Citation Nr: 21009596 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 13-13 680 DATE: February 22, 2021 ORDER 1. Entitlement to service connection for hypertension is denied. 2. Entitlement to service connection for a variously diagnosed psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is denied. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted from (the earlier effective date of) September 5, 2012, subject to regulations governing payment of monetary awards. FINDINGS OF FACT 1. Hypertension was not manifested during, or within one year after the Veteran’s separation from, service; any current hypertension is not shown to be etiologically related to his active duty service. 2. The Veteran is not shown to have a diagnosis of PTSD in accordance with DSM-5, including as based on a fear of hostile military or terrorist activity; an acquired psychiatric disability was not manifested in service; a psychosis was not manifested within a year after the Veteran’s separation from service; and no current acquired psychiatric disability is shown to be etiologically related to his service. 3. The Veteran’s service-connected peripheral neuropathy of both upper and both lower extremities is reasonably shown to have rendered him unable to maintain substantially gainful employment throughout (from September 5, 2012). CONCLUSIONS OF LAW 1. Service connection for hypertension is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. Service connection for a variously diagnosed psychiatric disability is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The schedular criteria for a TDIU rating were met throughout, and a TDIU rating is warranted throughout from September 5, 2012. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1969 to May 1970. These matters are before the Board on appeal from February 2011 (which denied service connection for PTSD) and September 2012 (which denied service connection for high blood pressure and entitlement to a TDIU rating) Department of Veterans Affairs (VA) rating decisions. In July 2017 and August 2018, the matters were remanded for additional development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases (to include hypertension and psychosis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for hypertension and psychosis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Nexus to service of a chronic disease listed in § 3.309(a) may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Entitlement to service connection for hypertension is denied. The Veteran’s STRs are silent for complaints, findings, treatment, or diagnosis of hypertension. A service separation examination report is not available for review. The earliest postservice indication of the Veteran’s current hypertension was on November 2010 VA treatment, when it was noted that he was being treated for hypertension with medication. A December 2010 VA treatment note reflects that he was receiving non-VA treatment for his hypertension. Later treatment records reflect ongoing treatment for hypertension. In a September 2019 statement, the Veteran stated that the non-VA physician who treated him for hypertension, prior to his seeking VA treatment in 2010, had closed his office some time earlier, and he was unable to secure any pertinent information or records regarding such treatment. Hypertension was not manifested in service or shown (such as by records of prescriptions for hypertension medication by the alleged provider whose records are unavailable) to have been manifested to a compensable degree with a year following service, and was not clinically noted in the record postservice prior to approximately 2010. Accordingly, service connection for hypertension on the basis that it became manifest in service and persisted or on a presumptive basis (as a chronic disease) is not warranted. While the Veteran may substantiate the claim by competent evidence that his current hypertension is etiologically related to his service, he has presented no such evidence. There is no credible evidence of a related disease or injury in service, and therefore no possibility of a probative positive nexus opinion in the matter. The preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and major depressive disorder, is denied. The Veteran contends that he has a psychiatric disability that is related to his service. He contends that he was in a combat zone in Vietnam, in an area of enemy hostile fire, and was attacked frequently, with his life at risk. His service personnel records reflect that his MOS was infantry indirect fire crewman, that he served in Vietnam from December 1969 to February 1970, and he received the Combat Infantry Badge. His STRs are silent for complaints, findings, treatment, or diagnosis of a psychiatric disability. On March 1971 VA examination, the Veteran complained of nervousness, headaches, stomach fullness, and restlessness since he was in service. It was noted that he was stationed with an infantry unit in Vietnam for one month before being given a hardship discharge after his father died suddenly. The diagnosis was anxiety neurosis, chronic, with prominently psychophysiologic responses. On January 2011 VA examination, the Veteran reported feeling anxious at times and having sleep difficulties of early awakening, occurring for several years. Following a mental status examination, no Axis I mental disorder was found; he did not meet the DSM-IV criteria for a diagnosis of PTSD. The examiner opined that the contention of whether or not the claimed stressor is related to the Veteran’s fear of hostile military or terrorist activity is not supported by the evaluation. VA treatment records show the Veteran was receiving treatment for depression beginning in July 2011, when reported depression symptoms including episodes of crying and decreased interest. He identified separation from his wife and economic factors as triggers. He indicated that he was treated for depression several years earlier. In a February 2012 medical opinion statement, it was noted that the Veteran had a history of nervous problems; the provider opined that the Veteran started to present nervous symptoms as soon as he returned from Vietnam, and he has been dealing with them since then. The provider stated that the Veteran was in a combat zone while in Vietnam, in an area of enemy hostile fire, and was attacked frequently, with his life at risk. The provider opined that there is medical evidence diagnosing the condition as PTSD in conformance with the DSM-IV, credible supporting evidence that the claimed in-service stressor actually occurred, and medical evidence of a link between current symptomatology and the claimed in-service stressor, so it is at least likely as not he is presenting PTSD with depression that is service connected. On April 2012 psychiatric evaluation, the Veteran reported that his psychiatric symptoms began several months earlier and were exacerbated concomitantly with his physical disabilities of hypertension, neuropathy, and carpal tunnel syndrome. He reported that he began to have symptoms of depression after he began to have health problems and could not continue working. The diagnostic impressions included major depression single episode without psychotic features and PTSD. On June 2012 psychiatric evaluation, the Veteran reported that he worked without any problem until 2009, when he had to sell his business because of economic hardship in the country; sales had leveled off which caused him financial problems. He reported that he had developed back and neck conditions, that he served in the Army for a number of months, and that he was deployed to a war/conflict zone; the provider noted that “secondary to all of these events, he started to develop emotional symptoms.” It was noted that the Veteran had received VA psychiatric treatment monthly basis since 2010. The diagnosis was major-moderate depression. On December 2017 VA PTSD examination, the Veteran was noted to have a history of psychiatric complaints, findings, and treatment at VA since February 2012. He had been followed with psychotherapy and medication for major depressive disorder, recurrent episodes, moderate without psychotic features; and insomnia disorder. He reported stressors of seeing a dog exploded after finding a mine, and shooting in the dark with night vision goggles. Following a mental status examination, the diagnosis was major depressive disorder. The examiner opined that while the Veteran met the DSM-5 stressor criteria for PTSD, he did not meet the DSM-5 symptoms criteria for such diagnosis. The examiner opined that the Veteran did not fulfill the symptoms criteria of persistent re-experiencing the traumatic event, avoiding reminders of the trauma, or increased anxiety and emotional arousal. The examiner opined that neither the military service nor the trauma exposure caused the Veteran impairment in marital relations, parenting performance, or social, occupational, or other areas of functioning. The examiner opined that there was no change in functional status or quality of life due to trauma exposure. The examiner opined that the Veteran lived a very successful parenting performance and social and occupational life until his retirement in 2012. The examiner opined that the Veteran’s psychiatric disability is less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner opined that the medical evidence establishes that the single incident in service was acute, transient, and resulted in no residual disability. The examiner noted that the Veteran received a humanitarian discharge on account of his father’s sudden death, and was found to be anxious, nervous, and depressed on account of this event. The examiner opined, however, that in the absence of findings of residuals and continuity of symptomatology, service connection is not in order. The examiner opined that the Veteran’s major depressive disorder is not due to, related to, incurred in, or associated in any way to his military service. The examiner opined that there is no evidence of psychiatric treatment prior to service, during service, or within one year after discharge from service. The examiner noted that the Veteran first sought formal psychiatric treatment around 2010, almost 40 years after his discharge from service, and opined that there is no relation his between military service and the mental condition found in 2010. The examiner opined that a temporal relationship between the neuropsychiatric disorder and the Veteran’s military service is not established, and that his major depressive disorder bears no relation with his military service. In a September 2019 VA addendum opinion, the December 2017 examiner opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner opined that, regarding the Veteran’s traumatic event in service, the medical evidence establishes that the single incident that occurred in service was acute, transient, and resulted in no residual disability. The examiner opined that the Veteran, after his father’s death, was able to form his own family, worked in a family business, later worked for a multinational pharmaceutical company, and retired in 2012. The examiner explained that the Veteran’s longitudinal social, familial, occupational, and social history fails to show that a mental disorder with associated social and occupational impairment was present from 1970 to 2012, when he sought psychiatric treatment for the first time in his life. The examiner opined, in essence, that, in the absence of findings of residual and continuity of symptomatology, [a nexus to service of current psychiatric disability] is not in order [not shown]. The examiner opined that the Veteran’s major depressive disorder is not due to, related to, incurred in, or associated in any way to his military service. The examiner explained that the Veteran first sought formal psychiatric treatment around 2012, more than 40 years after his active duty military discharge, and opined that there is no relation between his military service and the mental condition found in 2012. The examiner opined that the Veteran’s unspecified anxiety disorder bears no relation with military service. Additional VA treatment records show assessments of psychiatric disability, but no further opinion offered regarding etiology. The Veteran also submitted lay statements noting symptoms of his psychiatric disability. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed stressor in service. 38 C.F.R. § 3.304(f). Under the revised (effective July 12, 2010) 38 C.F.R. § 3.304(f)(3): If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire; including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The preponderance of the evidence is against a finding that the Veteran has PTSD. The relaxed evidentiary standards of the revised 38 C.F.R. § 3.304(f)(3) do not apply because he has not been assigned a diagnosis of PTSD based on a fear of hostile military or terrorist activity (as he does not meet the symptom criteria for such diagnosis); the December 2017 VA specifically identified each symptom criterion for a PTSD diagnosis found lacking. The VA examiner is a qualified mental health professional who determined that the Veteran did not endorse having the symptoms necessary to support a diagnosis of PTSD pursuant to DSM-5 criteria. The examiner’s opinion reflects familiarity with the Veteran’s history, includes citation to supporting factual findings, and identifies the criteria for a diagnosis of PTSD that are not met. The VA examiner’s opinion is the most probative (medical) evidence of record in this matter, and is persuasive. The Board notes that it is not in dispute that the Veteran was exposed to a stressor event in service he has reported. Because he is a layperson, the Veteran’s own opinion that he has PTSD is not probative evidence in the matter; the diagnosis of PTSD is a complex medical question which requires medical expertise (regarding whether the constellation of symptoms shown, and any credible stressor identified, support such diagnosis). The Board finds the 2012 clinical notations in the record indicating that the Veteran has a diagnosis of PTSD inadequate to establish that he has or had a diagnosis of PTSD in accordance with DSM-5 (or as was earlier required under DSM-4). A threshold legal requirement for substantiating a claim of service connection is that there must be a [valid] diagnosis of the disability for which service connection is sought. See Shedden v. Principi, 381 F. 3d 1163 (Fed. Cir. 2004). While they note that he met the criteria for a qualifying stressor event in service, that he meets that criterion has been acknowledged by later VA providers and adjudicators, and is not in dispute. To be considered valid for the purpose of establishing service connection, a diagnosis of PTSD must be in accordance with [now] DSM-5. 38 C.F.R. § 3.304(f). As the 2012 notations in the record do not identify the symptoms on which those diagnoses were met (in terms of required DSM criteria), they do not show a valid diagnosis of PTSD. Accordingly, service connection for PTSD is not warranted. As the record shows diagnoses of psychiatric disabilities other than PTSD, the analysis turns to whether any other acquired psychiatric disability diagnosed may be service connected. Although the Veteran was diagnosed with anxiety neurosis, “chronic”, with prominently psychophysiologic responses on March 1971 VA examination, there is no further complaint, finding, treatment, or diagnosis of a psychiatric disability until 2011 (40 years later), when he first reported – and sought treatment for – depression. A psychosis was not manifested in the first postservice year. Accordingly, service connection for any such psychiatric disability on the basis that it became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a)) is not warranted. What remains for consideration is whether any currently diagnosed psychiatric disability (to include the diagnosed depressive disorder) may otherwise be etiologically related to the Veteran’s service. The preponderance of the evidence is against a finding that any current psychiatric disability is etiologically related to his service. Regarding the dispositive factor of a nexus between the current psychiatric disability and service, the Board finds the December 2017 VA examination report and September 2019 addendum opinion to cumulatively merit substantial probative weight. They reflects a review of the Veteran’s claims file and familiarity with his medical history and lay accounts, are based on a thorough psychiatric evaluation/interview, and include rationale that cites to historically accurate supporting factual data. In essence they are to the effect that the depression in service was an acute event that resolved without residuals (pointing to the approximately 40 year interval postservice before the Veteran was first seen for depressive symptoms (that were then attributed to postservice factors, such as a financial setback and relationship problem, i.e., separation from spouse). The Veteran’s own opinions that his psychiatric disability is related to his service are not probative evidence in this matter. He is a layperson, and has not demonstrated (and does not profess to have) the medical expertise required to diagnose, and determine the etiology of, a psychiatric disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against this claim. Accordingly, the appeal seeking service connection for a psychiatric disability, to include PTSD and major depressive disorder, must be denied. 3. Entitlement to a TDIU rating is granted from September 5, 2012. The Veteran contends that he merits a TDIU rating from September 5, 2012 (when his claim for a TDIU rating was received by VA). 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 totally disabled. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is 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, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to the veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by non- service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA’s General Counsel has concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. As further observed by General Counsel, “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. The Veteran’s service connected disabilities include right upper extremity peripheral neuropathy, rated 20 percent; left upper extremity peripheral neuropathy, rated 20 percent; right lower extremity peripheral neuropathy, rated 10 percent; right lower extremity peripheral neuropathy of the anterior crural and internal saphenous nerves, rated 10 percent; left lower extremity peripheral neuropathy, rated 10 percent; and left lower extremity peripheral neuropathy of the anterior crural and internal saphenous nerves, rated 10 percent. Because the peripheral neuropathy disabilities are part of the same disease process, result from a common etiology, and affect a single body system, and the combined rating for such disabilities is 60 percent, the schedular rating requirement for a TDIU rating in 38 C.F.R. § 4.16(a) has been met throughout. Consequently, the critical (and dispositive) question remaining is whether due to the service-connected disability he was unable to engage in a substantially gainful occupation prior to October 14, 2019 (the date from which the current TDIU rating is assigned). On August 2012 VA peripheral neuropathy examination, the Veteran reported numbness in his arms and hands with a pins and needles sensation in the hands for many years. He reported numbness, burning sensation, and cramps in both legs. He reported moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in both upper and lower extremities. The examiner opined that mild incomplete paralysis of the bilateral radial nerves, median nerves, ulnar nerves, musculocutaneous nerves, sciatic nerves, external popliteal (common peroneal) nerves, musculocutaneous (superficial peroneal) nerves, anterior tibial (deep peroneal) nerves, internal popliteal (tibial) nerves, posterior tibial nerves, anterior crural (femoral) nerves, and internal saphenous nerves, was found. The examiner opined that the Veteran’s peripheral neuropathy impacts his ability to work; regarding the specific impact, the examiner noted only that he was currently retired “due to medical complications additional to peripheral neuropathy”. In his application for TDIU received by VA on September 5, 2012, the Veteran reported that he last worked full time in January 2012, and that his service-connected disability affected his full-time employment. He reported that he left his last job/self-employment because of this disability, and that he has a college degree. Social Security Administration (SSA) records (received in July 2014) reflect that the Veteran was granted disability benefits for disability beginning in January 2012 due to a primary diagnosis of affective disorders and a secondary diagnosis of diabetes mellitus. Findings of fact supporting the decision included that he had difficulties standing and walking, painful gait, and hand tremors; and determinations included that the evidence showed severe physical and mental limitations, and that he could not perform his previous work. On October 14, 2019 VA peripheral nerves examination, the Veteran reported the date of onset of his peripheral neuropathies in 2006, with no change in the condition since onset. He reported numbness of the forearms (extensor surfaces) and hands, cramps in his hands, and numbness in the lateral aspect of the upper legs and the lateral aspect of the lower legs and the toes. He reported there had been no change in his condition since onset. He reported moderate numbness in both upper and both lower extremities. The examiner opined that mild incomplete paralysis of the bilateral median nerves, ulnar nerves, sciatic nerves, external popliteal (common peroneal) nerves, musculocutaneous (superficial peroneal) nerves, anterior tibial (deep peroneal) nerves, internal popliteal (tibial) nerves, posterior tibial nerves, anterior crural (femoral) nerves, and internal saphenous nerves, was shown. The examiner opined that the Veteran’s peripheral neuropathy impacts his ability to work in that he has difficulty with the use of his hands, including typing, writing, drawing, and manipulating objects such as sorting; he has some difficulty with doors and jars; and he has difficulty with ambulation, which is slow and he is unsteady on his feet. The examiner opined that the Veteran would have difficulty functioning in an occupational environment due to difficulty with ambulation and being unsteady on his feet and a fall risk; he had to use a crutch on a regular basis. The examiner opined that sedentary activity would be an option, however he has difficulty with manual skills because of his upper extremity neuropathy. The examiner noted that the Veteran has a college degree in management, and had worked as a dishwasher, managing a grocery store owned by his family, and then as a merchandiser for a large company; he had not worked since 2012, when he retired. The examiner opined that the Veteran is a very poor occupational candidate for many reasons: he is severely overweight (morbid obesity), he has peripheral lower extremity neuropathy which limits his ability to ambulate, he is unsteady on his feet because of numbness in the feet, and he has additional factors that complicate or compromise his ambulation including a right hip replacement, pain in the left ankle, and pes planus. The examiner opined that the Veteran would have difficulty functioning in an occupational environment where upper extremity strength were necessary (lifting and carrying, etc.) or where find movements were important (typing, sorting, etc.). Based on this evidence, a September 2020 rating decision granted the Veteran a TDIU rating effective October 14, 2019. The Board finds noteworthy that the Veteran’s reported peripheral nerve symptomatology is nearly identical on the August 2012 VA examination as it is to the October 2019 VA examination, when the examiner offered a detailed opinion regarding the Veteran’s unemployability that is the basis of the TDIU award. Indeed, the Veteran reported on both examinations that his peripheral neuropathy of both upper and lower extremities had remained unchanged (had not progressed) since its onset, indicating consistent severity throughout. The Board finds that the evidence of record reasonably establishes that the Veteran’s service-connected neuropathy has since September 5, 2012 (as already acknowledged from October 14, 2019) been consistently of such nature and severity as to have precluded him maintaining employment in any regular substantially gainful occupation consistent with his education and occupational experience. Consequently, a TDIU rating is warranted from that [earlier effective] date. [The Board finds that the matter of entitlement to a TDIU rating was not raised by evidence or record prior to the receipt of the Veteran’s application for TDIU.] GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.