Citation Nr: 1317856 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 07-03 431A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from November 2004 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board remanded the Veteran's claims for additional development in March 2010, November 2010, and August 2012. The Board acknowledges the ruling in Clemons v. Shinseki, 23 Vet. App. 1 (2009), which clarified how the Board should analyze claims for posttraumatic stress disorder (PTSD) and other acquired psychiatric disorders. As emphasized in Clemons, although a veteran may only seek service connection for PTSD, the veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. In this case, the Veteran filed a claim of entitlement to service connection for PTSD in February 2007 and the claim was denied in a February 2008 decision. The Veteran failed to appeal this denial and as such, the issue on appeal has been characterized as indicated above. FINDINGS OF FACT 1. The Veteran does not have an acquired psychiatric disability attributable to active service. 2. During the relevant appeal period, service connection was in effect for cervical spine spondylosis, rated as 20 percent disabling; cervical spine radiculopathy, right (dominant) shoulder, associated with cervical spine spondylosis, rated as 20 percent disabling; right shoulder strain, rated as 10 percent disabling; lumbar spine strain, rated as 10 percent disabling; right carpal tunnel syndrome, rated as 10 percent disabling; tinnitus associated with right ear hearing loss, rated as 10 percent disabling; and right ear hearing loss, rated as noncompensably disabling. Prior to June 9, 2008, the Veteran had a combined 30 percent rating; since June 9, 2008, the Veteran has had a combined 60 percent rating. 3. The Veteran is not shown to be unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The Veteran does not have an acquired psychiatric disability that is the result of disease or injury incurred in or aggravated during active service, nor is an acquired psychiatric disability proximately due to, the result of or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in January 2006, June 2010, March 2011, March 2012, and September 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the February 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained several examinations with respect to the service connection claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, including psychoses, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2012). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, service connection is warranted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). That includes any increase in disability that is proximately due to or the result of a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995). In the absence of a superimposed disease or injury, congenital or developmental defects, personality disorders are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). A veteran is presumed in sound condition except for defects, infirmities, or disorders noted when examined and accepted for service. Clear and unmistakable evidence that the disorder existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003. The presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. See VAOGCPREC 3-2003. The VA General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran contends that he has a psychiatric disorder, specifically problems sleeping, due to his active duty service. The Veteran's service treatment reports (STRs) reflect that his September 2004 entrance examination included a normal psychiatric evaluation. The Veteran denied any psychiatric symptoms on a report of medical history form prepared in conjunction with the examination. In August 2005, the Veteran reported suicidal ideations. The Veteran indicated that he had a history of suicide attempts as a teenager. He indicated that he was concerned that his wife and child were not stationed with him. The Veteran indicated that if his wife and child were located with him he believed it would solve all of his problems. He also indicated that he would prefer to get out of service if given the choice of staying in or getting out. The examiner assessed the Veteran with situational depressive suicidal ideations. The Veteran was referred for a follow-up appointment in August 2005. Following a mental status examination, the Veteran was diagnosed with no Axis I diagnosis. Antisocial personality disorder was noted as an Axis II diagnosis. The Veteran reported that he "hates" the Marine Corps and threatened suicide if he remained on active duty. At a follow-up consultation in September 2005, mental status examination was within normal limits and the examiner did not render any diagnosis. An October 2005 report of medical assessment prepared for purposes of the Veteran's separation from service reflects that Veteran was administratively separated for antisocial personality disorder/depression/suicidal ideations. The examiner noted that the Veteran was without suicidal ideations and depression at that time. The Veteran denied all psychiatric symptoms on a report of medical history form prepared in conjunction with the assessment. In an August 2006 statement, the Veteran indicated that he began to have sleep problems when he entered service and has had the same problems since that time. VA outpatient treatment reports dated through August 2012 are associated with the claims file. In March 2007, the Veteran was assessed with adjustment disorder with depressed mood, questionable PTSD, and questionable personality disorder. In September and August 2007, the Veteran was diagnosed with adjustment disorder with mixed emotion and borderline personality disorder. In April 2008 and February 2009, the Veteran was noted to have adjustment disorder in remission. In August 2010, the Veteran was assessed with depression/anger issues. A diagnosis of PTSD was suggested at that time. The Veteran reported trouble sleeping in February 2012. In August 2012, the Veteran reported drinking alcohol three times per month, two drinks per instance. He was assessed with adjustment disorder with mixed disturbances of emotions and conduct and antisocial personality disorder by history. At a July 2010 VA examination, the Veteran reported anxiety and depression regarding his discharge from service due to a personality disorder. Following a mental status evaluation and review of the claims file, the examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood, alcohol dependence, and antisocial personality disorder traits. The examiner indicated that the Veteran's symptoms of depression and anxiety began in service primarily due to marital problems which occurred during and after service. At the examination, the Veteran related his depression and anxiety to his unemployment, his estrangement with his children, and living in a rough neighborhood. The Veteran indicated that he goes long periods without sleep and is awake for up to ninety-six hours at a time. The examiner concluded that it is less likely than not that the Veteran's psychiatric condition is caused by his military service and it is at least as likely as not that his current condition is due to personality defects, alcohol abuse, and post-service stressors including unemployment, estrangement from his children, and a history of incarceration. In a July 2012 VA addendum opinion, the July 2010 examiner indicated that she reviewed the claims file and additional VA treatment records and noted that this review did not change her medical opinion since the July 2010 examination. In a September 2012 VA addendum opinion, the July 2010 VA examiner indicated that the claims file was reviewed and she opined that the Veteran's adjustment disorder with mixed anxiety and depressed mood is less likely than not caused by or aggravated by his service or service-connected disabilities. The examiner noted that antisocial traits were noted in her Axis II diagnosis of the Veteran because of his being a poor historian and therefore he was not diagnosed with a personality disorder. She concluded that adjustment disorder with mixed anxiety and depressed mood was not "superimposed" on the personality problems but instead is related to psychosocial stressors. The examiner's rationale was that in service the Veteran was not diagnosed with an Axis I psychiatric disorder. The examiner noted that the Veteran threatened suicide if he was not released from the Marines. The examiner stated that there was not an identifiable event or injury during service that caused or aggravated a psychiatric condition. The examiner indicated that the Veteran's adjustment disorder is related to his post military stressors including employment problems, marital/family situations, and separation from service. The examiner noted that the Veteran denied alcohol problems at VA in August 2012 and he was diagnosed with adjustment disorder with mixed anxiety and depressed mood related to unemployment and worry about his family. The examiner also noted that while the Veteran abused alcohol in the 2010, by his self-report he is no longer abusing alcohol. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for an acquired psychiatric disorder. As an initial matter, the Board notes that while the Veteran reported a history of suicide attacks prior to entering service when he was examined in service in August 2005, the September 2004 enlistment examination notes no psychiatric disorders and a psychiatric evaluation was normal at that time. Consequently, the Veteran was presumed sound at his entrance to service. The Board acknowledges that the Veteran is competent to report that he had sleep problems during service and has experienced those symptoms since service. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). It is within the Veteran's realm of personal knowledge whether he first developed trouble sleeping during service and has experienced those symptoms since service. Consequently, the Board finds that the Veteran's reports that he has continued to have sleep problems since service are credible. However, those assertions are outweighed by the findings of the VA examiner who found that the likely etiology of his current psychiatric disorder was not related to his service. The Veteran's opinion is insufficient to provide the requisite etiology of the claimed psychiatric disorder because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his statements regarding his psychiatric disorder being related to his active service are not competent as he is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. The only medical opinions of record, those of the July 2010 VA examiner included in the July 2010 VA examination report and the VA addendum opinions dated in July 2012 and September 2012, found that it was less likely than not that the Veteran's current psychiatric disorder was incurred in or aggravated by the Veteran's active service or was caused or aggravated by any service-connected disorder. The examiner also concluded that adjustment disorder with mixed anxiety and depressed mood was not "superimposed" on a personality disorder, but was instead related to post military psychosocial stressors. That opinion is more probative as to the etiology of the Veteran's current psychiatric disorder as the examiner reviewed the entire claims file, cited to relevant medical evidence, and provided a rationale to support the opinion. Furthermore, the examiner has the appropriate training and expertise to render an opinion. Additionally, the Veteran has not submitted any competent evidence which provides a basis for the conclusion that a psychosis manifested within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309 (2012). Consequently, the Board finds that service connection is not warranted because the preponderance of the medical evidence of record is against a finding that an acquired psychiatric disorder is etiologically linked to the Veteran's active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. TDIU The Veteran contends that his service-connected disabilities render him unemployable. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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) (2012). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §4.16(b) (2012). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). As noted above, during the relevant appeal period, service connection was in effect for cervical spine spondylosis, rated as 20 percent disabling; cervical spine radiculopathy, right (dominant) shoulder associated with cervical spine spondylosis, rated as 20 percent disabling; right shoulder strain, rated as 10 percent disabling; lumbar spine strain, rated as 10 percent disabling; right carpal tunnel syndrome, rated as 10 percent disabling; tinnitus associated with right ear hearing loss, rated as 10 percent disabling; and right ear hearing loss, rated as noncompensably disabling. Prior to June 9, 2008, the Veteran had a combined 30 percent rating; since June 9, 2008, the Veteran has had a combined 60 percent rating. Consequently, the Veteran does not met the schedular criteria for a total rating for compensation purposes based on individual unemployability under the provisions of 38 C.F.R. § 4.16 at any time during the relevant appeal period. As the Veteran does not meet the schedular criteria for a total rating for compensation purposes based on individual unemployability, the Board has considered referral of the Veteran's claim to the VA Director, Compensation and Pension Service, for extraschedular consideration under the provisions of 38 C.F.R. § 4.16(b) (2012). However, the probative documentation of record does not establish that such a referral is in order. In this case, none of the examiners of record have concluded that the Veteran's service-connected disabilities render him unemployable. At an April 2006 VA examination, the examiner indicated that right carpal tunnel syndrome did not result in any functional impairment or any lost time from work. At a December 2007 VA audiometric examination, the examiner did not indicate that the Veteran's right ear hearing loss or tinnitus rendered him unemployable. At a January 2008 VA spine and joints examination, the Veteran reported that he was unemployed. The examiner diagnosed the Veteran with chronic right shoulder strain, chronic lumbar spine strain, cervical spine spondylosis, and right carpal tunnel syndrome. The examiner indicated that indicated that the Veteran was able to perform all activities of daily living with the exception of some difficulty dressing. The examiner did not indicate that the Veteran's service-connected disabilities rendered him unemployable. At a June 2008 VA spine and joints examination, the Veteran reported right shoulder and lumbar spine pain. Physical examination of the right shoulder and lumbar spine was essentially normal with reports of pain during range of motion testing. X-rays of the lumbar spine and right shoulder were negative. The examiner did not indicate that the Veteran's service-connected disabilities rendered him unemployable. As the Board finds the conclusions of these competent health care providers to be more persuasive than the lay contentions of the Veteran, the Board finds that referral for consideration of a total rating for compensation purposes based on individual unemployability on an extraschedular basis is not appropriate. 38 C.F.R. § 4.16(b) (2012). The Board does not wish to minimize the nature and extent of the Veteran's overall disability picture. The Veteran currently has a combined evaluation of 60 percent (since June 9, 2008) which contemplates significant impairment in earning capacity. See 38 C.F.R. § 4.1 (2012). Notwithstanding the high degree of disability, the Veteran has not shown to have been or be unemployable solely by reason of his service-connected disabilities. In summary, for the reasons and bases set forth above, the Board concludes that a total rating for compensation purposes based on individual unemployability is not warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder (other than PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs