Citation Nr: 18151188 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 96-42 144 DATE: November 16, 2018 ORDER Service connection for major depressive disorder (MDD) is granted. Service connection for cause of the Veteran’s death is denied. REMANDED ISSUES The claim of entitlement to total disability based on individual unemployability due to service-connected disability (TDIU) is remanded. The claim of entitlement to compensation pursuant to 38 U.S.C. § 1318 is remanded. FINDINGS OF FACT 1. A preponderance of the medical evidence suggests that the Veteran’s MDD was at least as likely as not caused or aggravated by his right ankle fracture prior to his death. 2. The Veteran’s service-connected disabilities did not cause or contribute to death, and the cause and contributory conditions of the Veteran’s death are not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for MDD have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for Service connection for cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1955 to August 1959. The Veteran died in July 2015. The appellant, the Veteran’s surviving spouse, has been named as substitute and is also pursuing a claim for service connection of the Veteran’s death. In a September 1995 rating decision, the Veteran’s disability rating for his service-connected residuals of a right ankle fracture was evaluated. The claim for a TDIU arises in relation to that claim, Rice v. Shinseki, 22 Vet. App. 447 (2009). With regard to the remaining claims, a June 1999 rating decision denied service connection for an anxiety condition and mood disorder and a November 2015 rating decision denied service connection for cause of death. In July 2001, the Board denied service connection for a psychiatric disability. In January 2003, pursuant to a December 2002 joint motion of the parties, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s July 2001 decision and remanded the claim for readjudication consistent with the motion. After remands dated in September 2003 and April 2004, the Board again denied the Veteran’s claim of entitlement to service connection for a psychiatric disorder in an August 2004 decision. In a September 2006 decision, the Court vacated the Board’s August 2004 denial of service connection for a psychiatric disorder. Pursuant to the Court’s order, the Board remanded the claim in April 2007. In April 2009, April 2010, July 2014, and September 2017 the Board again remanded the claim. The Veteran and his spouse testified at a Central Office hearing before a now-retired Veterans Law Judge sitting in Washington, DC, in November 1997. A transcript of the hearing is associated with the claims file. In August 2003, the Veteran, through his representative, informed VA that he did not want another hearing before the Board, notwithstanding the fact that the Veterans Law Judge before whom he testified in November 1997 is no longer employed by the Board. 38 C.F.R. § 20.707. In May 2018, the Veteran’s representative submitted additional evidence, at which time initial RO consideration of the additional evidence was waived. See 38 C.F.R. § 20.1304(c). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 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 may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 1. Service connection for an acquired psychiatric disorder, to include as secondary to residuals of right ankle fracture The appellant contends that the Veteran’s psychological disorders during his lifetime were related to his military service. Specifically, prior to his death, the Veteran was diagnosed with depression and anxiety disorder NOS, which the appellant claims are secondary to his service-connected right ankle fracture. He also suffered mental impairment due to a nonservice-connected December 1992 stroke. Initially, the Board notes that the medical opinions of record, specifically, April 1999, October 2007, and October 2009 VA opinions are adequate to establish that the Veteran’s post-stroke dementia and mood disorder are unrelated to his service, or to his service-connected right ankle disability. The rationale reflected therein connect the symptoms the Veteran was experiencing with specific mechanisms unrelated to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Regarding direct service connection for a separate pre-stroke disorder, a November 2017 VA opinion reflects a thorough review of the Veteran’s relevant history pre-stroke in reaching the conclusion that any pre-stroke acquired psychological disorder was less likely than not related to service. Specifically, the examiner referenced and quoted service treatment records and pre-stroke mental health treatment records in reaching this conclusion. This is a very convincing and probative opinion as to the etiology of any pre-stroke acquired psychiatric disorder. Id. However, with regard to secondary service connection, the November 2017 VA opinion does not take account of lay statements regarding the connection between depression and the ankle disability into account. This is better addressed by medical evidence discussed below. The record contains multiple positive nexus opinions from Dr. D.L.F, the Veteran’s private treating physician prior to his death. Specifically, in March 2004, Dr. D.L.F. recorded that the Veteran stated that he has been depressed due to the fact that his leg was not getting better. In May 2009, Dr. D.L.F. opined that the Veteran “has suffered from the trauma of wartime and is diagnosed with Post Traumatic Stress Disorder. He continues to be on medication for this illness.” In September 2009, April 2010, and June 2010, the Veteran told Dr. D.L.F. that he was having flashbacks to when he had jumped out of a parachute in service. In August 2010, Dr. D.L.F. opined that, since his parachute accident in service, the Veteran “has presented with symptoms of Post Traumatic Stress Disorder and has a history of psychiatric problems related to the war and his injuries. [He] has been in treatment with me since 11/2003. He is being treated for depression and post traumatic stress disorder.” In March 2011 and October 2011, the Veteran told Dr. D.L.F. that he was having nightmares about jumping out of a parachute in service. He also told her in March 2011 that after his parachute accident in service, he was placed in a psychiatric hospital at Ft. Campbell for three months. (The NPRC informed VA that searches of Ft. Campbell Army Hospital for 1957 were conducted, but no records of psychiatric treatment of the Veteran were located.) In August 2013, Dr. D.L.F. wrote that the Veteran has been seen in her office since 4/1999. She opined that the Veteran “has a long history of depression starting in 1955 when he had [a] parachute accident while in the service….He has issues with flashbacks related to his accident while in service. [He] suffers from Post Traumatic Stress Disorder.” Dr. D.L.F. also diagnosed dysthymia, and ruled out mild dementia. The Board finds that the Veteran’s reports to Dr. D.L.F. are not credible as they are inconsistent with the record. For instance, the Veteran reported serving in combat, though his active duty service was during a period other than wartime. Further, there is no record of the three-month psychiatric hospitalization during service that the Veteran reported. Moreover, though the Veteran reported to Dr. D.L.F. a history of depression dating back to 1955, his first psychiatric treatment was not until 1979, at which time depression was not reported. Therefore, the Board finds the Veteran’s statements to Dr. D.L.F. not credible, and Dr. D.L.F.’s opinions as to the etiology of the Veteran’s various psychological disorders to be based on incorrect data, unconvincing, and worth no probative value. See Nieves-Rodriguez v. Peake, supra. In April 2018, the appellant submitted a medical opinion from Dr. G.A.B., who found that, prior to his death, the Veteran had diagnoses of PTSD and MDD. Dr. Belle’s diagnoses are based, in part, on reports that the Veteran made to Dr. D.L.F. which the Board has found to be incorrect or not credible, in particular with regard to the PTSD diagnosis. Further, Dr. G.A.B. relied heavily on Dr. D.L.F.’s opinions to reach this conclusion. On the other hand, the Board finds convincing Dr. G.A.B.’s opinion regarding the Veteran’s MDD. Specifically, Dr. Belle noted the appellant’s statements that the Veteran’s ankle disability impeded his ability to work and caused him to feel inadequate. Dr. Belle noted depression and chronic pain are intertwined on how stress works in the body. VA treatment records are also supportive of this conclusion. None of the other medical opinions of record address this relationship. As such, service connection for MDD secondary to the Veteran’s service-connected disability is warranted. 2. Service connection for the cause of the Veteran's death When a veteran dies from a service-connected disability, the veteran’s surviving spouse may be entitled to disability and indemnity compensation (DIC) benefits for the cause of death. 38 C.F.R. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially or materially to the veteran’s death. 38 C.F.R. § 3.312. For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially or materially to the veteran’s death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. The appellant contends that the Veteran’s death is related to his service. Specifically, the Veteran died from accidental drowning, with contributing causes of death listed as arteriosclerotic cardiovascular disease, neck and kidney carcinoma (clinical). During his lifetime, the Veteran was service connected for residuals of a right ankle fracture and, as of the issuance of this decision, MDD. Although the Veteran was suffering from MDD and right ankle fracture at the time of his death, nothing in the record indicates that either disability caused or contributed to death. Further, there is no indication that his drowning or the noted contributory causes are related to service. Notably, by an April 2009 Board decision, the Veteran was denied service connection for hypertension and residuals of a cerebrovascular accident. Further, the appellant’s attorney has not pointed to relevant evidence in the record that could help the Board resolve these two inquiries. Without an indication of one of these types of a relationships, obtaining a medical opinion in support of the claim is not warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, based on the contentions of the appellant and her attorney, service connection for cause of the Veteran’s death is denied. REASONS FOR REMAND With regard to the TDIU claim, a review of the record shows that, prior to his death, the Veteran last worked in January 1975 due, at least in part, to his service-connected right ankle disability. A TDIU may be assigned where the combined rating for the veteran’s service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Prior to his death, the Veteran was service-connected for just one disability, residuals of a right ankle fracture, evaluated as 30 percent disabling. As such, he does not currently meet the minimum schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). However, the Board has granted service connection for MDD and such award may make the Veteran eligible for a TDIU. Furthermore, while the Veteran does not currently meet the schedular criteria for a TDIU, there is evidence that calls into question the Veteran’s ability to secure or follow substantially gainful employment due to his service-connected disabilities disability. Significantly, no medical opinion regarding the combined effect of the Veteran’s service-connected disabilities on his ability to maintain employment prior to his death has been obtained. Such should be accomplished on remand. Moreover, even if the Veteran does not qualify for a TDIU pursuant to 38 C.F.R. § 4.16(a) after assigning disability ratings for the newly service-connected MDD, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). With respect to assignment of a TDIU under the provisions of 38 C.F.R. § 4.16(b), the Board finds that, if the Veteran does not meet the criteria for a schedular TDIU after the RO assigned a disability rating for his MDD, the claim should be submitted to the Director of Compensation Service for a determination as to whether a TDIU should be awarded on an extra-schedular rating basis. The Board finds the medical opinions discussed above is plausible evidence that the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disorders prior to his death. Accordingly, the Board finds that the claim should be submitted to the Director of Compensation and Pension for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b). With regard to the claim for compensation pursuant to 38 U.S.C. § 1318, Because the claims period is longer than 10 years, compensation pursuant to 38 U.S.C. § 1318, is inextricably intertwined with the outcome of the TDIU claim. Therefore, the Board must also remand this claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Assign a disability rating for the newly service-connected MDD. 2. Obtain comment from a medical examiner as to the functional limitations the Veteran experienced during his lifetime solely due to his service-connected right ankle and MDD disability, to include on employability. Note that the Veteran also suffered a series of non-service-connected December 1992 stroke which may have limited his functional ability. 3. If the Veteran does not qualify for a TDIU pursuant to 38 C.F.R. § 4.16(a) after assigning a disability rating for the newly service-connected MDD, refer this case to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b). 4. Readjudicate the claim. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George