Citation Nr: 1539236 Decision Date: 09/14/15 Archive Date: 09/24/15 DOCKET NO. 07-02 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to nonservice-connected pension benefits prior to October 3, 2005. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to August 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The January 2006 rating decision denied service connection for an acquired psychiatric disorder and hepatitis C, as well as nonservice-connected pension benefits. In May 2006, the Veteran filed a Notice of Disagreement. The RO furnished the Veteran a Statement of the Case in November 2006, and the Veteran filed a Substantive Appeal (VA Form 9) in January 2007. In December 2009, a Board Veterans Law Judge remanded these claims for additional development. The December 2009 prior remand improperly characterized the claim to reopen service connection for an acquired psychiatric disorder as being a claim of service connection for an acquired psychiatric disorder. Indeed, service connection for an acquired psychiatric disorder was originally denied by a July 1988 rating decision that became final when the Veteran did not file a timely notice of disagreement or submit additional evidence within a year of the rating decision. See 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2015). The RO had denied the claim because there was no evidence of a current disability. However, the Board notes that the newly received evidence in conjunction with the Veteran's March 2005 claim to reopen shows that the Veteran had diagnoses of dysthymic disorder, major depressive disorder, and anxiety disorder. Therefore, as new and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder, see 38 C.F.R. § 3.156 (2015), the Board finds that the characterization of service connection for an acquired psychiatric disorder in the December 2009 Board remand constitutes harmless error. An August 2014 Supplemental Statement of the Case granted nonservice-connected pension benefits, effective October 3, 2005. However, as this grant does not represent a total grant of benefits sought on appeal, the Board has recharacterized the claim as listed on the title page. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that, in addition to the paper claims file, there is a paperless, electronic record associated with the Veteran's claims (including Virtual VA and Veterans Benefits Management System (VBMS)). A review of the documents in such file reveals that certain documents, including VA medical records dated from March 2011 to August 2014 and the May 2015 Informal Hearing Presentation, are potentially relevant to the issues on appeal. Thus, the Board has considered these electronic records in its adjudication of the Veteran's case. Any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue(s) of entitlement to service connection for an acquired psychiatric disorder and hepatitis C are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served for over 90 days during a period of war, and is not 65 years of age or older. 2. Prior to October 3, 2005, the Veteran was not permanently and totally disabled from nonservice-connected disability. CONCLUSION OF LAW The criteria for nonservice-connected pension benefits have not been met prior to October 3, 2005. 38 U.S.C.A. §§ 101, 1521 (West 2014); 38 C.F.R. §§ 3.3, 4.16, 4.17 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2015). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In an August 2005 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for nonservice-connected pension benefits, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A June 2006 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the types of evidence which impacts those determinations. Although the June 2006 notification was issued after the adjudication on appeal, the Veteran's case was subsequently readjudicated in the November 2006 Statement of the Case and the August 2014 Supplemental Statement of the Case, and he had the opportunity to submit additional argument and evidence. Therefore, the content timing error did not affect the essential fairness of the adjudication of the claim. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA and private medical records, VA examination reports, Social Security Administration (SSA) records, vocational rehabilitation records, and the Veteran's statements. The Board finds that the June 2010 and July 2010 VA examination reports are adequate because the examiners considered the relevant facts regarding the Veteran's medical history and determined the severity of the Veteran's nonservice-connected disabilities. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included scheduling the Veteran for a VA examination to determine the severity of his disabilities and obtaining all outstanding VA medical records and vocational rehabilitation records. In response, the RO/AMC scheduled the Veteran for June 2010 and July 2010 VA examinations and obtained all outstanding VA medical and vocational rehabilitation records. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis VA awards nonservice-connected pension benefits to a veteran who 1) served for 90 days or more during a period of war; and 2) is either permanently and totally disabled due to disabilities not due to willful misconduct, or is aged 65 or older, provided that 3) his annual countable income and net worth do not exceed legally prescribed limits. See 38 U.S.C.A. § 1521(a) (West 2014); 38 C.F.R. §§ 3.3, 3.314(b) (2015). If a veteran's combined disability is less than 100 percent, he or she must be unemployable by reason of disability. 38 C.F.R. §§ 3.321, 3.340, 3.342 and Part 4; see also Brown v. Derwinski, 2 Vet. App. 444, 446 (1992). A veteran is considered permanently and totally disabled for pension purposes if the veteran is any of the following: (1) a patient in a nursing home for long-term care because of disability; (2) disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person; or (4) suffering from: (i) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person; or (ii) any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3(a)(3)(vi)(B) (2015). One way for a veteran to be considered permanently and totally disabled for pension purposes is to satisfy the "average person" test. See 38 U.S.C.A. § 1502(a); 38 C.F.R. § 4.15 (2015); Brown v. Derwinski, 2 Vet. App. 444 (1992); Talley v. Derwinski, 2 Vet. App. 282 (1992). To meet this test, the veteran must have the permanent loss of use of both hands or feet, or one hand and one foot, or the sight of both eyes, or be permanently helpless or permanently bedridden; or the permanent disabilities must be rated, singly or in combination, as 100 percent. The Board finds that based on the evidence of record, the Veteran does not meet any of these criteria. Alternatively, all veterans who are basically eligible for pension benefits and who are unable to secure and follow a substantially gainful occupation by reason of disabilities, which are likely to be permanent, shall be rated as permanently and totally disabled. For the purposes of entitlement to pension benefits, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. The percentage requirements of 38 C.F.R. § 4.16 are as follows: if there is only one disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (2015). When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure or follow substantially gainful employment by reason of such disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the veteran's disabilities render him or her unemployable. See 38 C.F.R. § 4.17 (2015). Where the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards of the Rating Schedule, but is found to be unemployable for reason of his disabilities, age, occupational background, and other related factors, a permanent and total disability rating for pension purposes may be assigned on an extraschedular basis. See 38 C.F.R. § 38 C .F.R. § 3.321(b), 4.17(b) (2015). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran had active service for more than 90 days during the Vietnam era; therefore, his period of service meets the basic service criteria for eligibility for pension under 38 U.S.C.A. § 1521. The record shows that the Veteran was born in January 1953 and is 62 years old. He was not working for the period prior to October 3, 2005. The Veteran's nonservice-connected disabilities are listed as fractures of the right hip and tibia/fibula, rated as 30 percent disabling; hepatitis C, rated as 0 percent disabling; and depression, rated as 0 percent disabling. His combined rating for pension purposes is 30 percent, which does not meet the schedular requirements for consideration for nonservice-connected pension benefits. 38 C.F.R. § 4.16. However, regardless of the schedular requirements for consideration of nonservice-connected pension benefits, the Board finds that, prior to October 3, 2005, the evidence of record does not show that the Veteran is permanently and totally disabled due to nonservice-connected disability. VA medical records dated from May 2005 to October 2005 show that the Veteran received intermittent treatment for hepatitis C and acquired psychiatric disorders that included mood disorder, rule out depression secondary to general medical condition, and consideration of recurrent major depressive disorder. The records show that the Veteran had been cleared to begin Interferon treatment for his hepatitis C. He had pervasive depressive symptoms with significant emotional and cognitive symptoms, and his symptoms were noted to be greater in the context of seemingly worsening medical issues. He had low interest, felt quite anergic and unmotivated, appeared quite somatic, had blunt and constricted affect, and constantly worried about his health and medical issues. He was hopeless but not actively suicidal or homicidal. He was not psychotic and did not feel like giving up completely. The Veteran began taking anti-depressant medication, which helped him feel less depressed and more positive about himself. He was still experiencing some affective disturbances, but he was sleeping better and had a little bit of an improved mood. VA vocational rehabilitation records dated from May 2005 to August 2005 show that the Veteran was also working Compensated Work Therapy (CWT) in housekeeping at the Aspinwall, Pennsylvania, VA medical center during the period under appeal. The CWT review notes reveal that the Veteran had satisfactory attendance, punctuality, quantity of work/output volume, quality of work, timeliness, work-place tolerance, instructability, memory, concentration, safety compliance, response to supervision, response to peers, response to change, general attitude, and personal hygiene and appearance. The vocational rehabilitation specialist found that the Veteran was performing in a satisfactory manner in all 22 vocational assessment categories. He reported that the Veteran's personality was engaging and did not seem prone to unreasonable or irrational dissatisfaction. The Veteran was noted to be well aware of his purpose and displayed appropriate concern for planning and short-term goal accomplishment. On VA psychiatric examination in June 2010, after review of the claims file and examination of the Veteran, the examiner found that the Veteran did not meet the diagnostic criteria for any specific depressive disorder at that time, as he had endorsed minimal depressive symptoms on examination, with the exception of apathy, anhedonia, and occasional sadness when reflecting on the events of his life. Given that the Veteran reported minimal psychiatric symptoms at the time, the examiner determined that he remained capable of obtaining and maintaining gainful employment. She explained that he was able to tolerate the stress, schedule requirements, and interpersonal interactions that were inherent in any employment setting. At a July 2010 VA general medical examination, after review of the claims file and examination of the Veteran, the examiner diagnosed the Veteran with chronic hepatitis C, fracture of the right acetabulum of the right tibia and fibula that was resolved and healed with chronic pain, and hypertension with no end-organ changes. The examiner found that the Veteran was able to sit, answer phones, and drive for short distances. She concluded that it seemed that the Veteran would be a candidate for sedentary employment. For the period prior to October 3, 2005, the evidence of record does not show that the Veteran was a patient in a nursing home for long-term care because of disability. There was also no evidence that he was found to be disabled by SSA for the period under consideration. Indeed, an August 2014 verification of SSA disability reveals that the Veteran was found to be disabled by SSA as of October 3, 2005. Additionally, the evidence does not show that prior to October 3, 2005, the Veteran was unemployable as a result of his nonservice-connected disabilities that were reasonably certain to continue throughout his life, nor does the evidence indicate that prior to October 3, 2005, he was suffering from disability sufficient to render it impossible for the average person to follow a substantially gainful occupation, or any disability determined by VA to be of such a nature or extent as to justify a determination that he was permanently and totally disabled. While the medical records reflect ongoing treatment for hepatitis C and depression prior to October 3, 2005, there is no evidence that the Veteran's disabilities rendered him unemployable during this period. Indeed, the evidence reveals that the Veteran had been working CWT and performing in a satisfactory manner in all 22 vocational assessment categories. VA examiners also determined that the Veteran had been capable of obtaining and maintaining gainful employment, as he was able to tolerate the stress, schedule requirements, and interpersonal interactions that were inherent in any employment setting, as well as be a candidate for sedentary employment. Therefore, the Veteran was not shown to be permanently and totally disabled on any basis prior to October 3, 2005. In sum, the Board finds that the most competent and probative evidence fails to show that the Veteran was permanently and totally disabled due to nonservice-connected disability prior to October 3, 2005. Accordingly, nonservice-connected pension benefits is not warranted on any basis prior to October 3, 2005. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to nonservice-connected pension benefits prior to October 3, 2005 is denied. REMAND Although the Board regrets the additional delay, further development is needed prior to disposition of the claims remaining on appeal. Regarding the acquired psychiatric disorder, the Veteran contends that it had its onset in service. Specifically, the Veteran reported in his May 2006 Notice of Disagreement that his depression had started in service when he was deceived by his recruiter concerning his military occupational specialty, his marriage broke up, he had a fear of dying in Vietnam, and he was treated unfairly by his superiors. The Board notes that there is a June 2010 VA examination report of record in which the examiner found that the Veteran did not meet the diagnostic criteria for any specific depressive disorder at that time, as he had endorsed minimal depressive symptoms on examination. The examiner opined that it was likely that the Veteran's history of significant substance use had been the primary etiological factor for any past depressive symptoms, as his mood had been relatively stable since he had abstained from substances. She concluded that the Veteran did not currently meet the diagnostic criteria for any disorder. She further determined that he had not met the diagnostic criteria for mood disorder secondary to general medical problems in the past, as that had been an incorrect use of the diagnosis. However, the Board notes that the requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability present at any time since the filing of the claim, even if no disability is present at the time of the claim's adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, even though the June 2010 examiner found no acquired psychiatric disorder at that time, VA and private medical records dated from January 1994 to August 2002, which were submitted after the June 2010 VA examination, show that the Veteran had Axis I diagnoses of organic mood disorder, panic disorder with agoraphobia, major depression, generalized anxiety disorder, dysthymic disorder, and social phobia. Additionally, these diagnoses were made during periods when the Veteran had been determined to be sober and abstaining from substances. Given the evidence outlined above, the Board finds that the Veteran should be afforded another appropriate VA examination with medical opinion concerning whether the Veteran's diagnosed acquired psychiatric disorder arose during service or is otherwise related to any incident of service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to hepatitis C, the Veteran has alleged that he developed this disease as a result of his military service. Specifically, the Veteran reported in his May 2006 Notice of Disagreement and May 2006 "Risk Factors for Hepatitis Questionnaire" that he contracted hepatitis C when he received immunizations while in basic training from an inoculation air gun which had been contaminated with blood. He also stated that there had not been any testing for HIV or hepatitis C until the 1990s. Additionally, the Veteran's immunization records for his period of active duty confirm that he was administered immunizations during basic training. As there is no evidence to contradict the Veteran's reports, they are therefore accepted as credible. The Board notes that there is a July 2010 VA examination report of record in which the examiner found that the Veteran's hepatitis C "would not be secondary to service time" due to the fact that he had been diagnosed in the 1990s with a history of intravenous heroin abuse. However, this VA examiner did not address the Veteran's reports of in-service air gun inoculations, which the VA Secretary has recognized as a "biologically plausible" transmitter of hepatitis C. See VBA Fast Letter 04-13 (June 29, 2004). Given the evidence outlined above, it remains unclear to the Board whether the Veteran's in-service air gun inoculations were a causative factor leading the Veteran to contract hepatitis C. Therefore, the Board finds that the Veteran should be afforded another appropriate VA examination with medical opinion concerning whether the Veteran's hepatitis C arose during service or is otherwise related to any incident of service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his acquired psychiatric disorder and hepatitis C. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for a VA examination to obtain a medical opinion determining whether the Veteran's acquired psychiatric disorder is related to his period of service. The claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current acquired psychiatric disorder is due to the Veteran's period of service. The examiner is advised that in rendering the opinion, even if the Veteran does not have a current diagnosis of any psychiatric disorder on examination, he or she must still consider the Veteran's previous diagnoses of organic mood disorder, panic disorder with agoraphobia, major depression, generalized anxiety disorder, dysthymic disorder, and social phobia, as documented in VA and private medical records dated from January 1994 to August 2002. The examiner should consider the Veteran's lay statements with regard to onset and continuity of symptomatology of his disorder. Each opinion provided must be fully explained with a complete discussion of the evidence of record and sound medical principles, which may reasonably explain the medical guidance in the study of this case. 3. Schedule the Veteran for a VA examination to obtain a medical opinion determining whether the Veteran's hepatitis C is related to his period of service. The claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's in-service air gun inoculations contributed in any way to the Veteran contracting hepatitis C many years after service. In making this assessment, the examiner is to consider the VBA Fast Letter 04-13 (June 29, 2004) and any other pertinent medical data and/or medical literature, which may reasonably illuminate the medical analysis in the study of this case. The examiner should consider the Veteran's lay statements with regard to onset and continuity of symptomatology of his disorder. Each opinion provided must be fully explained with a complete discussion of the evidence of record and sound medical principles, which may reasonably explain the medical guidance in the study of this case. 4. After the development requested above has been completed, the record should again be reviewed. If any benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs