The diagnosis was depressive disorder, not otherwise specified. The examiner opined that the Veteran's current neuropsychiatric is not caused by or a result of the service-connected right upper abdominal scar, left lateral low back scar and left abdominal wall scar. The examiner noted that there was no evidence of psychiatric complaints, finings or treatment prior to military service, during service or after discharge from service. The examiner further noted that the Veteran sought psychiatric treatment in 2006, fifty-seven years after the military discharge, after he broke up with his lady friend. He reported that he became depressed after his wife died. A December 2009 VA examination report shows that the Veteran indicated that he had been feeling depressed for approximately 10 to 15 years, which was aggravated after his wife died 4 years prior. He said his depression was occasional and that it was mild to moderate. The diagnosis was depressive disorder not otherwise specified, per record. The examiner opined that the Veteran's neuropsychiatric condition was not caused by or a result of his time in service. In addition, the examiner concluded that his neuropsychiatric condition was less likely than not caused by or a result of his service-connected gunshot wound and scar and was less likely than not permanently aggravated by his service-connected gunshot wound and related scar. The examiner noted that the Veteran sought psychiatric treatment in 2006, after a breakup with his girlfriend. The examiner noted that the Veteran reported that he developed the psychiatric symptoms ten to fifteen years earlier, but that they were aggravated by the death of his wife in November 2005. In addition, when the Veteran was seen in 2006, he indicated that his symptoms had started three weeks before. The examiner noted that the record reflected inconsistencies with the onset of his depressive symptoms, but that all symptoms were consistent with a depressive condition and the causes identified by the Veteran were the breakup with his girlfriend and the death of his wife. Based upon the evidence of record, the Board finds that service connection is not warranted for the Veteran's acquired psychiatric disorder, on either a direct or a secondary basis. In terms of direct service connection, the Veteran's service treatment records do not reflect any treatment for or a diagnosis of an acquired psychiatric disorder. In fact, the record reflects that the first post-service psychiatric treatment was in 2006, fifty-seven years after his discharge from service. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As such, with no evidence of an in-service manifestation of an acquired psychiatric disorder and no medical nexus between his current psychiatric disorder and his time on active duty, service connection cannot be granted. Brammer. With regard to secondary service connection, there is no evidence that the Veteran's acquired psychiatric disorder, diagnosed as depressive disorder not otherwise specified, is caused by or aggravated by a service-connected disability. In fact, the December 2009 VA examiner dissociated his depression from his time on active duty, instead linking it to the death of his wife and the breakup with a girlfriend. The Veteran himself indicated that these situations were the source of his depression. As such, with no medical evidence linking the Veteran's acquired psychiatric disorder with his service-connected disabilities, there is no basis upon which to grant service connection on a secondary basis. Allen. 38 C.F.R. § 3.310. As noted, the Veteran has contended that he had depression and anxiety which is a result of his service-connected disabilities; however, the Veteran, as a layperson, is not competent to render an opinion regarding medical diagnosis or medical opinion on etiology. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Entitlement to a TDIU rating Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran is service-connected for residuals of a through and through gunshot wound to the right abdominal wall and through the lumbar region with muscle damage to group XIX at a 50 percent disability rating, for a right upper abdomen scar at a 10 percent disability rating, for a left abdominal wall scar at a 10 percent disability rating and for a left lateral low back scar at a 10 percent disability rating, for a combined rating of 60 percent. This disability rating fails to meet the percentage requirements of 38 C.F.R. § 4.16(a). When a Veteran does not meet the rating criteria for a TDIU rating under 38 C.F.R. § 4.16(a), they are nevertheless to be considered for a TDIU rating under 38 C.F.R. § 4.16(b). Under 38 C.F.R. § 4.16(b), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. In the present case, there is no evidence that the Veteran is unable to secure or follow substantially gainful occupation due to his service-connected residuals of a gunshot wound and scars. A February 2007 VA stomach examination report shows that the Veteran's service-connected gunshot wound had not left any sequelae, that the Veteran had retired in 1996 and that he was eligible by reason of age and work. A February 2007 muscles examination report shows that the Veteran had retired in June 1999, due to his service-connected abdominal gunshot wound. The examiner noted that the Veteran had studied to become a medical technologist, and that, if he was still working, his service-connected disability alone would limit his performance because he would be unable to lift more than fifty pounds, bend forward or carry more than fifty pounds. The examiner also noted that the Veteran would be able to perform his activities at a computer station. Based upon the evidence of record, the Board finds that the Veteran's service-connected disabilities do not preclude the Veteran from obtaining and sustaining substantially gainful employment. While the Veteran's service-connected disabilities would limit him from heavy lifting and bending over, he would have the ability to work at a computer. The claims file shows evidence that he had studied to become a medical technician and that he worked in this field for several years. There is no indication in that this position would require bending or lifting or carrying more than fifty pounds. Therefore, pursuant to 38 C.F.R. § 4.16, a TDIU is not warranted, and the Veteran's claim is denied. Since the evidence does not show that his service- connected disability precludes suitable gainful employment, referral for consideration of an extra-schedular TDIU is not warranted. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); 38 C.F.R. § 4.16(b). As a preponderance of the evidence is against the award of a TDIU, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55- 57 (1991). ORDER Service connection for an acquired psychiatric disorder, to include as secondary to service-connected residuals of a through and through gunshot wound to the right abdominal wall and through the lumbar region with muscle damage to group XIX, is denied. A TDIU rating due to service-connected disabilities is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs