Citation Nr: 1757525 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 13-31 527A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from November 1974 to November 1977, and in the Navy from September 1978 to October 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. With respect to the Veteran's psychiatric symptomatology, the Board notes that the Veteran originally claimed entitlement to service connection for severe stress and chronic depression, and was subsequently diagnosed with major depression and mood disorder. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the claim more broadly, as noted on the title page. The Board also notes that the Veteran was previously represented in his appeal by an attorney. See VA Form 21-22a (November 2013). However, in correspondence received in August 2014, prior to certification of the appeal to the Board, the attorney revoked her representation. See 38 C.F.R. § 14.631(c) (2017). In October 2014, VA notified the Veteran that he could contact VA for a list of recognized veterans' service organization or representatives to assist him in his claims. To date, he has not expressed a desire to be represented. The Board notes that VA has a duty to liberally read all pro se filings. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's major depressive disorder is proximately due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for major depressive disorder have been met, on a secondary basis. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his acquired psychiatric disorder is secondary to his service-connected disabilities. For the following reasons, the Board finds that entitlement to service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. In this case, the Veteran underwent a VA psychiatric examination in April 2010 following which a diagnosis of "major depression versus substance induced mood disorder" was noted. The examiner explained that the Veteran's depression was at least as likely as not caused by or a result of his service-connected erectile dysfunction, coronary artery disease, degenerative joint disease, prostatitis, and hypertension. The examiner reasoned, in pertinent part, that the Veteran's depression was "likely caused by medical problems." In an August 2010 addendum, the examiner further explained that the Veteran reported psychiatric symptoms were "due to back pain," as well as "problems dealing with his wife due to erectile dysfunction which is causing a depressed mood." The examiner also stated that it was possible the Veteran's alcohol use was leading to an increase in depressive symptoms. In this case, the Board finds that the evidence of record warrants a grant of service connection on a secondary basis. In short, the evidence described above establishes that the Veteran has an acquired psychiatric disorder-i.e., major depressive disorder-which is at least as likely as not caused by his service-connected disabilities. The Board acknowledges that there is some ambiguity in the VA examiner's opinions regarding the etiology of the claimed disorder. However, in light of VA's policy of resolving reasonable doubt in the Veteran's favor, the Board finds that there is sufficient positive evidence of record to support an award of service connection. In sum, the weight of the evidence supports a finding that the Veteran major depressive disorder is causally related to his service-connected disabilities. Service connection for major depressive disorder, on a secondary basis, is therefore warranted. See 38 C.F.R. § 3.310. ORDER Entitlement to service connection for major depressive disorder, on a secondary basis, is granted. REMAND The Veteran also contends that he is entitled to a TDIU, as he has been rendered unemployable as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a). The Board notes that he has been assigned a schedular 100-percent rating, and therefore is not eligible for a TDIU based on his service-connected coronary artery disease. However, a TDIU may be warranted in addition to a schedular 100-percent evaluation where TDIU could be granted for a disability other than the disability for which a 100-percent rating was in effect. Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008) (recognizing that a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation). However, as the issue of entitlement to a TDIU depends in part upon the assignment of a disability rating pending the grant of service connection for major depressive disorder, it is not ripe for review at this time. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA medical records pertaining to the Veteran for the period from October 2017 to the present. 2. After the Board's grant of service connection for major depressive disorder has been implemented, and an initial disability rating has been assigned, complete all indicated development with regard to the Veteran's application for a TDIU (including, if necessary, a medical opinion to evaluate the overall functional impairment caused by the Veteran's service-connected disabilities other than coronary artery disease). Then, readjudicate the claim for TDIU in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran a Supplemental Statement of the Case. The Veteran 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). 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. §§ 5109B, 7112 (2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs