Citation Nr: 1328236 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 93-20 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, claimed as secondary to service-connected urinary stress incontinence and rectocele. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from August 1974 to September 1975, and from February 1985 to August 1988. Her discharge in 1988 was under other than honorable conditions; she was declared a deserter. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of September 1992 and August 2006. The September 1992 decision was issued by the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO), and it declined to reopen a previously denied claim of service connection for posttraumatic stress disorder (PTSD). The August 2006 decision was issued by the Nashville, Tennessee, RO, and it denied the Veteran's claim for entitlement to a TDIU. The first issue has been recharacterized to comport with the evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran testified at a May 2009 hearing before a Veterans Law Judge (VLJ) via video conference from the RO. In November 2011, the Veteran testified regarding the same issues before a second VLJ at an in-person hearing held at the RO. The VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. Additionally, when two hearing have been held by different VLJs concerning the same issues, a third VLJ must be assigned to participate in the adjudication as part of a panel. 38 U.S.C.A. § 7102(a); 38 C.F.R. § 19.3. The Veteran was offered the opportunity for an additional hearing before the third panel member in April 2012 correspondence. She declined such a hearing. This case has been before the Board twice previously; most recently, in June 2012, the Board dismissed five claims at the request of the Veteran, and it remanded the two claims that remain on appeal. As the Board is granting both of the Veteran's claims, a recitation of the procedural history of the Veteran's claims is unnecessary. FINDINGS OF FACT 1. The Veteran suffers from depression, a condition which is proximately due to or the result of her service-connected urinary stress incontinence and rectocele. 2. The Veteran is currently service-connected for three disabilities: urinary stress incontinence rated at 60 percent; rectocele, status post surgery, rated at 30 percent and depression, for which a rating has not yet been assigned. Her combined disability rating is at least 70 percent. 3. The Veteran's service-connected disabilities render her unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 2. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1154, 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. Entitlement to Service Connection for a Psychiatric Disorder Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) ; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted for disabilities which are secondary to already service-connected disabilities. 38 C.F.R. § 3.310. Service connection is warranted for disabilities that are proximately due to or the result of a service-connected disease or injury, or for an increase in any disease or injury that is proximately due to or the result of a service-connected disease or injury. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The Veteran's claim for service connection for a psychiatric disability has a long and tortuous history. Since the early 1990s, she had sought service connection for PTSD, contending that her condition was related to an assault that took place in 1985. Her claim was denied on the basis that this incident happened during a period of service that was other than honorable, thus barring service connection under VA regulations. 38 C.F.R. § 3.12. Beginning in 2007, however, the Veteran has contended that she suffered from a psychiatric condition secondary to her service-connected disabilities of urinary stress incontinence and rectocele, status post surgery. Prior to the Board's most recent remand, the evidence indicated that the Veteran suffered from depression that was aggravated by her service-connected conditions. An April 2011 letter from the Veteran's treating VA psychiatrist, Dr. NAM, stated that the Veteran suffered from major depressive disorder. She also stated that "it is highly likely that her major depression is exacerbated by her general medical conditions which are service connected." An April 2010 VA PTSD examination, obtained in accordance with the first Board remand, found that the Veteran suffered from both PTSD and major depression, but the examiner concluded that "it is not possible to unravel the overlapping symptoms of PTSD . . . and major depression" without resorting to speculation. In cases where a claimed disability is aggravated by a service-connected disability, for service connection to be granted for the claimed disability, the baseline level of severity of the nonservice-connected disease or injury must be established before the onset of aggravation. 38 C.F.R. § 3.310(b). As there was no evidence establishing this information, the Board's second remand sent the case back for further development. The evidence developed since that remand makes this a much easier case. The Veteran underwent a VA examination in July 2012. In that remand, the examiner diagnosed the Veteran as suffering from depressive disorder, but no other psychiatric disorders. The examiner also concluded that the Veteran's depression is at least as likely as not proximately due to or the result of her service-connected disabilities. The examiner wrote that as the Veteran's service-connected conditions deteriorated, "she began to feel more discouraged and depressed." He wrote that "she has become more isolated and withdrawn over the past 10 years as she has been less able to function in general society due to her embarrassments of being incontinent." Despite any previous diagnoses or etiologies which are inconsistent with the most recent psychiatric examination report, the current evidence clearly demonstrates that the Veteran suffers from depression that is proximately due to or the result of to her service-connected urinary stress incontinence and rectocele. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection for the Veteran's depression is warranted. III. Entitlement to a TDIU A TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. As a result of this decision, the Veteran is currently service-connected for three disabilities: urinary stress incontinence, rated at 60 percent; rectocele, status post surgery, rated at 30 percent; and depression, for which a rating has not yet been assigned. Even before her depression is assigned a disability rating, the Veteran's combined disability rating is 70 percent. She meets the schedular criteria for a TDIU. The Veteran underwent a VA general medical examination in August 2010. After examining the Veteran, the examiner stated that the Veteran's rectocele "more than likely prevents [her] from maintaining gainful employment in a physically demanding occupation, but not a sedentary type of employment." With regard to the Veteran's urinary stress incontinence, the examiner wrote that, while it would not result in total social and occupational impairment (which is not the standard for a TDIU), this condition "would make it difficult at times with employment due to the need for repeated bathroom trips, absorbent padding wear, etc." The examiner from the July 2012 VA examination noted that the Veteran's "depression has been worsening over the past few years since her sphincter problems have affected her ability to work and to socialize." He noted that the Veteran was more isolated and withdrawn and that she was less able to function in general society. He also stated that the Veteran isolates from others to protect herself from embarrassment and to protect others from being near her when she suffers from fecal or urine problems, leading to her feeling discouraged and hopeless. The examiner assigned a GAF score of 58, and he determined that the Veteran's depression would result in occupational and social impairment with deficiencies in most areas. When these opinions are read in concert, it is clear that the Veteran's service-connected disabilities render her unable to secure or follow a substantially gainful occupation. The examiner from the August 2010 VA examination determined that the Veteran's rectocele would prevent her from any physical labor, limiting her to sedentary employment. That examiner also found that the Veteran's urinary stress incontinence would result in negative effects on even sedentary employment. The examiner from the Veteran's July 2012 psychiatric examination found that the Veteran is embarrassed by her service-connected disabilities and the symptoms they produce, resulting in her depression. That depression in turn results in isolation and withdrawal. Given those symptoms, it is difficult to imagine that the Veteran could be employed in even a sedentary occupation. The evidence demonstrates that the Veteran's service-connected disabilities render her unable to secure or follow a substantially gainful occupation and a TDIU is warranted. ORDER Entitlement to service connection for a psychiatric disorder, claimed as secondary to service-connected urinary stress incontinence and rectocele, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted. RONALD W. SCHOLZ HARVEY P. ROBERTS Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs