Citation Nr: 21006981 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 12-33 060 DATE: February 8, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include as secondary to a service-connected right hand disability is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disorder other than PTSD was not caused or aggravated by a service-connected disability. 2. The Veteran did not meet the schedular criteria for assignment of a TDIU and there are no unusual or exceptional disability factors to warrant referral for consideration of TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder other than PTSD have not been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.303, 3.310 (2019). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1978 to July 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case for further development in February 2015, September 2015, and July 2020. The case has since been returned to the Board for appellate review. As discussed in a prior remand, the RO denied service connection for PTSD in a December 1995 rating decision. The RO notified the Veteran of that decision and of his appellate rights, but he did not appeal the decision. There was also no new and material evidence received within one year of the issuance of that decision. Therefore, the December 1995 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103. The Federal Circuit Court has held that claims that are based on distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (a newly diagnosed psychiatric disorder (e.g., PTSD), even if medically related to a previously diagnosed disorder (such as depressive neurosis), is not the same for jurisdictional purposes when it has not previously been considered). The regulations pertaining to PTSD are different than for other psychiatric disorders. See also Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA’s discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff’d, 631 F.3d 1380 (Fed. Cir. 2011) (VA is free to dismember a claim and adjudicate it in separate pieces). The Veteran and his representative have not filed a new claim to reopen the claim for service connection for PTSD since the December 1995 rating decision. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2019). Therefore, the issue of service connection for PTSD is not currently on appeal. Service Connection - Acquired Psychiatric Disorder In the September 2015 remand, the Board noted that the Veteran had been diagnosed with alcohol use disorder and that such a disorder can only be granted service connection on a secondary basis. The question for the Board is whether the Veteran’s alcohol use disorder is proximately due to or the result of, or was aggravated by his service-connected right hand disability. During a May 2015 VA examination, the Veteran was administered psychiatric testing and the examiner determined that the Veteran does not meet the criteria for a diagnosis of other depressive disorder which was given at a prior examination. The examiner indicated that the only psychiatric diagnoses were alcohol use disorder, maladaptive personality traits, and no other mental health disorders. The examiner noted that psychiatric testing strongly suggests that the Veteran’s self-report of psychological symptoms is not credible. The examiner noted that the prior VA examiner did not utilize testing with validity measures and took the Veteran’s report at face value. The examiner also indicated that the Veteran’s VA treatment reports reveal no psychiatric complaints over the previous year with the exception of over-using alcohol. The most recent psychiatric treatment reveals a diagnosis of polysubstance abuse (cocaine and alcohol), depressive disorder NOS (not otherwise specified), and personality disorder NOS which documents a history of a problem with substance abuse and indicates that maladaptive personality traits likely contribute to the Veteran’s presentation. The examiner also noted that alcohol use can lead to a dysphoric mood and it is possible that any problems identified by the Veteran could be alcohol related. The examiner concluded that there is no support for a current or chronic diagnosis of depression. The examiner determined that the only appropriate diagnosis was alcohol abuse disorder. The examiner noted that cocaine use disorder is not diagnosed at this time due to lack of lack of corroborating evidence. A personality disorder was also not diagnosed due to a lack of information, but maladaptive personality traits were noted. Because no depressive disorder was diagnosed no opinion was proffered. At a May 2019 VA examination, the Veteran was diagnosed with alcohol use disorder. The examiner reviewed the claims file and indicated that the Veteran did not meet the full criteria for major depression at the February 2014 VA examination based on his reported symptoms. The examiner specifically noted that the psychological testing results at the time of the examination were invalid, and a diagnosis of a mental disorder other than alcohol use disorder could not be made based upon invalid testing results. Specifically, the examiner noted that the Veteran endorsed a considerable larger than average number of infrequent responses when compared to the normative sample. The examiner noted that such a result typically occurred when a person was attempting to present themselves as having worse symptoms than they truly did. The examiner concluded that the Veteran’s alcohol abuse disorder was less likely than not proximately due to his service-connected right hand condition based on a lack of evidence linking the two. At a February 2020 VA examination, the Veteran was once again diagnosed with alcohol use disorder based on clinical interview, review of available records, and psychological testing. The examiner opined that there is no evidence that his alcohol use disorder is proximately due to or the result of his service-connected right hand condition because there is no evidence found that his alcohol use is related to his right hand condition. In September 2020, the Veteran was once again afforded a VA examination and diagnosed with alcohol use disorder. The examiner opined that the alcohol use disorder was less likely than not caused or aggravated by his right hand disability and is more likely due to multiple risk factors such as a history of family dysfunction, economic dysfunction, economic disadvantage, lack of social supports, unemployment, and involvement with the criminal justice system. The Board thus concludes that, while the Veteran has current alcohol use disorder, the preponderance of the evidence is against finding that this disability is proximately due to or the result of, or aggravated by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The VA opinions, when taken together, are probative evidence because they are based on an accurate history and are accompanied by well-reasoned rationale as well as supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, there is no contrary medical opinion on file. To the extent that the Veteran believes his alcohol use disorder is proximately due to or the result of/aggravated beyond its natural progression by his service-connected right hand disability, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In short, the Board gives more probative weight to the VA medical opinions of record. As the weight of the evidence is against the claim for service connection for an acquired psychiatric disorder other than PTSD, to include as secondary to a service-connected right hand disability, the claim must be denied. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU The Veteran asserts that he is unable to work as a result of service-connected and nonservice-connected disabilities. Specifically, the Veteran reported that a service-connected right hand disability and nonservice-connected PTSD and high blood sugar prevent him from securing or following any substantially gainful occupation. At the outset, the Board notes that the Veteran did not meet the schedular criteria for assignment of a TDIU during the relevant appeal period at issue. In this regard, the Veteran had a combined rating of 10 percent prior to December 23, 2015, and of 20 percent from December 23, 2015. However, when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to appropriate VA officials for consideration of assignment of a TDIU rating. 38 C.F.R. § 4.16(b). As such, the Board will consider whether referral for extraschedular consideration is warranted. Based on the above, the Board finds that there is no basis for referral for extraschedular TDIU consideration. In this regard, the evidence of record does not show that the Veteran had unusual or exceptional disability factors that would warrant such a referral. An October 2010 Social Security Administration (SSA) disability evaluation performed by J.B., M.D., clearly showed that while the Veteran’s service-connected right hand disability did have an impact on his ability to work (it resulted in difficulty with repetitive lifting, grasping, and carrying with his right hand) the symptoms were not so severe as to prevent gainful employment. During a March 2016 VA examination, the examiner noted that the Veteran’s service-connected right hand symptoms presented a problem with fine motor skills of the right hand. During April 2018 hand and scar VA examinations, the examiner indicated that the Veteran’s right hand disability did not impact his ability to perform any occupational tasks. The Board acknowledges that the Veteran has reported that he stopped working in part because of his right hand. However, there is no indication that his right hand symptoms prevented all types of employment, and the findings described above tend to show that the Veteran would have been capable of at least less strenuous physical employment and sedentary employment consistent with his education and industrial history. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is against a finding that there are unusual or exceptional disability factors that would warrant referral for consideration of a TDIU on an extraschedular basis. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.