Citation Nr: 18153368 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-15 097 DATE: November 27, 2018 ORDER New and material evidence has been presented to reopen a claim of entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depression. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression, is granted. Entitlement to an initial compensable rating for a scar residual of a hysterectomy prior to October 16, 2013, is granted. Entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU) is granted. REMANDED ISSUE Entitlement to an initial rating in excess of 10 percent for a scar residual of a hysterectomy for the entire appeal period is remanded. FINDINGS OF FACT 1. A final AOJ rating decision dated December 1997 denied service connection for depression. 2. The evidence received since the prior denial relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder, to include depression. 3. The Veteran’s acquired psychiatric disorder is at least as likely as not etiologically related to active duty service. 4. During the entire course of the appeal, the Veteran has had a painful scar residual of a hysterectomy on her anterior trunk that is approximately eight squared centimeters. 5. The Veteran’s service-connected disabilities have at least as likely as not rendered her unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Following the prior final denial of December 1997, new and material evidence has been presented to reopen the claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. Resolving reasonable doubt in the Veteran’s favor, an acquired psychiatric disorder other than PTSD was incurred in service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to an initial rating of 10 percent for a scar residual of a hysterectomy since November 16, 2010 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.118, Diagnostic Code 7804. 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to a TDIU rating have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to April 1989. The Board notes that the Veteran’s June 2018 hearing testimony raised the issue of entitlement to a TDIU rating. The Veteran testified to being unable to work because of service-connected disabilities, and that testimony raises the question of whether her service-connected disabilities prevent her from securing or following a substantially gainful occupation under 38 C.F.R. § 4.16(a). Therefore, the title page of this decision reflects the claim for a TDIU rating. See Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). The Board further observes that, after the last adjudication of the claims by the Agency of Original Jurisdiction (AOJ), the record reflects that additional evidence has been added to the claims folder – some of the evidence submitted by the Veteran and some of the evidence obtained by VA. As addressed below, the Board grants in full the service connection claim for an acquired psychiatric disorder and entitlement to TDIU. With respect to the scar disability claim, a VA scar examination report is relevant to the appeal and the Board grants a partial rating for the appeal period, but does not reach a full decision at this time. New and Material Evidence 1. New and material evidence has been presented to reopen a claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression If a claim of entitlement to service connection is denied by an AOJ decision and no notice of disagreement or additional evidence is filed within one year, that decision becomes final and generally cannot be reopened or allowed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Once that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is new and material if it: (1) has not been previously submitted to agency decision-makers; (2) by itself or in connection with evidence previously included in the record, relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time the last prior final denial of the claim sought to be opened; and (4) raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, the threshold for raising a reasonable possibility of substantiating the claim is low. Shade, 24 Vet. App. at 117. Evidence may be considered new and material if it contributes “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.” Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For the purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence submitted since the last final AOJ or Board decision will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). However, the benefit of the doubt doctrine does not apply to a new and material analysis. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In general, service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. 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). In December 1997, the AOJ denied entitlement to service connection for depression on the basis of no evidence of nexus to service. See also November 1995 Notification Letter. The evidence of record at that time included service treatment records and a June 1989 VA examination finding no significant psychiatric disorder. By letter dated December 1997, the Veteran was notified of this decision. However, the Veteran did not appeal or submit new and material evidence within the one-year appeal period after notice of the decision was provided. Hence, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The evidence received since the December 1997 decision includes previously unconsidered testimony and medical evidence reflecting the etiology of the disorder. See July 2018 Medical Letter; June 2018 Hearing Testimony. This evidence relates to an unestablished fact needed to establish service connection (i.e., nexus). Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran’s claim of service connection for an acquired psychiatric disorder other than PTSD, to include depression, are met. Service Connection 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression The Veteran has raised the issues of direct service connection due to military sexual assault, and secondary service connection due to service-connected residuals of a hysterectomy, including pelvic pain. See June 2018 Board Hearing; November 2013 Notice of Disagreement. In October 1988, the Veteran underwent an in-service evaluation by the Medical Board, and she was diagnosed with, among other things, exogenous depression. Additionally, on her October 1988 separation report of medical history, she indicated having depression. The accompanying doctor’s notes indicated that the depression was situational and/or job related. During a June 1989 VA psychiatric examination, the examiner interviewed the Veteran but indicated no other information was available. After interviewing the Veteran, the examiner determined that the Veteran was not significantly depressed; there was no significant psychiatric disease apparent; and a previous reactive type of depression had improved. In March 1992, the Veteran sought VA treatment for anxiety. More recently, the Veteran has sought VA treatment for several psychiatric disorders, including bipolar disorder, psychosis, mood disorders, and schizoaffective disorder; and she was hospitalized for VA psychiatric treatment in 2008 and in May and December 2013. See, e.g., July 2018 and July 2014 VA Treatment Records. During a June 2006 VA examination, the Veteran was diagnosed with a mood/dysthymic disorder, with a history of substance abuse. During a January 2012 VA examination, the Veteran was diagnosed with major depressive disorder; adjustment disorder with anxiety; and polysubstance dependence. The examiner determined that it would be mere speculation to provide a nexus between these diagnoses and service, and the examiner did not address whether service-connected disorders caused or aggravated any of the psychiatric diagnoses. The claims file contains a letter from the Veteran’s treating VA doctor. The doctor indicated that the Veteran was being treated for a mood disorder that began during active duty service. The doctor reviewed the claims file, noted the October 1988 Medical Board evaluation, and determined the Veteran first began experiencing significant depression during service. The doctor further opined that this depression was the result of military sexual trauma and pelvic pain. The Board notes that the Veteran is service-connected for residuals of a hysterectomy, including pelvic pain. The Veteran has testified that she developed depression due to military sexual trauma that she did not report; and that her depression was also caused and/or aggravated by pelvic pain. See June 2018 Board Hearing; see also October 2015 Veteran Statement, November 2013 Notice of Disagreement. She is competent to report experiencing the symptom of depression. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). This testimony is consistent with the circumstances of her service, and the Board finds her testimony to be probative and credible. The evidence of record reflects that the Veteran was discharged from service in part due to exogenous depression. Although at the time labelled as situational depression, she has since sought VA treatment for various acquired psychiatric disorders, and her treating VA doctor has indicated a nexus between the Veteran’s mood disorder and both her in-service military sexual assault and her service-connected hysterectomy residuals. Finally, the Veteran’s credible testimony also indicates that her mood disorder is related to both service and pelvic pain. Contrary evidence of record includes a June 1989 VA examination that found no current acquired psychiatric disorder and indicated situational depression that had resolved, and a January 2012 VA examination determining that it would be mere speculation to link an acquired psychiatric disorder to service. Resolving reasonable doubt in the Veteran’s favor, entitlement to service-connection for an acquired psychiatric disorder other than PTSD is warranted. Increased Rating 3. Entitlement to an initial rating of 10 percent for scar prior to October 16, 2013. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Under DC 7804, five or more scars that are unstable or painful warrant a 30 percent rating. Three or four scars that are unstable or painful warrant a 20 percent rating; one or two scars that are unstable or painful warrant a 10 percent rating. Note 1 to DC 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. According to Note 2, if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804. In this case, the Veteran is service-connected for a scar residual of a hysterectomy, rated as noncompensable prior to October 16, 2013, and rated as 10 percent disabling since October 16, 2013. Notably, service connection was established in an October 2013 rating effective November 16, 2010, and the Veteran appealed the initial rating assigned. Prior to undergoing a total abdominal hysterectomy in 1985, the Veteran underwent a surgery to repair a left ovarian cyst in 1984, and eventually an oophorectomy to remove the cyst in 1984. See, e.g., October 2018 VA Examination; October 1988 Medical Board Evaluation; October 1988 Separation Report of Medical History. While the Veteran has claimed entitlement to a rating for three scars, VA examiners have noted that the Veteran underwent three surgeries, and have determined that the Veteran has a single visible scar from those surgeries. See, e.g., November 2016 Substantive Appeal; October 2018 and March 2015 VA Examinations. In April 2012, the Veteran underwent a VA examination for residuals of her hysterectomy. The examiner noted a related surgical scar, and indicated that it was not painful, unstable, or greater than 39 square centimeters. By contrast, during a March 2015 VA examination, the examiner determined that the Veteran had one painful scar residual from her hysterectomy that was linear and 14 centimeters long, located on her anterior trunk. The examiner indicated that the scar was not unstable. During an October 2018 VA examination, the examiner noted all three surgeries the Veteran underwent, and determined she had one scar that causes throbbing, radiating pain. The examiner further determined that the scar is not unstable. The scar is located on the Veteran’s anterior abdomen, and is 16 centimeters by 0.5 centimeters (eight square centimeters). The scar did not have underlying tissue damage. During her June 2018 Board hearing, the Veteran testified that her scar causes discomfort while sitting and walking, and causes pain that limits her exercise and personal life. The Veteran also testified that all three relevant surgeries cut over the same place where the current scar is located. The Veteran is competent to report experiencing these symptoms and to describe the scar. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds her testimony to be probative and credible. Prior to October 16, 2013, the Veteran’s scar is rated as noncompensable as an April 2012 VA examiner evaluating the Veteran’s hysterectomy residuals indicated that the hysterectomy scar was not painful or unstable, and was less than 39 square centimeters. The examiner provided no further information regarding the scar. As the relevant surgeries in this case occurred in 1984 and 1985, the Board finds the October 2018 and March 2015 VA examinations focusing specifically on the scar to be more probative of the degree of disability for the entire period under appeal. As both examiners determined that the scar was painful, and resolving reasonable doubt in the Veteran’s favor, a rating of 10 percent prior to October 16, 2013 and dating to the original claim filed November 16, 2010 is warranted. As addressed in the REMAND below, the Board defers consideration of a rating greater than 10 percent at this time pending additional development. TDIU 4. Entitlement to a TDIU rating A total disability rating based upon individual unemployability may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Entitlement to a total rating must be based solely on the impact of a veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total disability rating based upon individual unemployability. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). A veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Veteran is currently rated as 50 percent disabled for residuals of a total hysterectomy; 30 percent for left blind eye; 30 percent for irritable bowel syndrome; and ten percent for a scar residual of a hysterectomy. Her combined rating is 80 percent. See May 2016 Rating Decision Codesheet. Additionally, based on the decision above, she is now also service-connected for an acquired psychiatric disorder. Therefore, the Veteran meets the criteria for TDIU consideration under 38 C.F.R. § 4.16(a). Further, the claims file contains evidence that she cannot secure or follow substantially gainful employment due to his service-connected disorders. The record reflects that the Veteran completed one of college. See August 2018 TDIU Application. After service, she worked as a receptionist and bookkeeper for a middle school, and as a receptionist for a hospital. She last worked in 1994. Id.; November 2006 Employer Letter. The claims file contains a November 2012 letter from one of the Veteran’s doctors stating that she is unemployable because of uveitis; fibromyalgia; depression, a cervical spine disorder; headaches; and sleep disturbances. The Board notes that only two of these appear to currently be service-connected. The claims file contains some evidence that the Veteran’s service-connected disorders alone prevent substantially gainful employment. During a June 2006 VA examination, the examiner noted that the Veteran’s pelvic pain, in part, causes moderately severe-to-severe functional impairment affecting employment. Additionally, irritable bowel syndrome causes moderate functional impairment. See also March 2015 VA Examination. The Veteran’s service-connected scar also causes mild-to-moderate functional impact, as employment activities result in pain, lack of coordination, and lost work time. Id. During the June 2018 Board hearing, the Veteran testified that her hysterectomy scar prevents her from being employed as it causes pain when sitting, walking, or driving long distances. She has also provided an August 2018 application for a TDIU rating that indicates her pelvic pain prevents employment. Based on the Veteran’s work history, statements, and VA examinations, it is at least as likely as not that the symptoms of her service-connected disorders prevent her from keeping and maintaining substantially gainful employment. Resolving reasonable doubt in the Veteran’s favor, entitlement to a TDIU rating is granted. REMAND The Veteran has reported that she has three scars from her three relevant surgeries, her June 2018 testimony indicates that she was cut along the same scar for all three surgeries. She specifically reported being informed by a physician that the scar tissue itself caused internal adhesion which could possibly be corrected by surgery, but that surgery might not be successful. The Board requires VA examination which specifically determines whether one or more scar is present, and whether any scar is deep based on the Veteran’s description of her treating physician’s comments. Accordingly, the case is remanded for the following: 1. Associate with the claims folder updated VA treatment records. 2. Afford the Veteran additional VA scar examination to clarify the number of scars present from military surgeries, and whether any scar is deep with soft tissue damage. In so doing, the examiner is requested to identify whether there are any remaining scars from the Veteran’s surgery to repair a left ovarian cyst in 1984, and eventually an oophorectomy to remove the cyst in 1984. Additionally, the examiner should consider the Veteran’s report of being informed by a physician that the scar tissue itself caused internal adhesion which could possibly be corrected by surgery, and determine whether there is any scar which is deep that causes underlying soft tissue damage. 3. Thereafter, readjudicate the claim for an initial rating in excess of 10 percent for scar residual of a hysterectomy. If any benefit sought on appeal remains denied, furnish the Veteran and her representative a supplemental statement of the case and an opportunity to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel