Citation Nr: 18154927 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-44 883 DATE: December 4, 2018 ORDER 1. Service connection for a right bicep disorder is denied. 2. Service connection for a left thumb disorder is denied. 3. An initial 50 percent disability, but no higher, for persistent depressive disorder with anxious distress is granted, subject to the laws and regulations governing the payment of monetary awards. 4. A total disability rating based on individual unemployability (TDIU) is denied. REMANDED 1. Service connection for a heart disorder, to include atrial fibrillation, is remanded. 2. Service connection for diabetes mellitus, type 2, is remanded. 3. Service connection for right upper extremity neuropathy, to include as secondary to diabetes mellitus, type 2, is remanded. 4. Service connection for left upper extremity neuropathy, to include as secondary to diabetes mellitus, type 2, is remanded. 5. Service connection for right lower extremity neuropathy, to include as secondary to diabetes mellitus, type 2, is remanded. 6. Service connection for left lower extremity neuropathy, to include as secondary to diabetes mellitus, type 2, is remanded. FINDINGS OF FACT 1. The Veteran does not have a right bicep disorder that had its onset during service or that is causally or etiologically related to any disease, injury, or incident during service. 2. The Veteran does not have a left thumb disorder that had its onset during service or that is causally or etiologically related to any disease, injury, or incident during service. 3. The Veteran’s persistent depressive disorder with anxious distress has resulted in occupational and social impairment with reduced reliability and productivity, but not occupational and social impairment with deficiencies in most areas or total occupational and social impairment. 4. The Veteran’s service-connected disability does not prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a right bicep disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C F R §§ 3.102, 3.303. 2. The criteria for service connection for a left thumb disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C F R §§ 3.102, 3.303. 3. The criteria for an initial 50 percent rating for persistent depressive disorder with anxious distress, but no higher, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434. 4. The criteria for TDIU referral on an extra-schedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to November 1972. The case is on appeal from a March 2016 rating decision. 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. Service Connection 1. Entitlement to service connection for a right bicep disorder. 2. Entitlement to service connection for a left thumb disorder. Legal Criteria 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. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Facts and Analysis The Veteran contends that he has a right bicep disorder and left thumb disorder due to his military service. In this regard, in a September 2013 statement, he reported that the tendons in his hands and right bicep were destroyed. Thereafter, in a May 2015 claim form, he clarified that he is claiming service connection for bicep tendon atrophy and a left thumb tendon tear. The Veteran’s service treatment records (STRs) do not contain any reports of or treatment for right bicep or left thumb injuries. No relevant conditions were noted on his November 1972 discharge examination and his upper extremities were found to be normal at such time. The Veteran’s post-service VA treatment records note relevant conditions. In this regard, a June 2009 treatment record reports that the Veteran has a history of a left thumb tendon tear and chronic posttraumatic right bicep tendon atrophy. However, the Board finds that the Veteran’s right bicep and left thumb disorders did not occur during service and are not otherwise related to service. In this regard, the Veteran has not asserted, and his STRs do not show, that he experienced such disorders during service. In addition, the Veteran has not stated how these conditions are related to service and there is no other evidence of record indicating a nexus between the Veteran’s military service and these conditions. While the Veteran has not been afforded an examination in regard to any of these claims, a mere conclusory claim that a current condition is related to service is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA opinion is not warranted for these claims. Accordingly, the Board finds that the Veteran does not have a right bicep or a left thumb disorder that had its onset during service or that is causally or etiologically related to any disease, injury, or incident during service. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for these disorders is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Although the Board is remanding other claims for additional development, remand is not necessary for these issues, as there is no reasonable possibility that further assistance would substantiate the claims. See 38 C.F.R. § 3.159(d). II. Higher Rating Claim 3. Entitlement to an initial rating in excess of 30 percent disability for persistent depressive disorder with anxious distress. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under 38 C.F.R. § 4.130, most service-connected mental health disabilities are rated pursuant to the General Rating Formula for Mental Disorders. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Under DC 9434, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. Lastly, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Facts and Analysis The Veteran claims that he should have a rating in excess of 30 percent for his service connected psychiatric disorder. In this regard, in a September 2016 VA Form 9, he reported that he was diagnosed with bipolar disorder in 2015 and that he should have at least a 50 percent rating. In addition, the Veteran’s private internal medicine physician submitted letters in July 2015 and December 2015 in which he discussed the Veteran’s psychiatric symptoms. In the July 2015 letter, he stated that the Veteran has a volatile personality and experiences significant depression and severe anxiety. In the December 2015 letter, the private physician stated that the Veteran has bipolar disorder, depression, and anxiety and that he is unable to understand moderately complex issues. The Veteran was first afforded an assessment of his psychiatric conditions in April 2015. The examiner noted that the Veteran’s speech was normal and he was appropriately groomed. The examiner reported that the Veteran’s thought process was linear and goal directed and his insight and judgment were good. The Veteran reported having a good relationship with a sister, three or four lifelong friends, and a girlfriend. He also reported that his main barrier to engaging in social activities is financial and that he was successful in his career as a machinist prior to retiring. He also stated that he has a history of legal problems, including driving under the influence of alcohol. However, during the examination the Veteran reported being sober for five years. He also denied experiencing current suicidal or homicidal ideation. The examiner reported that the Veteran experiences functional impairments on a regular basis, including impairment of concentration, interpersonal conflicts, difficulty managing his emotions, irritability, and aggressiveness. She also reported that the Veteran experiences depressed mood, anxiety, and chronic sleep impairment. The examiner found that the Veteran has depression and a personality disorder. She concluded that the Veteran’s psychiatric conditions result in occupational and social impairment due to mild or transient symptoms which decrease his work efficiency and ability to perform occupational tasks only during periods of significant stress. Thereafter, the Veteran was afforded an additional VA psychiatric examination in July 2015. The examiner reported that the Veteran’s was speech normal and he was appropriately dressed. The Veteran reported living alone and assisting his niece take care her children on occasion. He also reported having a good relationship with his children. The examiner stated that the Veteran’s orientation was intact, his judgement and insight were fair, and he denied current suicidal ideation. She also stated that the Veteran was able to understand and remember simple instructions, but struggled with more complex information. The examiner found that the Veteran has symptoms of depressed mood, anxiety, and disturbances of motivation and mood. She concluded that the Veteran’s psychiatric conditions result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran’s VA treatment records include a November 2015 psychiatric assessment. The physician reported that the Veteran was oriented and well-groomed. The physician also reported that the Veteran had good judgment and insight. The Veteran denied experiencing suicidal and homicidal ideation and hallucinations. The physician diagnosed the Veteran with bipolar disorder, not otherwise specified, and alcohol use disorder in sustained remission. After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran’s persistent depressive disorder with anxious distress, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that an initial rating of 50 percent is warranted. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan v. Principi, 16 Vet. App. 436 442 (2002). This is particularly so when resolving reasonable doubt in the Veteran’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In this regard, the April 2015 VA examiner reported symptoms indicative of impaired judgment, impaired abstract thinking, and disturbances of motivation and mood. In addition, the July 2015 VA examiner reported that the Veteran exhibited disturbances of motivation and mood as well as difficulty understanding complex commands. These symptoms show occupational and social impairment with reduced reliability and productivity, and, thus, support a 50 percent disability rating. While an initial 50 percent rating is warranted, the Veteran’s psychiatric disability does not warrant a rating in excess of 50 percent. In this regard, the evidence of record does not how that the Veteran experienced suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or an inability to establish and maintain effective relationships prior to such date. The Veteran has a history of suicidal ideation, but the evidence of record does not indicate that he has experienced suicidal ideation at any time during the time period on appeal or relevant to the appellate period. He also reported to the VA examiners that he has good relationships with some family members and friends. In sum, the Veteran’s persistent depressive disorder with anxious distress has resulted in occupational and social impairment with reduced reliability and productivity, but not occupational and social impairment with deficiencies in most areas or total occupational and social impairment. Therefore, the Board finds that an initial rating of 50 percent is warranted. However, the preponderance of the evidence is against a rating in excess of 50 percent, the benefit-of-the-doubt doctrine is not further applicable, and higher initial ratings are not warranted. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). III. TDIU 4. Entitlement to a TDIU Legal Criteria If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where these criteria are not met, but the veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). Here, the schedular criteria are not met. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In a brief, the Veteran’s representative discusses Vocational Rehabilitation services. The Veteran is encouraged to file for these benefits. The issue before the Board at this time is limited to entitlement to TDIU. Facts and Analysis The Veteran contends that he is unable to work due to his service-connected psychiatric disability. In this regard, in a September 2016 VA Form 9, he stated that he cannot work due to the neurobehavioral effects of his psychiatric disorders. In addition, as noted above, the Veteran’s private internal medicine physician submitted letters in July 2015 and December 2015 in which he discussed the Veteran’s psychiatric symptoms. In the July 2015 letter, he stated that the Veteran cannot work due to his psychiatric symptoms of volatility, significant depression, and severe anxiety. In the December 2015 letter, the private physician stated that the Veteran’s psychiatric disability prevents him from understanding moderately complex issues. The Veteran submitted a TDIU application in September 2013. He reported last working as a machinist in February 2008 and receiving Social Security income. He also reported being unable to work a part time job as a cleaner due to atrial fibrillation and pain in his legs and feet. The Veteran’s Social Security Administration (SSA) records show that he was found to be disabled as of February 2009. The Veteran reported that he worked as a machine operator for an automobile company for 36 years. He stated that he can no longer work due to back injuries, a knee injury, manic depression, diabetes, and hypertension. An assessment was made that the Veteran is unable to drive or work any job requiring more than sedentary labor due to back pain, diabetes with peripheral neuropathy, and a hand tremor of unclear etiology. In addition, a psychiatric assessment was made that the Veteran experiences moderate limitation in his ability to understand and carry out instructions, maintain attention and concentration, interact with the public, respond appropriately to changes in work setting, and to complete a normal work day without interruptions due to psychiatric symptoms. The assessment also found that the Veteran is capable of completing unskilled tasks. During the April 2015 VA psychiatric examination, the Veteran reported completing an associate’s degree in science and denied having a learning disability. He also reported that he was successful in his career as a machinist prior to retiring. Although the Veteran’s service-connected psychiatric disability causes him some impairment in regard to employment, he is not unable to secure or follow a substantially gainful occupation as a result of such disability. In this regard, the Veteran is no longer able to work as a machinist due to nonservice-connected disabilities. His SSA records reflect that the he is prevented from performing work requiring physical labor due to back pain and diabetic neuropathy. While the Veteran’s psychiatric examinations and treatment records show that he experiences occupational and social impairment with reduced reliability and productivity due to his psychiatric disability, they do not show that it prevents him from maintaining gainful employment. In addition, the Veteran reported working successfully as a machinist for 36 years prior to retiring in 2008 despite experiencing psychiatric symptoms. Although the Veteran’s private physician has opined that the Veteran’s psychiatric symptoms prevent him from working, he is a doctor of internal medicine rather than a psychiatrist or psychologist and, thus, he has not shown to possess the medical training the VA examiners have in assessing the functional limitations caused by mental health conditions. The Board notes that the Veteran is seeking service-connection for diabetes mellitus, type 2, bilateral upper extremity, bilateral lower extremity, and a heart disorder. However, the potential for a TDIU based on such disabilities being connected to service is a downstream issue. Therefore, the Board finds that, to the extent the Veteran is unable to engage in his usual occupation as a machinist or another job requiring regular physical exertion, it is primarily due to his nonservice connected disabilities. The Board is sympathetic to the Veteran’s assertions regarding the impact his psychiatric disability has on him, both professionally and personally. However, those problems are compensated by his current schedular ratings for such disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while this disability causes some economic impairment, his assigned disability rating contemplates his level of occupational impairment. A TDIU claim is not purely a medical question. Here, the Board has considered both the relevant medical evidence as well as the non-medical evidence such as work history and lay statements. Therefore, because the Veteran’s service-connected disability does not prevent him from securing and following substantially gainful employment, referral for extra-schedular consideration by the director is not warranted and this claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a heart disorder, to include atrial fibrillation. 2. Entitlement to service connection for diabetes mellitus, type 2. 3. Entitlement to service connection for right upper extremity neuropathy, to include as secondary to diabetes mellitus, type 2. 4. Entitlement to service connection for left upper extremity neuropathy, to include as secondary to diabetes mellitus, type 2. 5. Entitlement to service connection for right lower extremity neuropathy, to include as secondary to diabetes mellitus, type 2. 6. Entitlement to service connection for left lower extremity neuropathy, to include as secondary to diabetes mellitus, type 2. The Veteran contends that he has a heart disorder, diabetes mellitus, type 2, bilateral upper extremity neuropathy, and bilateral lower extremity neuropathy due to exposure to contaminated drinking water while serving at Camp Lejeune, North Carolina. In addition, his medical records show that he may experience neuropathy due to his diagnosed diabetes mellitus, type 2. The Veteran’s service personnel records (SPRs) indicate that he served at Camp Lejeune in March 1972 and April 1972 for a period of at least 30 days. VA has adopted specific procedures to be followed when a veteran claims exposure to contaminated water at Camp Lejeune causes disabilities not recognized as presumptive conditions under 38 C.F.R. § 3.309(f). The Board finds, however, that more generally, the evidence of record raises VA’s duty to assist by obtaining VA examinations with opinions. The evidence of record current includes a clinicians letter linking disabilities to the Veteran’s toxin exposure at Camp Lejeune. In this regard, the clinician links peripheral neuropathy directly to this exposure, and not just as part of a diabetes disability. Therefore, the Veteran should be afforded VA examinations to address the nature and etiology of the claimed disorders. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Furthermore, updated VA treatment records should be associated with the file. These matters are REMANDED for the following actions: 1. Obtain complete VA treatment records since August 2016. 2. After completing the records development indicated above, schedule the Veteran for an examination by an appropriate medical professional to determine the nature and etiology of all current heart conditions experienced by the Veteran. The entire claims file should be reviewed by the examiner. (a.) The examiner is to identify all heart conditions experienced by the Veteran during the period on appeal (since September 2013), to include atrial fibrillation. (b.) For each identified heart condition, the examiner should state whether it is as at least as likely as not (a 50 percent or greater probability) that each identified condition had its onset during service or within one year of discharge from service or is otherwise related to service, to include his presumed exposure to contaminated water at Camp Lejeune. A detailed rationale for any opinion offered should be provided. 3. After completing the records development indicated above, schedule the Veteran for an examination by an appropriate medical professional to determine the nature and etiology of his diagnosed diabetes mellitus, type 2 and neuropathies of the upper and lower extremites. The entire claims file should be reviewed by the examiner. (a) The examiner should state whether it is as at least as likely as not (a 50 percent or greater probability) that the Veteran diabetes mellitus, type 2, had its onset during service or within one year of discharge from service or is otherwise related to, the Veteran’s service, to include his presumed exposure to contaminated water at Camp Lejeune. (b) Also state whether it is as at least as likely as not (a 50 percent or greater probability) that the Veteran’s upper and lower extremity neuropathy had its onset during, or is otherwise related to, the Veteran’s service, to include his presumed exposure to contaminated water at Camp Lejeune.   A detailed rationale for any opinion offered should be provided. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel