Citation Nr: 18150767 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-25 912 DATE: November 15, 2018 ORDER Service connection for depressive disorder, not otherwise specified (NOS), secondary to cluster headaches is denied. A total disability rating based on individual unemployability due to service connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s depressive disorder, NOS, is neither proximately due to nor aggravated beyond its natural progression by his service-connected cluster headaches, and is not otherwise related to an in-service injury, event, or disease. 2. The Veteran’s service-connected disabilities do not preclude him from performing the physical and/or mental acts required to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for depressive disorder, NOS, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1997 to July 2001. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 1. Service connection for depressive disorder, NOS, secondary to cluster headaches. The Veteran contends that his depressive disorder, NOS, is due to his cluster headaches. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected disability. The competent evidence, to include a March 2014 statement by his private psychiatrist and two VA examination reports in April 2013 and March 2016, shows a current diagnosis of depressive disorder, NOS. Additionally, the record reflects that the Veteran is service-connected for cluster headaches, rated as 50 percent disabling, effective March 19, 2009. The Board concludes that, while the Veteran has a current diagnosis of depressive disorder, the preponderance of the evidence is against finding that the Veteran’s depressive disorder is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected cluster headaches. 38 U.S.C. §§ 1110; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310. The Board notes that there are competing nexus opinions concerning the etiology of the Veteran’s depression disorder. As discussed next, the Board gives more probative weight to the April 2013 and March 2016 VA examiners’ opinions. The Veteran was afforded a VA examination in April 2013. A diagnosis of depressive disorder, NOS was recorded. The examiner opined that the Veteran’s depressive disorder was more likely due to the major, non-service stressors he had in his life, which were documented in his treatment records including financial and family concerns. The rationale was that the onset of his depressive disorder occurred many years after his cluster headaches began. This was in addition to a family history of depression, current stressors, and psychological testing results that indicated symptom over-exaggeration. It was, therefore, less likely that his depression was related to cluster headaches. In March 2014, the Veteran’s VA psychiatrist indicated that the Veteran suffered from depression with a history of mild usage of alcohol and tobacco. He also noted that the Veteran suffered from recurrent headaches, which were treated by his primary care clinician. Further, the nature, frequency, and severity of headaches were a major contributing factor for his depressive symptoms. This opinion did not include a rationale or explanation for the conclusion. Without a rationale, the Board finds the weight of this opinion to be greatly diminished. As such, the Board finds this private opinion to be less probative than the 2013 VA examiner’s opinion. Additionally, the scant opinion does not reflect knowledge of pertinent medical and lay evidence. This is another reason for assigning low weight to this private opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). An addendum opinion from a VA examiner, a clinical psychologist, was provided in March 2016. The examiner indicated that a thorough and complete review of the record was performed and the report reflects that many pieces of pertinent evidence were listed in bullet-point format. The examiner opined that given the late onset of depression from the time the cluster headaches were first diagnosed and the family history of depression and mental illness it was at least as likely as not that the Veteran’s depression was caused by his genetic make-up and not his cluster headaches. There was also no evidence that his depressive disorder had progressed beyond its natural progression based on the evidence. It was also noted that research recognized that there is a link in etiology between sleep apnea and depression. Though it was unclear as to whether one caused the other. The examiner also observed that the March 2014 private opinion appeared to have been solely based on subjectively reported symptoms, with no objective assessment of response style, and likely accepted to preserve the therapeutic relationship. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides a rationale that contains clear conclusions, references to pertinent medical and lay evidence, and supporting data, such as listed reference to relevant articles/literature. As addressed above, the March 2014 opinion from the Veteran’s psychiatrist did not include any supporting rationale or explanation for the conclusion that his depressive disorder, NOS, was due to cluster headaches, nor did it address aggravation, and is therefore it is heavily outweighed. As the March 2016 VA examiner thoroughly explained the reasons for his conclusion, to include a discussion of the Veteran’s assertions and medical history, his opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). While the Veteran believes his depression disorder, NOS, is proximately due to or the result of his service-connected cluster headaches, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as involves psychiatric disorder and the cause and relationship to other factors, such as his service-connected cluster headaches. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, without specialized training, eduction, or experience, the Board finds that the Veteran’s statements regarding etiology are not competent and lack weight. The competent evidence of record also weighs against a finding that depressive disorder, NOS, is directly related to service. Per medical records, the Veteran did not begin to exhibit symptoms until about 2008 – approximately 7 years after his discharge from service. Additionally, the Veteran does not contend that his depressive disorder is directly related to service. In sum, the preponderance of the evidence is against a finding that the Veteran’s depressive disorder, NOS, is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected cluster headaches. As such, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to individual unemployability. The Veteran contends that he is not employed due to his cluster headaches. He indicated that he lost his last job because he had to take breaks for his headaches while at work. He also asserts that his headaches affect his concentration and have led to him being absent from work. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. In this case, the Veteran’s only service-connected disability is cluster headaches, rated at 50 percent. His combined rating is 50 percent from March 19, 2009. See 38 C.F.R. § 4.25. Therefore, he does not meet the schedular requirements for TDIU. See 38 C.F.R. § 4.16(a). Nevertheless, VA’s policy is to rate as totally disabled all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Even without meeting the schedular requirements, a veteran may be eligible for total disability compensation if the evidence shows he is unemployable based on his individual circumstances and service-connected disabilities. See id. In determining unemployability for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as 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 he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual’s particular circumstance. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, the Board finds that the competent and probative evidence weighs against a finding that the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. See 38 C.F.R. § 4.16(b). Initially, the Board notes that the Veteran has not completed a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, with regard to his prior employment. VA policy guidance notes that a VA Form 21-8940 is not required to claim individual unemployability; however, submission of VA Form 21-8940 by the Veteran is required in the course of development of the IU claim and for the award of TDIU benefits. While failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of important information to assess individual unemployability, to include information as to the Veteran’s employment history, educational history and training, and income information. Based on other evidence of record, the Veteran has a bachelor’s degree in business administration and has worked as a debt collector. The Veteran went through the Vocational Rehabilitation Employment (VRE) program. He was rehabilitated into gainful employment in March 2006. He again applied, but missed an orientation appointment in April 2015. In an April 2013 VA examination, the Veteran reported his cluster headaches as frequent prostrating and prolonged attacks. The examiner opined that his current cluster headaches do not preclude limited duty or sedentary employment. Allowance may have to be made in his employment given his history of being unable to do activity during his headaches. No functional impact was found on his ability to work. The Board finds that the evidence does not demonstrate that the Veteran’s service connected disability precludes him from obtaining and maintaining gainful employment. Most significantly, the Veteran has not submitted a VA Form 21-8940 or presented any evidence supporting an inability to perform substantially gainful employment other than lay assertions regarding getting fired due to his cluster headaches. His failure to provide the above-mentioned information leaves the Board without the ability to request information from his prior employers as to his reason for leaving and leaves the Board without information as to whether the Veteran has since obtained some form of gainful employment. While he reported that he was terminated due his cluster headaches, the VA examination and other evidence of record, do not indicate that his cluster headaches precluded him from following or securing substantially gainful employment. The Board also notes that his current 50 percent rating for headaches contemplates and compensates him for severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100.   For all of above reasons, the Board finds that the preponderance of the evidence is against a finding of unemployability due to service-connected disability. As such, TDIU is not warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel