Citation Nr: 18158919 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-03 462 DATE: December 18, 2018 ORDER Entitlement to service connection for depression to include as secondary to bipolar disability and prostate cancer is granted. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran’s depression is at least as likely as not related to his service connected bipolar disability and prostate cancer. 2. The Veteran is unemployable due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for depression have been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1969 to January 1972 and from December 1990 to May 1991. 1. Entitlement to service connection for depression to include as secondary to a service connected bipolar disability and prostate cancer. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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 alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Merits Here, there is no dispute that the Veteran currently has a diagnosis of depression as provided in an October 2010 VA treatment note. Likewise, there is no dispute that the Veteran is service connected for both bipolar disability as established in a March 2015 rating decision and prostate cancer by way of a March 2013 rating decision. The only issue remaining is a relationship between the Veteran’s depression and his bipolar disability and prostate cancer, a nexus. On this issue of nexus, the Board notes that the Veteran’s February 2016 VA examination clearly linked the Veteran’s bipolar disorder and depression. In sum, the examiner wrote that the Veteran’s depression is part and parcel with his bipolar disability referring to the disabilities as “Bipolar (Depression).” The examiner additionally noted that the Veteran’s depression was also linked to his service connected prostate residuals. In support of this position, he wrote “[i]n summary, depression has been found to occur at a higher rate among people who have other serious illnesses such as heart disease, stroke, or cancer.” In determining the value of the medical opinion, the Board is guided by the Court of Appeals for Veterans Claims (Court) holding in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) wherein the Court wrote that most of the probative value of a medical opinion comes from its reasoning and the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. Here, upon review, the Board finds that the VA examiner established the nature of the Veteran’s unique disabilities and provided a medical analysis supported by cited medical journals in reaching his conclusion that they were related. As such, the Board finds that the VA examiner’s statement is probative on the matter of nexus. Considering the foregoing, the Board finds that all elements of service connection on a secondary basis are met, and service connection for depression is warranted. Entitlement to a total disability rating due to individual unemployability. TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the scheduler rating is less than total, and 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. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. Merits There is no dispute that the Veteran’s service-connected disabilities render him eligible for a TDIU. His total current disability rating is 90 percent with his residuals of prostate cancer rated at 60 percent and his bipolar disorder rated at 70 percent. Thus, as the preconditions are met, the only remaining issue is whether these disabilities render the Veteran unemployable. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining the Veteran’s employability, the Board first turns to the unique educational and occupation history of the Veteran. Here, the Veteran’s educational history includes four years of high school, and his occupational background includes 30 years of physical labor as a derrickman for an oil company. Next, turning to the effect of the Veteran’s service connected disabilities, the Board notes that the Veteran’s April 2014 examination report foreclosed the possibility of the Veteran returning to his previous type of occupation due to his prostate cancer. When evaluating his functional limitation due to his prostate cancer the April 2014 VA examiner wrote, “no strenuous activity...[h]e could not return to [his previous] type of employment secondary to the physical stress [related to his prostate disability].” The Board also notes that the same VA examiner wrote that the Veteran’s prostrate residuals include the need void in intervals of less than an hour. Turning to Veteran’s functional limitation due to his bipolar disability, the April 2014 VA examination report included the notation that the Veteran’s symptoms include persistent homicidal and suicidal ideation. Last, the Board also recognizes and appreciates the lay statement provided by the Veteran along-side his January 2017 substantive appeal, wherein the Veteran wrote how he must wear diapers on a regular basis and/or use the restroom 10 times an hour. Considering this evidence of the Veteran’s educational attainment of a high school diploma, his 30 year work history consisting of physical labor, and the functional limitations caused by his service connected disabilities, the Board finds that the Veteran’s service connected disabilities have made him unemployable. As such, the Board finds that a total disability rating due to individual unemployability is warranted. REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). is remanded. The Board finds that the VA opinion provided by the examiner in April 2014 VA examination is, in part, insufficient. The examiner noted that the Veteran “clearly has no more endorsed symptoms of PTSD since 40 years [ago] and his return from Vietnam.” However, a December 2011 VA treatment note includes a psychological evaluation wherein the Veteran was diagnosed with PTSD. In Reonal v. Brown, 5 Vet. App. 458, 461 (1993) the Court of Appeals for Veterans Claims (Court) held that the Board may reject a medical opinion based on an inaccurate factual basis. As the examiner opinion was based on the inaccurate factual basis that the Veteran had not endorsed symptoms of PTSD in 40 years, the Board finds that the opinion provided by the April 2014 examiner is, in part, insufficient, and thus, a new VA examination is warranted. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. Regardless of the Veteran’s response, VA treatment records should be collected from the Jackson, Mississippi VAMC and all associated outpatient center and clinics. In particular, the AOJ should retrieve VA treatment records from November 2016 to present should be collected. Any archived records should be retrieved from storage. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Schedule the Veteran for an appropriate VA examination with an appropriate VA examiner to determine the etiology of the Veteran’s PTSD and whether it’s symptoms are distinct from his service connected bipolar and/or depression symptoms. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. After considering the pertinent information in the record in its entirety, the VA examiner should determine whether the Veteran has PTSD. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any PTSD identified, was incurred or aggravated by his active duty and whether any symptoms of the PTSD can be determined as distinct from the symptoms of his service connected bipolar and/or depression. 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. (Continued on the next page)   4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Acosta, Counsel