Citation Nr: 1301732 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-21 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include major depressive disorder, dysthymia, and adjustment disorder with mixed emotional features, claimed on both a direct basis and as secondary to service-connected disabilities. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from July 1965 through August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada in December 2008, which denied the Veteran's claim for a TDIU, and in August 2010, which denied service connection for depression. Timely notices of disagreement (NODs) as to those issues were received in March 2009 and September 2010 respectively. After a statement of the case (SOC) as to the Veteran's TDIU claim was issued in March 2010, the Veteran perfected his appeal as to that issue in May 2010, via VA Form 9 substantive appeal. After an SOC and SSOC regarding the Veteran's claim for service connection for depression were issued in January 2011 and April 2011, the Veteran perfected his appeal as to that issue in an April 2011 substantive appeal. The Veteran testified during a January 2011 hearing before a decision review officer (DRO) and during a May 2011 Board hearing that was held before the undersigned Veterans Law Judge. Transcripts of those proceedings are associated with the record. This appeal also initially included the issues of entitlement to service connection for sleep apnea and to higher disability ratings for peripheral neuropathies in the right and left upper extremities. Although the Veteran's appeal as to those issues was initiated by a timely June 2010 NOD, the appeal as to those issues was never perfected by a substantive appeal. Accordingly, those issues are not before the Board. The issues of whether new and material evidence was received to reopen a claim for service connection for sleep apnea; entitlement to an increased disability rating for tinea versicolor, rated as 60 percent disabling; and entitlement to an increased disability rating for diabetes mellitus, type II, rated as 20 percent disabling have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ) (see statements from the Veteran dated August 2011 and September 2011). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depressive disorder, dysthymia, and adjustment disorder with mixed emotional features, claimed on both a direct basis and as secondary to service-connected tinea versicolor is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From October 4, 2006, the Veteran's combined disability rating met the requirements for a schedular TDIU under 38 C.F.R. § 4.16(a). 2. From September 14, 2010, the Veteran's combined disability rating has been 100 percent. 3. The evidence of record shows that, from February 29, 2008, the Veteran's service-connected tinea versicolor has rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met for the period from February 29, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the Veteran's entitlement to a TDIU, a September 2009 post-rating letter provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim, what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. This letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the September 2009 letter, and opportunity for the Veteran to respond, a March 2010 SOC and SSOCs issued in March 2010, January 2011, and April 2011 reflect readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records; VA treatment records; relevant post-service private treatment records; employment information; social security records; lay statements from the Veteran, his spouse, brother, friends, and supervisors; and claims submissions have been associated with the record. VA psychiatric examinations were afforded to the Veteran in November 2007 and May 2010 to determine the symptoms and severity of his PTSD. These examinations, along with the other evidence of record, are fully adequate for the purposes of determining the extent of the Veteran's disability in light of the applicable diagnostic criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records, service personnel records, and claims submissions have been associated with the record. The Veteran's identified private and VA treatment records have also been obtained and associated with the record. VA examinations of the Veteran's disabilities were afforded to the Veteran in August 2008, October 2008, October 2009, January 2010, and March 2011. These examinations, along with the other evidence of record, are fully adequate for the purposes of determining the extent of the Veteran's disability in light of the applicable diagnostic criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. TDIU Under VA laws and regulations, a TDIU may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience; however, age and any impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned even where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining the above, the following will be considered as one disability: 1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor set forth under 38 C.F.R. § 4.26, if applicable; 2) disabilities resulting from common etiology or a single accident; 3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; 4) multiple injuries incurred in action; or 5) multiple disabilities incurred as a prisoner of war. In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). The Veteran's informal claim for a TDIU was first received by VA in November 2007. A claim for a TDIU is considered a claim for an increased rating. See Hurd v. West, 13 Vet. App. 449 (2000) (holding that a claim for TDIU is a claim for increased compensation and the effective date rules for increased compensation apply to a TDIU claim); see also Norris v. West, 12 Vet. App. 413 (1999). The effective date of an increased rating is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim for such increase is received within one year from that date. If the claim was received more than one year from the date that it may be ascertained that the disability increased, then the effective date may be no earlier than the date of the claim itself. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o). By virtue of the RO's December 2011 rating decision, which granted service connection for PTSD effective September 14, 2010 and assigned a 50 percent initial disability rating for PTSD, the Veteran's combined disability rating has been 100 percent since September 14, 2010. In that regard, in addition to the aforementioned PTSD, the Veteran's service-connected disabilities include: tinea versicolor, rated as 60 percent disabling; seizure disorder, rated as 40 percent disabling; diabetes mellitus, type II, rated as 20 percent disabling; peripheral neuropathies of the bilateral lower extremities, each rated as 20 percent disabling; peripheral neuropathies of the bilateral upper extremities, each rated as 10 percent disabling; and erectile dysfunction, rated as non-compensable (zero percent). The Board notes that the Veteran's combined disability rating, at all times during that period, met the threshold regulatory requirement for the award of a schedular TDIU under 38 C.F.R. § 4.16(a). In support of his claim for a TDIU, the Veteran has alleged in his claims submissions and during his DRO and Board hearings that his service-connected tinea versicolor caused consistently declining work performance, and, was the impetus for his retirement in February 2008. In that regard, during his May 2011 Board hearing, the Veteran testified that he was employed as a cook at a VA medical facility. He testified that during that time, he experienced itching which caused him to constantly scratch parts of his body. The Veteran testified further that his scratching was observed by co-workers and customers, who complained to his supervisors. The Veteran's allegations and testimony are supported by March 2008 statements from his supervisors, spouse, brother, and friends. Most notably, the statements from the Veteran's supervisors attest that the Veteran's constant scratching resulted in complaints from his co-workers and customers, which in turn, prevented the Veteran from being able to perform actual food preparation work or to perform tasks in view of the customers. The statements from the Veteran's supervisors state further that the Veteran's inability to perform such work prevented him from applying for higher positions, and also, was the likely reason for the Veteran's retirement in February 2008. In his formal March 2008 TDIU application, the Veteran identified his retirement date as being February 29, 2008. He reported education through four years of college, with training in business. In a July 2009 statement, however, he related that he had been working in the food preparation industry beginning during active duty service in 1965 and over the entirety of his post-service career. Consistent with the above assertions, the Veteran's post-service treatment records, which are dated from 1985 through 2011, document chronic complaints of skin rashes and itching associated with tinea versicolor. During an August 2008 VA examination which was performed only six months after the Veteran's retirement from his occupation as a cook, the Veteran stated that he did not believe he was able to work around other people due to complaints regarding his constant itching and scratching. Indeed, a physical examination at that time revealed the presence of rashes with concurrent scratch marks over the Veteran's back, chest, abdomen, buttocks, both arms, and both legs. During his May 2011 Board hearing, he testified that he continued to be unable to find a job, primarily in the field of home healthcare, based on the severity of his skin condition. Regarding his ongoing inability to find employment, he indicated his belief that he was not being hired because he was reporting problems associated with his skin disability on his job applications. In view of the foregoing, the Board finds that the symptoms associated with the Veteran's tinea versicolor have rendered the Veteran unable to secure or follow a substantially gainful occupation. In that regard, the evidence shows that constant itching resulting from the Veteran's disability has rendered him unable to work either in a public setting or among co-workers. As attested to by the Veteran's supervisors, the Veteran's symptoms have rendered him particularly unsuited for most tasks associated with the food preparation industry. Although the Veteran has acknowledged a high degree of education in business, given that his entire military and post-service career has been in the area of food service, it would appear unlikely that he would be able to secure employment in business due to the significant effects of his skin condition. Accordingly, the Veteran is entitled to a TDIU for the period from February 29, 2008. TDIU, prior to February 28, 2008 is not warranted, as the record reflects that he was actually working, and therefore, no unemployable. To that extent, this appeal is granted. ORDER Entitlement to a TDIU is granted, effective February 29, 2008, based solely on the Veteran's service-connected tinea versicolor, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Board finds that further development is necessary prior to final adjudication of the issue remaining on appeal. As noted above, a December 2011 rating decision awarded the Veteran service connection for PTSD. Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims held that where the veteran has specifically requested service connection for PTSD, however, the evidence suggests other psychiatric diagnoses, the veteran's claim may not be construed narrowly as a claim for service connection for PTSD, but rather, should be considered more broadly as a claim for a psychiatric disorder. As discussed more fully below, the evidence in this case suggests multiple other psychiatric diagnoses which may co-exist with the service-connected PTSD. Therefore, applying the principles expressed by the Court in Clemons, the Board maintains jurisdiction over the issue of whether the Veteran is entitled to service connection for an acquired psychiatric disorder other than PTSD. During a November 1985 VA examination, the Veteran reported that approximately five or six years before, during service, he became worried, depressed, and "shaky" after his spouse suffered multiple miscarriages. An August 1986 private record from Dr. S.A.S. notes that the Veteran had a psychiatric history of emotional depression neurosis dating back to 1975, during his active duty service. In a December 2010 statement, the Veteran's spouse related multiple events that occurred during service, including the deaths of the Veteran's parents, the aforementioned miscarriages, and the passing of their infant daughter due to brain cancer. According to the Veteran's spouse, the Veteran's period of service "was a very stressful time" and caused the Veteran to become worried and depressed. VA treatment records dated February 2009 reflect that the Veteran began seeking periodic psychiatric treatment at that time for complaints of sadness which the Veteran attributed to the recent loss of his job. Reported symptoms at that time included low motivation, daily crying spells, feelings of helplessness and hopelessness, morbid thoughts, occasional thoughts of killing himself, low self esteem, feelings of uncertainty about the future, anhedonia, anergia, irritability, being withdrawn, feelings of being overwhelmed, insomnia, poor concentration, forgetfulness, anxiety, and visual hallucinations. Based upon the Veteran's reported history, symptoms, and findings from a mental status examination, the Veteran was diagnosed with major depressive disorder. Subsequent VA treatment records dated through March 2011 reflect a diagnosis major depressive disorder diagnosis. Social security records include handwritten reports from Dr. D.D., dated March 1988 and June 1988. These records reflect diagnosis of adjustment disorder with mixed emotional features that were felt to be attributable to the Veteran's spouse's miscarriages during the Veteran's service and to the death of the Veteran's infant daughter. The Veteran previously has been afforded three VA psychiatric examinations. An October 2009 VA examination confirmed a major depressive disorder diagnosis; however, did not provide an opinion as to whether that disorder was either incurred during service or was related to any of his service-connected disabilities. Also, the examination was performed without a review of the claims file; hence, the conclusions expressed therein are based upon an incomplete medical history. A January 2010 VA examination report noted that the Veteran was "obviously clinically depressed" and provided a diagnosis of dysthymic disorder, late onset, with associated anxiety. An April 2010 addendum opinion from the same examiner who performed the January 2010 examination expressed that the Veteran's depression was not brought on by his service-connected medical conditions. However, no rationale or explanation for that opinion was offered by the examiner. Moreover, the examiner did not offer an opinion as to whether the Veteran's depression was incurred during service. In March 2010, the Veteran was afforded a VA examination, strictly to determine whether the Veteran had PTSD. Indeed, based upon the service, psychiatric, and social histories provided by the Veteran, the examiner's claims file review, and findings from the examination, the examiner diagnosed PTSD. There is no discussion in the report as to any other psychiatric diagnoses, and in fact, the examiner does not comment upon the other diagnoses of major depressive disorder, dysthymia, and adjustment disorder that are shown in the record. In view of the foregoing, the Board finds that the previous VA examinations are incomplete for purposes of determining whether the Veteran has an acquired psychiatric disorder other than PTSD, and if so, whether such disorders are related to his active duty service or to his service-connected disabilities. Accordingly, the Veteran should be arranged to undergo a new VA examination, performed by a VA psychiatrist or psychologist, to explore these questions. 38 C.F.R. § 3.159(c)(4). Prior to the examination, and in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any private or VA treatment providers who have rendered psychiatric treatment since March 2011. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depressive disorder, dysthymia, and adjustment disorder with mixed emotional features, claimed on both a direct basis and as secondary to service-connected disabilities. This letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a VA psychiatric examination to examine the nature and etiology of his claimed psychiatric disabilities other than PTSD. The Veteran should be advised that it remains his responsibility to report for the scheduled VA examination and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for any private and/or VA treatment providers who has provided psychiatric treatment since March 2011. 2. Make efforts to obtain the records of any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the development actions described above have been performed to the extent possible, the Veteran should be afforded a VA examination, with a psychologist or psychiatrist, to determine the nature and etiology of any acquired psychiatric disorders other than PTSD. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. A full examination, to include an interview of the Veteran and any tests and studies deemed necessary by the examiner, should be conducted. For any acquired psychiatric disorder other than PTSD that is currently shown or indicated in the record, the examiner should provide a diagnosis for each such disorder, and for each diagnosed disorder, provide an opinion as to whether it is at least as likely as not (a 50 percent probability of greater) that the disorder either began during or was otherwise caused by the Veteran's military service, or, resulted from any of the Veteran's service-connected disabilities. The examiner should also differentiate, to the extent possible, the symptoms that may be determined as being attributable to each disorder diagnosed during the examination from those symptoms that may be determined as being attributable to the Veteran's PTSD. In providing the requested opinions and rationale, the examiner should comment upon Dr. S.A.S.' August 1986 opinion that the Veteran had a history of emotional depression neurosis since 1975, and the post-service diagnoses of major depressive disorder (as expressed in the Veteran's VA treatment records and October 2009 VA examination report), dysthymia (as expressed in the January 2010 VA examination report), and adjustment disorder with mixed emotional features (as expressed in the March 1988 and June 1988 opinions of Dr. D.D., contained in the Veteran's social security records). The examiner's opinions and rationale should be expressed in a typewritten and legible report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issue of the Veteran's entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include major depressive disorder, dysthymia, and adjustment disorder with mixed emotional features, claimed on both a direct basis and as secondary to service-connected disabilities, should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a SSOC and be given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs