Citation Nr: 21069738 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-18 157 DATE: November 19, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder is denied. Entitlement to a total disability rating based on individual unemployability from December 5, 2019, is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 5, 2019 is remanded. FINDINGS OF FACT 1. The probative evidence of record does not show the Veteran's psychiatric disorder is related to his active-duty service. 2. From December 5, 2019, the probative evidence of record shows the Veteran's service-connected disabilities rendered him unemployable. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for a total disability rating based on individual unemployability (TDIU) from December 5, 2019 have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1968 to July 1970. In March 2018, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. In August 2018, the claims were brought before the Board and were remanded for further development. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). 1. Entitlement to Service Connection: Psychiatric Disorder The Veteran contends that he currently suffers from a psychiatric disorder that is related to his active-duty service. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with adjustment disorder and depressed mood. Further, the Veteran served in hostile territory during a period of war. Thus, the issue turns upon whether there is a nexus between the in-service event and the present diagnosed disabilities. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds there is not. In August 2019, the Veteran attended a VA examination. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service event or injury. The examiner rationalized that there is no evidence the Veteran's condition is related to the military. The examiner noted there is no report of mental issues during his service and no consistent report of ongoing mental health problems since service. The examiner also noted during the examination that the Veteran's diagnosis was related to his retirement, and him wishing he would have continued to work on the farm, as well as his strained relationship with his wife. The Board notes that the Veteran was also provided a VA examination in March 2015. Although the examiner did not provide an actual opinion, the examiner did find that the prominent symptoms endorsed by the Veteran were consistent with difficulty adjusting to retirement and his lack of purpose. The Veteran has provided no evidence that related his psychiatric symptoms to his active-duty service. VA treatment records show limited visits for his mental health condition. In fact, a January 2021 VA psychiatric visit noted the Veteran was last seen specifically for his mental concerns in 2019. Further, during this visit, the Veteran reported no significant mental health concerns and stated he has found purpose caring for some of his son's cattle. The Board notes this further suggests that his mental health symptoms are related to his retirement and not his active-duty service. Therefore, the Board finds the August 2019 VA opinion to be of significant probative value in determining that the Veteran's psychiatric disorder is not related to his period of service. The Board notes that the probative value of medical opinion evidence is based on the medical experts' personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physician's opinion was based on review of the Veteran's lay contentions, his reported medical history, lay statements, and review of the medical evidence of record. Further, a complete and thorough rationale was provided for the opinion rendered. The Board acknowledges the Veteran's assertions that his psychiatric disorder is due to his active-duty service. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any psychiatric disability is related to his military service requires medical expertise that the Veteran has not demonstrated since psychiatric conditions can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Further, the Board notes that the evidence of record is silent for any complaints regarding the Veteran's mental health until 2012, which is over 40 years after his active-duty service. Additionally, his psychiatric symptoms have been noted as being related to his retirement. In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Entitlement to TDIU: From December 5, 2019 The Veteran contends that he is unemployable due to his service-connected disabilities. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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 nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). The Veteran already meets the necessary schedular rating criteria under 38 C.F.R. § 4.16(a) from December 5, 2019, as his service-connected right hip joint replacement is rated as 50 percent disabling, his lumbar spine strain is rated as 40 percent disabling, his tinnitus is rated as 10 percent disabling, and left hip limitation of flexion and left thigh impairment each rated as 10 percent disabling, which provides a combined rating of 80 percent. The Veteran is also provided non-compensable ratings for his bilateral hearing loss, left hip limitation of extension, and right hip scar. Therefore, the question at hand is whether his service-connected disabilities keep him from securing substantially gainful employment. After review of the evidence of record, the Board finds it does. The Veteran's educational history shows he has collectively 7 