Citation Nr: 18146584 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-15 978 DATE: October 31, 2018 ORDER Entitlement to service connection for obesity and excessive weight gain, as secondary to major depressive disorder is denied. Entitlement to service connection for total disability rating based on individual unemployability (TDIU) due to service-connected major depressive disorder is granted, subject to the laws and regulations governing the award of monetary beneftis. The appeal as to whether a Notice of Disagreement (NOD) in response to a November 2011 rating decision was timely received is denied. REMANDED Entitlement to service connection for hypertension (claimed as high blood pressure) as secondary to major depressive disorder, is remanded. FINDINGS OF FACT 1. Obesity alone is not a disability for VA compensation purposes. 2. The Veteran is precluded from securing and following a substantially gainful occupation by reason of her service-connected major depressive disorder. 3. The January 2013 NOD to the November 2011 rating decision+n was not postmarked or received by VA within one year of the date of mailing the notice of that decision on November 30, 2011. CONCLUSIONS OF LAW 1. The criteria for service connection for obesity have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26 (2018). 3. The Veteran’s NOD in regard to the November 2011 rating decision was not timely. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.201, 20.302 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1990 to July 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2014 Decision Letter, the RO determined that the January 2013 NOD filed against a November 2011 rating was not timely filed. An NOD was received in September 2014. An SOC was issued in January 2016; in February 2016, the Veteran filed a substantive appeal (via a VA Form 9) as to the issue of whether her NOD was timely filed in relation to the rating decision issued in November 2011. The Veteran filed an amended claim to include hypothyroidism in March 2014. Additionally, in an October 2014 rating decision, the RO denied service connection claims for high blood pressure, hypothyroidism, obesity and excessive weight gain, headaches, gastrointestinal problems, and TDIU. Additionally, the Veteran filed a notice of disagreement (NOD) as to each issued in November 2014. In July 2016, an SOC was issued. The Veteran filed a substantive appeal (via a VA Form 9) in September 2016 and limited her appeal to the issues of high blood pressure, obesity, and TDIU. Specifically, the issues of hypothyroidism, headaches, and gastrointestinal problems are no longer a part of the current. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for obesity, to include as secondary to major depressive disorder. The Veteran contends that she is entitled to service connection for obesity, to include as secondary to her service-connected major depressive disorder and the medications taken for such. The Board notes that obesity is not a disease per se for VA purposes which warrants entitlement for service connection under 38 U.S.C. §§ 1110, 1131 (2012). However, obesity has been held to be an “intermediate step” between a service-connected disability that may be connected on a secondary basis under 38 C.F.R. § 3.310 (a). See VAOPGCPREC 1-2017 (January 6, 2017) (noting that this “intermediate step” under 38 C.F.R. § 3.310 (a) equates to an inquiry into proximate cause requiring a 3-step analysis, namely of (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service-connected disability.) While the Board acknowledges that weight gain is a known side effect of some medications, the evidence of record reflects that the Veteran has not advanced any theories that her asserted obesity consequently caused any subsequent current or additional disabilities. Rather, the Veteran maintains that she is entitled to service connection to obesity as secondary to the side effects of medication for her major depressive disorder. As such, the Board finds that service connection for obesity is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. 2. Entitlement to TDIU. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disability/disabilities, from securing and following “substantially gainful employment” consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any nonservice-connected disability and advancing age, which would justify a TDIU due solely to the service-connected disabilities. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Here, the Veteran is service connected for major depressive disorder, which is rated as 0 percent disabling beginning July 29, 1999; 30 percent beginning December 22, 2009; and 70 percent beginning April 13, 2014. The Veteran is service-connected for recurrent genital herpes rated as 0 percent beginning July 29, 1999, and for acne rated 0 percent beginning September 18, 2017. As of April 3, 2014, the Veteran meets the percentage criteria for a TDIU as set forth in 38 C.F.R. § 4.16(a). The key determination, then, is whether the Veteran is unemployable due to her service connected disabilities. The Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, on November 15, 2014. In her application, she indicated that she became too disabled to work in 2011, and that she stopped working on a full-time basis in June 2013 due to her major depression, which encompasses symptoms of insomnia. The Veteran also indicated that she graduated from high school and attended college for three years. She also indicated that she had additional training and education, to include that of military cartography and personnel assistant training. Further, the Veteran identified that she most recently worked as an insurance agent and that her previous roles included clerical, customer service, and claims representative roles. She also stated that from April 2010 to June 2013, she missed 500 hours of work due to illness and 100 hours of work from June 2006 to August 2008. At the outset, and although not specifically identified on the Veteran’s application for unemployability, the Board notes that the Veteran’s service-connected disabilities of acne and herpes do not render her unemployable. Specifically, in a January 2018 VA skin examination, an examiner noted that the Veteran’s acne impacted her ability to work. The examiner noted that the Veteran was a medical coder for VA and that she had to miss approximately four days of work over the last twelve months for dermatology. Yet, the examiner noted that, otherwise, her acne did not impact her ability to work. Additionally, there is no indication in the record, and the Veteran does not allege, that her service-connected herpes impacts employability. The Board also determines that her service-connected major depressive disorder renders her unemployable. In a July 2000 VA mental disorders examination, the Veteran reported that she was working for a cleaning service for the past few months, but indicated that she needed a job. In an August 2010 mental health consultation note, the Veteran reported that she was working on obtaining a Bachelor’s degree in Business, but noted that she had to quit the program because she was evicted from her apartment due to her son’s criminal behavior. Family Medical Leave Act documents, dated in June 2011, indicate that as a result of PTSD and depression, the Veteran requires a shortened work day, time off for appointments, and a quiet work environment. An August 2012 buddy statement, written by the Veteran’s older brother, indicates that the Veteran had trouble maintaining employment. An August 2012 buddy statement, written by the Veteran’s son, indicates that the Veteran would sometimes skip work just to suffer and stay at home. In another August 2012 buddy statement, written by the Veteran’s daughter, she indicated that she would have to drag her out of bed just to engage in little activities. In September 2012, the Veteran noted that she was taking her medication and had more energy. She also stated that she did not miss work nearly as much as she used to. In October 2012, the Veteran reported that she was thinking of reducing her hours at work to get herself together. She specifically noted that she had been out sick a lot due to her depression and that she wanted to be home because her teenage daughter did not go to school sometimes and it was hard to monitor it. The Veteran also expressed dissatisfaction with her work hours. In March 2014, the Veteran stated that her depression and insomnia have led to her inability to succeed in school, keep a job, or have healthy relationships. The Veteran also stated in a March 2014 statement that she resigned from her job in June 2013 due to excessive absences, trouble with fatigue, and poor job performance. She also cited that she gets headaches, gastrointestinal problems, excessive weight gain, muscle pain, and sleep disturbances. She also stated that in 2011, she missed over 500 hours of work due to depression and insomnia issues. In a September 2014 VA examination, the Veteran reported that she was attending college for medical billing and coding. The examiner noted a diagnosis of major depressive disorder, recurrent, moderate to severe. The examiner noted that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. In a September 2014 Request for Employment Information form, it was noted that the Veteran quit her job as a clerical representative, where she worked from July 2010 to June 2013. The reason cited was personal/family reasons and that the Veteran quit without any provided notice. In November 2016, the Veteran acknowledged that she was employed as a medical clerk and that she started working in that capacity beginning in April 2016. In a February 2018 VA mental disorders examination, the Veteran reported that she used twenty-five days of leave last work year due to her depressive symptoms. The Veteran reported that she has been employed for two years as a medical coder and that while she enjoys her job, she finds it difficult to attend due to a decreased desire to socialize and severe fatigue. The examiner noted that the new diagnosis of major depressive severe recurrent without psychotic features was a progression of her previous diagnosis and best represents the marked increase in severity of her condition, as well as the severity of her mood disturbance. The examiner also noted that the Veteran had occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In a February 2018 FMLA Certification note, the physician opined that the Veteran was unable to perform the current duties of her job given her severe mental illness under her current work schedule. The physician noted that the Veteran demonstrated an impairment in the ability to sustain the demands of her current work schedule and that she requires modification. The physician stated that it was strongly recommended that the Veteran work an accommodated work schedule of 32 hours per week, working only Monday, Tuesday, Thursday, and Friday to allow her the opportunity to attend her necessary mental health appointments and prevent flare-ups of her condition. Here, the Board finds that the Veteran is rendered incapable of securing and maintaining gainful employment as a consequence of major depressive disorder because her employment is marginal. 38 C.F.R. § 4.16(a) (defining marginal employment). Essentially, per competent statements provided, the Veteran has missed 100 to 500 hours of work in the past, due to her major depressive disorder. She also stated that she has missed twenty-five days of work, approximately 200 hours, in the February 2018 VA examination. FMLA documents, dated in 2011, indicate that not only did the Veteran need time off for appointments, but that she also required a shortened work day. Further, the February 2018 clinician noted that the Veteran could not perform the current duties of her full-time job given her severe mental illness. The clinician noted that at minimum, the Veteran could only work an accommodated schedule of 32 hours and that does not account for the time missed due to the Veteran’s symptoms of depression and her associated insomnia. At minimum, even assuming that the Veteran missed one day of work per week as suggested by the February 2018 clinician, it is difficult to conceive of an employer who would consider a minimum of 20 percent of the work week missed as a reasonable accommodation. While it is acknowledged that the Veteran is still able to pursue some meaningful work, nonetheless every indication is that at best, she has marginal employment. Therefore, a TDIU is granted. 3. Timeliness of NOD An appeal consists of a timely filed NOD in writing and, after a Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200. Except in the case of simultaneously-contested claims, a claimant or his/her representative must file an NOD with a determination by the Agency of Original Jurisdiction (AOJ) within one year of the date the AOJ mails notice of that determination to him or her. Otherwise, that determination will become final. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. In the event the postmark is not of record, the postmark date will be presumed to be five days prior to receipt of the document by the Department of Veterans Affairs. In calculating this five-day period, Saturdays, Sundays and legal holidays will be excluded. 38 C.F.R. § 20.302 (a). In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 20.302 (b). A NOD is a written communication from a claimant or from his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. While special wording is not required, the NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction gave notice that adjudicative decisions were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities, the NOD must make that clear. 38 C.F.R. § 20.201. By way of background, in a November 2011 rating decision, the RO continued the evaluation of major depression which was rated as 30 percent disabling and denied service connection for scars, status post tubal ligation; residuals of cesarean section to include scars and scar tissue; hypothyroidism; and PTSD and bipolar disorder. The Veteran was notified of the rating decision and of her appellate rights in a letter dated November 30, 2011. In April 2012, the Veteran submitted a generic statement -- “This is my appeal to the decision that was made December 2011” -- that she disagreed with the decision made in December 2011. In July 2012, the Veteran was advised that her submission could not be accepted as a valid NOD because she failed to list the exact issue(s) that she did not agree with. VA indicated that in order to file an appeal, the Veteran needed to send a NOD, listing the issue(s) she disagreed with and that she had until November 30, 2012 to submit a proper NOD. In January 2013, the Veteran’s request to appeal the November 2011 decision, via a NOD, was received. In August 2014, the Veteran was advised that she had not provided an NOD within one year and that the prior November 2011 decision was final. In response, the Veteran expressed dissatisfaction with the decision in an August 2014 NOD. The Veteran also stated that it took VA four months to notify her that her statement was not compliant and that she was not told how to file a proper NOD. In correspondence dated in August 2014, the Veteran noted that she filed an NOD twice – a handwritten note in March 2012 and a typed statement in August 2012. In October 2014, the Veteran was provided another letter advising her of the options of a traditional or de novo process for pursuing her NOD. In November 2014, the Veteran’s election of the de novo process was received. In this case, the Veteran clearly did not submit a timely NOD within one year of the November 2011 rating decision. The claims file reveals the notification letter and rating decision was sent in the regular course of business to her address of record. Although the Veteran claims that she properly filed a NOD within one year of the November 2011 rating decision, the April 2012 statement cannot be construed as a proper NOD. 38 C.F.R. § 20.302. Further, no proper NOD was received by VA within one year. 38 C.F.R. § 19.26. The Board acknowledges the Veteran’s claim that she submitted a typed NOD in August 2012. However, the NOD, although dated by the Veteran in August 2012, was not received by the Board until 2014, well beyond the one-year time frame. Based on the foregoing, the Board finds the Veteran did not submit a timely NOD in regard to the November 2011 rating decision. In adjudicating this claim the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim that doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Because an NOD was not timely filed as to the November 2011 rating decision, the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension. The Veteran contends that her hypertension is related to her active service or, alternatively, is secondary to her service-connected major depressive disorder and the medications that she takes for such. The evidence of record reveals that the Veteran was diagnosed with hypertension in July 2010. In a February 2018 mental health note, the clinician noted a past medical history list to include hypertension. During the visit, the Veteran stated that she had fears that the medication that she was taking for her service-connected major depressive disorder was causing her blood pressure issues. Further, the clinician stated that her blood pressure could be raised due to chronic pain issues, as well as her underlying sleep disorder which was awaiting workup. As the Veteran’s service-connected major depressive disorder encompasses symptoms of insomnia, the Board finds that an examination is necessary to determine the nature and etiology of the Veteran’s hypertension. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypertension. The examiner must opine whether it is at least as likely as not that the Veteran’s hypertension is related to an in-service injury, event, or disease, including whether it is at least as likely as not that hypertension is (1) proximately due to her service-connected major depressive disorder, or (2) aggravated beyond its natural progression by her service-connected major depressive disorder. In doing so, the examiner should consider the Veteran’s current diagnosis of hypertension as established and determine whether it is at least as likely as not that the Veteran’s hypertension was caused or aggravated by her service-connected major depressive disorder? (Aggravation means the disability increased in severity beyond its natural progression). A detailed explanation (rationale) is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also request in a clarification being requested. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel