Citation Nr: 21064776 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-33 872 DATE: October 21, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as other specified trauma and stressor related disorder, is granted. Entitlement to service connection for cannabis use disorder as secondary to service-connected other specified trauma and stressor disorder is granted. Entitlement to service connection for an acquired psychiatric disorder for treatment purposes only under 38 U.S.C. § 1702 is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's other specified trauma and stressor related disorder had its onset during active service; the Veteran does not have a current diagnosis of posttraumatic stress disorder (PTSD). 2. The Veteran's cannabis use disorder is proximately due to his service-connected other specified trauma and stressor related disorder. 3. As service connection for other specified trauma and stressor related disorder is granted herein, the appeal as to the issue of entitlement to service connection for an acquired psychiatric disorder for treatment purposes only under 38 U.S.C. § 1702 is now moot. 4. The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as other specified trauma and stressor related disorder, are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection cannabis disorder as secondary to service-connected other specified trauma and stressor related disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The appeal regarding entitlement to service connection for an acquired psychiatric disorder for treatment purposes only under 38 U.S.C. § 1702 is dismissed. 38 U.S.C. § 7105. 4. The criteria for a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from June 1988 to November 1998, and on active duty in the United States Navy from January 1991 to May 1991, including combat service in the Persian Gulf. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. In May 2019 and May 2021, the Board remanded the appeal for further development. The Board has recharacterized the psychiatric claims as reflected on the title page to include consideration of all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection 1. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as other specified trauma and stressor related disorder, is granted. 2. Entitlement to service connection for cannabis use disorder as secondary to service-connected other specified trauma and stressor disorder is granted. The Veteran asserts that his acquired psychiatric disorder was incurred during service due to stressors of being deployed overseas within 24 hours of being notified as a teenager, as well as his duties of his military occupational specialty (MOS) as a hospital corpsman providing treatment to injured persons. Specifically, he recalls one incident where a fellow soldier was hit in a friendly fire (missile exploded) by the enemy and his whole right side of his body was blown off and the Veteran was assigned to treat and monitor him. To this end, the Veteran maintains that as a result of this traumatic experience he began to "fear for his life" and suppressed his feelings of panic and anxiety until immediately post-service, and those symptoms have been continuous ever since. See July 2016 VA Form 9 and January 2019 Board Hearing Transcript at 3-13. Service connection may be established for a disability resulting from injury or disease incurred during active service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Establishing service connection for PTSD requires: (1) medical evidence diagnosing 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); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). Because the appeal was first certified to the Board in September 2016, the DSM-5 applies. In order to be considered for service connection, a claimant must first have a current disability. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). The requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the first element of service connection for PTSD is not met, as the preponderance of the competent evidence of record does not reveal a current PTSD diagnosis under the applicable DSM-5 during the pendency of the appeal. See February 2015, December 2020 and June 2021 VA examination reports. In this regard, the Board affords more probative value to the opinion of the VA examiners, who reviewed the Veteran's entire claims file, secured a relevant medical history, and conducted full mental status examination, than to the few fleeting references to PTSD in the Veteran's outpatient records. To the extent the Veteran asserts he has a current PTSD diagnosis, his opinion is not competent, since as a lay person he is not competent to determine whether the diagnostic criteria for diagnosis of a particular psychiatric disorder are met. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Thus, for reasons outlined above, element one is not met, and the PTSD claim fails on this basis alone. However, the Veteran has other psychiatric diagnoses of record and as discussed below the Board's discussion is favorable regarding these diagnoses. Thus, the remaining analysis below will only address his diagnosed other specified trauma and stressor related disorder and cannabis use disorder. Regarding direct service connection, the Veteran has a current diagnosis of other specified trauma and stressor related disorder under the applicable DSM-5. See June 2021 VA examination report. In this regard, the June 2021 examiner noted that the Veteran previously was diagnosed with adjustment disorder with mixed anxiety and depressed mood during his December 2020 VA examination and that his other specified trauma and stressor related disorder is a progression from that diagnosis and includes both anxiety and depression as symptoms. Id. Therefore, his diagnoses would be treated as one disorder for rating purposes as the evidence of record does not sufficiently distinguish the symptoms of all diagnoses from each other and many symptoms overlap. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, element one is met for other specified trauma and stressor related disorder. As to the second element, in-service incurrence of a disease or injury, the Veteran's service treatment records (STRs) are silent for complaints, diagnoses, or treatment of a mental health condition. However, the Board finds the Veteran's statements that he began experiencing psychiatric symptomatology during service following a series of traumatic events and that they have continued since that time to be competent and credible and consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Moreover, VA has conceded that the Veteran was fearful of being attacked by enemy forces in performing the duties associated with his MOS during service as a stressor. These findings, along with the June 2021 VA examiner's opinion discussed below, also establish element two for other specified trauma and stressor related disorder. Regarding element three, nexus, a June 2021 VA examiner, after a thorough review of the claims file and in-person examination/interview with the Veteran, opined that it is at least as likely as not that the Veteran's other specified trauma and stressor related disorder was incurred in or caused by in-service events. In support of her opinion the examiner noted began having problems with adjustment as soon as he was out of the military and began having trouble with exacerbation of symptoms and substance abuse. To this end, she emphasized that he has a history of treatment, particularly for substance abuse and that his symptoms began immediately after discharge and have continued to progress over the years since discharge. Specifically, she stated that he experienced trauma in dealing with severely injured patients, particularly one who had his left side blown off and that his other specified trauma and stressor disorder started during the military due to dealing with severely injured patients as a hospital corpsman, and he was immediately upset by the severity of the injuries of the individual who had his left side blown off. The Board finds that this opinion, combined with the Veteran's competent statements regarding his symptoms during and post-service supports that his other specified trauma and stressor related disorder had its onset during service. There is no competent opinion to the contrary. The Board acknowledges the other unfavorable VA opinions of record, however both opinions are inadequate as the February 2015 VA examiner provided no rationale for the negative opinion and the December 2020 VA examiner failed to adequately address the Board's May 2019 remand directives. Thus, the opinions are of no probative value. Accordingly, element three for other specified trauma and stressor related disorder is also met. Lastly, as the June 2021 VA examiner relates the Veteran's diagnosed cannabis use disorder to his other specified trauma and stressor related disorder, particularly stating that he began using marijuana in the military as a means of coping with stress, trauma, and sleep disturbance and that it is intertwined with his other specified trauma and stressor related disorder and as such also is a progression of his previously diagnosed psychiatric conditions, secondary service connection for cannabis use disorder is warranted. 38 C.F.R. § 3.310. In sum, the evidence of record reflects that the Veteran's other specified trauma and stressor related disorder had its onset in service, and his cannabis use disorder is secondary to that disorder. Thus, direct service connection for other specified trauma and stressor related disorder and secondary service connection for cannabis use disorder are warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 38 U.S.C. § 1702 3. Entitlement to service connection for an acquired psychiatric disorder for treatment purposes only under 38 U.S.C. § 1702 is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. As service connection for an acquired psychiatric disorder is granted herein, the appeal as to the issue of entitlement to VA medical treatment for a psychosis or mental illness under the provisions of 38 U.S.C. § 1702 is now rendered moot and dismissed. TDIU 4. Entitlement to a TDIU is denied. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. To qualify for a total rating for compensation purposes, the evidence must show that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16. Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447 (2009). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See id. The Veteran is in receipt of a 10 percent rating for tinnitus and is now service connected for other specified trauma and stressor disorder and cannabis use disorder as awarded in the above section. Thus, the RO has not rated the two disabilities at this point. However, as discussed below remand for implementation of the disability ratings is not necessary as a TDIU is not warranted. In October 2012, the Veteran submitted an incomplete VA Form 21-8940, Veterans Application for Increased Compensation based on Unemployability. Subsequently, in October 2019, pursuant to the Board's May 2019 remand directives, the RO sent the Veteran a VA Form 21-8940 and corresponding VA Form 21-4192 for completion and requested that he provide any information as to his employability status. However, the Veteran did not submit any such evidence or complete VA Form 21-8940. In May 2021, the Board again remanded the Veteran's appeal and directed the RO to again request him to complete a VA Form 21-8940, reminding him that the current one of record was incomplete and that failure to complete said form would adversely affect his claim (see May 2021 Board Remand). To date, the Veteran has not responded or submitted a complete VA Form 21-8940. The Board notes that submission of VA Form 21-8940 is not required to render a decision concerning entitlement to a TDIU. While failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to address a claim for TDIU. In this regard, the Board emphasizes that "the duty to assist is not always a one-way street." Woods v. Gober, 14 Vet. App. 214, 224 (2000). Here, the Board is forced to decide with limited information, as the Veteran's employment history, educational history and training, and income information is unknown. It appears from the record that the Veteran was unemployed as of the January 2019 Board hearing, when he stated he had not worked in six years due to his mental state; however, even assuming his is unemployed, the non-economic component of a TDIU are not met. In this regard, the medical evidence of record does not reveal the Veteran is precluded from substantial gainful occupation due to his service-connected disabilities. Specifically, VA examiners have noted occupational and social impairment due to "mild and transient" symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress (February 2015 and December 2020 VA examination reports) and 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 (June 2021 VA examination report). Notably, none of the reports indicate he cannot work due to his psychiatric conditions. Additionally, his April 2018 VA audiological examination shows no functional impact from his tinnitus, including in a work setting. The Board acknowledges that the Veteran's service-connected disabilities impact his occupational functioning. However, considerable industrial impairment due to his disabilities, as noted in the above examination reports, will be contemplated in the ratings assigned to his disabilities. 38 C.F.R. § 4.1 (the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). Here, there is no indication that the Veteran is precluded from performing the physical and mental acts required by employment due to his disabilities, particularly because the Veteran nor his representative has supplied the Board with necessary evidence to support said assertion. Accordingly, the preponderance of the evidence is against the claim, and entitlement to a TDIU is denied. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.