years of college experience, and his work history has primarily consisted of bus driving and delivering fertilizer. In June 2018, the Veteran attended a VA examination for his right hip condition. The Veteran reported low pain at rest and pain that is an 8 to 10, 10 being the worst, with activity. He reported stiffness, limping, swelling, and sharp pain when he stands. The examiner noted his condition did impact his ability to perform occupational tasks. The examiner explained that the Veteran has a decreased ability to walk, stand, sit, run, carry, or lift. In March 2020, the Veteran was provided VA examinations for his lumbar strain and bilateral hip conditions. The examiner found the Veteran's conditions do impact his ability to work. The examiner stated that the Veteran has difficulty getting up and down after kneeling, and he has difficulty carrying bags of feed. The Veteran cannot stand for more than five minutes, has difficulty getting in and out of vehicles or low chairs, and can't walk more than a couple hundred yards without severe pain. Upon review of the evidence of record, the Board finds that the Veteran's service-connected disabilities severely limit the occupational work the Veteran could perform. Not only would the Veteran not be able to hold a position that requires physical labor, but he would be further limited in non-physical work, as the Veteran feels pain even at rest and has difficulty maneuvering in and out seating. Further, the Veteran's condition would make it difficult for him to obtain gainful employment in his past occupation, as his previous experience as delivery driver required him to lift heavy bags of fertilizer, and/or have to get in and out of a vehicle often. The Veteran's right hip was also noted as having severe weakness, which could be a potential risk in his previous employments. Further along with his physical disabilities, his tinnitus would also limit his ability to concentrate. Accordingly, the Board finds that the Veteran has been rendered unemployable due to his service-connected disabilities from December 5, 2019. Therefore, a grant of TDIU is warranted. REASONS FOR REMAND Although the Board sincerely regrets further delay, another remand is necessary to afford the Veteran every possible condition. 1. Entitlement to Service Connection: Peripheral Neuropathy The Veteran contends that that his peripheral neuropathy of the bilateral lower extremities is related to his active-duty service, to include exposure to herbicides/Agent Orange. The Veteran's records show he was aboard the USS Ranger and USS Bon Homme Richard while both were stationed in the Tonkin Gulf, which is within the official waters of the Republic of Vietnam. While the exact locations are not known, logbooks show the ships were within the Tonkin Gulf for several months receiving and fueling aircrafts, and/or handling shipments. The Veteran has contended that herbicides were brought on the ships by aircrafts and that they sometimes went into the port. The Board finds that while these exact occurrences are not noted within the records, based on the length and duty descriptions within the logbooks, it is plausible that the ships at some point entered the 12-mile radius from shore, and/or came in contact with aircrafts carrying herbicides. Therefore, based on the totality of the evidence, the Board finds that exposure to herbicides is presumed. See also Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. The Board notes that although an August 2019 VA examiner opined the Veteran conditions were not related to his service due to there being no in-service peripheral neuropathy complaints and his conditions more likely being due to diabetes, the examiner did not consider whether the conditions were related to herbicide exposure. Thus, due to the new evidence of record, the Board finds that a remand is required in order to obtain a new opinion on the etiology of the conditions that specifically addresses herbicide exposure. 1. Entitlement to TDIU: Prior to December 5, 2019 The Veteran contends that his service-connected disabilities rendered him unemployable prior to December 5, 2019. Prior to December 5, 2019, the Veteran's compensable service-connected disabilities were only tinnitus rated as 10 percent disabling from July 16, 2012, and right hip joint replacement rated as 50 percent disabling from May 11, 2018. Therefore, the Veteran does not meet the criteria of 38 C.F.R. § 4.16 (a). However, the Veteran's claim for TDIU is inextricably intertwined with the Veteran's above pending claims. Thus, this claim must be remanded along with the other pending claims. See Harris v. Derwinski 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records and private medical records relevant to the Veteran's claims. 2. Send the claims file to an appropriate examiner to determine the etiology of the Veteran's peripheral neuropathy of the bilateral lower extremities. If the examiner finds the requested opinion cannot be provided without examination, then such examination should be scheduled. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, the Veteran's competent lay statements, as well as the Veteran's report regarding the onset and progression of his current symptomatology, the examiner should opine whether it is at least as likely as not (50 percent probability or more) that the Veteran's peripheral neuropathy is related to his active duty service, to include his presumed exposure to herbicides? In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.