Citation Nr: 1511065 Decision Date: 03/16/15 Archive Date: 03/27/15 DOCKET NO. 12-21 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include as secondary to service connected bilateral shoulder disabilities. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. 3. Entitlement to an evaluation in excess of 40 percent for left shoulder osteoarthritis, with mild limitation of motion. 4. Entitlement to an evaluation in excess of 20 percent for right shoulder disability, status post acromio-clavicular separation. 5. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to March 1954 and from September 1990 to June 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to an evaluation in excess of 40 percent for left shoulder osteoarthritis with mild limitation of motion, entitlement to an evaluation in excess of 20 percent for right shoulder disability, status post acromio-clavicular separation, and entitlement to service connection for a lumbar spine disorder are addressed in the Remand portion of this decision. FINDINGS OF FACT 1. The Veteran's currently diagnosed psychiatric disorder was aggravated by his service-connected bilateral shoulder disabilities. 2. Evidence of record indicates that the Veteran's service-connected bilateral shoulder disabilities alone preclude him from engaging in substantially gainful employment that is consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a psychiatric disorder, as secondary to a service connected disorder, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2014). 2. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities are met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.340, 4.16, 4.25 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014). The Board is taking action favorable to the Veteran by granting the claims of entitlement to service connection for a psychiatric disorder as secondary to service connected bilateral shoulder disabilities and entitlement to a total rating for compensation purposes based upon individual unemployability (TDIU) at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection for Psychiatric Disorder The Veteran has primarily asserted that his currently diagnosed psychiatric disorder was caused by or aggravated by his service-connected bilateral shoulder disabilities. In addition, during the October 2013 hearing before the Board, the Veteran testified as to specific events while in the Coast Guard where he had to pick up dead bodies. He indicated he still had memories of the smell of dead bodies on his hands. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Available service treatment records, including the Veteran's March 1954 separation examination report, are void of any complaints, treatment, or diagnosis of any psychiatric disorder. No military occupational specialty was listed on either of the Veteran's DD Form 214 from periods of active service. While the Veteran had no foreign or sea service during his second period of active service, he had two years and 11 days of foreign and/or sea service during his first period of active duty. Post-service VA treatment records revealed various psychiatric diagnoses, to include bipolar disorder, adjustment disorder with depressed mood, and depression. In an April 2011 VA examination report, the Veteran noted that he joined the Coast Guard in 1951 and served on active duty until 1954, travelling extensively to Korea, Guam, the Philippines, Wake Island, and Okinawa. He reported that he was involved in some combat in Korea, stating that he was erroneously thought to have been killed in one incident, although he was uninjured. He indicated that he was again on active duty from 1990 to 1991 and was trained as a Weapon's Specialist and in the operation of Boston Whalers, a fast-moving vessel used to intercept coastal smugglers, with the intent that he would be sent into combat. However, he reported that after extensive training in the Chance islands, he was sent to Point Magu where injuries put an end to his Coast Guard career and he could not complete his training. After reviewing the record and conducting the examination, the examiner diagnosed moderate bipolar II disorder, with recurrent major depressive episodes and hypomanic episodes. After highlighting that it was "probable" that the Veteran's service-connected physical injuries may have caused him physical pain and hampered his ability to pursue enjoyable physical activities to some extent, the examiner opined that it was not "probable" that the Veteran's bilateral shoulder injuries caused his current psychiatric disorders. The examiner, however, did not provide an opinion as to whether the Veteran's bilateral shoulder disabilities aggravated his claimed psychiatric disorder. The Board remanded this matter for additional development in December 2013. After the Veteran's vague assertions of stressful events during service while testifying at the October 2013 hearing before the Board, the RO gave him an opportunity to additional information concerning his reported stressors so that it could make efforts to objectively confirm these events in February 2014. In statement received later that month, the Veteran specifically indicated that he had no stressor information to submit. In a May 2014 VA examination report, the VA examiner diagnosed bipolar II disorder. The examiner initially opined that it was "at least as likely as not" that based on the probable diagnosis stated in the Veteran's health records, as well as the current examination and statement of service-related stressors, that a nexus could be established between the current mood disorder symptoms and the claimed in-service events. The examiner noted that it was "likely" that the Veteran had a predisposition of the mood disorder, but that the course of hostile and traumatic events during his service led to significantly elevated stressors and inability to adaptively cope, thus resulting in the manifestation of a full mood disorder. The examiner then opined that it was "at least as likely as not" that based on the probable diagnosis stated in the records provided, as well as the current examination and statement of service-related stressors, that a nexus could be established between the current psychiatric symptoms and the claimed physical disability of bilateral shoulder injury. In the cited rationale, the examiner highlighted that it was known that chronic pain and medically complex conditions could exacerbate mood symptom presentation. It was indicated that it was "likely" that the Veteran's shoulder injury exacerbated onset and severity of mood disorder, but "likely not" the cause of the disorder. As an initial matter, entitlement to service connection for a psychiatric disorder on a direct basis is not warranted. Available service treatment records clearly do not reflect findings or complaints of a psychiatric disorder. Post-service medical evidence of record first showed findings of various psychiatric disorders in 1996, years after the Veteran's separation from active service in 1954 and 1991. In addition, the record does not include any probative medical evidence or opinion suggesting a causal relationship between the Veteran's claimed psychiatric disorder and his active military service. The Board is cognizant that the May 2014 VA examiner opined that a nexus could be established between the Veteran's current mood disorder symptoms and the claimed in-service events. However, the May 2014 VA examiner's opinion was clearly inadequate, as it was based on multiple unverified stressor events reported by the Veteran. In addition, after making vague assertions of in-service stressor events during the appeal, the most recent communication from the Veteran in February 2014 showed that he had no stressor information to report. Based on the foregoing, the Board finds that the Veteran's inconsistent statements as to his in-service stressors are not credible, and any etiological opinion that is based upon these statements is not probative. Reonal v. Brown, 5 Vet. App. 458 (1993). However, in view of the totality of the evidence, including the current findings of a psychiatric disorder, the previous award of entitlement to service connection for bilateral shoulder disabilities with assignment of a combined 60 percent rating, and the favorable conclusions reached by the May 2014 VA examiner as to the relationship between the Veteran's current psychiatric disorder and his service-connected bilateral shoulder disabilities, the Board has determined that the Veteran's currently diagnosed psychiatric disorder was aggravated by his service-connected bilateral shoulder disabilities. Accordingly, applying the doctrine of reasonable doubt, the Board finds that the Veteran's currently diagnosed psychiatric disorder is related to a service-connected disability and therefore, service connection for a psychiatric disorder is warranted, to the extent that it was aggravated by the service-connected bilateral shoulder disabilities. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Entitlement to TDIU The Veteran has asserted his service-connected bilateral shoulder disabilities prevent him from working. He further contended that his bilateral shoulder pain disturbed his sleep and concentration, as well as precluded his ability to do many other physical activities. Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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, the disability shall be ratable at 60 percent or more, and 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. For the purposes of determining whether one 60 percent disability or one 40 percent disability exists, disabilities of both upper extremities, including the application of the bilateral factor, are considered one disability. 38 C.F.R. § 4.16. During the October 2013 hearing before the Board, the Veteran testified that he worked for many years building music studios. He commented that when he could no longer do the physical work himself, but continued working as a consultant on such projects. Additional evidence of record reflected that the Veteran claimed he was self-employed as a consultant until 2006 or 2007. In a May 2009 VA examination report, the examiner commented that the effect of the shoulder disorder on the Veteran's daily activity was moderate to severe, with limited reaching, overhead work, pushing, pulling, heavy lifting, and carrying. In the April 2011 VA examination report, the Veteran indicated he was still self-employed as an acoustics consultant and had lost 12 weeks from work in the last year due to shoulder pain. Thus, the examiner did not render a specific opinion as to whether the Veteran was precluded from working due solely to his service-connected disabilities. In an additional April 2011 VA examination report, another VA examiner indicated that the Veteran had enjoyed success in a variety of careers and appeared to have generally done well vocationally for much of his life. In August 2014 VA examination reports, the examiner opined that the Veteran's shoulder condition impacted his ability to work. When describing the impact of each of the Veteran's shoulder conditions, the examiner reported that the disabilities impacted the Veteran's ability to do anything overhead, as well as his ability to lift, push, or pull weight greater than 10 pounds. The Veteran was also noted to experience insomnia with frequent awakenings due to pain when rolling onto his shoulders, left greater than right. The examiner opined that the Veteran's bilateral shoulder disabilities impacted his ability to obtain and maintain employment consistent with his education and occupational experience due to chronic pain. It was indicated that bilateral shoulder pain awakened the Veteran from sleep and that he was unable to get a restful night's sleep. The examiner also noted that prescribed muscle pain reliever medications did not fully relieve the Veteran's pain. It was noted that the Veteran's daytime fatigue and drowsiness, both from his frequent awakenings and his medications, impacted his ability to think clearly and function cognitively. Chronic pain was further noted to cause mood swings, which affected his ability to get along with co-workers and supervisors. As an initial matter, the Board finds that the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are met, as the Veteran's service-connected left shoulder osteoarthritis with mild limitation of motion, is rated as 40 percent disabling and his service-connected right shoulder disability, status post acromio-clavicular separation, is rated as 20 percent disabling. The total combined rating for his service-connected disabilities is 60 percent from February 11, 1998. The Veteran's service-connected right shoulder and left shoulder disabilities, as disabilities of both upper extremities, are considered as one single 60 percent disability, under 38 C.F.R. § 4.16(a). In view of the totality of the evidence, including the medical findings detailing the severity of his service-connected bilateral shoulder disabilities, and the competent and credible lay assertions of unemployability due to limitations caused by service-connected bilateral shoulder disabilities, the Board finds that the evidence of record indicates that the Veteran's service-connected bilateral shoulder disabilities, coupled with his educational/training background and employment history, precludes him from securing and following any substantially gainful occupation during the appeal period. Accordingly, the Board finds that the Veteran's service-connected bilateral shoulder disabilities were of such severity as to render him unable to obtain or maintain substantially gainful employment. As such, entitlement to TDIU is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER Service connection for a psychiatric disorder is granted, to the extent that it was aggravated by the service-connected bilateral shoulder disabilities. TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Board's review of the record revealed that additional development for the matters of entitlement to an evaluation in excess of 40 percent for left shoulder osteoarthritis with mild limitation of motion, entitlement to an evaluation in excess of 20 percent for right shoulder disability, status post acromio-clavicular separation, and entitlement to service connection for a lumbar spine disorder, is warranted. In a January 2015 rating decision, the RO continued the previously assigned 40 percent evaluation for left shoulder osteoarthritis with mild limitation of motion and 20 percent evaluation for right shoulder disability, status post acromio-clavicular separation, as well as denied entitlement to service connection for a lumbar spine disorder. In a February 2015 statement, the Veteran indicated that he disagreed with assigned disability ratings for his service-connected bilateral shoulder disabilities as well as the denial of service connection for a lumbar spine disorder. This serves as a timely notice of disagreement with respect to those increased rating and service connection claims. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). On remand, therefore, the Veteran must be provided a statement of the case that addresses the issues of entitlement to an evaluation in excess of 40 percent for left shoulder osteoarthritis with mild limitation of motion, entitlement to an evaluation in excess of 20 percent for right shoulder disability, status post acromio-clavicular separation, and entitlement to service connection for a lumbar spine disorder. The Veteran must be notified of the time limit within which a substantive appeal must be filed in order to perfect an appeal on the issues to secure appellate review by the Board. Accordingly, the case is remanded for the following actions: 1. The RO must issue a statement of the case and notification of the Veteran's appellate rights on the issues of entitlement to an evaluation in excess of 40 percent for left shoulder osteoarthritis with mild limitation of motion, entitlement to an evaluation in excess of 20 percent for right shoulder disability, status post acromio-clavicular separation, and entitlement to service connection for a lumbar spine disorder. 38 C.F.R. § 19.26 (2014). The Veteran is reminded that to vest the Board with jurisdiction over the increased rating and service connection issues, a timely substantive appeal for that matter must be filed. 38 C.F.R. § 20.202 (2014). If the Veteran perfects an appeal as to any of these issues, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs