Citation Nr: 1335254 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-18 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including as secondary to service-connected disease or injury. 2. Entitlement to a total rating for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from January 1949 to February 1950. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2008 and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was previously before the Board in November 2010, wherein the claim for a total rating for compensation on the basis of individual unemployability (TDIU) was remanded for additional due process considerations and development, which was completed. The case was returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). The Board notes that, although the Veteran requested a Board hearing in his June 2008 substantive appeal (VA Form 9), he specifically withdrew his request in a June 23, 2010 telephone contact, as recorded on a VA Form 21-0820. There are no other outstanding hearing requests of record. The Virtual VA claims file has been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's psychiatric disorder was not manifest in service and is not attributable to service. 2. A psychiatric disorder is unrelated (causation or aggravation) to a service-connected disease or injury. 3. The Veteran's service connected disabilities do not render him unable to engage and retain substantially gainful employment. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, including depression, was not incurred in or aggravated by service, and is not proximately due to or a result of a service-connected disease or injury. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in January 2008 and December 2010 to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection and TDIU, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of VA and private post-service treatment, and the Veteran's own statements in support of his claims. The Veteran was afforded VA examinations responsive to the claims for service connection of an acquired psychiatric disorder and TDIU. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by medical professionals, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. Additionally, the Veteran has not alleged that any examination is inadequate to decide the claims being adjudicated herein, so the examinations are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service 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). The Veteran does not have a "chronic disease" under 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claim for service connection. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). 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; 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). Service treatment records do not show that the Veteran had any psychiatric complaints, including depression, nervous trouble, loss of memory, or sleep impairment. His February 1950 separation examination report indicates that a psychiatric evaluation was normal. A November 1951 Reserve report of medical history indicates that he denied experiencing depression, excessive worry, memory loss, and nervous trouble. A January 2008 VA general medical examination report indicates that the Veteran denied having any psychological complaints. Private treatment records from Dr. Brancheau do not show any treatment for psychological symptoms or disorders. An April 2009 VA general medical examination report indicates that the Veteran reported a history of alcohol abuse for approximately 24 years after his service, with an irregular employment history until 1985, when he began driving a truck. The Veteran retired from his job as a truck driver in 2004. The VA examiner noted the Veteran's service-connected frontal bone deformity from an in-service accident, with removal of bilateral osteomas of frontal bone sinuses. Neurological examination was normal; the Veteran was alert and oriented, with intact memory, too. Private treatment records from Dr. Musser, dated 2009 through 2011, indicate that the Veteran was treated for an adjustment reaction with brief depression in 2009 and 2010. A long-term history of symptoms was noted in December 2009. A February 2011 VA mental disorders examination report shows that the Veteran denied a history of mental health treatment, but reported a history of alcohol abuse from age 14 until 1986. The Veteran reported that he retired in June 2004 due to health problems that have since resolved; he was a heavy equipment operator and truck driver. The Veteran reported that he was a good employee prior to his retirement, with good relationships with co-workers, and that he spent most of his time with his brother, as many of his friends have passed away. The Veteran reported that he had been married approximately 60 years, since age 20, and gets along well with his wife and all but one of his 4 children. He denied suicide attempts, impaired thought processes and communication, delusions, and hallucinations. He had appropriate eye contact and he was cooperative. He was oriented and able to maintain good personal hygiene. He denied obsessive or ritualistic behavior, panic attacks, and memory impairment. He reported periodic severe depression, occurring once or twice per month, and lasting 2 days. He attributed his depression to claustrophobia, and stated that it began when he was in his 60s, with periodic irritability. The Veteran reported that his wife had significant health problems, and that he had been her primary caregiver since he was in his 60s. The diagnosis was depression, not otherwise specified. The VA examiner noted that the Veteran's depression had its onset around the same time as the Veteran becoming his wife's caregiver, and that the Veteran's depression is most likely caused by or the result of caregiver stress. The VA examiner also noted that the Veteran did not attribute his depression to his history of osteoma. In this case, the Veteran claims that his depression is due to his service, including his service-connected missing anterior table of the frontal sinus as residuals of removal of bilateral osteoma frontal sinusitis, disfigurement with frontal head deformity, and pansinusitis as residuals of removal of bilateral osteoma frontal sinusitis. In written statements, the Veteran asserts that he had been depressed since he got out of the military in 1950. Based on the above, the Veteran's claim must be denied. In this case, there is no evidence of an acquired psychiatric disorder, including depression, during service or for many years thereafter. Rather, at time of separation, the examination disclosed that the psychiatric evaluation was normal (NSA) and there was no personality deviation. Likewise, in November 1951, the Veteran denied any pertinent symptomatology. The Board also finds that the weight of the evidence reflects that none of the Veteran's service-connected disabilities caused or aggravated the Veteran's depression. The Board observes that neither the Veteran's treating providers nor the VA examiners found a relationship between the Veteran's depression and his service, including his service-connected disabilities. The Veteran is competent to report that he has depression and such statements are confirmed by the record. In addition, he is competent to report when his symptoms of depression were first identified. However, his statements regarding onset are not credible. More specifically, the report of a history greater than 50 years in the Veteran's written statements is inconsistent with the normal separation examination and his denial of depression and excessive worry in November 1951. Such contemporaneous reports are far more probative than the appellant's recently revised history. Furthermore, his recent statement is inconsistent with his own report to the VA examiners, wherein he reported that his depression began sometime while he was in his 60s. Here, the most probative evidence establishes that there was a remote onset of a psychiatric disorder, unrelated to service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). To the extent that there are lay opinions, including a December 2010 statement from the Veteran's son-in-law, linking the Veteran's depression to an in-service event or illness, including his service-connected disabilities, the Board finds that the probative value of the general lay assertions are outweighed by the specific, reasoned opinion of the February 2011 VA examination report. The VA examiner found that the Veteran's depression had its onset as a result of the Veteran's stress as the primary caregiver for his ill wife, and pointed out that, other than the Veteran's claim, he has not otherwise associated his depression with his service or his service-connected disabilities. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). The February 2011 VA examiner, in determining that the Veteran's depression is not related to his service and/or service-connected disabilities, is entitled to greater probative weight than the more general lay assertions of the Veteran and his son-in-law, even assuming those lay assertions were competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). In this regard, it is important to note that there is simply no indication of any related problems during service. Rather, the separation examination was normal and he denied pertinent pathology in November 1951. The remote assertions of the Veteran and his son-in-law are inconsistent with the clinical evidence of record, which demonstrates a remote post-service onset, more closely correlated with the Veteran's work as the primary caregiver for his wife. The February 2011 VA examination report explained the reasons for the VA examiner's conclusions based on an accurate characterization of the evidence of record; thus, this opinion is highly probative. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). In sum, there is no reliable evidence linking the remote depression to service or to service-connected disabilities. Furthermore, there is no reliable evidence linking an increase in disability (aggravation) to a service connected disease or injury. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Entitlement to 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. Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service- connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). The Veteran is in receipt of service connection for missing anterior table of the frontal sinus, residuals of a removal bilateral osteoma frontal sinusitis, rated as 50 percent disabling; pansinusitis, residuals of a removal bilateral osteoma frontal sinusitis, rated as 30 percent disabling; and disfigurement, frontal head deformity, rated as 30 percent disabling. He is thus eligible for consideration for a TDIU on a schedular basis. VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved. The Veteran provided a completed TDIU application in December 2007. On that form, he reported that he completed 3 years of high school, and attended a General Motors mechanical training center in 1960. The Veteran also reported that he had been employed as a driver for General Aluminum from 1994 to June 2004, when he became too disabled to work. He also reported that he had worked 60 hours per week and that he had not missed any time due to illness; the Veteran reported that he had not tried to obtain employment since he became too disabled to work. A June 2008 letter from General Aluminum indicates that the Veteran was employed from January 6, 1994 through October 5, 2004. According to the letter, he worked 40+ hours per week, with paid overtime, 52 weeks a year. The Veteran received short-term disability while on Family Medical Leave from July 6, 2004 through September 30, 2004. The Veteran submitted another TDIU application in September 2012. At that time, he reported that he was a driver for General Aluminum from 1993 until 2004 and that he had completed high school. He also reported that he had worked 40 hours a week for General Aluminum, but lost "10" from illness. The Veteran reported that he had not tried to obtain employment since he became too disabled to work. April 2009 VA general medical and sinus examination reports indicate that the Veteran's service-connected disabilities would not make the Veteran unemployable or affect employability. The sinus examination report indicates that the Veteran reported that he was forced to retire due to problems related to heavy lifting. In a January 2011 addendum, the VA sinus examiner reiterated that none of the Veteran's service-connected disabilities would make him unemployable, and that he had nothing to add to this opinion. A February 2011 VA mental disorders examination indicates that the Veteran reported that he retired by choice in June 2004 due to health problems that have since resolved, and that he was a good employee. Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities do not render him unable to obtain or sustain substantially gainful employment. The evidence of record supports a finding that the Veteran, without regard to advancing age and nonservice-connected disabilities, is capable of performing the physical and mental actions required by employment. The Veteran is currently retired; according to the VA examination reports, the Veteran retired by choice due to physical limitations on heavy lifting. However, that is just one factor to be considered. The evidence shows that, while the Veteran reported that he could not be employed due to his service-connected disabilities, he repeatedly denied that his service-connected disabilities were related to his decision to retire upon seeking treatment or at VA examinations. Finally, the April 2009 and January 2011 VA examiner opined that his disabilities had no impact on his ability to be employed. This opinion provided by a physician with a medical education and training is more probative than the Veteran's lay statements to the contrary and is supported by the record. In sum, the service connected disabilities do not render him unable to obtain or retain substantially gainful employment. As such, the Board concludes that the preponderance of the evidence is against a finding that entitlement to a TDIU is warranted, and the Veteran's claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied Entitlement to TDIU is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs