Citation Nr: 1320611 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 00-18 962A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Shannon K. Hostein, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from April 1969 to November 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, denied service connection for PTSD and denied entitlement to TDIU. The Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim for service connection for PTSD as encompassing entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, regardless of the precise diagnosis. The Veteran and his spouse provided testimony during a hearing before the Board at the RO in October 2003. A transcript is of record. The Board remanded the claim in March 2004 and October 2008 for additional development, which was appropriately completed. See Stegall v. West, 22 Vet. App. 268 (1998). In August 2011, the Board denied service connection for PTSD and entitlement to TDIU. The Veteran then appealed the disposition of those two issues to the Court of Appeals for Veterans Claims (Court). In May 2012, parties filed a Joint Motion for Partial Remand (JMR) and the Court granted the JMR, remanding the two remaining issues to the Board. The issue of entitlement to TDIU 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. PTSD began as a result of an in-service stressor, to include a dog bite, and has continued since. 2. Depression was proximately due to or the result of the service-connected bilateral knee and right hand disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for service connection depression have been met. 38 U.S.C.A. §§ 1110, 1111, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting service connection for an acquired psychiatric disability, to include PTSD and depression, the issue on appeal is substantiated, and there are no further VCAA duties with regard to that issue. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Legal Criteria-Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 32 (4th ed.)(1994)(DSM IV); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptoms and an in-service stressor. If the evidence established that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the Veteran was a prisoner-of-war under the provisions of § 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. This rule was subsequently codified at 38 C.F.R. § 3.304(f). Service connection is also provided for a disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310 (2012). The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). PTSD Upon further review of the record and new evidence and argument submitted by the Veteran and his representative, the Board finds that service connection is warranted for PTSD, as the currently diagnosed disability has been found to have been incurred, at least in part, due to a verified in-service stressor. During a June 2007 VA examination the Veteran was diagnosed as having PTSD based on several in-service stressors, including when he was attacked and bitten by a dog. Then, in a December 2012 private examination report, PTSD was again diagnosed based on his reports of being attacked by dogs in addition to other experiences while being deployed. The Veteran has service-connected right hand and bilateral knee disabilities, which were incurred as the result of a September 1971 dog bite documented in his service treatment records. Therefore, the dog bite stressor has been verified. Because the Veteran has current PTSD which has been connected by a VA examiner and a private physician to a verified, in-service stressor, service connection for PTSD is warranted. The claim is, therefore, granted. 38 U.S.C.A. § 5107(b). Depression Similarly, the Board finds that service connection for depression is warranted. The claims file demonstrates years of treatment for pain from the Veteran's service-connected right hand and bilateral knee disabilities and resulting psychiatric symptoms. The Veteran reported symptoms of insomnia and anxiety during 1992 and 1993 private treatment, and depression and anxiety were noted during 1996 and 1997 private treatment. As the December 2012 private examination report noted, this all took place before a November 1997 hunting accident. The private examiner concluded, based upon review of the Veteran's medical and military records and his statements during the examination, that his depression or mood disorder was more likely than not caused by his bilateral knee and right hand pain. As noted in the August 2011 Board decision, the Veteran has not always been the most reliable historian regarding his bilateral knee disability; however, his statements regarding his chronic pain and the resulting psychological symptoms have been consistent and are supported by the medical evidence of record. Therefore, the Board finds that he is competent to report symptoms of depression and chronic pain and his statements to VA and to the private examiner regarding the connection between his service-connected disabilities and depression are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that service connection for depression is warranted and the claim is granted. 38 U.S.C.A. § 5107(b). ORDER Service connection for an acquired psychiatric disability, to include PTSD and depression, is granted. REMAND Applicable law provides that a total disability rating based on individual unemployability due to a service-connected disability 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 his service-connected disabilities. 38 C.F.R. 3.340, 3.341, 4.16 (2012). Consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and there is one disability ratable at 60 percent or more, or if there is more than one service-connected disability, at least one disability ratable at 40 percent or more and there is a combined disability rating of 70 percent. See 38 C.F.R. § 4.16(a). When a claimant does not meet the aforementioned criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if the Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the Veteran is unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. (1993). The central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. In this case, the Veteran does not currently meet the schedular percentage requirements noted above as his current combined disability rating is 40 percent; however, this may change when the disability rating is assigned for his service-connected acquired psychiatric disability. On this basis, the claim for TDIU must be remanded. The Board notes that the Veteran has been unemployed since 1997. A private physician stated in July 2000 that it was very unlikely that he could be maintain a full time position due to multiple chronic disabilities, including PTSD and degenerative joint disease. More recently, the December 2012 private examiner stated that the Veteran was not suitable for employment in any position. Therefore, the Board requests that once the disability rating is assigned for the service-connected acquired psychiatric disability, the claim for TDIU be readjudicated, either on a schedular or extraschedular basis. Procedurally, the Board is not permitted to consider entitlement to an extraschedular evaluation in the first instance. The claim first must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service. 38 C.F.R. § 4.16(b). Therefore, the Board requests that if TDIU is not granted on a schedular basis, the claim be referred for an extraschedular evaluation. Accordingly, the case is REMANDED for the following action: 1. The initial rating for the service-connected acquired psychiatric disability must be assigned. 2. Then, following any additional indicated development readjudicate the TDIU issue. If the benefit sought on appeal remains denied, the RO/AMC should issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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 2002 & Supp. 2012). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs