Citation Nr: 21066152 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 09-36 986 DATE: October 28, 2021 ORDER Entitlement to service connection for chronic insomnia is granted. Entitlement to service connection for alcohol abuse, as secondary to MDD, is granted. Entitlement to service connection for acquired psychiatric disorder other than major depressive disorder (MDD), chronic insomnia, and alcohol abuse disorder, to include posttraumatic stress disorder (PTSD) and major affective disorder, is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's chronic insomnia is proximately due to an injury, event, or disease in service. 2. The Veteran's alcohol use disorder is proximately due to MDD. 3. The Veteran does not have a current diagnosis of any acquired psychiatric disorder other than MDD, chronic insomnia, and alcohol abuse disorder. 4. The Veteran's service-connected disabilities preclude him from securing and maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic insomnia are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for alcohol abuse disorder, as secondary to MDD, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder other than MDD, chronic insomnia, and alcohol abuse disorder, to include PTSD and major affective disorder, are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 3.310. 4. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1965 to January 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Procedural History In October 2015, the Board granted entitlement to service connection for MDD and remanded the issues of entitlement to service connection for an acquired psychiatric disability other than MDD and entitlement to a TDIU. The Board also remanded the issues of entitlement to service connection for hypertension, a kidney condition, and retinopathy. In a February 2018 rating decision, the AOJ implemented the Board's award of service connection for MDD. In December 2018, the Board in relevant part found that new and material evidence had been received to reopen the previously-denied claim of entitlement to service connection for PTSD and remanded the merits of that issue, as well as the issue of entitlement to a TDIU. The Board also reopened a previously-denied claim of entitlement to service connection for hypertension and remanded the merits of the other service connection issues on appeal. In September 2020, the AOJ granted entitlement to service connection for hypertension. In December 2020, the Board granted entitlement to service connection for an eye disability and a kidney disability. These awards were implemented by a December 2020 rating decision. The Board also remanded the issues of entitlement to an acquired psychiatric disorder other than MDD and entitlement to a TDIU. The Board directed the AOJ to secure outstanding Vet Center records and then provide the Veteran with a psychiatric examination and secure a medical opinion as to the nature and etiology of any acquired psychiatric disorder other than MDD. In August 2021, the AOJ issued a rating decision that assigned an increased 50 percent rating for MDD effective July 29, 2021. The AOJ stated that this issue was "inextricably intertwining [sic]" with the pending Board appeal. Substantial Compliance There has been substantial compliance with the Board's prior remand directives. In this regard, in January 2021 and May 2021 the AOJ requested that the Veteran complete a release for these records. See Subsequent Development Letters. However, the Veteran did not provide a release. For purposes of VA's duty to assist, Vet Center treatment records are considered records in the custody of a Federal department or agency. See 38 C.F.R. § 3.159(c)(2) (federal records includes records from VA medical facilities and non-VA facilities providing examination or treatment at VA expense). Appellants must fully cooperate with VA's reasonable efforts to obtain these records. See 38 C.F.R. § 3.159(c)(2)(i). Here, the AOJ made reasonable efforts to obtain the required release from the Veteran, but he did not cooperate with VA's efforts to assist in developing his claim. The duty to assist is not a one-way street, and the Board finds that the AOJ's reasonable efforts substantially complied with the Board's remand directives. Moreover, the July 2021 and August 2021 psychiatric examination reports substantially comply with the Board's remand directives. In this regard, and as discussed below, the examiners explained that the Veteran did not have a current diagnosis of PTSD, and the Board has granted service connection for all of the Veteran's current acquired psychiatric disorders that are shown by the evidence of record. 1. Entitlement to service connection for chronic insomnia is granted. 2. Entitlement to service connection for alcohol abuse disorder, as secondary to MDD, is granted. 3. Entitlement to service connection for acquired psychiatric disorder other than MDD and chronic insomnia, to include PTSD and major affective disorder, is denied. Through his representative, the Veteran argues that he is entitled to a rating in excess of 50 percent for an acquired psychiatric disorder, to include PTSD. See October 2021 Informal Hearing Presentation. The representative argues that the examiner "did not adequately assess his disability prior to final adjudication," which prejudiced the Veteran's claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). Secondary service connection may be granted for a disability that is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. VA is prohibited from assigning separate ratings for the same manifestations of the same disability. In other words, the VA cannot "double-count" symptoms by assigning two ratings at the same time for the same symptoms. This is known as the rule against pyramiding. See 38 C.F.R. § 4.14. Initially, the Board observes that the representative's argument in the Informal Hearing Presentation in partially inapposite to the issue on appeal. In this regard, the Veteran's representative addressed the issue of entitlement to an increased rating for a service-connected acquired psychiatric disorder, but the issue on appeal is whether service connection is warranted for an acquired psychiatric disorder other than MDD. The Board emphasizes that the purported error asserted by the Veteran's representative an inadequate assessment of the level of severity of the Veteran's service-connected MDD is not within the scope of the appeal, and the question of the severity of the Veteran's MDD is distinct from the question of the presence of a current acquired psychiatric disorder other than MDD. If the Veteran believes that he is entitled to an increased rating for MDD, he may seek review of the August 2021 rating decision by filing the appropriate VA-promulgated form. However, the Board has liberally construed the representative's argument as seeking compensation for PTSD; this argument is addressed below. The Board acknowledges that the August 2021 rating decision stated that the issue of an increased rating for an acquired psychiatric disorder was inextricably intertwined with the issue on appeal. However, this statement is an explanation as to why the AOJ granted an increased rating without the Veteran having filed a separate claim. It did not place this issue in appellate status, as the Veteran has not sought review of any decision awarding a rating for an acquired psychiatric disorder. Additionally, the AOJ was in error when it stated that the rule against pyramiding precludes the award of service connection for an acquired psychiatric disorder other than MDD and that the Veteran is not prejudiced by the denial of entitlement to service connection for any other acquired psychiatric disorder. See August 2021 Supplemental Statement of the Case (SSOC) at 11. In this regard, an award of service connection conveys benefits other than compensation. Furthermore, while the AOJ was correct in saying that the Veteran is compensated for all psychiatric symptoms when service-connected symptoms cannot be differentiated from nonservice-connected symptoms, see Mittleider v. West, 11 Vet. App. 181, 182 (1998), it is not universally true that symptoms cannot be differentiated. Turning to the evidence of record, the Veteran was afforded VA psychiatric examinations in July 2021 and August 2021. Both examiners determined that the Veteran's only current acquired psychiatric disorder was MDD. See July 2021 VA Psychiatric Examination Report; August 2021 VA Psychiatric Examination Report. The Veteran is in receipt of service connection for MDD. The July 2021 examiner did not provide an opinion in support of his determination that the Veteran does not have a current diagnosis of PTSD. Thus, the Board assigns to probative weight to the July 2021 examiner's notation of no current diagnosis of PTSD. The July 2021 examiner noted that the Veteran's MDD manifests with symptoms including depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood. The examiner explained that the Veteran is still experiencing sadness, anxiety episodes, and chronic insomnia. This demonstrates that the Veteran's insomnia is a symptom of his service-connected MDD, not a separate Diagnostic and Statistical Manual (DSM)-5 psychiatric diagnosis. However, the Board notes that the Veteran's appeal was perfected in September 2009, and VA regulations did not requiring a DSM-5-compliant diagnosis until August 14, 2014; prior to August 14, 2014, VA regulations required use of the DSM-IV. Compare 38 C.F.R. § 4.125(a) (2021) with 38 C.F.R. § 4.125(a) (as in effect prior to August 14, 2014). The Board observes there is probative evidence of record relating to the presence of a DSM-IV diagnosis of insomnia. The Veteran's VA treatment records show an "Axis I" diagnosis of co-morbid chronic insomnia and depression not otherwise specified. See March 14, 2011 VA Psychiatric Consultation Note. The use of the multi-axial system shows that this diagnosis was consistent with the DSM-IV, which was required by VA regulations at that time. Moreover, the evidence shows that the Veteran's insomnia is due to war-related nightmares. See August 11, 2004 VA Treatment Note. This is consistent with the July 2021 examiner noting insomnia as a facet of the Veteran's MDD. Accordingly, as the evidence shows that the Veteran met the criteria for a DSM-IV diagnosis of chronic insomnia and that disability is etiologically related to his active military service, the criteria for entitlement to service connection for chronic insomnia are met. With respect to PTSD, the August 2021 examiner explained that the Veteran did not meet the DSM-5 criteria for PTSD. Although the Veteran referred to having some "bad experiences" in the military, he did not meet the PTSD symptoms criteria for persistent re-experiencing the claimed traumatic experiences, the symptoms criteria for avoiding reminders of the trauma, or the symptoms criteria for increased anxiety and emotion arousal. Moreover, the examiner explained that there is no medical evidence in any available file that fulfills the criteria for a diagnosis of PTSD. Additionally, the Board observes that the record likewise does not show a diagnosis of PTSD consistent with the DSM-IV. Indeed, the VA psychiatrist who conducted the March 14, 2011 psychological assessment using the DSM-IV stated that the Veteran did not meet the criteria for PTSD. See March 14, 2011 VA Psychiatric Consultation Note. The Board acknowledges that in March 2016, the Veteran completed a VA PTSD screen that had a positive result. However, a positive PTSD screen is not a substitute for a diagnosis of PTSD by a competent clinician, and the August 2021 examiner's opinion that the Veteran does not meet the full DSM-5 criteria for PTSD is the most probative evidence of record as to the presence of PTSD. Thus, as the evidence does not show a current diagnosis of PTSD, service connection for PTSD is denied. With respect to major affective disorder, the Board observes that the Veteran was diagnosed with this disorder in February 2001 in connection with a claim of entitlement to nonservice-connected pension. See February 2001 VA Examination Report. The February 2001 examiner did not diagnose any other Axis I psychiatric disorder, including MDD, and notably the Board has determined that the Veteran's MDD has been present since his military service. See October 2015 Board Decision and Remand. Thus, it is as likely as not that the major affective disorder diagnosed in 2001 is the same condition as the Veteran's current MDD, and hence the Veteran is being compensated for the symptoms encompassed by his major affective disorder diagnosis. Moreover, as there is no current diagnosis of major affective disorder during the period on appeal, entitlement to service connection for major affective disorder separate and apart from MDD is denied. The Board observes that the Veteran has also been diagnosed with moderate alcohol abuse disorder. See, e.g., July 2021 VA Psychiatric Examination Report. However, the July 2021 and August 2021 VA examiners did not opine as to the etiology of this condition. Direct service connection for this condition is precluded by VA regulations, see 38 C.F.R. § 3.301, but secondary service connection may be granted if the evidence shows alcohol abuse disorder is due to a service-connected disability. While the examiner did not address the etiology of the Veteran's alcohol abuse disorder, a January 7, 2021 VA psychologist noted that the Veteran was being treated for depression management and alcohol misuse and noted the Veteran's report of drinking on a daily basis because he feels lonely. While the psychologist did not provide a formal medical opinion, the psychologist's decision to address the Veteran's depression and alcohol abuse together is probative evidence that the Veteran's alcohol abuse disorder is etiologically related to his MDD. Although the probative value of this evidence is low, there is no probative evidence that weighs against the claim. As the Board has not been able to secure an adequate opinion addressing the etiology of alcohol abuse, notwithstanding that this claim has been pending for over a decade, it is appropriate to decide this issue without further development. See Andrews v. McDonough, 34 Vet. App. 216 (2021). As the only probative evidence is in favor of the claim, all the elements of secondary service connection for alcohol abuse disorder are met. The Board acknowledges that the July 2021 and August 2021 examiners did not list alcohol abuse disorder among the Veteran's diagnosed mental disorders. However, the record clearly shows that the examiners were aware of this diagnosis, as alcohol abuse disorder is referenced in the examination reports. Thus, notwithstanding this omission, the examination reports are based on an accurate factual basis. Remand to correct this deficiency is unnecessary, as the Board has granted entitlement to service connection for alcohol abuse disorder and thus the Veteran is not prejudiced. In sum, the Veteran is in receipt of or has now been granted service connection for all current acquired psychiatric diagnoses of record. A current disability is the cornerstone of a claim for service connection, and in the absence of a current disability, service connection must be denied. Thus, service connection for chronic insomnia and alcohol abuse disorder is granted; service connection for any acquired psychiatric disorder other than MDD, chronic insomnia, and alcohol abuse disorder, is denied. 4. Entitlement to a TDIU is granted. Through his representative, the Veteran argues that he is entitled to a TDIU. See October 2021 Informal Hearing Presentation. The Board agrees. 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. The Veteran is in receipt of service connection for bilateral ocular hypertension with senile cataract rated 60 percent disabling, MDD with chronic insomnia and alcohol abuse rated 30 percent disabling prior to July 29, 2021 and 50 percent disabling thereafter; diabetes mellitus type II (diabetes) with erectile dysfunction rated 10 percent disabling prior to January 19, 2012 and 20 percent disabling thereafter; left wrist carpal tunnel syndrome rated 10 percent disabling; right wrist carpal tunnel syndrome rated 10 percent disabling, left lower extremity peripheral neuropathy rated 10 percent disabling; right lower extremity peripheral neuropathy rated 10 percent disabling; and hypertension and hypertensive nephropathy rated zero percent disabling. He is in receipt of a combined 80 percent disability evaluation from May 13, 2008 and a combined 90 percent disability evaluation from December 30, 2010, and thus he meets the schedular criteria for entitlement to a TDIU. Hence, the next question is whether his service-connected disabilities preclude him from securing and maintaining a substantially gainful occupation. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58 (2019). The evidence shows that the Veteran has not received income from employment during the appeal. See, e.g., May 2008 VA Form 21-8940. Thus, the economic criteria of entitlement to a TDIU are met. With respect to the noneconomic component of a TDIU, the Veteran reports four years of high school education and three years of college education. He stated that he last worked in 1993 as a door man. See, e.g., May 2008 VA Form 21-8940. The Social Security Administration (SSA) has determined that the Veteran has been disabled since June 1993 due to an emotional condition. See SSA Disability Determination Rationale. As noted above, the Board has determined that the Veteran's MDD has persisted since service. Moreover, the evidence does not show that the Veteran has now or has had any nonservice-connected psychiatric disorders. Thus, it is at least as likely as not that the emotional condition noted by the SSA is the Veteran's service-connected MDD. In April 2001, the VA determined that the Veteran was unable to secure and follow a substantially gainful occupation due to disability and granted entitlement to a nonservice-connected pension. See April 2001 Rating Decision. In doing so, the VA determined that the Veteran's acquired psychiatric disorder (then rated as major affective disorder) was 70 percent disabling, determined that his high blood pressure was 10 percent disabling, and determined his insomnia was zero percent disabling. See id. Moreover, the AOJ also determined that chronic low back pain and headaches were zero percent disabling. Here, the evidence shows that in 2001, the VA adopted the SSA's determination that the Veteran is disabled due to his acquired psychiatric disorder. That disorder is now service-connected. While other disabilities were noted in both the SSA determination and the April 2001 VA rating decision, the only other disability found to be of sufficient severity to warrant a compensable rating under the VA rating schedule was the Veteran's hypertension, which is also service-connected. The mere mention of these nonservice-connected disabilities in the April 2001 rating decision does not establish that the Veteran would have been capable of substantially gainful employment but-for the presence of these disabilities. Indeed, the AOJ's determination that these disabilities were consistent with a noncompensable rating under the VA rating schedule establishes that the AOJ determined that these disabilities were productive of minimal functional impairment, if any. The evidence does not show that the April 2001 VA determination that the Veteran is unable to secure and follow a substantially gainful occupational due to his emotional condition is erroneous. The Board adopts the favorable findings in this final decision. Thus, as the evidence shows that the Veteran is disabled to due service-connected disabilities, the criteria for entitlement to a are met. The Board acknowledges that no examiner has opined that the Veteran's service-connected disabilities preclude substantially gainful employment. However, whether a veteran is able to secure and maintain a substantially gainful occupation is a question for VA adjudicators, not a medical question. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board will defer assigning an effective date of a TDIU to avoid any prejudice to the Veteran. See Urban v. Principi, 18 Vet. App. 143 (2004). If the Veteran disagrees with the effective date assigned by the AOJ, he should seek review of that decision by filing the appropriate VA form. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.