Citation Nr: 21063384 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-43 007 DATE: October 14, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include unspecified depressive disorder with anxious distress is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's acquired psychiatric disorder, to included unspecified depressive disorder with anxious distress, was caused by his active service and symptoms have been ongoing since service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1982 to August 1982 and from April 1989 to August 1989. This matter comes before the Board of Veterans Affairs (Board) on appeal of a February 2015 rating decision issued by a Department of Veterans' Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in March 2019. The RO issued a supplemental statement of the case (SSOC) in August 2020. After the SSOC was issued the Veteran submitted a letter from his private psychologist and from his primary care physician. The Board acknowledges that the Veteran filed a new claim for the depressive disorder with anxiety; however, the RO is not considering the new claim application because the same issues are currently before the Board. The Board has received evidence submitted after the issuance of the claim for the same disability that is still on appeal before the Board. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. §§ 1113(b); 38 C.F.R. §§ 3.303(d). 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 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 1. Entitlement to service connection for an acquired psychiatric disability, to include unspecified depressive disorder with anxious distress The Veteran contends that his acquired psychiatric disability, to include unspecified depressive disorder with anxious distress is due to his active service. The Veteran does have a current diagnosis of unspecified depressive disorder with anxious distress. The Board previously remanded the Veteran's claim for entitlement to service connection for his acquired psychiatric disability because the July 2017 VA examination was inadequate. In January 2020, the Veteran was afforded a new VA examination. The January 2020 examiner conducted an in-person examination and reviewed the Veteran's claims file. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there are a number of more proximal events leading to the Veteran seeking treatment including his job-related conflicts that led to his leaving his long-term employment and medical conditions including low testosterone and pain. The examiner opined that there does not appear to be a direct relationship between his current symptoms and the emergency landing while on duty with the Air Force in 1990. The examiner also noted that the Veteran's symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The Veteran's symptoms include depressed mood, anxiety, panic attacks that occur weekly or less often, circumstantial circulatory or stereotyped speech, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a work like setting, obsessional rituals which interfere with routine activities, persistent delusions or hallucinations and disorientation to time or place. In October 2020, the Veteran submitted a psychological evaluation from a private psychologist. The date of the examinations were January 2019 and February 2019. The private psychologist noted that the Veteran's symptoms and the review of the Veteran's entire claims file led the psychologist to find that it is at least as likely as not that the Veteran began experiencing symptoms of anxiety and OCD after exposure to stressful and/or traumatic experience during military service. The psychologist noted that the Veteran seemed to manage his symptoms adequately but after additional stressors in civilian life his mental stability began deteriorating and then he sought treatment at the VA. The examiner also noted that the Veteran's symptoms worsened after a 2017 motor vehicle accident. The examiner further noted that due to the Veterans occupational and social dysfunction he is unable to secure or maintain gainful employment. The examiner opined that it is at least as likely as not that his anxiety disorder is a product of stressful military experiences and has caused social and occupational impairment with deficiencies in most areas to include work, family relations judgment, thinking and mod dating back to at least 2013. In November 2020, the Veteran's primary care physician submitted a letter on behalf of the Veteran. The primary care physician noted that he believes that the Veteran's current health conditions are connected and inseparable from the Veteran's military service. The primary care physician noted that the Veteran suffers from depression with significant concomitant anxiety, obsessive compulsive disorder. The primary care physician noted that the Veteran's condition dates back to his time with the United States Air Force. The primary care physician noted that the Veteran's experiences in the air Force impacted his mental health through the years. The Veteran's service treatment records do not show any complaints, treatment, or diagnosis for an acquired psychiatric disorder during his active service. The Veteran's medical records. The Veteran advised that he was psychiatrically hospitalized in 2014/2015. The Veteran was diagnosed with anxiety disorder in 2012. The Veteran was a part of a prisoner of war training and an emergency plane landing while in service that he reports were the incidents in which he started to experience symptoms of an acquired psychiatric disability. The Veteran reports and the Veteran's private psychologist and primary care physician report that the Veteran's symptoms started in and continued since service. The January 2020 VA examiner opined that the Veteran's acquired psychiatric disability is more likely than not a result of post-service incidents that occurred. The Board finds that there is positive and negative evidence as it relates to the nexus of the Veteran's acquired psychiatric disability. The Board finds that the Veteran does have a current diagnosis of an acquired psychiatric disability and that there are incidents that caused or led to the development of the acquired psychiatric disability that occurred to include the prisoner of war training and the emergency plane landing that impacted the Veteran psychologically. The Board finds that looking at all of the evidence of record, there is a balance in the positive and negative evidence. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Here, the Board finds that there is a balance of positive and negative evidence, and therefore the benefit of the doubt is afforded to the Veteran. The claim of entitlement to service connection for an acquired psychiatric disorder is granted. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU), is remanded. A total disability rating for compensation purposes may be assigned when the Veteran 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by non-service-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term unemployability as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (DEC. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for a TDIU, the Board may not reject the claim without producing evidence, as distinguishing from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Frisca v. Brown, 7 Vet. App. 294 (1995). It is established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Veteran contends that he is entitled to a total disability rating based on individual unemployability (TDIU). The Veteran is currently service connected for Tinnitus rated at 10 percent disabling, effective September 28, 2011; Hearing loss in the left ear rated at 0 percent disabling, effective September 28, 2011; As of the date of this decision, the Veteran is service connected for an acquired psychiatric disorder. The Board finds that the evidence of record supports a finding that the Veteran's symptoms most closely reflect a 50 percent disability rating with occupational and social impairment with reduced reliability and productivity due to symptoms that include depressed mood, anxiety, panic attacks that occur weekly or less often, circumstantial circulatory or stereotyped speech, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a work like setting, obsessional rituals which interfere with routine activities, persistent delusions or hallucinations and disorientation to time or place. Here, the Veteran has service-connected disabilities rated at 0 percent, 10 percent, and 50 percent, resulting in a total disability rating of 60 percent pursuant to 38 C.F.R. § 4.25. Therefore, the Veteran does not meet the requirements under 38 C.F.R. § 4.16(a) for entitlement under a single disability rating of 60 percent or more. Here, there are more than two disabilities with at least one ratable at 40 percent, however when combined the total disability rating is only 60 percent, and therefore there the additional disabilities are insufficient to bring the combined rating to the required 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran's claims file indicates that the Veteran is currently unable to work as a result of his acquired psychiatric disability. The Veteran was gainfully employed at a pharmaceutical company prior to his diagnosis. The Veteran has been unemployed since May 2013. Entitlement to TDIU under 38 C.F.R. § 4.16(b) is determined in the first instance only by the Director of Compensation Service. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Only after the Director of Compensation Service has determined whether TDIU is warranted under 38 C.F.R. § 4.16(b) does the Board have jurisdiction to decide the claim. The Board is tasked with making the threshold determination that referral to the Director for extraschedular consideration is appropriate. That threshold determination must be supported with "a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue." 38 C.F.R. § 4.16(b). The Board finds that there is sufficient medical and lay evidence within the record, as outlined herein, to indicate that the Veteran is unemployed as a result of his service-connected disabilities. Therefore, remand is required for referral to Compensation and Pension Service for review by the Director for extra schedular consideration. While the Veteran fails to meet the percentage, standard outlined in 38 C.F.R. § 4.16(a), the Board finds that there was sufficient evidence to suggest that the Veteran is unemployable by reason of service-connected disabilities prior to the issuance of the rating decision on appeal. Thus, the Board finds that referral to the Director of Compensation Service for consideration of entitlement to TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is warranted. The matters are REMANDED for the following action: 1. Refer the Veteran's claim for a TDIU to VA's Director of Compensation Service for extraschedular consideration. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.