Citation Nr: 1321999 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-46 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to March 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of history, in 1997 the Veteran filed a claim for entitlement to service connection for PTSD, which was denied by the RO in 1999 because the evidence did not establish that a stressful experience occurred in service. This decision was unappealed and remains final. See 38 C.F.R. § 3.156(a); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (when a claimant fails to timely appeal an RO decision denying a claim for benefits, that decision becomes final and can no longer be challenged without submitting new and material evidence). In April 2008, the Veteran filed his claim for service connection for depression. The record reflects that the Veteran has been diagnosed with adjustment disorder with depression (or mixed moods) and depressive disorder, not otherwise specified (NOS). Hence, herein the Board is addressing the new claim of entitlement to service connection for a psychiatric disorder other than PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that in the context of psychiatric disorders that the Board must broadly construe claims, and must consider other diagnoses for service connection when the medical record so reflects). The record shows that the Veteran requested a hearing before a member of the Board. VA notified the Veteran that he was scheduled for a June 2011 travel Board hearing. He failed to report for that hearing. He has not submitted evidence showing good cause for his failure to appear for the scheduled hearing. Also, there has been no new hearing request from the Veteran. Therefore, the Board finds that VA has fully discharged its duty to provide the Veteran with a hearing if so desired. 38 C.F.R. § 20.701(c) (after a hearing date has become fixed, an extension of time for appearance at a hearing will be granted only for good cause). A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. An acquired psychiatric disorder did not manifest in service or for many years thereafter, and the currently diagnosed acquired psychiatric disorders are not otherwise related to service. 2. Hypertension was not manifest during service or within one year of separation from service and is not otherwise related to service. 3. The Veteran's service-connected disability is not rated at 60 percent or more and he has not been shown unable to maintain gainful employment because of his service-connected disability. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder other than PTSD was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. Hypertension was not incurred in or aggravated during the Veteran's active duty service, nor may this disability be presumed to have been incurred in or aggravated during such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19, 4.26 (2012). 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, 5107, 5126 (West 2002 & Supp. 2012); 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 or lay evidence, that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO provided VCAA-compliant notice letters to the Veteran in May 2008, June 2008, and August 2008 prior to the initial adjudication of the claims. The letter notified the Veteran of what information and evidence must be submitted to substantiate his claims for service connection and TDIU, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claims to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He was again provided with notice of the type of evidence necessary to establish a disability rating and effective dates in April 2010. The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims. Thus, there is no prejudice to the Veteran in the Board's considering this case on its merits. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims of service connection for a psychiatric disorder other than PTSD, hypertension, and entitlement to TDIU, and the duty to assist requirements have been satisfied. All available service treatment records were obtained. VA has not afforded the Veteran a comprehensive medical examination relating to his claims for an acquired psychiatric disorder other than PTSD and hypertension. The Board finds that such an examination is not necessary to render a decision under the circumstances of this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). Under McLendon, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. A VA examination under the standards of McLendon is not warranted in this case. With respect to the psychiatric disorder, although there is a current disability, there is no evidence showing an "in-service event" nor is there any probative evidence indicating that the Veteran's current psychiatric disorder is related to an event in service. With respect to the hypertension, similarly, there is no evidence establishing an "in-service event" and therefore, there is no evidence of an indication that the current disability or current symptoms may be related to the in-service event. Thus, the Board finds that referral of these claims for an examination to obtain a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked, even under McLendon, as here the evidence fails the McLendon analysis for these two claims (psychiatric disorder and hypertension). There is no competent evidence of an event, injury, or disease occurred in service or that otherwise indicates possible relationships to service. Since "no reasonable possibility exists that such assistance would aid in substantiating the claims," a remand for further development is not warranted. 38 U.S.C.A. § 5103A(a)(2). Furthermore, as will be explained in detail below, the Veteran does not meet the schedular criteria for his TDIU claim. As such, a VA general medical examination for the purposes of aiding his TDIU claim is not necessary and further development is not warranted. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Pertinent Law and Regulations 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses and hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. 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 chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis Acquired Psychiatric Disorder (other than PTSD) The Veteran contends that his current psychiatric condition is due to service. Specifically, the Veteran avers that his current psychiatric condition is due to the ramifications he faced or feared he would face when he was exposed to asbestos in service. The entrance examination and report revealed no defects mentally (findings were normal) and no psychiatric symptomatology, and the Veteran was deemed fit for service. Service treatment records are negative for any complaints, diagnoses, or treatments for a psychiatric disorder in service. Upon separation examination, n examining physician noted a normal psychiatric evaluation, noting no mental or physical defects, and he was deemed eligible for separation. The record shows no evidence of psychoses within one year from separation. The Veteran underwent VA psychiatric examinations in 1998, one for PTSD specifically and another for mental disorders. Upon examination, the Veteran was diagnosed with PTSD. He reported that his symptomatology began about 12 years prior to the examination (around 1986). Post-service VA treatment records indicate that the Veteran received a positive depression screening in August 2005. In August 2007, the Veteran complained of depresison and indicated that he felt more depressed since his wife has been living in Jamaica due to immigration problems. The treatment note indicated a history of depressive disorder, NOS, and noted that the Veteran was not currently taking medication for his depressive disorder. A September 2008 treatment note indicated that the Veteran planned on seeking psychiatric help to cope with his depressive symptoms. A mental health examination in October 2008 showed an Axis I diagnosis for adjustment disorder with mixed mood (ruled out PTSD and dysthymia). The Veteran reported improved mood with medications and anxiety about his wife's immigration status. He also mentioned that he has difficulties with his time in Vietnam and has nightmares from it. The physician reviewed the Veteran's pertinent history and conducted a mental status examination. His affect was constricted with a limited range, and there were no signs of delusion, paranoia, hallucinations, or suicidal and homicidal ideations. The physician's treatment plan was to continue the Veteran on medications for mood management and depression. The Veteran did not indicate nor did the examining physician indicate that the Veteran's psychiatric disorder is attributable to his military service. Based on the foregoing evidence, the Board finds that there is no competent nexus opinion supporting the contention that the Veteran is suffering from a psychiatric disorder that is due to any event or incident in service. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F. 3d 1372 (2007); see also Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). A layman is competent to report what he or she experiences through one of the senses. See Layno v. Brown, 6 Vet. App 465, 470 (1994). However, the etiology of a psychiatric disorder is a complex medical matter beyond the expertise of a layperson. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). "Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the link between the Veteran's psychiatric disorder and an event in service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In this instance, no individual with appropriate expertise has related any event in service, to include exposure or fear of exposure to asbestos, to the Veteran's current psychiatric disorder. Thus, the evidence falls short of suggesting a nexus. We also note that in regard to the issue of causation, there are no Jandreau/Buchanan exceptions, beyond a remote post-service diagnosis. Such exceptions are as follows: Lay 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 (2007). In this case, there is no evidence of a psychiatric disorder in service, and the separation examination reveals normal findings. Furthermore, there is no evidence of a psychiatric disorder in proximity to separation from service. Instead, the evidence shows that when examined in 1998, there was only a report of a 12 year prior history of PTSD symptomatology, which is still long after separation from service. Clearly, the Veteran has post service diagnoses; however, none of the competent evidence relates his psychiatric disorder to an event in service. In sum, the evidence deemed most probative by the Board establishes that service connection for an acquired psychiatric disorder other than PTSD is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Hypertension The Veteran contends that his current hypertension disability is related to service, to include due to exposure to Agent Orange. The Veteran's DD Form 214 shows that his military occupational specialty was electrical repairman in the Navy. VA was unable to determine whether or not the Veteran served in the Republic of Vietnam. He served aboard the USS Satry which was in the official waters of Vietnam from July 1968 to February 1969, but there is no record to ascertain proof of in-country service for the presumptive regulations to be considered (if they were applicable in this instance). Pertinent regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm, or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). This provision also states that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. In addition, if the Veteran served in Vietnam, he is presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii). Hypertension is not on the list of diseases presumed service connected in veterans exposed to Agent Orange. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.309(e), Note 3 (ischemic heart disease, which is on the list of diseases presumed service connected in veterans exposed to Agent Orange, does not include hypertension). However, the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.304(d). Hence, the Board's analysis will focus on direct service connection. The Veteran's service treatment records do not include a diagnosis of hypertension. They include his September 1965 induction examination report showing a blood pressure reading of 138 (systolic) over 76 (diastolic), and a September 1965 Report of Medical History wherein the Veteran denied having a history of high or low blood pressure. His February 1971 separation examination report reflects a blood pressure reading of 118/78. He was found to be physically qualified for discharge and had no noted defects except for a visual defect. Post-service evidence is devoid of a showing of complaints and/or treatment related to hypertension following active service until years thereafter. In fact, treatment for hypertension as is not shown in the record until July 1999 in a private medical evaluation (blood pressure upon physical examination was 164/108). A VA respiratory examination conducted in July 1998 indicated a prior medical history of hypertension and that the Veteran was being treated for it. The Board emphasizes the multi-year gap between discharge from active duty service (1971) and evidence of hypertension in approximately 1999. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Hypertension is also clearly not shown within a year of separation from service. VA treatment records from July 2004 to October 2008 show the Veteran's history of hypertension treatment. Medications help control his hypertension, but it is also noted that at times his condition is uncontrolled due to inability to obtain medication. An October 2008 treatment note shows that the Veteran's blood pressure was 161/110. The Board notes that there is no competent opinion supporting the contention that the Veteran has hypertension due to any event or incident in service, to include exposure to Agent Orange. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F. 3d 1372 (2007); see also Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). A layman is competent to report what he or she experiences through one of the senses. See Layno v. Brown, 6 Vet. App 465, 470 (1994). However, the etiology of hypertension is a complex medical matter beyond the expertise of a layperson. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). In this instance, no individual with appropriate expertise has related hypertension to exposure to Agent Orange or any in-service event. The evidence falls short of suggesting a nexus between hypertension and an in-service event. As such, with regard to the issue of causation, there are no Jandreau/Buchanan exceptions, beyond a remote post-service diagnosis, that are applicable to this issue. In sum, the evidence deemed most probative by the Board establishes that service connection for hypertension is not warranted. The evidence establishes that hypertension was not manifest during service or within one year of separation and there is not competent evidence otherwise linking hypertension to service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). TDIU The Veteran filed his claim for TDIU in April 2008 asserting that because of his conditions (hypertension, depression, and hearing problems - also included in the April 2008 claim), he is unable to retain employment. The October 2008 rating decision denied entitlement to TDIU because the RO did not receive a VA Form 21-8940 requisite form for the TDIU claim and also because the evidence showed that the Veteran did not meet the schedular criteria for TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his 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. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, 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, 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. Id. The evidence shows that the Veteran is currently service connected for tinnitus (noncompensable) by way of a January 2009 rating decision. He has no other compensable service-connected disability. Hence, the Veteran fails to meet the criteria for schedular TDIU as per 38 C.F.R. § 4.16(a). Furthermore as the evidence does not show that the Veteran is unemployable by reason of his one service-connected disability (tinnitus), extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b) is not warranted. In fact, a May 2008 VA treatment note shows that the Veteran quit his job because he found it too stressful. Here, there is no probative evidence that tinnitus renders the appellant unable to engage in substantially gainful employment. Based on the foregoing, the Board finds that entitlement to TDIU must be denied. ORDER Service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include adjustment disorder with depression is denied. Service connection for hypertension, to include as secondary to exposure to Agent Orange is denied. Entitlement to TDIU is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs