Citation Nr: 21008333 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 20-11 792 DATE: February 16, 2021 ORDER New and material evidence having been received, the application to reopen the service connection claim for an acquired psychiatric disorder is granted. New and material evidence not having been received, the application to reopen the service connection claim for a left knee disorder is denied. New and material evidence not having been received, the application to reopen the service connection claim for a right knee disorder is denied. Service connection for an acquired psychiatric disorder is denied. Service connection for a left shoulder disorder is denied. Service connection for a right shoulder disorder is denied. Service connection for sleep apnea is denied. A temporary total rating (TTR) for a period of post-surgical convalescence or hospitalization is denied. A total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran had active duty from November 1984 to November 1986 with subsequent service in the Army Reserve. 2. In an unappealed June 2017 rating decision, the Regional Office (RO) denied service connection for anxiety, depression, and a bipolar disorder; the evidence submitted since the June 2017 rating decision reflects diagnoses of acquired psychiatric disorders and provides a nexus to service. 3. In an unappealed June 2013 rating decision, the RO denied claims for service connection for right and left knee disorders; the evidence submitted since the June 2013 rating decision reflects complaints of pain in the left and right knees and a diagnosis of arthritis/osteoarthrosis in the right knee with a history of multiple surgeries. 4. An acquired psychiatric disorder was not shown in service; a current acquired psychiatric disorder, diagnosed as bipolar disorder, depressive disorder, and anxiety disorder, is not causally or etiologically related to service. 5. Current left and right shoulder disorders, diagnosed as arthritis, were not shown in service, were not shown to a compensable degree within one year of service, symptoms not continuous since service; current left and right shoulder disorders are not causally or etiologically related to service. 6. Sleep apnea was not shown in service; a current sleep disorder, diagnosed as obstructive sleep apnea (OSA), is not causally or etiologically related to service. 7. The Veteran was not hospitalized for service-connected disabilities for a period of at least 21 days and did not undergo surgery for service-connected disabilities that required a period of post-surgical convalescence of at least one month. 8. The Veteran is service connected for hearing loss at 40 percent and tinnitus at 10 percent; his service connected disability do not render him unable to obtain or maintain substantially gainful employment due solely to service-connected disabilities. CONCLUSIONS OF LAW 1. The June 2017 RO rating decision, which denied service connection for acquired psychiatric disorders, is final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the June 2017 rating decision is new and material; the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. The June 2013 RO rating decision, which denied service connection for left and right knee disorders, is final. 38 U.S.C. § 7105 (2012). 4. The evidence received since the June 2013 rating decision is not new and material; the claim for service connection for a left knee disorder is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 5. The evidence received since the June 2013 rating decision is not new and material; the claim for service connection for a right knee disorder is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 6. An acquired psychiatric disorder was not incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). 7. A left shoulder disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2020). 8. A right shoulder disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2020). 9. Sleep apnea was not incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). 10. The criteria for a TTR for a service-connected disability requiring hospital treatment or observation have not been met. 38 U.S.C. §§ 1155, 5017 (2012); 38 C.F.R. §§ 4.29, 4.30 (2020). 11. The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans Appeals (Board) from an appeal of an April 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that reopened the acquired psychiatric disorder and left and right knee claims and denied the claims for service connection and TDIU. In February 2018, the Veteran filed a claim for service connection for bipolar disorder. However, as discussed below, the evidence has also reflected diagnoses of anxiety and depression. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Therefore, the Board will consider service connection for depression and anxiety, as well as bipolar disorder. In a February 2020 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge (VLJ). In October 2020, he withdrew the request in favor of a 90-day extension of time to submit additional evidence. In November 2020, he filed arguments and asked that the Board adjudicate the issues on the record. Applications to Reopen Service Connection Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Acquired Psychiatric Disorders In January 2005, claims for anxiety, depression, and bipolar disorder were denied. The denial of anxiety and depression as based on lack of nexus, whereas the bipolar disorder was denied due to no current diagnosis. Thereafter, the Veteran twice filed applications to reopen the claims, and in the most recent prior denial in June 2017, the claims for anxiety, depression, and bipolar disorder were all denied because the evidence did not establish the disorders were incurred in service. Since the prior final denial in June 2017, additional VA and private treatment notes, lay statements and arguments, and a March 2020 evaluation from a psychologist, Dr. JA, have been received. In the evaluation, Dr. JA opined that the Veteran has bipolar disorder, as well as alcohol use disorder, that began on active duty. This evidence is new in that it was not of record in June 2017, and material, as it goes to an element lacking at that time – a medical nexus – and raises a reasonable possibility of substantiating the claim. Therefore, the application to reopen the acquired psychiatric disorder claim is granted. Right and Left Knee Disorders In a prior final denial in June 2013, service connection for disorders of the right and left knees were denied on the basis that the evidence did not establish a link between the current disorder and service. As for the right and left knee claims, the additional evidence since the June 2013 denial reflects continued complaints of pain in both knees and a diagnosis of arthritis in the right knee for which the Veteran had multiple prior surgeries; however, none of this evidence is new in that the such complaints and diagnoses were of record at the time of the prior final denial. Neither the additional medical evidence nor lay statements offer new evidence as to the etiology of the right and left knee disorders or that otherwise raises a reasonable possibility of substantiating the claims. Accordingly, new and material evidence has not been received to reopen the claims for service connection for right and left knee disorders, and the appeals are denied. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Acquired Psychiatric Disorder Initially, the competent evidence reflects diagnoses of bipolar disorder, depressive disorder, and anxiety disorder. Therefore, the Veteran has a current diagnosis for this appeal, and the first element of service connection is met. Notably, the record shows that the Veteran has also been diagnosed and treated for substance abuse disorders, namely alcohol use disorder and opiate use disorder. He has also reported that he began drinking at around age 21 or 22, and service personnel records (SPRs) show he was arrested for DUI in May 1983, prior to service. However, direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not as a result of a veteran’s own willful misconduct; or, for claims filed after October 31, 1990, not the result of abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). For the purpose of this paragraph, drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d); see also 38 U.S.C. § 105; 38 C.F.R. § 3.1(m). VA’s General Counsel has confirmed that direct service connection for a disability that is a result of a claimant’s own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOGCPREC 7-99, published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOGCPREC 2-98, published at 63 Fed. Reg. 31,263 (Feb. 10, 1998). Therefore, service connection may not be granted for any of the Veteran’s substance abuse diagnoses as directly related to service. Further, service connection is in effect for bilateral hearing loss and tinnitus, but nothing in the record suggests that the Veteran’s substance abuse was caused or aggravated by these disorders to warrant consideration of secondary service connection for a substance abuse disorder. As to the second element of service connection – an in-service incurrence – service treatment records (STRs) are silent for complaint, treatment, or diagnosis related to a psychiatric disorder. Further, the service personnel records (SPRs) do not document any behavioral issues or concerns. Nevertheless, in a March 2020 psychological evaluation by Dr. JA, the Veteran asserted that his psychiatric symptoms of anxiety and depression began in service when he was struck by a Sergeant in basic training. Therefore, an in-service incurrence is established. Nevertheless, the third element of service connection – a medical nexus – is not met. In this regard, Dr. JA opined in the March 2020 evaluation that the Veteran’s mental health issues at least as likely as not began in service, specifically when he was physically attacked by a Sergeant. However, Dr. JA offered no rationale for this opinion. Rather, the opinion was based solely on the Veteran’s report of the incident in service and depression he experienced at that time. This opinion is assigned less probative weight as it was based on the Veteran’s recitation of his medical history and not supported by the evidence. Of note, the STRs do not reflect a physical attack or treatment consistent with a physical attack. The clinician’s opinion that the Veteran’s psychiatric disorders are related to service is unsupported and unexplained and does not provide the degree of certainty required for medical nexus evidence. Further, private treatment records dated in November 1994 reflect that the Veteran received inpatient treatment for alcohol dependence, and a diagnosis of depression was also assigned at that time, this diagnosis was made nearly 10 years after discharge. He was again admitted for substance abuse treatment in August 1996, March 1997, and April 1999. In addition, the March 1997 discharge summary noted treatment in 1992 or 1993. In November 1994, he described a 10-year history of substance abuse; however, while the military service dates were noted during his admissions, he did not describe any military-related history of trauma or mental health symptoms. Moreover, subsequent treatment notes dated to the present do not document treatment for an acquired psychiatric disorder as etiologically due to service. Thus, the evidence is insufficient to conclude that the Veteran developed chronic symptoms of depressive disorder, anxiety disorder, and/or bipolar disorder during service. The Board has considered the Veteran’s lay statements that his acquired psychiatric disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Left and Right Shoulder Disorders For the left and right shoulder claims, the evidence reflects that the Veteran has a diagnosis of osteoarthritis in both shoulders. Therefore, the first element of service connection – a current disability – is met. As to an in-service incurrence, STRs are negative for any complaint, treatment, or diagnosis of a shoulder disorder. Moreover, the Veteran has not offered any other evidence reflecting an in-service disease, injury, or event affecting the left and/or right shoulder. Therefore, the second element of service connection – an in-service incurrence – is not met. Absent evidence of an in-service incurrence, there is no basis for linking the current disorder of either shoulder to the Veteran’s service. Moreover, there is no competent medical evidence suggesting such a link. As such, the evidence does not support service connection on a direct basis. Next, arthritis is a chronic disease under 38 C.F.R. § 3.309 and presumptive service connection will be considered. However, no chronic disease or injury was shown in service. As noted above, the STRs are silent for complaints of, treatment for, or a diagnosis of a left or right shoulder disorder. Therefore, the medical evidence does not support presumptive service connection on a “chronic disease or injury shown in service” basis. Next, the medical evidence does not support presumptive service connection based on continuity of symptomatology since service. Specifically, the medical evidence shows that in March 1997, the Veteran had taken pain medication for his left shoulder prior to a hospital admission for substance abuse, but in October 2004, he had no complaints of shoulder symptoms and range of motion was normal. The first X-ray evidence of arthritis in either shoulder was a July 2011 X-ray. The Veteran separated from service in November 1986. The medical evidence shows that symptoms of disorder of either shoulder until over a decade after service. Moreover, he has not offered any description of symptoms or onset of the left and right shoulder disorders that contradicts the medical evidence or dates the disorders back to service. As such, the medical evidence does not support service connection on a “continuity of symptomatology” basis. Further, the arthritis did not manifest to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1986 but did not note symptoms in either shoulder until 1997. This evidence does not support presumptive service connection on a “manifest within one-year from separation” basis. Therefore, presumptive service connection on any basis is not warranted. The Board has considered the Veteran’s assertion that he has current left and right shoulder disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Sleep Apnea Regarding the sleep apnea, the evidence reflects that the Veteran was diagnosed with obstructive sleep apnea after a sleep study in May 2012. Therefore, a current disorder is established, and the first element of service connection is met. However, an in-service incurrent is not shown. STRs are silent for complaint, treatment, or diagnosis associated with sleep apnea. Moreover, the post-service medical evidence does not describe a history of sleep apnea, or symptoms thereof, in service. The Veteran has also not offered lay evidence of onset of sleep apnea in service. VA treatment records reflect that sleep apnea was suspected in March 2005 when his wife at the time reported observing apnea and snoring, but no testing was done; however, in March 2011, his then-fiancé denied noticing any apnea while the Veteran slept, and he denied having sleep apnea. Absent evidence of an in-service incurrence, there is no basis for finding the current sleep apnea is etiologically related to service. Moreover, there is no competent medical evidence suggesting such a link. As such, the medical evidence does not support service connection on a direct basis. The Board has considered the Veteran’s lay statements that his sleep apnea was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Temporary Total Rating A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. Subject to the provisions of paragraphs (d), (e), and (f) of 38 C.F.R. § 4.29, this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. 38 C.F.R. § 4.29(a). Notwithstanding that the hospital admission was for disability not connected with service, if during such hospitalization, hospital treatment for a service-connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. 38 C.F.R. § 4.29(b). If service connection for the disability under treatment is granted after hospital admission, the rating will be from the first day of hospitalization if otherwise in order. A total disability rating (100 percent) may also be assigned when it is established by report or hospital discharge or outpatient release that entitlement is warranted, if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one or more major joints, a body cast, the necessity of home confinement, or the necessity of crutches or a wheel chair; or (3) there is immobilization by cast, though no surgery, of one or more major joints. 38 C.F.R. § 4.30. The Veteran filed a claim for a TTR in February 2018, but he did not define the disability and episode of care for which he sought the benefit. His service-connected disabilities include bilateral hearing loss and tinnitus, and the evidence does not reflect any hospital admission or period of convalescence related to these disabilities. Accordingly, a TTR is denied. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). “Substantially gainful employment” is not currently defined in VA regulations; however, the term has been defined as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran’s history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In other words, the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). Service connection is in effect for bilateral hearing loss and tinnitus, evaluated as 40 percent and 10 percent disabling, respectively. The combined rating is 50 percent. Accordingly, the threshold schedular criteria for a TDIU are not met. Moreover, the evidence does not suggest that the Veteran’s inability to obtain or maintain employment is due solely to his bilateral hearing loss and tinnitus to warrant referral for extra-schedular consideration. The arguments of record in favor of a TDIU associate the Veteran’s unemployability with his nonservice-connected acquired psychiatric disorder only. In consideration of the above, the threshold criteria for a TDIU are not met, and the evidence does not show that the Veteran’s service-connected disabilities alone rendered him unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities. Accordingly, a TDIU is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, 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.