Citation Nr: 21068067 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-10 011 DATE: November 9, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include anxiety and depression is denied. Entitlement to service connection for PTSD is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's current depression and anxiety were incurred in or the result of his active service. 2. The preponderance of the evidence indicates that the Veteran does not have PTSD under the appropriate Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria. 3. The evidence of record is against a finding that the Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 4.125. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 4.125. 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1954 to September 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. These matters were previously before the Board in February 2018, November 2020 and most recently in March 2021, when they were remanded for additional development to include obtaining complete treatment records from the VA Caribbean Healthcare System from 1994 to June 2001, August 2020 to September 2020, and December 2020 to the present. Any negative responses are to be documented in the claims file. In addition, the Agency of Original Jurisdiction (AOJ) was requested to undertake any other development deemed appropriate and readjudicate the issues on appeal, and, if necessary, to issue a Supplemental Statement of the Case (SSOC). The record shows VA requested the identified treatment records and a SSOC was issued in August 2021. The Board notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matter has returned to the Board for appellate review. The Board notes that the Veteran's claims file includes an indication that his service treatment records (STRs) are unavailable due to a fire-related incident. See April 2008 Request for Information response. The only STR included in the claims file is the Veteran's September 1956 separation examination. As such, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. However, the Board observes that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). 1. Entitlement to service connection for anxiety and depression The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder to include anxiety and depressive disorder because of his active service. See January 2016 Notice of Disagreement (NOD). In this case, the Board acknowledges that the Veteran has current diagnoses of anxiety and depression. See September 2020 VA initial PTSD examination. Thus, the only question for the Board is whether there is a nexus between the current acquired psychiatric disabilities, specifically anxiety and depression, and his active service. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, where a Veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). Determinations as to service connection will be based on a review of the entire evidence of record, to include all pertinent medical evidence. VA must consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b). A Veteran is competent to report on that of which he has observed and is within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) After a thorough review, the only STR identified in the claims file is the Veteran's September 1956 separation examination, which is silent for psychiatric complaints or issues. Post-service treatment records include an August 2002 VA primary care record that noted that the Veteran complained about anxiety and depression for a long time, that has worsened over the past two years. A September 2013 VA mental health record noted the Veteran was seen for a psychiatric evaluation. The Veteran was diagnosed with depressive mood disorder, not otherwise specified (NOD) and anxiety disorder, NOD. Treatment was noted to include prescription medication. An October 2013 VA nursing record noted the Veteran was recently prescribed anti-depressant medications. A November 2013 VA psychiatry consultation record noted the Veteran reported feeling depressed and anxious for several years. A December 2013 mental health nursing record noted that the Veteran attended the clinic to make an appointment with a psychiatrist. The Veteran acknowledged mood changes and high anxiety. A March 2014 primary care record noted that the Veteran was recently evaluated for depression and anxiety and his treatment plan and medication was adjusted. A separate March 2014 VA mental health nursing outpatient record noted the Veteran reported feeling depressed and having visual hallucinations and sleeping problems. A May 2014 VA psychiatry progress record noted diagnoses of depressive disorder and anxiety. In a July 2014 VA psychiatry record, the Veteran reported having been seen by a psychiatrist in Korea while on active service. The same record noted that the Veteran has been diagnosed with anxiety, not otherwise specified (NOS), and depression NOS. An October 2020 VA primary care telephone record noted the Veteran's depression and anxiety were clinically stable, and treatment with prescription medication continues. The same record noted that the Veteran was evaluated by psychiatry in September 2020, and he was not suicidal, homicidal, or experiencing hallucinations. The Board compared the evidence noted above with negative depression screens noted in December 2014, December 2018, July 2019. The claims file also includes a July 2013 private treatment letter, wherein the provider noted that the Veteran was presenting with episodes of excessive anxiety and worry, difficulty concentrating, and episodes of irritability. The Veteran reported that he gets anxious and nervous, and has frequent mood changes. The provider indicated that the Veteran has presented these symptoms since active service, noting that the Veteran was sad being away from home and had a difficult time adjusting to another place and language. The provider concluded by requesting a careful evaluation, because it was at least as likely as not that the Veteran's nervous problem is service-connected due to stress of war, duties, and training. However, after a careful review, the Board concludes that this treatment letter does not include an etiological opinion supported by a detailed rationale. Thus, the probative value of this opinion is less than helpful to the Board in making a service connection determination. The Board also reviewed a November 2015 VA initial PTSD examination, wherein the examiner confirmed a diagnosis of mild alcohol use disorder, unspecified depressive disorder, and tobacco use disorder in sustained remission. The examiner noted the Veteran's symptoms could be differentiated. Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examination report details a thorough review of the Veteran's pre-military, active service, and post-separation family history, occupational and social history, legal and behavioral history, and substance abuse history. The examiner noted a negative etiology for PTSD and indicated that the Veteran suffers from other mental disorders. The Veteran was afforded a new VA initial PTSD examination dated September 2020. The examiner confirmed diagnoses of unspecified anxiety disorder and unspecified depressive disorder and noted that symptoms cannot be differentiated between diagnosed mental disorders. There was occupational and social impairment with reduced reliability and productivity. The examination report details a thorough review of the Veteran's pre-military, active service, and post- separation family history, occupational and social history, legal and behavioral history, and substance abuse history. The Veteran acknowledged he did not participate in combat. In a September 2020 medical opinion, the examiner opined that the Veteran's depression and anxiety were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted that the Veteran does not meet the criteria for PTSD. In addition, the examiner noted the Veteran's current anxiety or depression are not a result of the claimed in-service stressors. Previous VA examinations revealed no evidence that the Veteran had a mental disorder before military service. There is no evidence he developed a mental disorder during active service or soon after separation. The Veteran reported alcohol abuse and depression with private treatment and then by a VA psychiatrist. The report noted combat service. The examiner concluded that the Veteran currently does not meet the criteria for a separate mental disorder and does not use alcohol. Since there is no evidence of treatment after discharge until 1990's, the current anxiety and depression are unrelated to the reported depression and the behavior of alcohol use during service. He currently does not meet criteria for an alcohol use disorder. The Board has considered multiple statements in support of the Veteran's claim submitted to support the assertion of service connection for anxiety and depression. While the Veteran is competent to describe his symptoms including feeling anxious and depressed, there is no evidence of record to show that he has the specialized medical education, training, or experience necessary to render a competent medical opinion as to the nature and etiology of his anxiety and depression. Providing an etiology regarding an acquired psychiatric disability is medically complex in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent the Veteran asserts that a relationship exists between his anxiety and depression and his active service, the Board finds that such assertions do not provide persuasive evidence in support of the claim. Granting service connection for psychiatric disorders other than PTSD does not require corroboration of the claimed stressor(s). However, based on the facts noted above, the Board finds that while the Veteran has current diagnoses of anxiety and depression, the preponderance of the evidence is against the Veteran's claim for service connection for those acquired psychiatric disabilities. In reaching the above conclusion, 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, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include anxiety and depression is denied. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) The Board notes that there are particular requirements for establishing service connection for PTSD that are separate from those for establishing service connection generally. See 38 C.F.R. § 3.304(f). Specifically, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Id. The Board notes that there is no evidence in the claims file, nor has the Veteran asserted, that he engaged in combat during his active service. To grant service connection for PTSD to a non-combat Veteran or based upon a non-combat stressor, there must be credible evidence to support the Veteran's assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). However, a medical opinion diagnosing PTSD does not suffice to verify the claimed in-service stressors. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). Nonetheless, if a claimed stressor is related to the Veteran's fear of hostile military or terrorist activity and either a VA or VA contract psychiatrist or psychologist confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the Veteran's symptoms are related to the claimed stressor, then, in the absence of clear and convincing evidence to the contrary and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). The preponderance of the medical evidence shows that the Veteran does not meet the diagnostic criteria required for a PTSD diagnosis. The Veteran was afforded VA initial PTSD examinations in November 2015 and September 2020. Neither examiner confirmed a diagnosis of PTSD. The November 2015 examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted that there is no evidence that the Veteran had a mental disorder prior to active service. In addition, there is no evidence that he developed a mental disorder during service or soon after separation. The Veteran continues to use alcohol despite warnings from his family. Despite combat service, neither history nor repeated mental status examinations show evidence the Veteran has suffered symptoms of PTSD. However, as noted above, the examiner indicated that the Veteran does currently suffer from other mental disorders. The September 2020 examiner found the Veteran did not meet the criteria for PTSD. Further, there is no stressor for PTSD during service or reported by the Veteran. Current anxiety or depression is not a result of the claimed in-service stressor related event. The claims file does not include evidence that the Veteran had a mental disorder before military service, developed a mental disorder during active service, or after separation. The Veteran reported alcohol abuse, development of depression, and treatment by private and then by a VA psychiatrist. Therefore, the Board finds there is no current diagnosis of PTSD in the Veteran's record. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the Veteran's lay statements. To the extent that he contends he has PTSD because of his active service, the Board finds that, as a lay person, he lacks the training or credentials to provide such a diagnosis or a medical opinion. See Layno, supra. Therefore, to the extent the Veteran seeks to provide a nexus between his claimed PTSD and his period of service, the Board finds that his statements in this regard are not competent. See Jandreau, supra. Accordingly, the criteria for service connection for PTSD have not been met, and the Veteran's claim is denied. The Board acknowledges the Veteran's sincere belief that he has PTSD. The Board has carefully reviewed the record in depth, but it has been unable to identify a basis upon which service connection may be granted. The Board has weighed the evidence of record and finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to TDIU. The issue of entitlement to a TDIU rating was raised by the Veteran. See May 2014 VA 21-8940 Application for Increased Compensation Based on Unemployability. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment shall not be considered substantially gainful employment. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). In this case, the Veteran reported he last worked in 1995. See VA Form 21-8940 Application for TDIU. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). TDIU will be granted when the evidence shows that the Veteran, by reason of his service-connected disabilities, is precluded from securing or following gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341. The Veteran is service connected for lumbosacral strain; degenerative arthritis of the spine; and Intervertebral Disc Syndrome (claimed as back condition), rated 20 percent from August 2013; left lower extremity radiculopathy as secondary to the service-connected back condition, rated 20 percent from August 2013; right lower extremity radiculopathy as secondary to the service-connected back condition, rated 10 percent from August 2013; right wrist sprain, rated 10 percent from August 2013; tinnitus, rated 10 percent from August 2013; and bilateral hearing loss, rated noncompensable from August 2013. The Veteran's combined schedular rating is 60 percent, comprised of disabilities of different systems and etiologies, with no individual disabilities rated at 40 percent, and therefore does not meet the threshold requirements and is not entitled to TDIU under 38 C.F.R. § 4.16(a). Regarding an extraschedular rating, if a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), as is the case here, rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board observes that the Veteran has provided descriptions of the impacts of his service-connected disabilities on his employment. However, the Board notes that his service-connected disabilities have not been determined to preclude him from employment. See October 2014, August 2015, and July 2019 VA hearing/tinnitus examinations; September 2020 VA wrist condition examination; November 2015 and September 2020 VA initial PTSD examinations; August 2019 VA sleep apnea examination; and September 2020 VA Back examination. There is no other medical evidence of record suggesting that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Referral for an extraschedular rating is thus not warranted here. The Board has considered the Veteran's assertions but finds that he lacks the medical training and credentials to ascertain the precise effect of service-connected disabilities on employability. See Jandreau, supra. Overall, the preponderance of the evidence is against a finding that he is unemployable on account of service-connected disabilities. Thus, the claim for TDIU is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.