Citation Nr: 1617561 Decision Date: 05/02/16 Archive Date: 05/13/16 DOCKET NO. 10-20 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include memory loss. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from May 1963 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In March 2011, the Veteran failed to appear for a hearing scheduled before the Board at the RO. He has not requested that the hearing be rescheduled or provided good cause for his failure to appear. Thus, the Veteran's request for a Travel Board hearing is considered withdrawn. 38 C.F.R. § 20.704 (2015). In January 2015, the Board remanded this matter for additional evidentiary development, which has been accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's current psychiatric disorder, diagnosed as a mild neurocognitive disorder, is not related to his military service. 2. The Veteran is service connected for tinnitus, evaluated at a 10 percent disability rating. 3. The Veteran's service-connected tinnitus does not render him unable to secure or follow substantially gainful employment when considered without regard to his age or other non-service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, diagnosed as a mild neurocognitive disorder, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 2. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). VA must notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b). Compliant notice was provided in January 2007 and July 2008. In addition, the Board finds that the duty to assist the Veteran has been satisfied. The Veteran's service treatment and service personnel records are on file, as are various post-service medical records. VA examinations have also been conducted and opinions obtained. The Board also notes that actions requested in the Board's January 2015 remand have been undertaken. In March 2015, the Veteran was asked to submit or identify sources of additional evidence in support of his claims. Thereafter, additional VA medical treatment records were obtained, and the Veteran underwent a September 2015 VA examination for mental disorders, which was followed up with a supplemental medical opinion in December 2015. 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)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). A. Service Connection for an Acquired Psychiatric Disorder, to include Memory Loss. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and psychoses becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The Board has reviewed all the evidence in the record. 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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for an acquired psychiatric disorder, to include memory loss. He contends that he developed this condition secondary to inservice exposure to chemicals, including mustard gas. Alternatively, he attributes this condition to incidents of racism and unfair treatment he experienced during his military service. As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with a mild neurocognitive disorder. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. The Veteran served on active duty in the Army from May 1963 to November 1965. The Veteran's service personnel records reflect that he had multiple disciplinary incidents which eventually resulted in his discharge from the service. A mental hygiene consultation report, dated in September 1965, noted a diagnosis of passive-aggressive personality, which existed prior to his entry into military service. His service treatment records are completely silent as to any complaints or diagnoses of memory loss, a neurocognitive disorder, or Alzheimer's disease. The first post service complaint or diagnosis of memory loss or a neurocognitive disorder is the Veteran's claim for service connection filed in September 2006, over 39 years after his discharge from military service. Post service treatment reports indicate that he was diagnosed with Alzheimer's disease in June 2008. As there is no competent evidence of memory loss or a neurocognitive disorder during service or within the first post service year, and given that neither of these conditions qualify as presumptive condition related to the inservice exposure to nitrogen or sulfur mustard, Lewisite, or herbicide agents (including Agent Orange), competent evidence linking the Veteran's current neurocognitive disorder with his military service is required to establish service connection. See 38 C.F.R. §§ 3.307, 3.309, 3.316. In support of his claim, the Veteran contends that he first noticed his having a problem with memory loss after he was "over-exposed to the chemicals/gases" during service. Although he is competent to provide evidence as to what he experiences, his contentions concerning memory loss are inconsistent and not credible. On a February 1964 medical history report, completed pursuant to an airborne examination, the Veteran denied ever having had any loss of memory or amnesia. He continued to deny ever having had any loss of memory or amnesia on a medical history report completed pursuant to his separation examination in November 1965. Both his airborne and separation physical examinations were silent as to any complaints or diagnoses of memory loss or a neurocognitive disorder. The first post service complaint of or treatment for memory loss is not shown until his current claim was filed in September 2006. Thereafter, a May 2008 VA general medical examination noted the Veteran's reported history of "having poor memory and problems for the last 30 years, since the late '70s." A September 2008 VA treatment report noted that he "reports recent memory problems." In addition to the inconsistencies in his reporting of symptomatology, the Veteran has not shown that he has specialized training sufficient to render an opinion that he has developed a mild neurocognitive disorder secondary to his inservice exposure to chemicals over forty years ago. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, his opinion as to the diagnosis or etiology of this condition is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current mild neurocognitive disorder is not competent medical evidence. In contrast, the Board finds the September 2015 VA examination for mental disorders, along with the December 2015 supplemental medical opinion, to be the most probative evidence as to the etiology of the Veteran's current mild neurocognitive disorder. Following a review of the evidence of record, physical examination of the Veteran, and discussing with him the history of this condition, the VA examiner diagnosed the Veteran with a mild neurocognitive disorder due to Alzheimer's disease. The VA examiner opined that this condition was not related to the Veteran's military service, including his inservice exposure to chemicals. In support of this opinion, the examiner noted that the Veteran was diagnosed with Alzheimer's disease in 2008, and that the Veteran reported "his memory has been bad since he was in his mid-30s," long after his discharge from military service. The examiner also noted that a review of the Veteran's service and post service treatment records revealed no diagnosis of any mood or anxiety disorder. In similar fashion, the VA examiner in July 2008 opined that the Veteran's cognitive dysfunction was not likely related to his chemical exposure during service. In support of this opinion, the VA examiner noted that the Veteran's separation examination was silent as to any memory problems. The examiner also noted that the Veteran's memory problems started 30 years earlier, in the late 1970s, years after the Veteran had left the service. Under these circumstances, there is no competent and credible evidence linking the Veteran's mild neurocognitive disorder to the Veteran's military service. Absent such a nexus, service connection cannot be established. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Accordingly, the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, including memory loss. As there is no doubt to be resolved, service connection for an acquired psychiatric disorder, to include memory loss, is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Entitlement to TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a Veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. 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 Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither appellant's nonservice-connected disabilities nor advancing age may be considered. The Veteran is service-connected for tinnitus at 10 percent disability rating. Service connection has not been established for any other disability. Therefore, he does not meet the schedular rating criteria for TDIU. 38 C.F.R. § 4.16(a). Where the percentage requirements for TDIU are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). Based on a review of the record, the Board finds that the Veteran's service-connected tinnitus does not render him unable to secure or follow substantially gainful employment. While the Veteran's tinnitus distracts him at times and keeps him up some nights, this symptomatology is not of such severity that he is rendered unable to secure or follow substantially gainful employment. In fact, the Veteran has not claimed unemployability due to tinnitus, but rather attributes it to his nonservice-connected disabilities. On his TDIU application, VA Form 8940, filed in August 2007, the Veteran reported that he had obtained a GED, and that he had completed an eight-month long computer school. He reported that he was most recently self-employed running his own lawn service from 1999 to August 2005. He also indicated that the disabilities which led to him no longer working in this position were memory loss and a knee condition, both nonservice-connected disabilities. Prior to his operating a lawn service, he worked as a welder and on an assembly line for an automotive company. Given the above, the Board finds that the Veteran's service-connected tinnitus does not render him unable to secure or follow substantially gainful employment. As such, referral for extraschedular consideration for a TDIU under 38 C.F.R. § 4.16(b) is not appropriate in this case. As the Veteran does not meet the schedular requirements for a TDIU and referral is not appropriate in this case, entitlement to TDIU must be denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include memory loss, is denied. Entitlement to TDIU is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs