Citation Nr: 1329424 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 13-02 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a psychiatric disability, diagnosed as depression, to include as secondary to service-connected disabilities. 2. Entitlement to a total disability rating for compensation based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). FINDINGS OF FACT 1. The Veteran has a current psychiatric disability variously diagnosed as depression and dysthymic disorder. 2. The Veteran's service-connected disabilities include degenerative disc disease of the lumbar spine, assigned a 60 percent disability rating; vaginal hysterectomy, assigned a 30 percent disability rating; and the residuals of a fracture of the right second metatarsal, assigned a noncompensable disability rating. 3. The Veteran's service-connected combined disability rating is 70 percent, including a single service-connected disability rated at 40 percent or more. 4. The evidence establishes the service-connected degenerative disc disease of the lumbar spine and related symptoms of pain cause, or contribute to, the Veteran's depression. 5. The evidence of record shows the Veteran's service- connected psychiatric disability and low back disability precludes her from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. A psychiatric disability, diagnosed as depression, is proximately due to or the result of the service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2013). 2. The criteria for a total disability rating for compensation based on individual unemployability (TDIU) are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA is required to meet statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Given the favorable outcome below, no conceivable prejudice to the Veteran could result from the grant of service connection for depression and TDIU. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from a service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, also warrants compensation. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition is considered a part of the original condition. Id. The Veteran claims entitlement to service connection for depression. Review of service treatment records does not reveal any evidence of a psychiatric disability during service, nor is there any evidence of record that links any psychiatric disorder to her military service. However, the Veteran specifically claims that symptoms of pain resulting from her service-connected low back disability have caused her claimed psychiatric disability. The evidence of record establishes that the Veteran has a current psychiatric disability. VA treatment records dated in 1998 and 1999 show diagnoses of depression. Social Security Administration disability examinations reports dated in 2002 and 2005 also reveal diagnoses of major depressive disorder. A July 2010 VA examination report dated July 2010 provides a diagnosis of dysthymic disorder. A December 1998 VA treatment record indicates diagnoses of low back pain, right hip pain, and depression, and stated that the Veteran was prescribed medication for "chronic pain and accompanying depression." Physical examination at this time identified lumbar spine pain and right sciatic pain. A February 1999 VA treatment note indicates that the Veteran has chronic low back pain, right hip and leg pain, and symptoms of mild depression. In July 2010, a VA psychiatric examination reveals several psychiatric stressors occuring over the course of the Veteran's entire lifetime, including abuse as a child and the death of her teenage son in 2001. Review of her medical history indicated the presence of nonservice-connected fibromyalgia and polyarthralgias, as well has her reported chronic low back pain from her service-connected degenerative disc disease. The diagnosis was dysthymic disorder, with a complicated bereavement from the death of her 17-year-old son in a motor vehicle accident in 2001. The examiner's opinion was that the Veteran's "depression is multifactoral, primarily secondary to complicated bereavement as well as chronic pain issues from multiple sources including lupus and fibromyalgia. It is considered with a reasonable amount of medical certainty that the Veteran's depression is not likely due to or caused by her service-connected degenerative disc disease of the lumbar spine." The VA treatment records dated in 1998 and 1999 show that the Veteran had diagnoses of depression at that time and that they were, at least in part, related to the Veteran's chronic pain. The service-connected low back pain is specifically listed in these records as a source of the chronic pain being treated. Moreover, these records pre- date the 2001 death of her son, which the 2010 VA examiner focused on as the primary cause of the Veteran's ongoing depression. These records indicate that the Veteran's chronic pain is a causative factor in her depression. Service connection is in effect for degenerative disc disease of the lumbar spine at a 60 percent disability rating. The service-connected degenerative disc disease results in chronic pain and "accompanying" depression. While the Veteran has other nonservice-connected disabilities that result in chronic pain, the evidence shows that the Veteran's service-connected back disorder, to some degree, is a source of the Veteran's depression. The Veteran has a current diagnosis of depression. Service connection is in effect for lumbar degenerative disc disease, which results in chronic pain. There is medical evidence of record which indicates that the Veteran's depression is, at least in part, caused by her chronic pain resulting from the service-connected lumbar spine degenerative disc disease. Accordingly, service connection for depression is warranted. TDIU The Veteran claims that she is unemployable because of her service-connected disabilities. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). If the total rating is based on a disability or combination of disabilities for which the Schedule of Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). TDIU is warranted upon a showing that they are unable to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to the age or the impairment caused by any disabilities that are not service connected. 38 C.F.R. §§ 3.341, 4.16, 4.19. See also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The evidence establishes that the Veteran has not been employed since 2001. A 2005 determination by the Social Security Administration (SSA) indicates that the Veteran was disabled within the SSA criteria as a result of two disabilities a psychiatric disorder and a disorder of her back, degenerative disc disease. While SSA determinations are evidence that VA must consider, they are not controlling on VA, because the laws and regulations involved provide for significant differences in the determination of disabilities under the SSA and VA systems. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). The evidence supports that the Veteran is unemployable as the result of her depression and her lumbar spine degenerative disc disease, both of which are service- connected disabilities as a result of the decision herein. While a disability rating has not yet been assigned for the Veteran's service-connected depression, it is not necessary to determine this issue as the Veteran's service-connected disorders are shown to meet the schedular criteria for the assignment of TDIU. See 38 C.F.R. § 4.16(a). The Veteran meets the schedular criteria for the required disability ratings and is shown to be unemployable as the result of her service-connected depression and degenerative disc disease. Accordingly, TDIU is warranted. 38 C.F.R. § 4.16. ORDER Service connection for depression is granted. TDIU is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs