Citation Nr: 20007672 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 15-33 904 DATE: January 29, 2020 ORDER The appeal to reopen a claim of service connection for type II diabetes mellitus (diabetes) is granted. Service connection for diabetes is denied. A rating of 70 percent, but no higher, for service-connected major depressive disorder (MDD), is granted. A total disability rating due to individual unemployability (TDIU) based on service-connected disabilities is granted, effective October 26, 2012. FINDINGS OF FACT 1. VA did not receive an appeal or new and material evidence within one year of notification of an April 2011 rating decision that denied entitlement to service connection for diabetes. 2. Subsequent to the April 2011 rating decision, new evidence was associated with the claims file that raised a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes. 3. The competent and probative evidence weighs against finding the Veteran’s diabetes was incurred in service or is related to service. 4. The Veteran’s MDD produced occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood, but did not produce total occupational and social impairment. 5. The evidence reasonably establishes the Veteran’s service-connected disabilities are of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria to reopen the Veteran’s claim for entitlement to service connection for diabetes have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for a rating of 70 percent, but no higher, for MDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from December 1966 to February 1970. The Board notes the question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The Veteran appeared for an October 2019 hearing before the undersigned Veterans Law Judge. The transcript is associated with the claims file. 1. Whether new and material evidence was received to reopen a claim of entitlement to service connection for diabetes Generally, a claim which has been denied in a final unappealed RO decision or an unappealed Board decision may not be reopened and allowed. 38 U.S.C. § 7105(c). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. In deciding whether new and material evidence was submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence has been submitted is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). An April 2011 rating decision denied entitlement to service connection for diabetes based on finding the disability was not incurred during service or linked to service. The Veteran did not appeal the decision or submit new and material evidence within one year of notification of the decision. Therefore, the April 2011 rating decision is final. At the time of the April 2011 rating decision, the record included service medical records and VA treatment records. Subsequent to the April 2011 rating decision, evidence was added to the claims file that addressed a nexus to service, including October 2019 hearing testimony. This new evidence raises a reasonable possibility of substantiating the Veteran’s service connection claim. Accordingly, VA has received new and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for diabetes. 2. Entitlement to service connection for diabetes The Veteran contends his diabetes is related to service, to include as secondary to herbicide agent exposure while stationed at Fort Gordon, Georgia. The Board recognizes the Veteran has diabetes. The question before the Board is whether the Veteran’s diabetes began during service or is related to service. In order to establish service connection for a present disability the claimant must show: (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship or “nexus” between the present disability and the in-service injury or disease. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran did not have active service in an area that would qualify him for the presumption of herbicide exposure. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii) and (iv). However, even though the Veteran is not entitled to the presumption of exposure to herbicides pursuant to 38 C.F.R. § 3.307(a)(6), he may establish service connection if he puts forth sufficient evidence to demonstrate by an equipoise standard that he was actually exposed to herbicides. After review of the record, the Board finds the criteria for service connection for diabetes have not been met. The Board considered the Veteran’s contention that he was exposed to herbicide agents while serving at Fort Gordon, Georgia. The Veteran served at Fort Gordon from January 1967 to March 1967. The only evidence of herbicide agent use at Fort Gordon was in July 1967. An August 2013 VA Memorandum stated that herbicide agent exposure is not verified. The JSRRC found no evidence that indicated the Veteran was exposed to herbicides. Therefore, the preponderance of the evidence is against finding the Veteran was exposed to herbicide agents during service. The Board considered whether the Veteran’s diabetes was otherwise related to service. Service treatment records (STRs) do not show complaint, treatment, or diagnosis of diabetes. The evidence shows the Veteran was first diagnosed with diabetes in November 2010, more than 40 years after service. There is no competent evidence showing the Veteran’s diabetes began in service or is related to service. Accordingly, the Board finds the weight of the competent and probative evidence is against finding that the Veteran’s diabetes had its onset during or is related to service, to include exposure to herbicide agents. 3. Entitlement to an increased rating for MDD The Veteran is assigned a 50 percent rating for MDD prior to January 17, 2019, and a 70 percent rating thereafter. The Veteran contends he is entitled to an increased rating. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran is entitled to a 70 percent rating for MDD for the entire appeal period, excluding periods the Veteran has been awarded a total temporary rating. At a February 2013 VA treatment visit, the Veteran reported worsening depression over the past year. He reported depressed mood, poor concentration, low energy, insomnia, isolation, and irritability. He reported having a panic attack once in his life. At a February 2013 VA examination, the Veteran reported that he and his wife separated four months prior due to conflicts over financial matters and his lack of interest in doing things. He reported they had since reconciled with an improved relationship. He reported a good relationship with his daughter and grandchildren. He reported his son lives local and visited daily. The Veteran reported attending church to hear the message, but not participating in the fellowship. He reported attending AA meetings and working with his sponsor. He reported he did not like socializing with others and avoids events. The examiner noted the symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty establishing and maintaining relationships, and difficulty adapting to stressful circumstances. At an April 2014 VA examination, the Veteran reported residing and getting along with his wife. He reported rarely going with his wife to church or errands. He reported regularly seeing his adult son. He reported avoiding places he used to socialize, including his local barber shop. The examiner noted the symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. He denied suicidal ideation, plan, or intent. At an August 2014 VA treatment visit, the Veteran reported poor memory, sleep impairment, constant depression, poor concentration, isolation, and irritability. He denied manic or hypomanic symptoms, paranoid delusions or hallucinations, or suicidal or homicidal ideations. At a November 2014 VA treatment visit, the Veteran reported poor sleep, memory problems, depression, and hopelessness. He reported his wife handled the bills, errands, and chores. He reported suicidal thoughts, without intent. He denied manic or hypomanic symptoms, paranoid delusions or hallucinations, or homicidal ideations. At a December 2014 VA treatment visit, the Veteran reported some improvement with sleep. He reported fluctuating appetite, low energy, impaired concentration, fluctuating short-term memory, depression, and increased anxiety. He denied manic or hypomanic symptoms, paranoid delusions or hallucinations, or suicidal or homicidal ideations. The Veteran received inpatient treatment from April 8, 2015 to April 20, 2015 for increased depression, suicidal ideation, and an alcohol use relapse after four years of sobriety. He reported he and his wife separated a month prior. He reported his drinking led to his separation from his wife and she would not take him back until he stopped drinking. The Veteran reported getting together with his friends on a weekly basis. The Veteran received inpatient treatment from July 8, 2015 to July 21, 2015 for depression, suicidal ideation, and alcohol use. At discharge, successful alcohol detoxification was noted. He reported living with his son. At an August 2015 VA treatment visit, the Veteran reported improved sleep, fluctuating mood, low energy, fluctuating anxiety, and fluctuating appetite. He denied current or recent suicidal ideation or manic symptoms. He reported feeling more level headed. He reported his wife was his biggest support system. He reported his memory improved since being sober. The examiner assessed MDD, recurrent, moderate. The Veteran received inpatient treatment from December 7, 2016 to December 29, 2016. The Veteran reported worsening depression and suicidal ideation. He reported sleep impairment, low energy, low interest, staying in bed, weight loss of 10 pounds, and suicidal thoughts. He reported currently living with his wife, daughter, and granddaughter. At discharge, an assessment was given of MDD, recurrent, severe with psychotic symptoms. At a February 2017 VA treatment visit, the Veteran reported forgetting where he put things, getting confused what day it is, and getting confused with his medications. He reported fluctuating mood, but was dealing better with things. He reported poor concentration and easy agitation. He reported his friends pick him up to go play cards. He reported enjoying reading. He reported living with his wife. The examiner assessed MDD, recurrent, moderate. The Veteran received inpatient treatment from March 5, 2017 to March 27, 2017. At intake, the Veteran reported increased depression, suicidal thoughts, isolation, and sleep impairment. The Veteran received inpatient treatment from July 11, 2017 to July 14, 2017. At intake, the Veteran reported depression and suicidal ideation. The Veteran received inpatient treatment from January 10, 2018 to January 26, 2018. At intake, the Veteran reported increased depression and voices telling him to hurt himself. The Veteran attended Residential Rehabilitation Treatment Program for Substance Use Disorder (RRTP/SUD) from February 9, 2018 to March 9, 2018. He successfully completed his drug/alcohol rehab program for cocaine and alcohol use disorders. He reported marital discord and was residing with his sister. The Veteran received inpatient treatment from October 10, 2018 to October 16, 2018 for depression, anxiety, and suicidal ideation. At a March 2019 VA examination, the Veteran reported still being married to his wife, but stated their relationship was more like roommates. He reported a “somewhat good” relationship with his children. He reported he does not leave the house. He reported his wife does the shopping. He reported spending his time in bed and watching television. The examiner noted the symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, difficulty understanding complex commands, impaired judgment, disturbances in motivation and mood, difficulty adapting to stressful situations, inability to establish and maintain effective relationships, suicidal ideation, and neglect of personal appearance and hygiene. At a May 2019 VA treatment visit, the Veteran reported continued depression. He reported going to a senior citizen club that he was enjoying, but had recently stopped going. He reported misplacing items daily. He reported no improvement with concentration or memory. At a June 2019 VA examination, the Veteran reported he and his wife were getting along better and he was spending less time in bed. The examiner noted the symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, memory impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation. At an October 2019 Board hearing, the Veteran reported worsening depression. He reported he does not like to leave the house. He reported that he relies on his wife to remember dates. He reported experiencing at least one panic attack a week. He reported his MDD symptoms affected his ability to remember simple tasks. A November 2019 letter from the Veteran’s treating mental health clinician since November 2014 assessed MDD, recurrent, severe. The clinician stated the Veteran’s depressive symptoms included low energy, low motivation, poor sleep, low mood, anxiety, poor concentration, and memory problems. The Veteran received inpatient treatment from December 9, 2019 to December 31, 2019 for complaints of depression and suicidal ideation. At a January 2020 VA treatment visit, the Veteran reported depression. He reported high and low days. He reported a good relationship with his wife and children. He reported having a few good friends. He reported occasionally going out with friends to listen to music. He reported a close relationship with his siblings. He denied any current suicidal or homicidal ideations. The Board finds the Veteran’s MDD symptoms produced occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. The Board does not find the Veteran’s MDD produced total social and occupational impairment. The Board gives great probative weight to the Veteran’s lay statements at his treatment visits, examinations, and his Board hearing regarding the severity, frequency, and duration of his MDD symptoms. The Veteran is competent to report his psychological symptoms and the Board finds these statements credible. Looking to the criteria for a 70 percent rating, the Board finds evidence of suicidal ideation; near-continuous panic or depression affecting the ability to function; impaired impulse control; occasional neglect of personal appearance and hygiene; difficulty adapting to stressful circumstances; and difficulty establishing and maintaining effective relationships. Additionally, the Veteran reported impaired concentration, sleep impairment, irritability, low energy, isolation, flattened affect, fluctuating appetite, and suspiciousness. The Board finds the frequency and severity of these MDD symptoms produced occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. During the appeal period, the Board does not find total social impairment. The Veteran reported a strained relationship with his wife, with periods of separation, but maintained a relationship. The Veteran reported a good relationship with his adult children. The Veteran reported occasionally spending time with friends. Looking to the criteria for a 100 percent rating, the Board does not find gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; or memory loss for names of close relatives, own occupation or own name. The Veteran experienced episodes of depression, suicidal ideation, and auditory hallucinations that resulted in inpatient treatment. The Board does not find the frequency of his hallucinations or suicidal ideations to be persistent. Between the inpatient visits, treatment providers generally observed his appearance was appropriate, speech was normal, thought processes were linear, and insight/judgment were good. The Veteran reported memory impairment, including forgetting where he put things, getting confused what day it is, and getting confused with his medications. The evidence does not show the Veteran’s MDD produced memory loss to the extent of names of close relatives, own occupation, or own name. The Board recognizes the list of symptoms under the rating criteria are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Here, the Board finds the Veteran’s MDD symptoms most closely approximated the criteria for a 70 percent rating. Accordingly, a rating of 70 percent, but no higher, for MDD is warranted. 4. Entitlement to a TDIU rating For a TDIU to be awarded on a schedular basis, 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 disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is assigned compensable ratings for MDD, rated at 70 percent; leiomyosarcoma of the left trapezius, rated at 30 percent; degenerative changes of the cervical spine, rated at 20 percent; scar, left trapezius muscle, rated at 20 percent; denervation of the left trapezius muscle, rated at 10 percent; and degenerative joint disease of the left acromioclavicular joint, rated at 10 percent. Here, the Veteran’s service-connected disabilities are sufficient to meet the schedular criteria under 38 C.F.R. § 4.16(a). 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran contends his service-connected disabilities render him unemployable. On review of the record, the Board finds that such is reasonably shown. The Veteran last worked full-time in 2008. Since that time, the Veteran reported attempts to work in fast food and lawn care, but the Board finds these attempts were not substantial gainful activity. The Veteran reported a work history as a cook and warehouse laborer. The Veteran completed high school and some college courses. The evidence shows the Veteran started receiving Social Security Administration (SSA) disability benefits in November 2008 based on his leiomyosarcoma residuals and spine disability. SSA records show the Veteran reported past work as a cook and warehouse laborer. An October 2012 Application for Increased Compensation based on Unemployability claimed his service-connected left shoulder, cervical spine, and depression prevented him from securing or following any substantially gainful occupation. The Veteran reported last working in 2008. He reported a work history as cook and in a warehouse. A December 2012 VA examination stated the Veteran last worked in a warehouse. The Veteran reported he stopped working due to shoulder pain and depression. The examiner opined the Veteran’s left shoulder scar and muscle loss hampered his ability to use his dominant left upper extremity. The examiner opined the Veteran would have difficulty with physical labor as a result of residual weakness, pain, and limited range of motion. At a February 2013 VA examination for MDD, the Veteran reported not working in over three years. He reported physical pain interfered with his ability to perform most occupational tasks. He additionally reported some difficulty with concentration and memory. The examiner opined the Veteran’s MDD would produce occupational and social impairment with reduced reliability and productivity. A March 2013 VA examiner opined the Veteran’s leiomyosarcoma would impact his ability to perform physical labor, but if the Veteran could get his depression under control, he could perform less exertional work. A March 2017 VA examination for left arm muscle injuries opined the impact of the muscle injury on the Veteran’s ability to work was that he had very limited use of the left arm and shoulder, which is his dominant extremity. The examiner stated the Veteran could not extend his arm above his head. He reported the Veteran had a history of his shoulder giving out or dislocating. A March 2019 VA examination for MDD opined Veteran's MDD symptoms caused occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to such symptoms as: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, intermittent suicidal ideation without current plan or intent, and neglect of personal appearance and hygiene. At an October 2019 Board hearing, the Veteran reported he last worked full-time as a warehouse worker about ten years prior. He reported he stopped working because he could not do the required lifting or heavy work due to his neck. He stated that since that time his depression increased and also affects his ability to work. He reported he did not have experience doing office work. A November 2019 letter from the Veteran’s treating mental health clinician stated she treated the Veteran since November 2014 for MDD, recurrent, severe. She stated that despite being sober for over two years, being on several psychotropic medications, and attending group and individual therapy, he continued to suffer from significant depressive symptoms. The clinician stated the Veteran’s depressive symptoms, included low energy, low motivation, poor sleep, low mood, anxiety, poor concentration, and memory problems. The clinician stated the Veteran also suffers from chronic pain from the left shoulder. The clinician opined the Veteran would be unable to work or hold down any sort of job. Ultimately, the question of unemployability is a legal determination. See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). There is no disagreement in the claims file that the Veteran could not perform work that required heavy lifting, overhead reaching, or regular use of his left upper extremity. The Board must determine whether his service-connected disabilities would preclude him from maintaining less exertional employment, with consideration to his work experience and education. The Veteran has a high school diploma with some college courses. The Veteran performed past work as a cook and warehouse laborer. The Board finds the Veteran’s service-connected dominant upper extremity pain and MDD symptoms would make it difficult for the Veteran to consistently perform less exertional work. The Board finds less exertional work often requires an individual use their dominant extremity to write or type or requires an individual to interact with customers or co-workers on a regular basis. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran’s service-connected disabilities are of such nature and severity as to preclude him from securing or maintaining substantially gainful employment of any type. Given the foregoing evidence, the Board determines the criteria for TDIU are met as of his October 26, 2012 application. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.