Citation Nr: 21003342 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 06-05 662 DATE: January 21, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, diagnosed as major depressive disorder (MDD), is granted as secondary to service-connected diabetes mellitus type II with erectile dysfunction and peripheral neuropathy of the bilateral upper and lower extremities associated with diabetes mellitus type II with erectile dysfunction. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 13, 2018 (excluding the period of temporary total rating from June 29, 2015 to October 1, 2015) is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD. 2. The Veteran’s acquired psychiatric disorder other than PTSD, diagnosed as MDD, is proximately due to his service-connected diabetes mellitus type II with erectile dysfunction and peripheral neuropathy of the bilateral upper and lower extremities associated with diabetes mellitus type II with erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1101,1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for an acquired psychiatric disorder other than PTSD, diagnosed as MDD, as proximately due to, or the result of, his service- diabetes mellitus type II with erectile dysfunction and peripheral neuropathy of the bilateral upper and lower extremities associated with diabetes mellitus type II with erectile dysfunction have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1968 to May 1970, including service in the Republic of Vietnam for which he received a Combat Infantryman Badge. This matter is on appeal to the Board of Veterans’ Appeals (Board) from rating decisions dated in November 2005, November 2006, and August 2007. After a May 2005 final Board decision denied service connection for PTSD and depressive disorder (DD) not otherwise specified (NOS), the Veteran sought to reopen the claims. The agency of original jurisdiction (AOJ) implicitly reopened and denied these claims in rating decisions dated in November 2005 and November 2006. In an August 2007 rating decision, the Veteran’s claim for TDIU was denied. The Veteran perfected timely appeals of each of these decisions to the Board. As such, these claims were previously before the Board in July 2010 and October 2016. The October 2016 Board decision reopened the previously denied service connection claims for PTSD and DD NOS before combining the issues into one claim for an acquired psychiatric disorder, to include PTSD and DD NOS. The Board then remanded this claim in addition to the Veteran’s claim for a TDIU to the AOJ for additional development and adjudication. The claims were later remanded by the Board once again in an October 2017 decision when the Veteran’s claim was remanded to ensure substantial compliance with the Board’s October 2016 remand directives, to include medical opinions. See Stegall v. West, 11 Vet. App. 268, 271 (1998), and the case has since been returned to the Board for appellate review. As discussed in detail below, the Board finds that the directives have been substantially complied with in terms of the Veteran’s service connection claim for an acquired psychiatric disorder. For the reasons explained below, the Board finds that it is appropriate to bifurcate the Veteran’s service connection claim for an acquired psychiatric disorder into two service connection claims for PTSD and an acquired psychiatric disorder other than PTSD to allow the Board to adjudicate them separately. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) ("[b]ifurcation of a claim is generally within the Secretary's discretion"); see also Tyrues v. Shinseki, 732 F.3d 1351 (Fed. Cir. 2013); Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions). During the period on appeal, the Veteran submitted a November 20, 2008 signed request revoking Disabled American Veterans (DAV) as his elected representative. In addition, there is no indication the Veteran has appointed alternative representation. Therefore, the Veteran does not currently have a representative. Regarding the Veteran’s claim for entitlement to a TDIU, the record shows that during the appeal period, the Veteran has received a combined rating of 100 percent effective from January 22, 2018. He also received a temporary 100 percent evaluation for his atherosclerotic heart disease from June 29, 2015 to October 1, 2015. In addition, the Veteran was awarded a 100 percent evaluation for prostate cancer effective from November 13, 2018. The Board recognizes that a 100 percent disability rating does not necessarily render the issue of TDIU moot. In Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted. Bradley, 22 Vet. App. at 293-94. Under Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 111(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See id. However, the Veteran has already been awarded SMC under 38 U.S.C. § 1114(s) during the period of temporary total rating from June 29, 2015 to October 1, 2015, and for the period on and after November 13, 2018. Thus, the award of the 100 percent schedular rating during these periods renders moot any claimed entitlement to a TDIU from June 29, 2015 to October 1, 2015, and for the period on and after November 13, 2018. Only the period prior to November 13, 2018 remains on appeal, excluding the period of the temporary total rating. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, to include psychosis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for PTSD; and 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. As noted above, the October 2016 Board decision found new and material evidence and reopened the Veteran’s recharacterized claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and DD, NOS; and as secondary to service-connected disabilities. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Thereafter, the Board remanded the Veteran’s claims for additional development. Of note, in a January 2018 letter from the Veteran, he requested assistance obtaining private treatment records from Dr. R. B. While, the Veteran provided release forms and the address to obtain Dr. R. B. treatment records, review of the record shows that VA has requested the private records at least twice and informed the Veteran that the records were not provided by Dr. R. B. See VA letters dated February 27, 2018, and March 15, 2018. However, of date, no private treatment medical records were received from Dr. R. B. nor submitted by the Veteran. The evidence of record includes returned mail from the private doctor’s address provided by the Veteran. The Veteran seeks service connection for PTSD and/or an acquired psychiatric disorder other than PTSD. Regarding the Veteran’s claimed PTSD, in a September 2005 PTSD Questionnaire, the Veteran reported that during combat patrol, the Veteran encountered the enemy and the Veteran’s Sergeant was killed, resulting in the Veteran carrying his body from the combat zone to camp. The Veteran also referred to numerous gun fights, combat patrols and missions. To establish entitlement to service connection for PTSD, in addition to the three basic elements of service connection discussed earlier, the record must contain the following: (1) medical evidence giving the Veteran a current diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). Effective August 4, 2014, the VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to Diagnostic and Statistical Manual, 4th Edition (DSM-IV) and replacing those references with references to the recently updated DSM-5. In the present case, the DSM-IV applies as the AOJ initially certified the Veteran's appeal to the Board prior August 4, 2014. Nevertheless, the Board finds that the Veteran may still establish service connection based on a DSM-5 diagnosis, as his appeal has been pending since the publication of the DSM-5. The October 2017 Board decision acknowledged the Veteran’s combat service in the Republic of Vietnam, and that his claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service. However, as discussed below, the evidence of record does not support a current PTSD diagnosis. Thus, the first element required to establish service connection for PTSD cannot be met and the Veteran’s claim must be denied. Turning to the evidence, VA records show that the Veteran first sought treatment for psychiatric problems in October 2002 at a VA psychiatric clinic and was diagnosed with depression. In addition, the records reflect that in January 2003 the Veteran was referred to a PTSD clinic and on August 2003 diagnosed with PTSD with depression. In a September 2003 VA examination of record, the Veteran reported symptoms included memory loss and alleged suicidal ideas, but the examiner noted that there were no actual plans or attempts. The examiner reported that the Veteran referred to feeling depressed, preferred to be alone at home, and that his sleep is interrupted with dreams that include the people killed in Vietnam. The VA examiner confirmed a diagnosis of depression disorder, not otherwise specified (NOS). As discussed in greater below, the Board is granting herein the Veteran’s claim of service connection for acquired psychiatric disorder other than PTSD. However, the September 2003 examiner opined under the DSM-IV criteria, that the Veteran did not fulfill the diagnostic criteria for PTSD, and the evidence of record failed to show that he was ever clinically diagnosed at the VA Medical Center (VAMC). The examiner noted that the record confirms that the Veteran participated in combat, however, there is no evidence that the Veteran was affected to a significant level by his combat experience in Vietnam. For example, during the VA examination interview, the examiner noted that he spoke about his military experience in Vietnam without any distress or any kind of emotional difficulty. In addition, the Veteran reported six psychiatric admissions at a VA hospital prior to September 2003, however, the evidence of record does not reflect any documentary records in support of this claim. Furthermore, a 2004 VA medical opinion confirmed that the Veteran’s symptomology did not meet the criteria for a PTSD diagnosis. The medical expert also acknowledged that the Veteran had participated in active combat and explained that a diagnosis of PTSD is not made solely on the basis that a Veteran participated in active combat and that other elements/criteria must be met. Moreover, the expert noted that while the Veteran is followed at the VA PTSD clinic, he did not fulfill the requirements for a PTSD diagnosis upon examination. Ultimately, the 2004 VA medical expert agreed with the 2003 examiner that the Veteran’s current symptomatology is of depressive depression disorder, NOS, and not PTSD. In a November 2005 VA examination, the Veteran reported symptoms including depressed mood. The VA examiner confirmed the Veteran’s depressive disorder, NOS diagnosis. The Veteran’s November 2005 VA examination report reflects that the examiner’s determination that an assessment of PTSD was not warranted under the DSM-IV criteria as the Veteran did not meet the stressor criteria for PTSD. The 2005 examiner did not dispute that the Veteran served in combat in Vietnam but concluded that such experiences are not responsible for his neuropsychiatric condition. The examiner reported that the Veteran’s claimed condition remains similar as previously described in the 2003 VA examination and 2004 addendum medical opinion discussed above. Ultimately, the examiner concluded that based on the Veteran’s history, records and evaluations considered he does not fulfil the diagnostic criteria for PTSD; nor any neuropsychiatric conditions that could be considered due to, caused by, the result of, or secondary to his military service in Vietnam. Pursuant to the October 2017 remand, the Veteran was afforded a June 2018 PTSD Disability Benefits Questionnaire (DBQ), June 2018 medical opinion and September 2020 addendum medical opinion. The June 2018 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of depressed mood, chronic sleep impairment, disturbance of motivation and mood and difficulty in adapting to stressful circumstances, including work or worklike setting, he did not have a diagnosis of PTSD under the DSM-5 criteria. The examiner concluded that Based on the review of the e-file and the medical records, and, after taking a psychiatric history and performing a mental status exam, it is determined that there is evidence to fulfil DSM-5 diagnostic criteria for the established depression (discussed below) and no other formal mental disorder is found, to include PTSD because the DSM-5 criterion c, d, and g, were not met. Although the examiner did not specifically address the DSM-IV criteria that apply in this case, the Board finds that the examiner’s determination is consistent with those of the previous examiners who did consider the DSM-IV before determining that a PTSD diagnosis was not warranted. Consequently, the Board finds that this determination is probative as it was based on a review of the relevant evidence of record and the examiner’s medical expertise. Upon review of the record, it is the Board’s conclusion that the preponderance of the evidence demonstrates that the Veteran does not have a current PTSD diagnosis. Here, the Veteran was afforded several VA examinations since he initially filed his PTSD claim in May 2003 (reopening claim filed in July 2005). The examiners assessed the Veteran under the DSM-IV prior to August 4, 2014 and DSM-5 thereafter. All of the VA examiners found that while the Veteran had in-service combat related stressors, his current symptomology did not fulfill the diagnostic criteria for PTSD. In addition, while outpatient treatment records include PTSD among the Veteran’s psychiatric diagnoses, the Board finds that these determinations are less probative than those of the VA examiners as they do not reflect any rationale for those conclusions, or otherwise describe any link between the Veteran’s combat stressors and current symptoms. When examined for VA purposes to clarify the Veteran’s diagnosis, every examiner specifically concluded the Veteran did not have PTSD, setting out the rationale for that conclusion. The Board acknowledges the Veteran’s many statements in support of his claim and his contention that he currently has PTSD that is related to his reported stressors during service. However, the question of whether the Veteran meets the required diagnostic criteria for PTSD is a complex medical question that is not within the realm of knowledge of a lay person or determinable by observation with one's senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran's statements are not competent evidence to determine whether the Veteran has PTSD and are therefore not probative for deciding this appeal. The existence of a current disorder is a required element of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; Degmetich v. Brown, 104 F.2d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The evidence does not support a finding that the Veteran has had PTSD at any point during the claim period or shortly before the claim period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Consequently, service connection for PTSD is not warranted. 38 C.F.R. §§ 3.102, 3.303, 3.304. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of service connection for PTSD, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board will next consider whether entitlement to service connection for a psychiatric disorder other than PTSD is warranted. As previously indicated, the Veteran has asserted that his psychiatric disorder is related to events he witnessed during combat in Vietnam, including the death of one of his comrades. Alternatively, he has reported that his depressive disorder was caused or aggravated by his service-connected disabilities. Service treatment records are negative for complaints symptoms or diagnosis of any acquired psychiatric disorder. After service, VA treatment records show that the Veteran was first seen in October 2002 at a psychiatric clinic, in which he was diagnosed and treated for depression. The VA treatment records show continued treatment for depression after 2002. The September 2003 and January 2004 VA examiners opined that there is no connection between the Veteran’s current acquired psychiatric disorder, to include depressive disorder, NOS symptomology beginning thirty years after separation from service and his military service. Pursuant to the November 2016 remand, the Veteran was afforded a VA mental health examination. The examiner noted a current diagnosis of MDD and reported that the Veteran did not have more than one mental disorder diagnosed. The examiner noted that the Veteran denied mental symptomatology or treatment prior to or during active service until 1970, however, the examiner noted that there is no evidence of this in the Veteran’s service treatment files. Furthermore, the November 2016 examiner opined that the Veteran’s MDD condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner remarked that the December 2002 treatment record is the Veteran’s first psychiatric evaluation of record and references a 1972 psychiatric hospitalization due to self-harm ideas, but there is no supporting documentary evidence of record. The examiner reported that there is no evidence of ongoing mental health treatment at the San Juan VAMC from 1972 to 2002. Thus, she concluded that there is no evidence of a psychiatric disorder incurred within one year of separation from service. Furthermore, the examiner concluded that the Veteran’s MDD has no direct temporal or circumstantial relationship with endured military stressors. In this case, there is no evidence of an in-service occurrence or positive nexus opinion. There is no evidence of medical treatment related to the Veteran’s claimed condition and within one year after discharge from the military service. There are no treatment reports from San Juan VA Medical Center or other medical institution immediately following the Veteran’s discharge from military service and related to the Veteran’s claimed condition. No further medical evidence has been submitted in support of the Veteran’s claim. Accordingly, the Veteran’s claim is denied on a direct and presumptive basis. In the alternative, the Veteran claims that his current depression condition is secondary to his service-connected disabilities. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Pursuant to the Board’s October 2016 remand, the Veteran was afforded another VA mental health examination in November 2016. The examiner noted a current diagnosis of MDD. The November 2016 examiner determined that there is no evidence linking the Veteran’s service-connected conditions (diabetes, bilateral upper and lower extremity peripheral neuropathy, right foot disorder, tinnitus, heart disease, hearing loss, and/or erectile dysfunction) to the Veteran’s mental condition. However, the examiner opined that chronic pain either from service-connected paralysis of sciatic nerve associated with chronic low back pain, lumber radiculopathy can aggravate and perpetuate MDD symptomatology. She explained that the Veteran’s low back pain with paralysis of sciatic nerve can serve as a perpetuating and aggravating factor for MDD. The examiner noted in her opinion that the Veteran has had continuous treatment for MDD from 2002. Of note, the Veteran is not service-connected for any low back disabilities. As such, the October 2017 Board decision determined that it was unclear whether the November 2016 examiner was actually referring to the Veteran’s service-connected peripheral neuropathy when conducting her assessment. As such, the Veteran’s claims were remanded for an addendum opinion for compliance with the Board’s October 2016 remand and further clarification regarding any acquired psychiatric disorder identified during the period on appeal. The June 2018 VA examination and September 2020 addendum confirmed that the Veteran has a current disability of MDD. The September 2020 addendum medical opinion was sought from the June 2018 VA examiner. In clarifying her June 2018 VA examination, the examiner opined that the Veteran’s MDD is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran’s chronic pain either from his service-connected diabetes mellitus type II with erectile dysfunction and peripheral neuropathy of the bilateral upper and lower extremities associated with diabetes mellitus type II with erectile dysfunction. Although the examiner noted that there was no evidence in the literature of a direct physiological consequence between the Veteran's bilateral upper and lower extremity peripheral neuropathy and a depressive condition, she stated that it was also known that a chronic medical condition causing chronic pain can increase the risk for a depressive condition. While the Veteran was documented as a diagnosed diabetic in October 2004, the record also indicated that he had experienced increased blood sugar levels since 1999. Neuropathy present in 2004 was also noted to be more likely than not due to diabetes. The examiner additionally indicated that the Veteran's complaints of back pain and pain in the lower extremities associated with neuropathy dated back to 2000. In contrast, there was no evidence of psychiatric treatment intervention until October 2002. The Veteran's health had also been documented as an identified, related stressor for his depressive symptoms. The examiner found that the link between the Veteran's neuropsychiatric condition and his diabetes, bilateral upper and lower extremity peripheral neuropathy could be made. The Board finds that this opinion provides great probative value as the examiner considered the Veteran’s relevant medical history and included a full rationale based on her medical expertise. Accordingly, the weight of the evidence supports finding that the Veteran's psychiatric disorder other than PTSD, diagnosed as MDD, is attributable to, or the result of, his service-connected diabetes mellitus type II with erectile dysfunction and peripheral neuropathy of the bilateral upper and lower extremities associated with diabetes mellitus type II with erectile dysfunction. Service connection is therefore granted. 38 C.F.R. § 3.310. In reaching this decision, the Board acknowledges that the Veteran has been diagnosed with various psychiatric disorders, including DD NOS. However, the benefit sought on appeal is granted in a manner consistent with the fact that the most probative evidence shows that the proper diagnosis for the Veteran's current psychiatric disorder is MDD. Thus, the Board concludes that service connection for MDD is warranted. REASONS FOR REMAND 1. Entitlement to TDIU prior to November 13, 2018 (excluding the period of temporary total rating from June 29, 2015 to October 1, 2015) is remanded. Regarding the Veteran’s TDIU claim, a December 2018 VA treatment record raised the theory that the Veteran’s psychiatric disability impacted his ability to secure or follow substantially gainful employment. The Veteran reported that he had problems becoming engaged in arguments and fights with others when working, and he had a history losing jobs due to his difficulty managing his temper. As the AOJ's decision as to the initial evaluation and effective date assigned for the now service-connected psychiatric disorder above could affect the outcome of the TDIU claim, the claims are inextricably intertwined, and a remand of the claim is appropriate. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. After effectuating the grant of service connection for major depressive disorder in this decision, the AOJ should conduct any other indicated development for the TDIU claim. 2. The case should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Franklin, 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.