Citation Nr: 1805785 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-13 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for asthma and, if so, whether service connection should be granted. 2. Whether new and material evidence has been received to reopen a claim of service connection for a psychological disorder, including schizoaffective disorder and major depressive disorder and, if so, whether service connection should be granted. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for residuals of a head injury. 5. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. George, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to May 1973. These claims come before the Board of Veterans' Appeals (Board) on appeal from rating decision issued in July 2011 by the Department of Veterans Affairs (VA) Regional Office (RO), except for the claim for entitlement to service connection for residuals of a head injury which was adjudicated by the RO in a May 2014 rating decision. The Veteran was afforded a video conference hearing before the undersigned Veterans Law Judge in April 2017. At that time, the Veteran waived initial RO consideration of records added to the claims file by VA. See 38 C.F.R. § 20.1304(c). The Veteran has claims of service connection for a psychological disorder and also specifically for PTSD before the Board. Given the different histories and procedural postures of these issues, the Board will treat these as two separate claims. Nonetheless, the Board has recharacterized the scope of the claim of service connection for schizoaffective disorder and major depressive disorder more broadly in order to encompass all of the Veteran's diagnosed psychological disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes November 2017 correspondence from the Veteran describing her various medical conditions. The correspondence does not seem to contain evidence relevant to the claims currently before the Board. If she wishes to pursue service connection for these disorders, she should apply, perhaps with assistance from her representative, on an official VA form. The issues of entitlement to service connection for asthma and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD. 2. The Veteran did not experience an in-service head injury or disease. 3. The Veteran is not service connected for any disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for residuals of a head injury have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. § 3.102, 3.303 (2017). 3. The claim for a TDIU is dismissed as moot. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Reopening Previously Denied Claims There are two previously denied service connection claims to consider whether they should be reopened before the Board: one for service connection for asthma; the other for service connection for a psychological disorder (other than PTSD). Asthma The Veteran has filed several claims of service connection for asthma in the past. The first was denied in an August 1973 rating decision. The Veteran filed a notice of disagreement (NOD) with the August 1973 rating decision, the receipt of which was acknowledged in December 1973. At that time a statement of the case (SOC) was issued, and the Veteran did not appeal to the Board within 60 days. She then filed to reopen her claim for service connection for asthma in July 1978. This was followed by another petition to reopen the claim in April 1984. The petition to reopen was denied in May 1984. The Veteran was informed of the denial the same month and she filed an NOD with the decision in June 1984. A SOC was issued in July 1984, and the Veteran timely appealed to the Board in September 1984. The Board issued a decision denying the claim in August 1985. All Board decisions are final on the date stamped on the face of the decision when mailed. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1103. Nothing further was received regarding the Veteran's asthma until September 2010, at which time the current petition to reopen service connection for asthma came before VA. As noted in the Board's August 1985 decision, prior to service, the Veteran's asthma was considered seasonal. She had an injection of Depo-Medrol in September 1963. However, it does not appear that she took medicine regularly to control her asthma prior to service. At a February 2011 VA examination, the Veteran reported taking albuterol three times per day as needed and Zafirlukast by mouth daily to treat her asthma. The Board must presume the credibility of this evidence in adjudicating a claim to reopen Justus v. Principi, 3 Vet. App. 510, 513 (1992). Thus, the Board finds that this constitutes some new, non-redundant evidence that the Veteran's asthma permanently worsened, and the Veteran's claim of service connection for asthma is therefore reopened. 38 U.S.C. § 5107; 38 C.F.R. § 3.156(a). The claim is further addressed in the remand section. Psychological Disorder Reopening the previously denied claim as to a psychological disorder is more straightforward. The Veteran previously claimed a nervous condition which was denied in an August 1975 rating decision, of which she was notified the same month. The Veteran did not note disagreement with the denial or submit new evidence within a year. In June 1994, the Veteran filed a new claim for a nervous condition, which was denied in a July 1994 rating decision. The Veteran was informed of the decision in August 1994. Again, the Veteran did not note disagreement with the denial or submit new evidence within a year, and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed her current claim to reopen in September 2010. In conjunction with the claim, she noted that she worked with premature babies while in service, four of whom died. Two lay statements, on from the Veteran's mother and the other from a friend, note that the Veteran's work with premature babies greatly affected her. Social Security Administration (SSA) records also showed clinical diagnoses for schizoaffective disorder and depression. A February 2011 VA examination confirms this. A statement from Mr. Bialkowski, a licensed social worker also noted borderline personality disorder. Mr. Bright, another social worker opined that the Veteran's mental health issues are related to service. Based on this evidence, the claim of service connection for a psychological disorder is reopened. 38 U.S.C. § 5107; 38 C.F.R. § 3.156(a). The claim is further addressed in the remand section. II. Service Connection Service Connection Legal Criteria Service connection for most conditions may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (internal citation omitted). The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). PTSD The Board finds that, even though the Veteran may have other diagnosed psychological disorders, she does not have a current diagnosis of PTSD. There is a December 1983 letter from Dr. Rachow noting "acute PTSD" due to steroid induced psychosis and dysthymia. However, as the March 2014 VA examiner noted, this does not describe a life threatening event and does not meet stressor criterion A for PTSD. In an October 2010 letter, Ms. Rosa, an advanced practice nurse prescriber, who has treated the Veteran for many years, stated that the Veteran's memories of the deaths of four premature babies she cared for would be classified as PTSD. Ms. Rosa noted that the Veteran can be triggered to the point where she feels that she is back in the room with vivid recall of the room, sounds, and colors. She also noted the Veteran's problems with mood fluctuations and occasional hallucinations and paranoia. The Veteran was afforded a February 2011 VA examination of her psychological disorders. The examiner, a psychiatrist, evaluated whether the Veteran met the criteria for PTSD. The examiner noted that the Veteran reported experiencing the deaths of four premature babies under her care and, as a result, feeling an intense sense of helplessness. However, he found that she had no recurrent or intrusive recollections other than being triggered by that at times and being reminded. While the Veteran did have dreams of babies in the past, she also had dreams that she was in Afghanistan, and there is no record of service in Afghanistan. Under PTSD criterion C, the Veteran did note 2 of 7 conditions-a sense of detachment from others and avoidance activities or places that arouse recollections of the event, but did not endorse other conditions indicative of PTSD. Under PTSD criterion D, the Veteran noted 2 of 5 conditions-periods of irritability and anger as well as difficulty concentrating at times. The examiner noted that the Veteran's symptoms occurred intermittently for more than a month and have, at times, caused significant distress or impairment in social, occupational, or other areas of functioning. In conclusion, the examiner noted that the Veteran reported some anxiety and depression related to her experiences caring for those babies, but that she did not meet the full diagnosis for PTSD as the issues she reported were better explained by her diagnoses of schizoaffective disorder and major depressive disorder. The diagnoses of schizoaffective disorder and depression were confirmed by the March 2014 VA examiner. An August 2014 letter from Dr. Vonk notes treatment for PTSD and schizoaffective disorder. Dr. Vonk does not state the basis for the diagnosis and, even if she did, does not note a claimed stressor related to service. The medical records from the Veteran's treatment with Dr. Vonk do not provide reasons for the PTSD diagnosis. Thus, the Board is not convinced by the diagnosis of PTSD given by Dr. Vonk. Therefore the Board finds the opinion of the February 2011 to be the most probative evidence of record regarding the Veteran's psychological diagnoses. The examiner, after examination of the Veteran and application of the diagnostic criteria, found that the Veteran did not have PTSD. In fact, he explained that the symptoms she described were best explained by her schizoaffective disorder and depression. Because the examiner's opinion is applies the diagnostic criteria, considers the relevant evidence of record, and is well-reasoned, the Board accepts this opinion. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). By contrast, the opinion of Ms. Rosa is not convincing as it does not explain how she reached her conclusion that the Veteran's symptoms were PTSD. Further, the opinion does not acknowledge the Veteran's other psychological or explain how they are manifesting. As a result, the Board cannot accept Ms. Rosa's opinion. In consideration of this evidence, and when weighing the various medical reports showing and explaining diagnoses, the Board finds that the Veteran does not have PTSD. Without sufficient evidence of a current disability for this specific psychological disorder, the current disability element of the claim is not substantiated. See Brammer, 3 Vet. App. at 225. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection is not warranted for PTSD. The other psychological disorders are addressed in the remand section. Residuals of Head Injury The Veteran reports having had a head injury in Texas during basic training after fainting. She states that an ambulance took her to the dispensary. The Veteran is competent to report injuries that occurred in service and related symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1977 (Fed. Cir. 2007). However, the other evidence of record renders the Veteran's report unconvincing. For instance, service treatment records (STRs) do not note treatment for a head injury during service, even though a trip to the dispensary where the ambulance had to be called would indicate a fairly serious incident worthy of notation in a service member's STRs. The Board does not believe that this is a medical determination but based on lay common sense. In any case, in addition to the absence of evidence as negative evidence, the April 1973 separation examination was normal. Physical examination of the head was normal. Additionally, the Veteran reported a history of several medical problems, but not with the head. She reported having vision problems requiring glasses; tooth trouble requiring orthodontic appliances; hay fever and asthma, requiring treatment; leg cramps; and a family history of depression. Given this detailed history of problems, the head injury would be expected to be listed. Moreover, the Veteran affirmatively denied several problems, including any disturbance of consciousness and all other significant medical history. In light of this evidence, the Board finds that the Veteran did not have an in-service injury, disease or event involving the head. The Board also notes that the evidence also does not show that the Veteran has a current diagnosis involving the head or experiences recurrent symptoms in this regard. Thus, the current disability element is also not substantiated (along with the nexus element). Without any element of the claim substantiated, or the thresholds for a VA examination being met, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for residuals of a head injury is not warranted. III. Moot Claim Entitlement to a TDIU Under the applicable criteria, a TDIU 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 that one of those disabilities is ratable 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. § 1155; 38 C.F.R. § 4.16. In this case, the Veteran is not service connected for any disabilities at present. Accordingly, there is no legal basis to consider assignment of a TDIU. See 38 C.F.R. § 4.16. Consequently, the appeal for a TDIU must be dismissed as consideration for a TDIU is a downstream issue. Should any disabilities be service connected at a later date, she may seek a TDIU at such time. ORDER The Veteran's claim of service connection for asthma is reopened; the appeal of this issue is granted to this extent only. The Veteran's claim of service connection for a psychological disorder (previously claimed as nervous condition) is reopened; the appeal of this issue is granted to this extent only. Service connection for PTSD is denied. Service connection for residuals of a head injury is denied. The appeal of a claim for a TDIU is dismissed. REMAND Asthma A remand is necessary so that the RO can consider the merits of the Veteran's asthma claim. The Veteran was afforded an examination of her asthma in February 2011; however, the findings of this examination were rather cursory, and no medical opinion regarding the connection between service and asthma was obtained. Therefore, the Board finds that a new examination is necessary, and a medical opinion should be obtained on remand to address both the presumption of soundness and possibly direct service connection. In this regard, the Board notes that the Veteran's entrance examination was normal as to asthma. As asthma was not noted, the she is presumed to have been in sound condition so this is not a standard service aggravation case. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); cf. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Psychological Disorder While the Board has denied service connection for PTSD, further development is needed regarding the Veteran's claim of service connection for a psychological disorder, diagnosed as schizoaffective disorder and major depressive disorder. The February 2011, who expertly and definitively diagnosed the Veteran with these conditions, did not adequately explain why the conditions were less likely than not related to service. Similarly, the March 2014 VA examiner did not provide an adequate explanation for his conclusion that these conditions are less likely than not related to service, particularly since he noted treatment beginning in the early 1980s or earlier. The Veteran left service in 1973, so this is only a few years after separation. As a result a new opinion regarding whether schizoaffective disorder and major depressive disorder are related to service is needed to adjudicate the claim. Accordingly, these issues are REMANDED for the following actions: 1. Schedule the Veteran for an examination of her asthma with the appropriate clinician. After examination and review of the claims file, the examiner should address the following. (A) Determine whether the Veteran has asthma and describe the type of asthma. (B) Is it clear and unmistakable (i.e., undebatable from a medical standpoint) that the Veteran had asthma prior to service. (C) If so, is it clear and unmistakable (i.e., undebatable from a medical standpoint) that the Veteran's preexisting asthma was not aggravated by service. Aggravation is an increase in severity beyond a temporary flare-up or natural progress of the disease. (D) Regardless of the above answers, is it at least as likely as not (50 percent probability or greater) that the Veteran's current asthma is the same disease process from service, or is otherwise related to service. A rationale should be provided for any opinion rendered. The examiner should consider all lay statements of record. 2. Forward the claims file to an appropriate clinician for an opinion regarding the Veteran's schizoaffective disorder and major depressive disorder. No examination is necessary unless the examiner determines one is necessary. After review of the entire claims file, the examiner should opine as to whether: The Veteran's schizoaffective disorder or major depressive disorder at least as likely as not (50 percent or greater probability) had their onset during service, within one year of service, or is otherwise related to service. A complete rationale should be provided for any opinion rendered. The examiner should consider all lay statements of record. 3. Finally, readjudicate the issues remaining on appeal on the merits. If any of the benefits sought remain denied, issue a supplemental SOC (SSOC) and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs