Citation Nr: 18155979 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-01 707 DATE: December 6, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disability, to include PTSD, due to an in-service event, injury, or disease. 2. The Veteran’s service-connected disabilities do not render him incapable of securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38C.F.R. §§ 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to May 1974. The Veteran is appealing a June 2010 rating decision that denied service connection for a mental disorder and denied TDIU. During the pendency of the appeal, the Veteran submitted a Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Trauma in April 2013. In that statement, the Veteran indicated he was the victim of a military sexual trauma (MST) while in service; that he did not report it because of fear; and, that he believes this to be the cause of his PTSD. In May 2018, the Board remanded the case for a new VA examination, as the VA examination of record did not address the Veteran’s reported MST. The requested VA examination has been conducted, and the matter returned to the Board for adjudication. A Travel Board hearing was held in October 2017, before the undersigned Veterans Law Judge. A copy of the transcript of this proceeding is associated with the Veteran’s case file. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. VA examinations were conducted in November 2009 and in July 2018. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection for PTSD, there must be: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that a claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between the current PTSD symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2018). 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD The Veteran has claimed that he has a mental disorder as a result of service, specifically as a result of a sexual assault during his active service. As such, the Board has re-characterized the Veteran’s claim as one for an acquired psychiatric disability, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The question before the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of an acquired psychiatric disorder, to include PTSD and depression, the preponderance of the evidence weighs against finding that the Veteran’s current disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Service treatment records are associated with the Veteran’s claim file. An April 1974 record reflects the Veteran had a psychiatric consultation at the request of a medical department representative and executive officer. This record reflects that the Veteran reported that he did not desire to get out of the Navy but wanted to stay in Greece to marry his Greek girlfriend, who was pregnant. He was diagnosed with “immature personality,” and the examiner suggested an administrative separation from the Navy. The May 1974 exit Report of Medical Examination reflects the Veteran had a normal examination, with no defects or diagnosis noted. Post-service VA treatment records from the Portland VAMC are associated with the Veteran’s case file. Notes from an October 2009 VA psychiatric consult reflect the Veteran reported that he only lasted 8 months in service. He stated that he was evaluated by a psychiatrist and found to be “very immature in his psychological makeup and character.” He also reported that he did not experience a trauma event while in the Navy, although he reported a history of sexual abuse as a child and post-service incarceration for a sexual offense, during which time he was sexually assaulted while incarcerated. The Veteran underwent a VA examination in November 2009. The examiner diagnosed the Veteran with PTSD, major depressive disorder, and polysubstance abuse in long-term remission. The examiner went on to state that there was no indication that the Veteran suffers any mood-related disorders that were caused or exacerbated by military stressors. There is no indication the Veteran disclosed being sexually assaulted during his time in the military during this examination. The Veteran underwent a private neuropsychological examination in March 2010. The stated purpose of this evaluation was to assess the Veteran’s current level of cognitive and affective functioning. However, during this evaluation, the Veteran reported a history of sexual abuse by an older brother and being raped while incarcerated. The Veteran did not report sexual abuse in service. The examiner diagnosed the Veteran with a cognitive disorder, PTSD, dysthymic disorder, and polysubstance abuse/dependence. No opinion relating any of the diagnosed disorders to the Veteran’s military service was provided. The Veteran underwent a private forensic neuropsychological assessment in October 2010. During this evaluation, the Veteran reported a history of sexual abuse by an older brother during childhood and a diagnosis of PTSD secondary to his son’s death and his 14-year incarceration. As to his military service, the Veteran reported he joined the Navy when he was 16 years old, but was discharged after about 5 months because “I was mentally too slow.” The Veteran again did not report sexual abuse while in service. The Veteran underwent another VA examination in July 2018. The examiner opined that the Veteran’s PTSD was less likely than not incurred in or caused by service. As rationale, the examiner acknowledged the Veteran’s claim that he was sexually assaulted in service but observed that his military records showed he had difficulty adjusting to the Navy beginning in boot camp. The examiner noted that the Veteran was discharged from the military due to immature personality disorder. As such, the examiner opined that it is less likely as not the Veteran’s behavioral problems in the military are a marker for MST. The examiner noted the Veteran completed a mental health assessment at VA in October 2009. At that time, he was diagnosed with PTSD and dysthymic disorder. At that assessment, the Veteran denied being traumatized in the Navy. The examiner also discussed the November 2009 PTSD examination, at which time the Veteran was diagnosed with PTSD related to his prison trauma. The Veteran also did not report MST at that time. Given the information in the above assessments, and the Veteran’s inconsistencies during the examination regarding his legal and substance abuse history, the examiner determined that the Veteran had been unreliable in his reports of MST. The examiner concluded that it is at least as likely as not the Veteran’s diagnosed PTSD and depression are related to trauma he experienced in prison, as well as other experiences following his separation from service. The Board has also considered the lay evidence in this matter. In April 2013 and October 2013 lay statements, the Veteran states he was sexually assaulted by a man in the shower while in service aboard a ship in Athens, Greece, and threatened that if he told, he would be killed and dumped in the Black Sea. At an October 2017 hearing, the Veteran stated that he suffered a sexual assault during his active service when he was 17. Further, in a buddy statement, a friend stated she had observed signs of PTSD in the Veteran and that he had shared with her that he was sexually assaulted while serving in the Navy. The friend stated that the Veteran has a lot of problems with concentration, including great difficulty keeping appointments straight and losing track of time very easily. Upon review of the evidence of record, the Board finds that, other than his unsupported contentions, there is simply no evidence in the record to support a finding that the Veteran was sexually assaulted during service. The Board also finds significant that, while the Veteran reported to many different medical providers a history of sexual abuse both as a child and while incarcerated, and a history of being convicted of a sexual offense, he did not report the claimed military sexual assault at any point prior to his April 2013 statement to VA. Further, there is simply no competent evidence of record to suggest a relationship between the Veteran’s service and his current acquired psychiatric disorder, to include PTSD, or any other competent evidence to suggest an etiological relationship between the Veteran’s service and his current psychiatric disability, however diagnosed. Rather, the November 2009 and July 2018 VA examiners, as well as multiple private treatment providers, have found the Veteran’s psychiatric complaints to be related not to service but to post-service experiences. Consideration has been given to the Veteran’s assertion that he has a psychiatric disorder, to include PTSD, due to service. However, while the Veteran, and other lay persons, are competent to report having experienced, or observed, symptoms of a psychiatric disability since service, they are not competent to provide a diagnosis, to determine that these symptoms were manifestations of a psychiatric disability, or to determine etiology. The issue is medically complex, as it requires knowledge of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In any event, the Veteran’s lay opinion is outweighed by the examinations of record, which have all determined that the Veteran does not have PTSD or any other psychiatric disorder that is related to service. Thus, the criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. The evidence weighs against the Veteran’s claim. Service connection for an acquired psychiatric disability, to include PTSD, must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to TDIU Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where the threshold minimum percentage standards in 38 C.F.R. § 4.16(a) are not met, but the Veteran is determined to be unable to secure or follow a substantially gainful occupation by reason of service-connected disability, the rating boards should refer the claims file to the Director of Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b); see Fanning v. Brown, 4 Vet. App. 225 (1993). 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. See Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran is service-connected for hearing loss, rated as 10 percent disabling prior to April 19, 2017, and as 30 percent thereafter, and for tinnitus, rated as 10 percent disabling. His combined disability rating was 20 percent prior to April 19, 2017, and 40 percent thereafter. Although the Veteran does not meet the schedular criteria under 38 C.F.R. § 4.16(a), TDIU may still be available on an extra-schedular basis if the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry in determining whether a TDIU is warranted 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). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, upon review of the evidence of record, the Board finds that the Veteran has not been shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The evidence of record, including the VA examinations and the Veteran’s own testimony at the hearing in October 2017, shows that it is not his service-connected disabilities (bilateral hearing loss and tinnitus) that prevent him from securing a substantially gainful occupation. The Veteran underwent a VA general medical examination in December 2009. The examiner diagnosed the Veteran with dermatitis; remote gunshot wound at age 20 with no residuals; gastroesophageal reflux disease (GERD), mild; external hemorrhoid; and, left knee medial collateral ligament tear, status post repair. The examiner opined that none of the problems identified in the examination limit him in any physical or sedentary employment. A letter received by the VA in December 2009 from the Portland Habilitation Center reflects the Veteran’s application for employment and/or training was rejected because of his criminal record. The Veteran underwent a private neuropsychological examination in March 2010. The stated purpose of this evaluation was to assess the Veteran’s current level of cognitive and affective functioning to assist in vocational planning. The examiner opined that the Veteran was functioning overall in the borderline range of intellectual abilities, with verbal comprehension in the low average range. He would perform best in jobs that are highly structured and supervised which involve well established routines, adequate opportunity to learn and practice new skills, and ongoing support. The Veteran reported an interest in janitorial service, and the examiner opined that this job goal would be compatible with his cognitive skills. In April 2013, a physician completed a VA Vocational Rehabilitation Medical Prognosis and Feasibility form for the Veteran. The physician indicated that she was treating the Veteran for PTSD and depression. She stated that the Veteran’s prognosis was stable on medication and found that he is capable of working full time. The physician opined that there are no factors that would affect the Veteran’s ability to participate in a full-time vocational or academic training program. Based on the above, the Board finds that the Veteran’s service-connected disabilities do not preclude him from all forms of gainful employment. From the outset, the Board concedes that the Veteran’s bilateral hearing loss and tinnitus affect his employment, in that he reports misunderstanding speech from his boss and co-workers, particularly when background noise is present. Nevertheless, the Board must ascertain whether the Veteran is precluded from obtaining and maintaining all types of employment due to his service-connected disabilities, not merely whether he has difficulty engaging in such employment. In the instant case, the Veteran has reported that he is unable to obtain or maintain employment due primarily to his psychiatric disabilities. However, as discussed above, the Board finds that the Veteran’s psychiatric disabilities, however diagnosed, are not service-connected. He has not contended that his service-connected hearing loss and tinnitus, alone, render him unable to work. Accordingly, the Board does not find that the Veteran is unable to work due solely to his service-connected hearing loss and tinnitus. In sum, the record does not establish that the Veteran’s service-connected disabilities alone preclude all forms of substantially gainful employment. Although the Board finds that the Veteran does indeed have some impairment due to his service-connected disabilities, such a level of impairment is recognized by the ratings currently assigned. Therefore, the Board finds that the Veteran’s service-connected disabilities are not of such severity as to effectively preclude all forms of substantially gainful employment. As such, the requirements for entitlement to a TDIU have not been met. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel