Citation Nr: 1335987 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-22 084 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hyperpituitarism (post pituitary tumor extraction), claimed as due to herbicide exposure. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Attorney Robert W. Gillikin WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1968 to May 1970 and from June 1971 to July 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2008 and May 2009 rating decisions by the Roanoke, Virginia RO, which in pertinent part denied service connection for pituitary tumor extraction (January 2008) and entitlement to TDIU (May 2009). In May 2010, a Travel Board was held before the undersigned on the matter of entitlement to a TDIU rating; a transcript of the hearing is included in the claims file. In April 2011, June 2013, and September 2013, the Board remanded the matters for additional development. In his July 2008 substantive appeal, the Veteran requested a Board hearing in Washington, D.C. In a December 2010 statement, he clarified that he wanted a videoconference Board hearing at the RO. In April 2011, June 2013, and September 2013, the Board remanded the matter to schedule a videoconference hearing on the issue. A review of the claims file reveals a June 2013 e-mail statement from the Veteran's attorney (which was previously unavailable to the Board) indicating that he wished to submit a brief in lieu of the requested hearing; the Board accepts this statement as a withdrawal of the Veteran's hearing request. FINDINGS OF FACT 1. Hyperpituitarism (or a pituitary tumor) was not manifested during the Veteran's active duty service, and is not shown to be related to his service, to include as due to herbicide exposure therein. 2. The Veteran's service-connected disabilities (posttraumatic stress disorder (PTSD) rated 30 percent from July 27, 2005, and 50 percent from January 17, 2012; residuals of a shrapnel wound to the left buttocks, rated 20 percent; and contact dermatitis and eczema, rated 0 percent) are rated 60 percent combined, and the compensable disabilities share a common etiology; however, they not shown to render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Service connection for hyperpituitarism (post pituitary tumor extraction) is not warranted. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. The schedular rating criteria for a TDIU rating are met; however, a TDIU rating is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims. August 2007 and August 2008 letters explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. These letters also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA psychiatric examinations in September 2008 and January 2012 (with May 2012 addendum opinion) and a VA skin diseases examination in August 2012, which will be discussed in greater detail below, though the Board finds these examinations to be adequate as they included a review of the Veteran's history and mental status/physical examinations that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the U.S. Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is no evidence that hyperpituitarism was manifested in service or might in any way be related directly to his service. Therefore, a VA examination to secure a nexus opinion in this matter is not necessary. The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, (and Virtual VA) with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection for hyperpituitarism (post pituitary tumor extraction) Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). 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, (e.g., a broken leg), (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 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. The evidence of record, including VA treatment records, shows that the Veteran has undergone surgery to remove a pituitary tumor. It is not in dispute that he has/has had such disability. Certain diseases may be service connected on a presumptive basis as due to herbicide (Agent Orange) exposure if manifested in a Veteran who served in the Republic of Vietnam during the Vietnam Era, based on presumptive exposure to certain herbicide agents. 38 U.S.C.A. § 1116. Those diseases are listed in 38 C.F.R. § 3.309(e); hyperpituitarism or a pituitary tumor is not listed. The Veteran contends that he has hyperpituitarism status post pituitary tumor extraction due to herbicide exposure in Vietnam. The Veteran's DD Form 214 confirms that he served in Vietnam during the Vietnam Era; it is not in dispute that he may have been exposed to herbicides/Agent Orange in the course of such service. However, his STRs are silent for any complaint, finding, treatment, or diagnosis relating to hyperpituitarism or a pituitary tumor. On May 1970 service separation examination, the endocrine system was normal on clinical evaluation. No service separation examination following the Veteran's second period of active duty service is available for review. VA treatment records reflect that, in May 2007, the Veteran reported severe unilateral headaches occurring over the previous week; the onset of the pain was 5 to 6 days earlier and spontaneous over the right front-parietal area with no radiation. He was noted to have a history of hypogonadism since October 2006 when his testosterone level was tested as low, and he also had a history of hypothyroidism that was treated with medication. MRI and CT scans revealed a pituitary macroadenoma. In July 2007, he underwent a transphenoidal pituitary hypophysectomy and resection to remove the pituitary tumor. On August 2007 VA treatment, his post-operative treatment was noted to be uneventful, and he was asymptomatic for the central nervous system and any signs or symptoms of hormonal dysfunction; his headaches had resolved and he had no signs of hypothyroidism. Inasmuch as hyperpituitarism or a pituitary tumor is not among the diseases listed in 38 C.F.R. § 3.309(e) (determined to be related to Agent Orange/herbicide exposure), the presumptive provisions of 38 U.S.C.A. § 1116 do not apply, and service connection on a presumptive basis for hyperpituitarism status post pituitary tumor extraction as due to Agent Orange exposure is not warranted. The Board observes that extensive scientific studies have produced a limited list of disabilities related to Agent Orange exposure (see 38 C.F.R. § 3.309(e)). There is no evidence that hyperpituitarism or a pituitary tumor was manifested in service. Treatment records reflect that it was first diagnosed in 2007, approximately 33 years after his separation from service. Consequently, service connection for this disability on the basis that it became manifest in service and persisted is not warranted. Furthermore, postservice evaluation/treatment records provide no indication or suggestion that the Veteran's hyperpituitarism or pituitary tumor may somehow otherwise be related to his service. Notably, the very lengthy interval between service and the initial postservice diagnosis of a pituitary gland disability (some 33 years) is, of itself, a factor for consideration against a finding of service connection. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for hyperpituitarism status post pituitary tumor extraction. Accordingly, the appeal in the matter must be denied. TDIU TDIU may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities (without regard to age). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 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. 38 C.F.R. § 4.16(a). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice- connected disabilities on his ability to function. The United States Court of Appeals for Veterans Claims (Court) has stated: In determining whether [an] appellant is entitled to a total disability rating based upon individual unemployability, the appellant's advancing age may not be considered. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task [is] to determine whether there are circumstances in this case apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the BVA must determine if there are circumstances, apart from non-service-connected disabilities, that place this veteran in a different position than other veterans with an 80 percent combined disability rating. See 38 C.F.R. § 4.16(a) (1992). Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), "marginal employment shall not be considered substantially gainful employment." In Moore, 1 Vet. App. at 359, the Court further discussed the meaning of "substantially gainful employment". The Court noted the following standard announced by the United States Court of Appeals for the Federal Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. The sole fact that a claimant 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 and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. The initial question for consideration is whether or not the schedular criteria for a TDIU rating in 38 C.F.R. § 4.16(a) are met. The Veteran's service connected PTSD and residuals of a shrapnel wound to the buttocks share a common etiology, as they were both incurred in action, and for purposes of this determination are considered a single disability. As their combined rating (under 38 C.F.R. § 4.25) is 60 percent, the schedular criteria for a TDIU rating are met. Therefore, the analysis progresses to whether the Veteran's service connected disabilities indeed render him unemployable. A June 2006 Notice of Dismissal from the City of Roanoke indicates that the Veteran's employment was terminated due to the use of abusive, threatening, or profane language toward fellow employees or the public. He made such comments to the mayor and the city council. On October 2006 VA psychiatric examination, the Veteran reported changes in his life over the previous year, including being fired from his job in June 2006 and having significant financial stress since that time. The Veteran submitted a September 2007 treatment summary letter from John Whitlock, MSW, LCSW, at the Roanoke Vet Center, who opined that the increasing isolation and social withdrawal as well as a notable decline in hygiene and grooming were marked indicators of the Veteran's decline. Mr. Whitlock also cited a June 2006 incident at a city council meeting which resulted in legal action and the Veteran's dismissal from employment with the city of Roanoke, which Mr. Whitlock opined was indicative of very poor judgment and extreme emotional lability characteristic of severe PTSD. Mr. Whitlock concluded that it was his opinion that the Veteran had been rendered unemployable by his PTSD symptoms and that the severity and chronicity of his condition indicated a very guarded prognosis for any future significant and sustained improvement. On September 2007 VA treatment, the treating psychiatrist opined that the magnitude of the Veteran's PTSD symptoms, superimposed by his ongoing sudden onset of medical problems (adrenal insufficiency, pituitary macroadenoma, and panhypopituitarism) rendered him unemployable. On September 2008 VA mental health examination, the examiner noted that the Veteran remained out of work since June 2006 and there had been no further legal troubles since that time. The Veteran complained that [in addition to his PTSD] his arthritis and back problems would also interfere with any future employment. At the May 2010 Travel Board hearing, the Veteran testified that he has not worked since June 2006, when he was fired from his last job. He testified that his [non-service connected] acute arthritis has kept him from being able to work, as well as the fact that his treatment records would reveal to potential employers that he has PTSD. On January 2012 VA psychiatric examination, the Veteran reported that he had not been employed since 2006; he reported that the incident that led to his termination as well as related legal charges made it difficult to find work. He considered himself retired, primarily due to his poor physical health. He believed that "flare ups" of his PTSD symptoms could potentially intermittently affect his ability to work, if he were employed. The examiner opined that the Veteran's disability resulted in occupational and social impairment due to mild or transient symptoms which decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In a May 2012 addendum opinion, the January 2012 VA examiner noted that the Veteran reported that "flare ups" of his PTSD symptoms, such as flashbacks and exaggerated startle response) could potentially intermittently affect his ability to work, were he currently employed. However, the Veteran had also stated that he was able to function at work prior to ceasing work in 2006, primarily due to his physical health issues. He reported losing one job as a local government employee due to a verbal outburst at a town council meeting. The examiner noted that the Veteran reported good social functioning without any significant impairment due to his symptoms, and he denied any impairment in his ability to carry out activities of daily living due to his psychiatric symptoms. The examiner opined that the Veteran's sub-threshold PTSD symptoms would not preclude him from obtaining and maintaining gainful employment. On June 2012 VA mental health treatment, the Veteran reported feeling "okay" most of the time. He reported that his PTSD symptoms were stable. He reported having pain due to osteoarthritis. He stated that he also has multiple physical problems and is unable to work. On August 2012 VA skin diseases examination, the examiner opined that the Veteran's skin conditions do not impact on his ability to work. The Veteran has not worked in several years. However, this fact, in and of itself, does not provide a basis to conclude that the Veteran's service-connected disabilities render him unemployable. Notably, he has cited to several factors that may not be considered in determining his entitlement to a TDIU rating, including non-service connected disabilities. He and his treating medical personnel have stated on more than one occasion that he stopped working due to [non-service connected] physical health problems: on September 2007 VA treatment, the treating psychiatrist opined that the Veteran's PTSD symptoms, superimposed by his ongoing sudden onset of medical problems including adrenal insufficiency, pituitary macroadenoma, and panhypopituitarism, rendered him unemployable. On September 2008 VA mental health examination, the Veteran complained that his arthritis and back problems, in addition to his PTSD, would interfere with any future employment. At the May 2010 Travel Board hearing, the Veteran testified that his [non-service connected] acute arthritis has kept him from being able to work, as well as the fact that his treatment records would reveal to potential employers that he has PTSD. On January 2012 VA psychiatric examination, the Veteran reported that he considered himself retired, primarily due to his poor physical health, and the examiner opined that the Veteran's sub-threshold PTSD symptoms would not preclude him from obtaining and maintaining gainful employment. On June 2012 VA treatment, the Veteran stated that he has multiple physical problems and is unable to work. The Board notes the September 2007 treatment summary letter from Mr. Whitlock of the Roanoke Vet Center, who opined that the Veteran had been rendered unemployable by his PTSD symptoms and that the severity and chronicity of his condition indicated a very guarded prognosis for any future significant and sustained improvement. However, this statement is contradicted by the other evidence cited above, most notably the several reports by the Veteran that his physical problems (specifically arthritis and back problems) are the cause of his unemployability, and the VA examiners' opinions that the Veteran's PTSD would not preclude him from obtaining and maintaining gainful employment. Mr. Whitlock's summary does not reflect a complete disability picture. For example, the citation to the Veteran's flare-up at a public meeting, leading to the termination of his employment, does not acknowledge that the record shows that that was an isolated incident, and that the Veteran has had no subsequent legal problems (see September 2008 treatment note); the mention of declining attention to hygiene/poor hygiene is contradicted by subsequent examination reports (e.g., May 2012) which show no lack of attention to personal appearance. The statement that the Veteran has growing social isolation is contradicted by subsequent treatment records that show the Veteran is active in his church and maintains good relations with a former girlfriend. While the Veteran clearly has some occupational impairment due to his service connected disabilities, such impairment is the basis for the current ratings that have been assigned. The record does not reflect that the service connected disabilities are such as to preclude his participation in gainful employment. As was noted above, nonservice-connected physical disabilities may not be considered in deciding whether or not he is entitled to a TDIU rating. Nothing in the record suggests that the Veteran would be precluded solely by his service connected disabilities from obtaining or maintaining employment. In this regard the Board again notes that the Veteran's flare-up at a council meeting in 2006 appears to have been an isolated event, and that he has not had any legal problems since (as is noted in treatment records). Given his otherwise apparently adequate social functioning, the record does not show that the Veteran's PTSD and gunshot wound residuals, alone, would prevent him from maintaining gainful employment; what it does show is that he considers himself retired and does not appear to be actively seeking employment. Accordingly, the preponderance of the evidence is against this claim, and the appeal in the matter must be denied. ORDER Service connection for hypertension, including as due to Agent Orange/herbicide exposure, is denied. The appeal seeking a TDIU rating is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs