Citation Nr: A21020123 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 210303-144417 DATE: December 16, 2021 ORDER Entitlement to service connection for migraines is granted. Entitlement to service connection for mesenteric carcinoid tumor of the ileum is granted. Entitlement to service connection for liver cancer is granted. Entitlement to service connection for lymph node cancer is granted. Entitlement to service connection for a back disability is denied. For the period on appeal, entitlement to a rating of 70 percent, but no higher, for major depressive disorder is granted. Entitlement to an effective date earlier than September 7, 2018 for the grant of service connection for major depressive disorder is denied. For the period prior to September 1, 2019, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. From September 1, 2019, entitlement to TDIU is granted. FINDINGS OF FACT 1. The Veteran's migraines began during active duty and are related to service. 2. The Veteran's mesenteric carcinoid tumor of the ileum is related to service. 3. The Veteran's liver cancer is related to service. 4. The Veteran's lymph node cancer is related to service. 5. The preponderance of the evidence is against the finding that the Veteran sustained an in-service injury, event, or disease involving her back. 6. For the period on appeal, the duration, frequency, and severity of the Veteran's major depressive disorder symptoms more closely approximated occupational and social impairment with deficiencies in most areas; total occupational and social impairment was not demonstrated. 7. The Veteran's intent to file a claim of entitlement to service connection for major depressive disorder was received on September 7, 2018. 8. For the period prior to September 1, 2019, the Veteran's service-connected major depressive disorder did not preclude substantially gainful employment. 9. From September 1, 2019, the Veteran's service-connected major depressive disorder precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for migraines have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. 2. The criteria for service connection for mesenteric carcinoid tumor of the ileum have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for liver cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for lymph node cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 6. For the period on appeal, the criteria for a disability rating of 70 percent, but no higher, for major depressive disorder have been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, DC 9434. 7. The criteria for an effective date prior to September 7, 2018, for the grant of service connection for major depressive disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 8. For the period prior to September 1, 2019, the criteria for entitlement to TDIU were not met. 38 C.F.R. §§ 3.340, 3.341, 4.16. 9. For the period prior to September 1, 2019, the criteria for entitlement to TDIU were met. 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1988 to September 1997. The rating decision on appeal was issued in December 2020; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In her March 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal, as well as evidence submitted with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. 38 C.F.R. § 20.303. VA must consider whether TDIU is warranted whenever a veteran submits clear evidence of unemployability while seeking to obtain a higher disability rating. See Comer v. Peake, 552 F.3d 1362, 1367 (2009); Roberson v. Principi, 251 F.3d 1378 (2001). In conjunction with her March 2021 VA Form 10182, the Veteran asserted she was unemployable due to her service-connected major depressive disorder. See March 2021 VA Form 21-8940. Thus, the issue of entitlement to TDIU has been raised in this case. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Migraines The Veteran seeks service connection for migraines, which she asserts are related to service. See March 2021 Appellate Brief. A January 2021 migraine disability benefits questionnaire (DBQ) notes the Veteran has a diagnosis of migraines. Additionally, the Veteran's service treatment records (STRs) show she received treatment for migraines in October 1989, February 1994, March 1994, and May 1994. Additionally, on separation in 1997 the Veteran endorsed frequent headaches, and "history of migraine headaches" was noted under the summary of defects on her separation examination report. Thus, the first two Shedden elements are met. In a January 2021 opinion, Dr. S.E. opined that the Veteran's migraines began in service and continued uninterrupted to present. In support of that conclusion, Dr. S.E. cited STRs documenting treatment for migraines, as well as lay reports from the Veteran and her spouse. See March 2021 submissions. Given Dr. S.E.'s positive nexus opinion, the evidence is at least in equipoise that the Veteran's migraines are related to service. Accordingly, service connection is warranted. 2. Mesenteric carcinoid tumor, liver cancer, and lymph node cancer Given that the Veteran's cancer claims are interrelated, the Board will address them in a common discussion. The Veteran asserts that her cancer is related to exposure to toxic substances during service. See November 2018 correspondence and March 2021 Appellate Brief. In the December 2020 rating decision, the AOJ made a favorable finding that the Veteran had diagnoses of mesenteric carcinoid tumor of the ileum, liver cancer, and cancer of the lymph nodes. The Board is bound by these findings. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104 (c). Thus, the first Shedden element is met. The Veteran's personnel records reflect that as an ordnanceman she performed maintenance on aircraft armament systems, to include loading weaponry on aircraft. See May 1992 letter of appreciation and June 1992 performance evaluation. Additionally, the Veteran reported exposure to solvents and munitions while working around aircraft, as well as jet fuel and engine exhaust. See September 2018 and November 2018 correspondence. Affording the Veteran the benefit of reasonable doubt, she was exposed to toxic materials because of her duties, and the second Shedden element is met. 38 C.F.R. § 3.102. In a January 2021 opinion, Dr. S.E. opined that the Veteran's cancer was as likely as not a result of her exposure to toxic materials during service. Dr. S.E. noted that the Veteran's duties involved working with and near ordnance as well as aviation fuel, solvents used for maintaining equipment, and jet engine exhaust. Dr. S.E. cited several studies addressing the relationship between solvent exposure and future development of cancer. Given Dr. S.E.'s positive nexus opinion and the particular circumstances of this case, the evidence is at least in equipoise that the Veteran's mesenteric carcinoid tumor, liver cancer, and lymph node cancer are related to her occupational exposures during service. Accordingly, service connection is warranted. 3. Low Back Condition The Veteran seeks service connection for a low back disability. The Veteran did not provide substantive details regarding her back disability, other than to state "back 500 # bombs." See August 2018 VA Form 21-526EZ. Private treatment records reflect a diagnosis of mild degenerative changes of the lumbar spine. See September 2017 record from Dr. J.A.T. Accordingly, the first Shedden element is met. However, the evidence of record does not reflect an in-service event, injury, or disease. The Veteran's STRs do not show complaints of or treatment for any back condition. Moreover, examination reports dated in August 1989, June 1990, April 1991, September 1992, April 1995, and April 1997 show that the Veteran's spine was clinically normal. Further, the accompanying reports of medical history for those examinations show that the Veteran denied recurrent back pain. Given the limited information provided by the Veteran as to the nature of any in-service event, injury, or disease affecting her back, the documented denial of back pain throughout her STRs, and the clinical findings that her spine was normal throughout service, the weight of the evidence is against a finding of in-service occurrence. The Board notes that VA has not provided the Veteran with an examination or opinion in connection with her back claim. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence does not show that an event, injury, or disease occurred in service. For a VA examination to be warranted, all the McLendon criteria have to be met, and at least one element is not met. Therefore, entitlement to a VA examination is not warranted for this service connection claim. Accordingly, the claim for service connection for a back disability is denied. Increased Rating 4. Major depressive disorder Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran seeks a rating greater than 50 percent for her major depressive disorder, which is rated under 38 C.F.R. § 4.130, DC 9434. Under that DC, a 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity. A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent disability rating is warranted for total occupational and social impairment. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the time of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Considering all relevant evidence, the Board finds that the Veteran's major depressive disorder symptoms more closely approximate the criteria for a 70 percent disability rating for the entire appeal period. Throughout the appeal period the Veteran's psychiatric symptoms included depressed mood; anxiety; panic attacks weekly or less often; near continuous panic or depression affecting ability to function independently, appropriately, and effectively; chronic sleep impairment; impairment of short- and long-term memory; difficulty understanding complex commands; disturbances of motivation and mood; difficulty adapting to stressful circumstances; and inability to establish and maintain effective relationships. See August 2019 and January 2021 mental disorder DBQs. The Board also considered statements from the Veteran and her husband. The Veteran reported avoiding large crowds and stores other than grocers and stopped going to church out of fear of having an attack. She reported isolating herself and growing anxious around others, to the point of spending days at a time by herself in her bedroom. The Veteran stated that while she still had friends, they don't get together and she was unable to bring herself to seek out new friends. Although the Veteran kept in good contact with family, she felt herself growing more distant. The Veteran also stated that her memory and thought processes had noticeably declined, explaining that she relied on lists more often and lacked the focus to read books. Prior to leaving her job, the Veteran experienced anxiety and stress with work and would cry to her boss and her husband, even while working. See January 2021 statement (March 5, 2021 submission, pg. 374). The Veteran's husband reported that she exhibited anxiety, anger, and irritability, and did not leave the house often. While the Veteran still enjoyed seeing family, she only engaged a little before going back to her room. The Veteran also lost interest in hobbies and taking care of daily tasks. She often spent the day watching television or sleeping and little else. Moreover, the Veteran's concentration and memory had declined, as the Veteran forgot conversations she previously had or was currently engaged in with her husband. The Veteran's depression also affected her work, causing her to have severe mood swings and limiting her ability to handle the stresses of work. See December 2020 statement (March 5, 2021 submission, pg. 372). These symptoms are consistent with the criteria for a 70 percent disability rating. However, the medical and lay evidence of record does not indicate the Veteran has experienced symptoms of a similar degree or nature as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board acknowledges that the Veteran self-isolated in her bedroom for days at a time, which is indicative of significant social impairment. The reports from the Veteran and her husband regarding the effect of her depression on her ability to work, to include severe mood swings and breaking down to her boss and husband while working, also indicate some degree of occupational impairment. However, the Veteran maintained contact with some friends, continued to see family, and reported seeing her grandchild twice per week. Such weighs against a finding that her social impairment was total. See January 2021 statement and January 2021 DBQ. Moreover, despite her psychiatric symptoms, the Veteran was able to maintain gainful employment until August 31, 2019, working full time. See March 2021 VA Form 21-8940. Although the Veteran had significant social impairment due to her major depressive disorder, the Veteran's ability to work full time indicates that her occupational impairment was not total. Given these facts, the Board concludes that the Veteran's major depressive disorder warrants a 70 percent rating, but no higher, for the entire appeal period. 5. Earlier Effective Date The assignment of effective dates for service connection will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400, 3.400(b)(2). In other words, the effective date for the award of service connection cannot be earlier than the date the claim was received. The Veteran submitted an intent to file, which was received on September 7, 2018. The Veteran then followed-up with a VA Form 21-526EZ, received on November 29, 2018, claiming service connection for depression. The claim for major depressive disorder was granted in a January 2020 rating decision; the AOJ established the effective date for the award of service connection as September 7, 2018, the date the Veteran's intent to file was received. Prior to November 29, 2018, the Veteran had never filed a service connection claim for major depressive disorder or any other acquired psychiatric disorder. Although the Veteran submitted a VA Form 21-526EZ in August 2018, that form did not include a claim for any acquired psychiatric disorders. Additionally, the while an intent to file was received on September 6, 2016, no claim was received within a year of receipt of that submission. The Board has reviewed the remainder of the record and finds no instance where the Veteran or her representative submitted a statement which might be construed as a formal claim for service connection for major depressive disorder. 38 C.F.R. § 3.155 (a). The Board also observes that while the Veteran appealed the effective date of the grant of service connection for major depressive disorder, neither she nor her representative offered any specific contentions as to the effective date sought. Without an earlier received claim, the Board concludes that an earlier effective date for service connection for major depressive disorder is not warranted. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). 6. TDIU The Veteran and her representative contend the Veteran is unemployable due to her service-connected major depressive disorder. See March 2021 VA Form 21-8940 and March 2021 Appellate Brief. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "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). Importantly, marginal employment may also be held to exist on a facts found basis, including but not limited to employment in a protected environment. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed to Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). By virtue of the decision above, the Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis throughout the appeal period. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of her service-connected major depressive disorder. The Veteran worked for an insurance company until August 31, 2019, when she ceased working after the company moved out of the state. The Veteran has not worked since. The record also indicates the Veteran earned a bachelor's degree in elementary education but has not received any additional education or training since August 2019. See March 2021 VA Form 21-8940. The August 2019 examiner characterized the Veteran's major depressive disorder as resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In contrast, Dr. K.G.'s January 2021 report stated that the Veteran's condition resulted in occupational and social impairment with deficiencies in most areas. Additionally, Dr. K.G. found that the Veteran's depression was severe enough to prevent gainful employment, reasoning that her symptoms would impair her ability to engage productively with colleagues and adequately manage stress. Dr. K.G. concluded that the Veteran was unable to maintain substantial gainful employment since August 31, 2019 when she stopped working. The Board acknowledges the conflicting information regarding how much the Veteran was working prior to August 31, 2019. During her August 2019 examination, the Veteran reported she was working part-time, and that due to her depression she was unable to work full-time. However, on the March 2021 VA Form 21-8940, the Veteran reported she last worked full time on August 31, 2019 and became too disabled to work as of that date. Additionally, the Veteran reported she was working between 37 to 70 hours per week. Given these discrepancies, the Board finds that the Veteran's statements on the March 2021 VA Form 21-8940 to be more probative and concludes that she stopped working full-time on August 31, 2019. Moreover, and critically, prior to September 1, 2019, the record does not demonstrate, and the Veteran does not specifically contend, that her employment was in a protected environment or that she received special employment accommodations due to her service-connected disability. The wages earned by the Veteran prior to September 1, 2019 also far exceed the poverty threshold and cannot be considered marginal. See March 2021 VA Form 21-8940. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical clinician. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical clinician's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the Veteran's major depressive disorder symptoms prevent her from obtaining and maintaining substantially gainful employment. Accordingly, the criteria for TDIU have been met from September 1, 2019, the day after she ceased working, and the claim is granted to that extent. However, TDIU is denied prior to that date. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.