Citation Nr: 21005386 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-23 706 DATE: February 1, 2021 ORDER Entitlement to service connection for a mood disorder with polysubstance abuse and antisocial personality disorder, including secondary to service-connected bilateral pes planus, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s mood disorder is not caused or aggravated by his service-connected bilateral pes planus (flat feet) and not otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for the Veteran’s mood disorder, either as directly due to his service or as secondary to his service-connected pes planus. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1978 to February 1983. In support of these claims, the Veteran testified at a hearing in November 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. The Board subsequently remanded these claims in December 2019 for further development – including especially to obtain all outstanding treatment records relevant to these claims, also the Veteran’s Social Security Administration (SSA) records, and then for medical comment concerning the origins of his mood disorder, both in terms of whether directly related to his service or, alternatively, secondary to his service-connected bilateral pes planus and/or pseudofolliculitis barbae (ingrown hairs), and regarding the functional impact of his service-connected disabilities to additionally assist in determining whether he is entitled to a TDIU. On remand, these claims continued to be denied, so they were re-certified to the Board in November 2020. Since there was compliance – certainly the acceptable substantial compliance, with the Board’s remand directives as concerning the claim for service connection for the mood disorder, the Board is deciding the appeal of this claim. However, still more development is required concerning the remaining claim for a TDIU, so the Board instead is again remanding this claim. Entitlement to service connection for a mood disorder The Veteran contends that his psychiatric disorder, regardless of its diagnosis, was caused by or is related to or aggravated by the chronic pain he experiences because of his service-connected bilateral pes planus.   Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran 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 or aggravated during service’ – the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection also may be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail on the issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, the record reflects current diagnoses for unspecified personality disorder, adjustment disorder with mixed anxious and depressed mood, unspecified depressive disorder, and polysubstance abuse disorder in remission. So, all these diagnoses are being considered. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). However, the record does not reflect any of these diagnoses being attributed to chronic pain or appearance, as the Veteran alleges, owing to a service-connected disability – either his bilateral pes planus or pseudofolliculitis barbae and either in the way of causation or aggravation. There equally is no direct correlation of his mental disorder with his service, regardless of diagnosis. The Veteran’s service treatment records (STRs) clearly reflect recurrent, bilateral foot pain in service – hence, the reason his bilateral pes planus is a service-connected disability. But his STRs and military personnel records are grossly unremarkable for problems with alcohol or substance abuse, including attributable to a mental disorder of some sort related to his service or caused or aggravated by a disability determined to be related to his service (i.e., service-connected disability). He did not engage in combat during his service or serve during wartime. His military separation paperwork reflected disciplinary problems unrelated to substance abuse. Since military discharge, he has told providers both that his substance abuse began before and during his service. In May 1997, he stated that he underwent gastrointestinal surgery sometime in 1983 due to ulcers from drinking. In May 2013, he told providers he had been drinking for 40 years, so since 1973, five years prior to entering the military. Between June and September 2017, he was seen by VA neurology for increased foot pain causing anxiety and sleep loss. Clinical testing revealed a B12 vitamin deficiency, possibly in combination with the effects of chronic substance abuse, was the likely cause for increased symptoms. The Veteran has undergone two VA mental health assessments, initially in October 2013 and more recently in August 2020 following and as a result of the Board remanding this claim. During both examinations, he maintained that his substance abuse was, in part, to control the pain caused by his service-connected injuries. His October 2013 examination diagnosed polysubstance dependence and antisocial personality disorder, both contributing to and exacerbating the other, with evidence of inability to confirm to social norms, aggressiveness, and irresponsibility with a lack of remorse from an early age. It was noted that he had had trouble in high school and substance abuse problems even prior to his enlistment into the military. His more recent August 2020 examination resulted in a diagnosis of unspecified personality disorder and adjustment disorder with mixed anxious and depressed mood – but related to multiple psychosocial factors, including family, financial, and relationship issues, and a history of homelessness. The examiner noted that the personality disorder is characterized by lifelong cognitive and behavior patterns. Further, the examiner found service connection due to aggravation unwarranted because the Veteran’s first reports that his pes planus aggravated his mood disorder were in 2017, several years after the granting of service connection for his pes planus and even longer, decades, after the onset of his mood disorder symptoms.   Despite the Veteran’s statements, none of the treatment notes on record attribute his current mental impairment (again, regardless of specific diagnosis) to his military service, either directly or secondarily by way of a service-connected disability, including any pain associated with his bilateral pes planus. Rather, his treatment notes generally deal more with personal circumstances unrelated to his service. The reports of the two VA examinations contain unfavorable medical opinions. Generally, the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the knowledge and skill used in analyzing the data, and the medical conclusion reached. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a basis for the medical opinion is provided goes to the weight or credibility of the evidence in adjudication. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, both medical opinions were provided by VA medical professionals possessing the necessary education, training, and expertise to provide the requested opinions. Additionally, both reflect opinions based on a review of the Veteran’s relevant records and accompanied by sufficient explanation as to why his current mental impairment is less likely than not the result of anything that occurred during his service or service-connected disability arising out of it. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (explaining that most of the probative value of a medical opinion is derived from its underlying rationale or reasoning). There are no alternative or contradictory opinions on record, certainly none as probative. Under VA law, no compensation shall be paid if the disability resulting from injury or disease in service is a result of a Veteran's willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110, 1131. Direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and not the result of a Veteran's willful misconduct or, for claims as here filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301.   The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that there can be compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran's service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) (indicating that Veterans could only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder."). Here, even if the Veteran’s history of polysubstance abuse is attributable to his mental disorder (such as a “coping” mechanism), the fact remains that his mental disorder has not, in turn, been attributed to his military service – again, either directly or by showing it was caused or is aggravated by a service-connected disability, either his bilateral pes planus and/or pseudofolliculitis barbae. Moreover, to the extent the Veteran has a personality disorder, it is not a disease or injury within the meaning of applicable statutes and regulations. 38 C.F.R. §§ 3.303(c), 4.9. That said, the fact that a Veteran has a personality disorder, however, does not preclude him or her from obtaining service connection for a co-existing mental disability. Rather, a "disability resulting from a mental disorder that is superimposed upon...a personality disorder may be service connected." See 38 C.F.R. § 4.127; VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990). But, again, this is only true if there also is the required attribution of the co-existing mental disorder to the Veteran’s service, which, as discussed, there simply is not either based on direct or secondary service connection. As a layman, the Veteran is not competent to establish the required correlation (“nexus”) between his mental disorder and service directly or secondarily by way of a service-connected disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377-33 (Fed. Cir. 2007); see also Davidson, 581 F.3d at 1316.   As it stands, including even when considering the additional medical opinion obtained on remand, the record does not contained the required attribution of any of the Veteran’s mental disorder diagnoses to anything that occurred during or coincident with his time in service or disability arising out of it, meaning his bilateral pes planus and pseudofolliculitis barbae. See Watson v. Brown, 4 Vet. App. 309, 314(1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”). Absent this required attribution of the Veteran’s psychiatric disorders to his service, regardless of specific diagnosis, including by way of a service-connected disability, this claim of entitlement to service connection for a mood disorder, etc., must be denied because the preponderance of the evidence is against this claim, not instead supportive of it or even in relative balance for versus against this claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a TDIU is remanded The Veteran contends that he is unemployable owing to his service-connected disabilities and, therefore, entitled to a TDIU. The determinative issue in a TDIU case is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that was more than marginal, that permits him to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). 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, 452 (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 age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned by the Board in the first instance when the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). It is also the policy of VA, however, that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, even where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular TDIU is for consideration where the Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran’s service-connected disabilities are bilateral (left and right foot) pes planus and hallux valgus of his right foot, rated as 50-percent disabling, and pseudofolliculitis barbae (PFB), rated as 10-percent disabling. His combined rating for these service-connected disabilities is 60 percent. See 38 C.F.R. § 4.25 (VA’s Combined Ratings Table). As such, his service-connected disabilities do not meet the § 4.16(a) schedular rating criteria for TDIU consideration on a schedular basis since he does not have the requisite 70 percent combined rating and these disabilities do not have common etiology or single accident, do not affect both upper extremities or both lower extremities, or single bodily system to, in turn, warrant considering them together – meaning as one collective or aggregate disability, for the purpose of determining whether the threshold § 4.16(a) rating requirements are met. However, as already explained, when there is at least suggestion the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but his disabilities fail to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to the Director of the Compensation Service for consideration of the assignment of a TDIU, instead, on an extra-schedular basis under the special provisions of § 4.16(b). The claims file contains competent evidence at least suggesting the Veteran may be unemployable owing to his service-connected disabilities, in particular, his bilateral pes planus that, as mentioned, is rated as 50-percent disabling, which is the highest schedular rating available under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276. This 50 percent rating is based on “pronounced” bilateral pes planus manifested by extreme tenderness of the planter surfaces of his feet, not improved by orthopedic shoe or appliance, with characteristic callosities; inward bowing of the tendo-achilles; objective evidence of marked deformity; and foot pain on manipulation, use, and weight-bearing. He credibly testified that he has difficulty getting out of bed in the morning due to his foot pain and trouble working in office jobs for lack of skills. The record reflects that he dropped out of school in the 10th grade and does not have a high school diploma or equivalent. He lost his last job because he was unable to take on additional duties and responsibilities due to the extent of his foot pain. He is considered disabled by SSA due, in part, to what was characterized as “severe” bilateral pes planus. Although SSA determinations are not binding on the Board, they are relevant, and the records relied upon to make SSA determinations are probative evidence specifically as relating to the Veteran's occupational impairment in relation to his TDIU claim. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991).   Therefore, this TDIU claim must be referred to the Director of the Compensation Service in accordance with 38 C.F.R. § 4.16(b) to determine whether this benefit is warranted on an extra-schedular basis. The Board is precluded from granting a TDIU on extra-schedular basis in the first instance, having instead to first refer the matter to the Director of the Compensation Service or designee for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); VAOPGCPREC 6-96 (August 16, 1996). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.