Citation Nr: 20009782 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 14-34 263A DATE: February 6, 2020 ORDER New and material evidence has been presented and the claim of entitlement to service connection for a neurological impairment of the breast and nipple is reopened. New and material evidence has been presented and the claim of entitlement to service connection for a psychiatric condition is reopened. Service connection for hypertension is denied. Service connection for a brain condition is denied. Service connection for left shoulder arthritis is denied. Service connection for right shoulder arthritis is denied. Service connection for tumors is denied. Service connection for neurological impairment of the breast and nipple is denied. Service connection for a psychiatric condition is denied. TDIU is denied. FINDINGS OF FACTS 1. The January 2010 rating decision denying the Veteran’s claim for a neurological condition of the breast and nipples is final. 2. Evidence received since the January 2010 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claims for service connection of a neurological condition. 3. The April 2007 rating decision denying the Veteran’s claim for a psychiatric condition is final. 4. Evidence received since the April 2007 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claims for service connection of a psychiatric condition. 5. The weight of the evidence is against finding that the Veteran’s hypertension had onset in service or is otherwise related to his military service. 6. The Veteran is not service connected for hypertension, the underlying disability for which the claim for a brain condition is based upon. 7. The weight of the competent and credible evidence of record is against a finding that the left shoulder disability began during the Veteran’s military service, was caused by his service, or had onset within a year of his service, 8. The weight of the competent and credible evidence of record is against a finding that the right shoulder disability began during the Veteran’s military service, was caused by his service, or had onset within a year of his service. 9. The medical evidence does not suggest a current disability or a current diagnosis of tumors. 10. The objective medical evidence of record does not support a clinical diagnosis of a neurological impairment of the breast and nipples. 11. The weight of the evidence does not show that the Veteran developed a psychiatric condition as a result of an in-service injury or is otherwise his military service. 12. The Veteran’s service-connected disabilities do not render him unable to obtain and/or secure substantially gainful employment. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying the Veteran’s service connection claim for a neurological condition loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence pertaining to the Veteran’s neurological condition has been submitted, and the Veteran’s claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The April 2007 rating decision denying the Veteran’s service connection claim for a psychiatric condition loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence pertaining to the Veteran’s psychiatric condition has been submitted, and the Veteran’s claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for establishing service connection for a brain condition have not been met. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.102, 3.303, 3.310. 7. The criteria for service connection for left shoulder arthritis are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for service connection for right shoulder arthritis are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 9. The criteria for service connection for tumors are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 10. The criteria for service connection for neurological impairments are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 11. The criteria for service connection for a psychiatric condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 12. The criteria for TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to November 1979. He also had subsequent service from January 1982 to June 1983, from which he received a dishonorable discharge. The Veteran testified before the undersigned Veterans Law Judge at an April 2018 Board hearing. This matter is on appeal from a May 2013 rating decision and was previously remanded by the Board in October 2018. In its instruction, the Board directed that updated medical treatment records were to be sought. Additionally, due to the Veteran’s periods of incarceration, VA was to request the Veteran specific periods of incarceration and to obtain his authorization for release of medical records from the proper treatment providers at the incarceration facilities. Upon review, the Board notes that the appropriate request for authorization was sent to the Veteran in January 2019. While the Veteran did respond to the request, his signed authorization forms were rejected since the information provided by the Veteran did not meet the criteria under the PMR Program Guideline. VA then sent new requests for authorization in February, June, and in August 2019. As of date, VA has received no response from the Veteran or his representative about the releases. Without the appropriate release forms, VA is unable to obtain the records from the appropriate facilities. The Board notes that the duty to assist is a two-way street, which requires the Veteran’s active participation in a claim for benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board now finds having reached out to the Veteran several times requesting his authorization for the release of medical records, that there was substantial compliance with the terms of the October 2018 Board remand. See D’Aries v. Peake, 22 Vet. App. 97 (2008). The matters are now back before the Board for appellate consideration. Reopening a Claim Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception 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. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Neurological Impairment of the Beast and Nipples The last final denial of this claim was January 2010. Since the Veteran failed to timely file the appropriate substantive appeal, that rating decision became final. See 38 U.S.C. § 7105 (c). At the time of the January 2010 rating decision, the record consistent of VA treatment records, which did not provide a positive nexus between the Veteran’s claimed condition and his service. Thus, the claim was denied. However, since the January 2010 rating decision, the Veteran underwent an evaluation at a VA examination in 2013. Updated treatment records were also added to the claims file in support of his contention. Thus, the Board finds that this constitutes new and material evidence, and the previously denied claim is reopened. Psychiatric Condition The last final denial of this claim was April 2007. Since the Veteran failed to timely file the appropriate substantive appeal, that rating decision became final. See 38 U.S.C. § 7105 (c). At the time of the April 2007 rating decision, the evidence consisted of VA treatment records documenting the Veteran’s complaints that the chest scars cause him embarrassment and intimacy issues. He began participating in chemical dependency programs in 2005 and reported feelings of depression. However, pursuant to a VA examination in January 2006, the VA examiner found no positive nexus between the Veteran’s psychiatric problems (including substance dependence) and his military service. Thus, the claim was denied. Evidence received since the April 2007 rating decision include new VA examination reports and VA treatment records which showed complaints of depression, anxiety, and antisocial personality disorder. The Board finds that this constitutes new and material evidence. Therefore, the matter is reopened. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection for certain chronic diseases, such as arthritis, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension The Veteran asserts that he developed high blood pressure as a result of his military service. Hypertension is considered to be a chronic disability for VA purposes. There is a rebuttable presumption of service connection for certain chronic diseases, including hypertension, if the disease manifested during service or to a compensable degree (a degree of 10 percent or more) within one year of separation from active service. If a chronic disease is shown in service or within the requisite time period described in 38 C.F.R. § 3.307 (b), subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). Service treatment records are silent for complaints or diagnosis relating to hypertension. In fact, several sick call entry notes reported blood pressure within normal limits. His separation examination in November 1979, showed no clinical abnormalities relating to his heart or vascular system. At his Board hearing, the Veteran was not able to report when he started experiencing high blood pressure. Post VA treatment records suggest that the Veteran’s hypertension was diagnosed in March 2005. Later VA treatment records in March 2019 reported that the Veteran had a history of elevated pressures and was taking medication to control its symptoms. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means the diastolic blood pressure is predominantly 90mm. or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). As hypertension is considered chronic for VA purposes, the Board has initially considered service connection for hypertension on a presumptive basis per 38 C.F.R. § 3.309 (a). However, the record does not support that the Veteran was diagnosed with or had hypertension during service. During his period of active duty, the Veteran’s blood pressure was within normal limits. None of his readings met the criteria for a diagnosis of hypertension for VA purposes during his military service. Additionally, there are no clinical records within the year of the Veteran’s separation from service showing hypertension and the Veteran has not suggested that he was treated for hypertension during that one-year period. The first suggestion of a diagnosis of hypertension was in 2005, noted in his VA treatment record, more than two decades after separating from active service. By the Veteran’s own admission, he did not know or recall when he began experiencing high blood pressure. Although the records throughout the pendency of this claim show hypertension on the Veteran’s active problem list, his service treatment records and records in between his service and this time of his claim show no in-service notation of hypertension, no onset of hypertension within one year of separation, and no symptoms of hypertension in service that continued after service that were ultimately diagnosed as hypertension. There is also no evidence within the current records to indicate any causal connection between the Veteran’s hypertension and his active service. Although the Board recognizes the Veteran was not afforded a VA examination to determine whether his hypertension is causally related to service, the Board finds remand for such an examination is not warranted. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4). VA must provide a medical examination where there is “competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability” and the evidence indicates that the disability or symptoms may be associated with the claimant’s active military, naval, or air service,” but there is insufficient “medical evidence for the Secretary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(2); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). To trigger VA’s duty to assist, there need only be evidence that indicates that there may be a nexus between a current disability and an in-service event or injury. This is a low threshold. McLendon, 20 Vet. App. at 83. However, VA is not required to afford a veteran an examination where the only evidence as to nexus are conclusory, generalized lay statements. Waters v. Shinseki, 601 F.3d 1273, 1278 (Fed. Cir. 2010). The evidence of record is such that the duty to obtain a medical examination is not triggered with regard to this claim, because there is no evidence in the record suggesting a causal connection between any current hypertension and the any aspect of the Veteran’s active service. Accordingly, service connection is not warranted, and the claim is denied. Brain condition secondary to hypertension The Veteran asserts that he developed a brain condition secondary to his hypertension. At his Board hearing, the Veteran suggested that he might have multiple sclerosis. However, upon review, his medical treatment records do not reflect a diagnosis of multiple sclerosis. VA treatment notes indicated that the Veteran was seen for complaints of hearing loss and incidental finding of white matter lesions on a brain MRI. The physician told the Veteran that there are numerous causes which could have given rise to the white matter changes, with the most common reason in his case being the small vessel ischemic disease, as well as his history of uncontrolled blood pressure. He also discussed with the Veteran the importance of controlling vascular risk factors like hypertension, which might help in the preventing the progression of the lesions. At the time of the evaluation in October 2011, he was asymptomatic, and his neurological examination was essentially within normal limits without any suggestion of MS. He denied any history of focal weakness, numbness, or any vision loss. He also denied any bladder, bowel dysfunction, headaches, or cognitive issues. The Board finds that service connection for a brain condition is not warranted. Upon review of the record, the Veteran’s record showed incidental finding of white matter lesions on his brain. His physician suggested that the causes of the condition was possibly due to his hypertension. However, given the denial of service connection for hypertension, the Board finds that service connection on a secondary theory of entitlement is not warranted in this case. The Veteran is claiming service connection for a brain condition secondary to his hypertension, but since the underlying disorder is not service-connected, the Veteran’s claim for secondary service connection on this basis is without legal merit and must be denied due to the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, service connection for a brain condition is denied. Left and Right Shoulder Arthritis It is the Veteran’s contention that he developed a left and right shoulder disability as a result of his military service. Based on his VA treatment records, the Veteran told his physician that he injured both shoulders while playing basketball. In March 2005, the Veteran indicated that he has had shoulder problems after falling on it while on active duty. However, service treatment records were silent for any complaints of a shoulder injury. His separation examination also noted no clinical abnormalities in the upper extremities. Additionally, the Veteran has specifically denied experiencing any pain or “trick” shoulder on several medical history reports. Contrary to statements made to his physician, the Veteran testified at his Board hearing that he never once hurt his shoulders. Rather, he suggested that the disease manifested after a bilateral breast surgery in the late 1970s to address gynecomastia and that the condition had worsened over the years. Post service, the Veteran complained of bilateral shoulder pain and received an x-ray in March 2005. Results revealed no clinical diagnosis, finding no evidence of a degenerative joint condition. X-rays were conducted again in 2007, which then finally revealed bilateral degenerative arthritis of the shoulders. Post service treatment records showed that in August 2012, he was seen for musculoskeletal pain. During his period of incarceration, the Veteran was seen at a treatment facility for bilateral shoulder pain. He described it as aching, localized, and throbbing pain. He denied any traumatic injury and reported that the pain started ‘years ago.’ He demonstrated symptoms including clicking, popping, crepitus, lack of joint motion, night pain, stiffness and tenderness. He was diagnosed with mild to moderate degenerative joint disease in both shoulders. In a March 2018 treatment record, the Veteran stated that he had been experiencing right and left shoulder pain since 2008 and that the condition had been worsening over the years. He stated that he had been scheduled for two arthroplasties but had not gone through with the surgeries. In an April 2018 Disability Benefits Questionnaire, the physician noted that the Veteran was first diagnosed with degenerative arthritis of the left and right shoulder in April 2007. X-rays revealed extensive severe degenerative changes in the left and right shoulder. Overall, the Board finds that service connection for a left and right shoulder is not warranted. The Board acknowledges that the Veteran has reported on different occasions that he injured his shoulders while playing basketball during active duty. However, the record over the course of the appeal has demonstrated that the Veteran is not an accurate historian regarding onset of his condition. After stating that he sustained a sports injury to his shoulders, he later denied ever hurting it. Additionally, rather than an insidious onset, he also believed that the arthritis resulted from a 1979 gynecomastia bilateral breast surgery. The Board acknowledges that there were in fact medical complications after a basketball practice in August 1979. However, the only injury noted at the time were open wounds from the surgery, which were adequately treated. There was no mention of a shoulder injury or condition. Here, the medical evidence does not support a positive nexus between the Veteran’s current bilateral shoulder arthritis and his active duty. Service treatment records were silent for any complaints or diagnosis relating to arthritis of the shoulders. He did not demonstrate any signs of such condition until several years after service. Other than his own assertions, he has not provided any objective medical evidence that would link his arthritis to his 1979 surgery. The weight of evidence does not suggest such nexus. While service connection may be granted for diseases such as arthritis under 38 C.F.R. § 3.309 (a), the disease must have manifested within one year after separation from service. In this case, there is no evidence of complaints of right or left shoulder pain within the year following separation from active duty service. Thus, service connection for a left and right shoulder disability is also not warranted on the basis of presumptive service connection. To the extent that the Veteran believes that his left and right shoulder disability are related to his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, as to the etiology of a shoulder disability, the issue of causation of such a medical condition is a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran’s bilateral shoulder arthritis is related to his service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinion. The weight of the probative evidence of record simply fails to demonstrate a medical link between the issue on appeal and the Veteran’s period of active service, of which there is also no record of a diagnosis within one year of separation, and the Veteran’s current left and right shoulder arthritis is not proximately due to an in-service incurrence. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The preponderance of the evidence is against the Veteran’s claim, and as such service connection for a shoulder disorder is denied. Tumors The Veteran contends that he developed tumors as a result of his military service. He asserts that he developed two tumors in his chest while working with asbestos during his service in the Navy in 1978 and that he underwent surgery to remove them later that year. A February 1979 service treatment record showed that the Veteran had a polyp described as a non-tender, movable mass. He underwent a bilateral gynecomastia for the resection of the breast tissue in the left and right breast to remove the mass in March 1979. The surgical wounds later reopened after a game of basketball in 1979. It was however, treated with no further complications. Upon separation from service, the Veteran did not report any outstanding problems relating to his March 1979 surgery, nor did an examination reveal any further clinical abnormalities. Post service treatment records show that the Veteran continued to report that he suffered lung tumors as a result of his exposure to asbestos in 1978. However, medical records do not currently document any complaints or diagnosis of a tumor. Evaluations revealed no abnormal tissue growth or tenderness in his neck, abdomen, or chest. A recent examination in March 2019 reported an absence of masses. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no disability, the Board does not reach the issue of whether the claimed disability is related to service. In the absence of a current disability, service connection cannot be established. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). Accordingly, the Veteran’s claim for service connection for tumors is not warranted. Neurological Impairment of The Breast and Nipples It is the Veteran’s contention that he developed neurological impairment of the breast and nipples due to the resection of his bilateral breast tissue. At his Board hearing, the Veteran testified that he had experienced numbness in his nipple area since his 1979 surgery. Service treatment records showed that the Veteran underwent bilateral breast surgery in 1979 to address gynecomastia. Subsequent records showed progressive recovery post-surgery. His surgical incision did reopen several months later in August 1979 after playing basketball, but he was immediately treated with no further documented residuals. Upon separating from service, the Veteran did not report nor did a medical examination show any neurological complaints or diagnosis. Post service, in an April 2013 VA examination, the Veteran was presented with residual scarring status post resection of the bilateral breast tissue that took place in 1979. Upon evaluation, the Veteran reported numbness around the nipple areas and pain over the scar. He added that he lost muscle mass after his surgery. The scars were classified as superficial non-linear scars, measuring at 4 cm by 0.3 cm each. The Veteran denied any functional impact caused by his scars. In conclusion, the examiner indicated that while the Veteran has subjective numbness in the nipple area, there is no clinical, objective evidence of nerve damage around the scar. Furthermore, while the left nipple is retracted, there is also no objective evidence of muscle loss. Further VA treatment records continue to report no clinical diagnosis or abnormalities regarding a neurological condition or sensory loss. He was evaluated again in June 2019. Based on his Disability Benefits Questionnaire, the Veteran continues to experience numbness in his nipples. Upon evaluation, the Veteran’s scar increased slightly, measuring at 4.5 cm by 0.2 cm and 4 cm by 0.3 cm. Overall, the Board finds that service connection for a neurological condition is not warranted. Based on the available VA medical records, the Veteran has not had a diagnosis of a neurological condition during the pendency of the appeal. While the Veteran has testified to numbness sensation, his lay statement is insufficient to establish a current disability or the required nexus. The Board again notes that the Veteran has not been shown to possess the medical training or credentials to diagnose such a condition or to opine as to its etiology. Jandreau, supra. Furthermore, the probative April 2013 VA examination report did not document any neurological condition upon evaluation. The Veteran has not submitted any objective medical evidence to contradict the findings of the April 2013 VA examination report. The Board finds the VA examination report adequate as it was based on a review of the Veteran’s file, as well as a physical examination. The Veteran has not argued that the examination was inadequate. Ultimately, without a diagnosis by a medical professional, there is no valid claim to support a claim for service connection for a neurological condition. Brammer, 3 Vet. App. 223, 225 (1992). The benefit-of-the-doubt standard of proof does not apply, and the claim is denied. 38 U.S.C. § 5107 (b). Mental Condition Associated with Residuals of Resection of Breast Tissue, Bilaterally It is the Veteran’s contention that he developed a psychiatric condition as a result of the resection of his breast tissue while on active duty. At his Board hearing, the Veteran testified that the scarring on his chest post-surgery has affected his psychological state. He often feels self-conscious when around people, especially when not wearing a shirt. The Veteran’s service treatment records are silent for any complaints regarding a psychiatric condition. After his 1979 surgery, the Veteran did not exhibit any emotional problems, even after the sports injury that caused the reopening of his wounds. Upon separation from service, the Veteran did not report or demonstrate any psychiatric complaints. At his January 2006 VA examination, the Veteran reported that the scarring to his chest causes embarrassment, interferes with intimacy and that he had been participating in chemical dependency programs since 2005. He specifically reported he felt depressed since he was unable to see his children. He also reported symptoms of insomnia, fluctuating moods, and low appetite. He admitted to a long history of substance abuse. In conclusion, the VA examiner found that it was less likely that the Veteran’s depression was attributable to his surgical scars. In support of his conclusion, the examiner emphasized that the scars had been in existence since the operation in 1979, yet he did not report feelings of depression for many years later in 2005. The Veteran also has a history of substance abuse, with VA treatment records showing a diagnosis of an anxiety disorder and depressive disorder, with a history of cocaine abuse in full sustained remission. At a November 2008 VA psychiatric evaluation, the Veteran voiced complaints of depression and anxiety. Upon evaluation, the VA physician suggested that the Veteran’s emotional problems were likely related to his incarceration and legal problems. In an April 2013 VA examination, the Veteran was presented with residual scar status post resection of the bilateral breast tissue. The scars were measured at 4 cm by 0.3 cm each. He denied any functional impact caused by the scars. In the more recent May 2019 VA psychiatric notes, the Veteran has continued to exhibit psychiatric problems. In addition to depression, anxiety, and antisocial personality, the Veteran had been suffering from poor sleep. The physician noted that his psychiatric history is significant for cocaine use disorder. He has been struggling with homelessness. After a review of the record, the Board finds that the Veteran’s claim for a psychiatric disorder is denied. The Board acknowledges that the record clearly shows that the Veteran has been diagnosed with anxiety, depression and substance abuse. With regard to his substance abuse, VA compensation shall not be paid if the claimed disability is abuse of alcohol or drugs. See 38 U.S.C. § 1131; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (interpreting 38 U.S.C. § 1110 to preclude compensation for primary alcohol and drug abuse disabilities, but not for such disabilities that are secondary to a service-connected disability). Therefore, the Veteran’s diagnosis of substance abuse cannot be service connected. The Board also considered VA treatment care notes diagnosing depression and anxiety. However, the treatment notes do not suggest a link between his psychiatric disorders and his military service. The Veteran’s service treatment records did not reflect any complaints suggestive of depression or anxiety, especially in response to his resection surgery in 1979. When the Veteran’s surgical wound reopened while playing basketball, he did not report any complaints relating to his mental state. Post service treatment records have not offered any link between the Veteran’s psychiatric diagnoses and his military service. In fact, a January 2006 VA examination report found against any positive nexus between the Veteran’s psychiatric condition and his military service. The Veteran has not offered any objective medical evidence to contradict such findings. The Board acknowledges that the Veteran has not been afforded a more recent VA examination addressing his claimed acquired psychiatric disorder (which now includes depression and anxiety) and its relationship to his active service. However, no such examination is required. As discussed above the Court of Appeals for Veterans Claims has stated that Mclendon require that the evidence indicates that there “may” be a nexus between the current disability and the Veteran’s service. The Veteran’s medical treatment records merely show that the Veteran has a current psychiatric condition. However, the record does not suggest any such link between his current emotional problems and his 1979 surgery (or the wound reopen). Therefore, a new VA examination is not required. In the absence of any competent and probative evidence indicating that the Veteran’s current psychiatric condition may be associated with his service, the Board finds that the preponderance of the evidence is against the Veteran’s claim and the appeal is denied. TDIU The Veteran is currently seeking entitlement to TDIU based on his service-connected disabilities. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16 (a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Veteran is currently service connected for tinnitus at 10 percent. He is also service connected for residuals of resection of breast tissue, degenerative arthritis with flexion deformity of the fifth finger, and residuals of resection of the anterior trunk, all at a noncompensable rating. He has a combined disability rating of 10 percent. Thus, he does not meet the schedular criteria for TDIU. See 38 C.F.R. §§ 4.16 (a), 4.25, 4.26. Nevertheless, the Veteran has asserted that his service-connected disabilities have rendered him unemployable. Based on the Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran became too disabled to work in January 2013. He had worked 40 hours per week in landscaping at Kelly Temporary Services, from March 2001 to November 2001, earning approximately $1,040 per month. At his Board hearing, the Veteran testified that he also worked at Wayne State University as a custodian. He later stopped working because of his worsening shoulder condition. He specified that the pain was so severe that it began interfering with simple tasks such as putting on clothes or showering. In reviewing the record, the Board finds that the limitations associated with the Veteran’s service-connected disabilities either singularly or in combination, do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Consequently, referral for extra-schedular consideration of a TDIU is not warranted at any point pertinent to the appeal period. The Veteran is currently only service connected for tinnitus at a maximum rating of 10 percent and residuals of resection of breast tissue, degenerative arthritis with flexion deformity of the fifth finger, and residuals of resection of the anterior trunk at a noncompensable rating. The record fails to show how and why his tinnitus has precluded him from obtaining substantial gainful employment. The Board acknowledges that the Veteran specifically asserts that his bilateral shoulder condition is a significant reason for his unemployment. However, given the recent denial of service connection for that condition, it cannot form the basis of a grant for TDIU. The Board also notes that the Veteran participated in a vocational rehabilitation problem. Based on his December 2019 Narrative Report, the counselor found that the Veteran’s disabilities could interfere with the Veteran’s ability to participate in a program of rehabilitation, which could impede a successful rehabilitation outcome. His multiple physical barriers include limited standing, walking, lifting, and gripping. He reported chronic pain due to his service-connected scars. He has a limited work history with only entry level type employment. The Veteran reported that he had not worked since 2001 and that he is not competitive in his job market due to lack of training, as he only reported having a GED. The counselor found that the Veteran’s service-connected disability contributes to a serious employment handicap in an identifiable, measurable, or observable way. Thus, the Veteran is found to have a serious employment handicap. However, upon reviewing the December 2019 Narrative Report, the Board affords its conclusion little probative weight. The Narrative Report found that the Veteran’s service-connected disability contributes to serious employment handicap. However, the counselor failed to provide supportive rationale as to how the Veteran’s residual scars affect his mobility or cognitive function required for employment. The counselor also added that the Veteran is not competitive in the job market because of his limited education. However, this alone is not adequate to demonstrate the that the Veteran does not have transferable skills or that he lacks the ability to learn and adapt to new tasks. The record does not show that the Veteran lacks the basic knowledge or skills to qualify him for light or sedentary employment. Thus, overall, the Board finds that the Veteran’s and the vocational counselor’s assertion is inconsistent with the evidence of record. In summation, the probative medical evidence of record is against finding that it is at least as likely as not (50 percent or greater) that the Veteran is rendered unemployable due to his service-connected disabilities. While the Board respects the vocational expert’s qualifications, the Court and Federal Circuit have held that the ultimate question of whether a veteran is capable of substantial gainful employment is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board, as finder of fact, has reviewed the competent evidence in this case, but ultimately concludes that the Vocational Consultant’s Opinion does not establish that the Veteran is unable to obtain or maintain substantially gainful employment, as a result of his service-connected disabilities. Accordingly, TDIU on an extraschedular basis is denied MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, 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.