Citation Nr: 21007440 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-36 095 DATE: February 9, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for memory loss is denied. An effective date earlier than April 29, 2016 for the assignment of service connection for a back disability is denied. REMANDED Service connection for an acquired psychiatric disorder other than PTSD to include dysthymic disorder is remanded. Service connection for the residuals of a traumatic brain injury (TBI) is remanded. A total disability rating due individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD. 2. The Veteran’s reported memory loss is a symptom of the Veteran’s claimed disabilities rather than a separate diagnosis. 3. The Veteran first notified VA of the intention to file a claim to reopen a previously denied claim for service connection for a back disability on April 29, 2016, and the Veteran has been granted service connection for a back disability effective April 29, 2016. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection memory loss have not been met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for an effective date earlier than April 29, 2016 for the assignment of service connection for a back disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from May 1975 to May 1978. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) made in December 2016 (denying service connection for dysthymic disorder and memory loss) and January 2017 (granting service connection for a back disability effective April 29, 2016). Claims for service connection for additional acquired psychiatric disorders including PTSD are within the scope of the claim for service connection for dysthymic disorder. A claim for service connection for the residuals of a TBI is within the scope of a claim for service connection for memory loss. This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in September 2020, and a transcript of the hearing is of record. The Board notes that the Veteran also submitted a notice of disagreement (NOD) in March 2017 raising the issues of service connection for a neck disability, migraines, and radiculopathy of the extremities. Nevertheless, this NOD was not filed in response to a decision denying the Veteran such requested relief. Therefore, the Board does not have jurisdiction over these issues. The Board notes that, after receipt of the NOD, the RO disposed of these claims in the first instance in May 2017. Nevertheless, the Veteran did not appeal this disposition, and the Board shall not consider these issues any further. 1. Service connection for PTSD is denied. At issue is whether the Veteran is entitled to service connection for PTSD. The weight of the evidence indicates that the Veteran is not entitled to service connection. The Veteran’s treatment records indicate that the Veteran might have had a diagnosis of PTSD. Nevertheless, the Veteran underwent a VA examination to evaluate the Veteran for PTSD in November 2016, and the examiner opined that the Veteran’s mental symptoms did not closely approximate the criteria for PTSD in order to support such a diagnosis. Additionally, the Veteran submitted an opinion and an addendum opinion completed between January and June 2020 by a private provider. The private provider diagnosed the Veteran with a number of psychiatric conditions but did not diagnose the Veteran with PTSD. The Board notes that the Veteran testified to the severity of his mental symptoms in a personal hearing before the Board in September 2020. See Transcript. The weight of the evidence indicates that the Veteran is not entitled to service connection for PTSD, because the Veteran does not have a current diagnosis of PTSD. The Board is cognizant of the Veteran’s personal testimony regarding the severity of his mental symptoms. Nevertheless, a diagnosis of a mental disorder is a matter of medical complexity, and the Veteran has no demonstrated expertise; and, therefore, the Board cannot afford this testimony any weight for the purposes of determining whether or not the Veteran has PTSD as opposed to a different acquired psychiatric disorder. Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Board also notes that the Veteran’s treatment records indicate that the Veteran may have had a diagnosis of PTSD. Nevertheless, a VA examiner, and the Veteran’s own hand-picked private provider, after carefully examining the Veteran both concluded that the Veteran’s mental symptoms more closely approximated a disability other than PTSD. The Board finds both opinions to be persuasive and affords them great weight, and, in weighing the medical opinions of the VA examiner and the private provider with the Veteran’s medical records, the Board must afford more weight to the former. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A current diagnosis or a diagnosis during the pendency of the appeal is the cornerstone for a claim for service connection, and, without a diagnosis of PTSD, the Veteran cannot sustain a claim for service connection for PTSD. Degmetich v. Brown, 104 F.3d 1328 (1997). Therefore, service connection for PTSD is denied. 2. Service connection for memory loss is denied. At issue is whether the Veteran is entitled to service connection for memory loss. Memory loss is a symptom of other medical conditions (such as head trauma or a mental health disorder). See Medline Plus Medical Encyclopedia, https://medline plus.gov/ency/article/003257.htm (last visited January 20, 2021). Symptoms of an underlying condition, including symptoms objectively verified by laboratory test results, are not a disability for VA compensation purposes. See 61 Fed. Reg. 20440, 20445 (May 7, 1996). Therefore, the service connection is denied as a matter of law, because memory loss is a symptom of a disability rather than a disability itself; and, without a current disability or a disability during the pendency of the appeal, the Veteran cannot sustain a claim for service connection. See Degmetich. The Board is cognizant that a symptom such as pain may be considered a disability even without an underlying diagnosis if it is severe enough to cause occupational impairment. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Nevertheless, this is not applicable here, because, in this case, there is evidence of underlying conditions as explanations for the Veteran’s memory loss; including an acquired psychiatric disorder and the residuals of a TBI. Nothing in this opinion shall be construed as prohibiting the Veteran from being compensated for memory loss as a symptom for any currently service-connected or future service-connected disability to include an acquired psychiatric disorder or the residuals of a TBI. 3. An effective date earlier than April 29, 2016 for the assignment of service connection for a back disability is denied. At issue is whether the Veteran is entitled to an effective date earlier than April 29, 2016 for the assignment of service connection for a back disability. The weight of the evidence indicates that the Veteran is. The Veteran first filed for service connection for a back disability in April 1985, and, in July 1985, the RO denied service connection. The Veteran appealed, and, in October 1986, the Board denied the Veteran’s appeal. The Veteran filed to reopen the previously denied claim for service connection for a back disability which was denied by the RO in August 1998 and again in March 1989. The Veteran did not appeal either decision. The Veteran notified VA of the intent to file a new claim on April 29, 2016. The Veteran filed a new claim to reopen his previously denied claim for service connection on August 16, 2016, and, in January 2017, the RO granted service connection and assigned a disability rating of 40 percent effective April 29, 2016. The Veteran appealed the effective date of the award. Except as otherwise provided, the effective date of an evaluation and award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of for the assignment of service connection for a back disability is already April 29, 2016; the earliest date that could be interpreted as a receipt of a claim. Therefore, the Veteran has already been assigned the earliest effective date possible for the assignment of service connection for a back disability, and an effective date earlier than April 29, 2016 is denied. The Board notes that during a personal hearing before the Board the Veteran testified to the relationship between his back disability and a period of service; the severity of his back disability; and how his back disability manifested prior to his current effective date. See Transcript. The Board is certainly sympathetic, but, unfortunately, these do not provide an adequate basis for providing the Veteran relief. The Veteran has already been granted service connection for a back disability, and, therefore, a relationship between a current back disability and a period of service has already been disposed of; in the Veteran’s favor. The Veteran declined to appeal the severity of his schedular disability rating, and, therefore, the severity of his back disability is simply not before the Board. Finally, as discussed above, an effective date consists of the receipt of claim or the date entitlement arose; whichever is later. Even to the extent that the Veteran was entitled to service connection prior to April 29, 2016 due to earlier manifestation of his current back disability, the Veteran is precluded as a matter of law from receiving an earlier effective date. The Board notes that during the personal hearing before the Board, the Veteran’s representative also alleged that a previous decision denying service connection for a back condition was clear and unmistakable error. See Transcript. Nevertheless, claims based on clear and unmistakable have specific procedural requirements which neither the Veteran nor the Veteran’s representative have met. Therefore, the Board shall not provide such relief at this time. To the extent that the Veteran wishes to file such a claim, the Veteran and the Veteran’s representative are encouraged to review 38 C.F.R. §§ 3.105, 20.1404. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder other than PTSD to include dysthymic disorder is remanded. 2. Service connection for the residuals of a TBI is remanded. At issue is whether the Veteran is entitled to service connection for an acquired psychiatric disorder other than PTSD and the residuals of a TBI. Unfortunately, this matter must be remanded for a new VA examination. The Veteran submitted an opinion and an addendum opinion completed between January and June 2020 by a private provider. In the original opinion, the private provider diagnosed the Veteran with major depressive disorder, unspecified obsessive-compulsive disorder, and somatic symptom disorder and opined that the Veteran’s symptoms were related to service. In the addendum opinion, the private provider further clarified that the Veteran’s acquired psychiatric disorder was due to head trauma and corresponding concussive symptoms during a period of service. Both the original opinion and the addendum opinion leave much to be desired. First, it is unclear whether or not the Veteran has a neurological condition, a psychological condition, or both; to say nothing of what clinical evidence is being relied on to make such a determination. Black v. Brown, 5 Vet. App. 177 (1995). Additionally, the opinion is noticeably silent on what principles and methods were used to determine that the Veteran’s symptoms were attributable to a concussion rather than some other etiology. See Nieves-Rodriguez v. Peake. Finally, the Veteran’s private provider is a psychologist (rather than a neurologist), and the Board is permitted to seek out the opinion of, and potentially rely on, the opinion of specialist in a particular field related to the claimed condition. Winsett v. West, 11 Vet. App. 420 (1998). And yet, the private provider’s opinion and addendum opinion to give rise to questions surrounding the conclusion contained in a November 2016 VA examination. The VA examiner diagnosed the Veteran with an acquired psychiatric disorder, but the examiner opined that the Veteran acquired psychiatric disorder was due to a pattern of a pessimistic outlook on life rather than a traumatic injury. Unfortunately, it is unclear what principles and methods were relied upon in making this determination. Additionally, the VA examiner, like the private provider, a psychologist. Therefore, the Board can give no more weight to the VA examiner’s opinion in ruling out a relationship between a mental disorder and a head injury than it can rely on the private provider’s opinion to the contrary. See Nieves-Rodriguez v. Peake; see also Winsett. Therefore, the Veteran’s claim for an acquired psychiatric disorder must be remanded in order to provide the Veteran with a VA examination addressing these concerns. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, entitlement to service connection for the residuals of a TBI is inextricably intertwined and must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. TDIU is remanded. In a March 2017 NOD, the Veteran raised the issue of TDIU despite the fact that TDIU had not been disposed of in a previous decision. TDIU, however, is not an actual claim for relief. Rather it is a different legal theory that may be used to support an increased rating claim. Rice v. Shinseki, 22. Vet. App. 447 (2009). The January 2017 rating decision upon which this appeal is based assigned the Veteran a schedular disability rating of 40 percent effective April 29, 2016. The Veteran had the option of appealing the schedular disability rating, the effective date of the award, or the failure to assign TDIU. In the March 2017 NOD, the Veteran explicitly challenged the effective date of the assignment of the back disability and explicitly identified TDIU. In doing so, the Veteran appealed the issue of TDIU and the effective date of the award; despite declining to appeal the schedular disability rating. Therefore, the Veteran has appealed the issue of TDIU. The Board notes that, after receipt of the March 2017 NOD, the RO denied a claim for TDIU in the first instance in May 2017, and that the Veteran did not appeal this disposition. The Veteran’s failure to appeal the denial of TDIU in May 2017 cannot, however, be considered a withdraw of the issue having been raised in the March 2017 NOD. Despite the fact that the Veteran has appealed the issue of TDIU in the March 2017 NOD, the record is silent for a statement of the case (SOC) addressing a claim for TDIU. Therefore, this matter must be remanded in order to provide the Veteran with a statement of the case responsive to a claim for TDIU. Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that – if the Veteran had perfected and appeal for a schedular disability rating – then remanding this matter for a SOC would be unnecessary. See Rice. As this is not the case however, this matter must be remanded. The matters are REMANDED for the following action: 1. Arrange to provide the Veteran with a VA examination (or if necessary a telephone interview and a medical opinion based on the evidence of record) by a neurologist in order to address the following: (a.) Is it at least as likely as not (50 percent or more) that the Veteran sustained a TBI during his period of service? Why or why not? (b.) Is it at least as likely as not (50 percent or more) that the Veteran is currently manifesting the residuals of a TBI to include memory loss or other psychological problems? Why or why not? If the Veteran is manifesting any residuals of a TBI, then please identify them. (c.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between the residuals of a TBI and a TBI that occurred during a period of service? Why or why not? (d.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between the Veteran’s psychological problems (such as memory loss and depression) and any in-service incurrence (to include a head trauma that is not considered a TBI)? Why or why not? 2. Arrange to provide the Veteran with a VA examination (or if necessary, a telephone interview and a medical opinion based on the evidence of record) by a psychologist or psychiatrist in order to address the following. Is it at least as likely as not (50 percent or more) that the Veteran’s claimed psychological problems (including depression and memory loss) are due to a previously service-connected disability? Why or why not? 3. Arrange to provide the Veteran with a VA examination (or if necessary, a telephone interview and a medical opinion based on the evidence of record) in order to address the following: (a.) Comment on the Veteran’s ability to function in an occupational environment. (b.) Document the Veteran’s reported education and work experience. (c.) Describe any functional impairment caused solely by the Veteran’s service-connected disabilities 4. Provide the Veteran with a SOC responsive to the claim for TDIU raised in the March 2017 NOD and notify the Veteran of his appellate rights. Do NOT return a claim for TDIU back to the Board UNLESS the Veteran perfects a substantive appeal to the Board (i.e. files a VA Form 9). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.