Citation Nr: 1803687 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 06-03 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a compensable rating for a service-connected headache disability. 2. Entitlement to an effective date earlier than January 9, 2004, for the grant of service connection for a headache disability. 3. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and schizoaffective disorder. 4. Entitlement to a total disability rating based on individual unemployability as a result of service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from July 1972 to May1984, to include service in the Republic of Korea. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In September 2013, the Board denied the service connection claim for an acquired psychiatric disorder, which the Veteran appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In March 2014, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Partial Remand (JMPR). The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an April 2015 statement and before the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his increased rating claim for a headache disability and earlier effective date claim for the grant of service connection for a headache disability. 2. The weight of evidence is against a finding that it is at least as likely as not (50 percent or greater) that an acquired psychiatric is either etiologically related to the Veteran's service or was caused by a service-connected disability. 3. The Veteran's acquired psychiatric disorder was aggravated by his service-connected headache disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the increased rating claim for a headache disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2016). 2. The criteria for withdrawal of the earlier effective date claim for the grant of service connection for a headache disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2016). 3. The criteria for service connection for an acquired psychiatric disorder on a direct basis have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2016). 4. The criteria for service connection for an acquired psychiatric disorder on the basis of aggravation have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, 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). Service treatment records (STRs), VA treatment records, and private treatment records have been obtained. VA attempted to obtain Social Security Administration (SSA) records, but VA was informed by SSA in December 2007 that SSA was unable to locate the Veteran's medical records. Additionally, the Veteran testified at a hearing before the Board. The Veteran was also provided VA examinations (the reports of which have been associated with the claims file), and neither the Veteran nor his representative has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). Of note, the Veteran's representative took issue with the Board obtaining an additional medical opinion of record, arguing that the Board had sufficient evidence to reach a decision on this case, citing Mariano v. Principi, 17 Vet. App. 305 (2003). However, the Court distinguished Mariano in Douglas v. Shinseki, 23 Vet. App. 19 (2009). In Douglas, the Court indicated the Board may seek further evidentiary development even if a veteran has presented favorable, uncontroverted medical evidence if the favorable evidence, along with the other evidence of record, is not sufficient to allow the Board to make a fully informed decision. Douglas, 23 Vet. App. at 26. In this case, the opinions of Dr. Smith raised sufficient questions that the Board concluded that additional development was required to make a fully informed decision. The suggestion that the Board remanded only to deny is wholly inaccurate, as the Board's focus in this and all other cases is solely on making a fair and fully informed decision. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Withdrawal of Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. Id. In the present case, in an April 2015 statement, the Veteran expressly withdrew his appeal with regard to the issues of an increased rating claim for a headache disability and the earlier effective date for the grant of service connection for a headache disability prior to promulgation of an appellate decision; hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these specific matters. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are therefore dismissed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran is seeking service connection for an acquired psychiatric disorder which he believes is the result of his active service. Specifically, he asserts that he was exposed to carbon monoxide. He also asserts that while repairing a car it exploded resulting in burns. The Veteran's STRs show at his July 1972 entrance physical, he had a normal psychiatric examination. His STRs during active service do not show any complaints, treatment, or diagnosis for an acquired psychiatric disorder. At his December 1983 separation physical, he had a normal psychiatric examination. In addition, he denied having any psychiatric symptoms or any recurrent problems, although the "YES" box had a check mark that was crossed out with the Veteran's initials. After his separation from service in 1984, the Veteran received treatment for his alcohol abuse, but no mental health diagnosis was given. In September 2003, the Veteran denied having any past episodes of depression. In June 2004, he had a positive PTSD screen, but treatment records do not show an acquired psychiatric disorder diagnosis. In June 2004, the Veteran was afforded a VA examination. He reported that his acquired psychiatric disorder was due to carbon monoxide poisoning during his active service. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran did not suffer from an anxiety disorder. In August 2005, the Veteran's treatment records show that he reported being exposed to carbon monoxide during his active service. He also reported an attempted suicide in 1986 and he was taken to the emergency room and diagnosed with bronchitis. He was diagnosed with provisional depressive disorder. In September 2005, he started receiving mental health treatment. He reported that his mental health symptoms started in 1994. He was diagnosed with schizoaffective disorder. The Veteran's medical records show that he was not diagnosed with an acquired psychiatric disorder until 2005, more than two decades after his separation from service. In October 2012, the Veteran was afforded a VA examination. He reported the two stressors, the automobile explosion and the carbon monoxide exposure. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, the examiner indicated that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner reported that there was no evidence other than the Veteran's reports to substantiate or corroborate his assertions. The examiner diagnosed the Veteran with schizoaffective disorder. In May 2013, the October 2012 VA examiner reviewed the Veteran's claims file and opined that no acquired psychiatric disorder existed prior to the Veteran's active service. The examiner reported that there was no evidence to suggest that the Veteran's schizoaffective disorder or any other disorder onset during his active service. In September 2013, the Board denied the Veteran's service connection claim for an acquired psychiatric disorder, which he appealed to the CAVC. In the March 2014 CAVC JMPR, the parties agreed that a remand was required for as the Board did not consider whether service connection was warranted based on aggravation and did not consider the adequacy of the previous VA examinations with addendums. In June 2014, the Veteran underwent a psychological evaluation with John H. Smith, Ph.D. Dr. Smith reported he reviewed the Veteran's claims file and conducted a telephonic interview. Dr. Smith diagnosed the Veteran with schizoaffective disorder and major depressive disorder. Dr. Smith opined that the Veteran's major depressive disorder was at least as likely as not "related" to his active service. Dr. Smith reported that the Veteran experiences many symptoms of his depression during his active service, such as chronic anger, marked anxiety, paranoia, and medical symptoms such as chronic headache and cardiac pain. Dr. Smith reported that the Veteran attempted to cope with his depression by inappropriate use of substances. Dr. Smith reported that the Veteran's cardiac symptoms, interpersonal difficulties, and abuse of substances could be seen in retrospect as consistent with his acquired psychiatric disorder. Dr. Smith opined that the Veteran's acquired psychiatric disorder was at least as likely as not aggravated by his service-connected headache disability. In response to the JMPR, additional medical opinions were sought. In March 2015, the October 2012 VA examiner again reviewed the Veteran's claims file. The examiner again opined that it was less likely as not that a current acquired psychiatric disorder pre-existed the Veteran's active service. The examiner again reported that there was no evidence that any current acquired psychiatric disorder began during or was otherwise caused by the Veteran's active service. The examiner opined that it was less likely than not that any acquired psychiatric disorder was caused or aggravated by the Veteran's service-connected headaches. In May 2016, the Veteran was afforded another VA examination. He reported that he believed his mental health problems were due to carbon monoxide exposure during his active service. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, the examiner diagnosed the Veteran with schizoaffective disorder. The examiner opined that the Veteran's acquired psychiatric disorder was less likely than not due to his active service. The examiner reported that the Veteran did not treat for his acquired psychiatric disorder until 2005. In March 2017, a VA psychiatrist reviewed the Veteran's claims file. The psychiatrist noted that depression and nervous trouble were crossed out on his separation questionnaire. The psychiatrist diagnosed the Veteran with schizoaffective disorder, which encompassed many of the criteria for major depressive disorder. The psychiatrist opined that the Veteran's acquired psychiatric disorder was less likely than not due to his active service. The psychiatrist reported that the Veteran was not diagnosed with an acquired psychiatric disorder until 2005, 21 years after his active service. The psychiatrist reported that the Veteran's STRs were silent for any treatment for psychotic illness or experienced chronic anger, anxiety or paranoia. The psychiatrist reported that there was evidence that the Veteran abused alcohol and marijuana during his active service and that these would be the most likely etiology for his asserted symptoms. The psychiatrist reported that although the Veteran experienced chest pain during his active service, it was most likely due to his cigarette habit. Regarding Dr. Smith's reports that the Veteran's chest pain and headaches were manifestations of schizoaffective illness or major depression was highly speculative and very improbable as smoking marijuana and drinking alcohol were the most probable causes of these complaints. The psychiatrist opined that the Veteran's acquired psychiatric disorder was at least as likely as not aggravated by his service-connected headaches. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Here several medical opinions are of record, all of which were provided by medical professionals who are presumed to have the training and expertise to opine psychiatric condition. As such, each opinion is considered to constitute both competent and credible evidence, which is deemed to be probative. However, the Board must determine what evidence is the most probative. After weighing all the evidence, the Board finds the greatest probative value in the VA psychiatrist's opinion, which considered the elements necessary to substantiate a claim for service connection. While Dr. Smith opined that the Veteran's acquired psychiatric disorder was "related" to his active service, the VA psychiatrist concluded that the Veteran's acquired psychiatric disorder was less likely than not due to his active service and specifically explained why. After interviewing and examining the Veteran and reviewing the clinical record, the VA psychiatrist explicitly concluded that the record was silent for any treatment of an acquired psychiatric disorder. In addition, the VA psychiatrist specifically noted that the STRs were silent regarding any chronic anger, anxiety, or paranoia. Furthermore, the VA psychiatrist reported that the Veteran's symptoms of chest pain were more likely due to his cigarette habit. Finally, the VA psychiatrist reported that Dr. Smith's report that the Veteran's chest pain and headaches were manifestations of an acquired psychiatric disorder was highly speculative and high improbable as smoking marijuana and drinking alcohol were the most probable causes of these complaints. The VA psychiatrist is shown to have conducted a thorough examination, to have reviewed and considered the pertinent evidence of record, and to have provided adequate rationale for his opinion. The Veteran's reported history was adequately considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board appreciates the statements written by Dr. Smith. However, ultimately, the 2017 VA psychiatrist's opinion is given greater weight. The opinion by the VA psychiatrist was fully grounded in the medical literature. The VA psychiatrist was fully apprised of the Veteran's in-service mental health symptoms, diagnoses, and treatment. The VA psychiatrist clearly explained why he believed that the Veteran's acquired psychiatric disorder was less likely as not due to his active service. That is not to say that Dr. Smith was not also apprised of the Veteran's symptoms, as he both interviewed the Veteran and reviewed the claims file. However, here, the support provided by the VA psychiatrist for his opinion is found to be greatly superior to the opinions offered in support of the Veteran's claim by Dr. Smith, which merely reported that the Veteran's acquired psychiatric disorder was "related" to his active service. Dr. Smith pointed to several symptoms in service as evidence of the onset of an acquired psychiatric disability, but the VA psychiatrist convincingly pointed out that there were much more straight forward medical explanations for the presence of the symptoms, other than the onset of an acquired psychiatric disability. Given the more plausible reasoning, the VA psychiatrist's opinion is found to be the most probative evidence in this case, and therefore is afforded the greatest weight. The Veteran's brother submitted a statement, asserting that he was a different man after his separation from service in that he had memory problems and wanted to isolate. As a lay person, the Veteran and his brother are competent to report what comes to them through their senses, but they lack the medical training and expertise to provide a complex medical opinion as to the etiology of an acquired psychiatric disorder. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex, as with an acquired psychiatric disorder. Therefore, while the Veteran disagrees with the conclusion that his acquired psychiatric disorder neither began during, nor was otherwise caused by, his active service, neither he nor his brother are considered competent (meaning medical qualified) to address the etiology of his acquired psychiatric disorder. As such, these opinions are insufficient to provide the requisite nexus. The VA psychiatrist was asked about the brother's statement in 2017, but he explained that the suggestion that the Veteran was very different after service in that he drank, smoked, fought and experienced memory problems, was consistent with substance abuse, which was evident in the Veteran's abuse of alcohol and marijuana during service. As such, the Veteran's brother's statements were not sufficient to suggest the onset of psychiatric illness during service. As described, the criteria for service connection on a direct basis have not been met. Regarding aggravation, both Dr. Smith and the VA psychiatrist opined that the Veteran's acquired psychiatric disorder was aggravated by his service-connected headache disorder. 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. 38 C.F.R. § 3.310(b). Generally, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id. In this case, neither Dr. Smith nor the VA psychiatrist provided a baseline level of severity of the Veteran's acquired psychiatric disorder. However, in this specific case, the Board concludes that the degree by which the acquired psychiatric disability was aggravated should be considered a rating question and not a service connection issue. In summary, as the evidence is against the claim, service connection for an acquired psychiatric disability on a direct basis is not warranted, but service connection for an acquired psychiatric disability based on aggravation is granted. ORDER The appeal of the claim for entitlement to an increased rating claim for a headache disability is dismissed. The appeal of the claim for an effective date earlier than January 9, 2004, for the grant of service connection for a headache disability is dismissed. Service connection for an acquired psychiatric disorder on a direct basis is denied. Service connection for an acquired psychiatric disorder on the basis of aggravation is granted. REMAND 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. Prior to this decision, the Veteran's service-connected disabilities were tinnitus, rated at 10 percent disabling, and a headache disability evaluated at a noncompensable rate. However, in this decision, the Board has granted service connection for an acquired psychiatric disability based on the determination that it was aggravated by his service connected headache disorder. The rating for this disability has yet to be assigned, as it has not been determined the degree to which the Veteran's headache disorder aggravated his acquired psychiatric disability. As this determination may impact the TDIU decision, this issue should be readjudicated following the assigning of the appropriate rating for the aggravated acquired psychiatric disability. Accordingly, the case is REMANDED for the following action: Following the determination of the rating appropriate for the Veteran's acquired psychiatric disability, readjudicate the issue of TDIU. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter 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). ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs