Citation Nr: 21009837 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-24 943 DATE: February 23, 2021 ORDER Entitlement to service connection for major depressive disorder, to include as secondary to service-connected ischemic heart disease (IHD), is denied. Entitlement to service connection for a psychiatric disability for the purpose of establishing eligibility for treatment only, under the provisions of 38 U.S.C. § 1702, is denied. Entitlement to a total disability rating based on unemployability due to service-connected disability, prior to October 7, 2015, effective May 7, 2011, is granted. REMANDED Entitlement to an initial rating in excess of 60 percent prior to April 24, 2019, and a rating in excess of 100 percent thereafter, for service-connected IHD is remanded. FINDINGS OF FACT 1. The evidence of record does not demonstrate that it is at least as likely as not that the Veteran’s major depressive disorder is etiologically related to active service, or proximately due to, or aggravated by, any service-connected disability, including IHD. 2. The evidence of record does not demonstrate a psychiatric disability developed within two years of separation from active duty service. 3. The Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected IHD prior to October 7, 2015, beginning May 7, 2011. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for major depressive disorder, to include as secondary to service-connected ischemic heart disease have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for entitlement to service connection for a psychiatric disability for the purpose of establishing eligibility for treatment only, under the provisions of 38 U.S.C. § 1702 have not been met. 38 U.S.C. § 1702, 5107; 38 C.F.R. § 3.2, 3.384, 17.109(a). 3. The criteria for entitlement to a total disability rating based on unemployability due to service-connected disability, prior to October 7, 2015, effective May 7, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to April 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, the RO, in a July 2019 rating decision, awarded the Veteran an increased 100 percent rating effective April 24, 2019 for service-connected IHD. As this action did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the Board has recharacterized the issue as shown on the title page. The Board last remanded the issues on appeal in August 2018. The Board’s previous August 2018 remand directives were substantially complied with as to the issues of entitlement to service connection for major depressive disorder, to include as secondary to service-connected IHD, and entitlement to service connection for mental illness for the purpose of establishing eligibility for treatment only, under the provisions of 38 U.S.C. § 1702. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons discussed below, the Board finds remand is necessary regarding the Veteran’s claim for entitlement to an initial rating in excess of 60 percent prior to April 24, 2019, and a rating in excess of 100 percent thereafter, for service-connected IHD. Id. The Board notes that its previous August 2018 Remand also denied the issue of entitlement to an effective date earlier than May 7, 2011, for the grant of service connection for IHD. Board decisions are final when issued. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Therefore, the Board’s decision is final, and the issue is no longer part of the appeal. The Board notes that after the RO issued a June 2020 Supplemental Statement of the Case (SSOC), additional evidence related to other claims, including VA examinations, were associated with the claims file. A waiver is not necessary, nor is a remand for initial consideration of the evidence by the RO, as the newly associated evidence is not relevant to the claims decided herein. 38 C.F.R. § 20.1304(c). Additional VA treatment records have also been associated with the claims file; however, they are duplicative of the prior evidence and/or not relevant. Id. Entitlement to service connection for major depressive disorder, to include as secondary to service-connected IHD. Entitlement to service connection for a psychiatric disorder for the purpose of establishing eligibility for treatment only, under the provisions of 38 U.S.C. § 1702. The Veteran seeks service connection for depression, to include as secondary to service-connected IHD. See May 2012 VA Form 21-526. Generally, service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish direct-incurrence service connection for a disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection is granted where a service-connected disability causes or aggravates a nonservice-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Direct incurrence service connection The Veteran has a current diagnosis of unspecified depressive disorder. See April 2019 VA examination. Thus, the first element of service connection, the existence of a present disability, has been met. See Shedden, 381 F.3d at 1167. With respect to the second element of service connection, in-service injury or disease, the Veteran’s representative asserted that it was possible the Veteran’s depression was caused by his time in service, including his military occupation as military police, and deployment to Vietnam. See June 2015 VA Form 9. A November 1978 report of medical history notes the Veteran’s report of family problems in the past; however, the Veteran’s service treatment records are silent for any complaints, diagnosis, or treatment for any acquired psychiatric disorders, including depression. The Veteran was afforded an initial VA examination in August 2012. The VA examiner noted the Veteran’s report that he drank a lot in service “because there wasn’t much else to do,” and that he denied any problematic effects. See August 2012 VA examination. The Veteran denied any psychiatric or other relevant medical history regarding his military history. Id. The Veteran reported he was seen at a Vet Center approximately 25 years prior and states the counseling was very helpful. Id. He reported he did not have any other mental health treatment. Id. The VA examiner did not address direct incurrence service connection. The Veteran was afforded a second VA examination in April 2019. The VA examiner noted the Veteran’s report that he recalled depression symptoms beginning sometime after he left military service but did not recall a specific date, and that he was drinking heavily around the same time. See April 2019 VA examination. The VA examiner noted the Veteran’s prior report of onset of dysphoric mood symptoms sometime following discharge from military service that worsened related to marital conflicts. Id. The Veteran reported that though he experienced a few “close calls” while in Vietnam, he clarified that he did not think any of those events still continue to bother him and did not think his problems are because of Vietnam. Id. The VA examiner noted the Veteran denied any legal or behavioral history in the military and post-military. Id. The Veteran reported he drank heavily in service and for a few years following service and has been abstinent for more than 20 years. Id. The VA examiner opined that it was less than at least as likely as not that the Veteran’s depressive disorder was due to military service. Id. As rationale, the VA examiner noted the Veteran’s service treatment records are silent as to evidence of any psychiatric disturbance on active duty. The VA examiner also noted the Veteran’s report of drinking heavily in and after service which confounds any attempt to infer the Veteran had a bona fide mental disorder in service, and there was no empirical way to determine the etiology otherwise in the presence of active substance abuse. Id. The VA examiner noted review of the Veteran’s C-file and medical record. Id. As such, the Board finds the April 2019 VA examination to be adequate and assigns it significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). To the extent the Veteran contends that his depressive disorder is etiologically related to his period of active duty service, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he has not been shown to have the medical training or knowledge to be deemed competent to establish an etiological nexus between his diagnosed depressive disorder and his active duty service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, the Board attaches more weight to the April 2019 VA examination than to the Veteran’s lay statements regarding the nexus between his depressive disorder and his active duty service. The Veteran, nor his representative, have provided any competent evidence to the contrary. The Veteran’s VA treatment records demonstrate the Veteran’s diagnosis for depressive disorder; however, they do not contain any indication the Veteran’s condition was etiologically related to his active duty service. The Board recognizes that the Veteran’s representative has argued that the Veteran’s in-service drinking should be construed as self-medication. See Attachment to VA Form 9, received June 2015. However the Veteran reported that though he drank alcohol in service, there was no problematic effects, and that he did not relate any symptoms to his time in serving in Vietnam. See August 2012 and April 2019 VA examinations. As such, there is no evidence of a link between the Veteran’s current depressive disorder and his active duty service. Accordingly, entitlement to service connection, on a direct-incurrence basis, is not warranted. The Board also finds that service connection for medical treatment for a psychiatric disability under 38 U.S.C. § 1702. Relevant to this case, 38 U.S.C. § 1702 allows for service connection for a Veteran who, in pertinent part, served in the Vietnam era who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before May 8, 1977, in the case of a Vietnam era veteran, shall be deemed to have incurred such disability in the active military service. Under 38 C.F.R. § 3.384, the term “psychosis” is defined so as to include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. The Board finds that the evidence of record does not indicate any evidence of diagnosis or symptoms related to psychosis as defined by VA regulations manifesting during service or within two years following service. Moreover, the Veteran, nor his representative, have provided any evidence the Veteran has been diagnosed, treated, or manifested psychosis as defined by VA regulations in service or within two years of service. An addendum opinion issued August 2019 by the same examiner who conducted the April 2019 examination stated it was less likely than not that the Veteran’s depression was noted in service with continuity of symptomatology or manifested within the presumptive period after discharge. Therefore, service connection is not warranted pursuant to 38 U.S.C. § 1702. Secondary service connection The Board also finds that secondary service connection is not warranted. The threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence that the disability for which service connection is sought is proximately due to, or aggravated beyond natural progression by, the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As noted, the Veteran is currently diagnosed with unspecified depressive disorder. The record demonstrates the Veteran is service connected for IHD. The Veteran was more recently service connected for non Hodgkins lymphoma, diabetes mellitus, bilateral lower extremity radiculopathy, erectile dysfunction and a scar from splenectomy in October 2018. Therefore, the first and second criteria for secondary service connection have been met. See Wallin, 11 Vet. App. at 512. In regard to the third element of secondary service connection, the Board finds there is no competent evidence that the Veteran’s depressive disorder is proximately due to, or aggravated, by his service-connected disabilities, to include IHD. The Veteran’s VA treatment records do not contain any indication the Veteran’s depression were caused by or aggravated by any service-connected disabilities, to include IHD. The Veteran was afforded a VA examination in August 2012. The VA examiner opined that it was less likely than not that the Veteran’s current mild depressive symptoms were caused or aggravated by his service-connected IHD. See August 2012 VA examination. As rationale, the VA examiner noted the Veteran’s long-term low-grade depression that was briefly exacerbated by conflict with his wife; however, nothing about his report suggested onset or exacerbation of depressive symptoms associated with his IHD. Id. In April 2019, the VA examiner opined that it was less likely than not the depressive disorder diagnosis was proximately due to or the result of the Veteran’s service-connected heart condition. See April 2019 VA examination. The VA examiner agreed with the August 2012 VA examiner’s medical opinion that the Veteran’s depressive disorder was less likely than not proximately due or the result of the Veteran’s heart condition. Id. The VA examiner further noted that there was no new evidence found which logically connects his currently diagnosed depressive disorder to his service-connected medical conditions including ischemic disorder. Id. The Board acknowledges that the Veteran is competent and credible to describe symptoms that he can perceive and describe. See Jandreau, 492 F.3d at 1377. However, he has not been shown to have the medical training or knowledge to be deemed competent to establish an etiological nexus between his diagnosed depressive disorder and his service-connected disabilities, including IHD, or aggravation beyond natural progression by his service-connected disabilities, as such opinions require medical expertise and knowledge that he has not been shown to possess. See Kahana, 24 Vet. App. at 435. As such, the Board attaches more weight to the August 2012 and April 2019 VA examinations than to the Veteran’s lay statements. Moreover, the Veteran, nor his representative, have provided any competent evidence to the contrary. In sum, the Board finds that, other than unsupported contentions, there is no competent evidence in the record of any etiological relationship between the Veteran’s depressive disorder and his service-connected disabilities, including IHD, or active duty service. Thus, the criteria for service connection for major depressive disorder, to include as due to or aggravated by service-connected disabilities, have not been met. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, the Veteran’s claims are denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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).  Entitlement to a total disability rating based on unemployability due to service-connected disability, effective May 7, 2011. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran submitted a claim to entitlement to service connection for IHD in May 2012. As the issue of entitlement to a TDIU is part and parcel of the initial rating for that disability, the effective date of a TDIU may be as early as the effective date applicable to that claim. See Rice, 22 Vet. App. at 454. Therefore, the Board is obliged to review the evidence of record to determine whether the criteria for TDIU were met from May 7, 2011. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16. “Substantially gainful employment” contains economic and noneconomic components. 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,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In determining whether a TDIU is warranted, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA adjudicator, not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In determining whether a veteran can secure and follow substantially gainful occupation, consideration should be given to the veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. Here, effective May 7, 2011, the Veteran was service connected for IHD, rated as 60 percent disabling. As such, the Veteran met the schedular percentage criteria since May 7, 2011. See 38 C.F.R. § 4.16(a). In a January 2016 rating decision, the RO awarded the Veteran TDIU effective October 7, 2015, the date the RO received the Veteran’s VA Form 21-8940. In the Veteran’s October 2015 VA Form 21-8940, the Veteran contended that he last worked and became too disabled to work in 2011 due to his service-connected IHD, had two years of college, did not have any additional education or training since service, and stated he was not able to work. In August 1995 private treatment records, a private physician noted the Veteran’s diagnosis of coronary heart disease, and noted he restricted the Veteran’s activities, and advised him not to return to a strenuous job requiring lifting more than 50 pounds, climbing ladders, or working in extreme weather conditions. The Veteran was afforded a VA examination in August 2012. The VA examiner noted the Veteran worked as a police office for seven years, refurbished industrial filters for two years, and did janitorial work briefly until he had a heart attack in 1995. See August 2012 VA examination. The VA examiner noted the Veteran’s IHD did not impact his ability to work; however, the Veteran reported he had not been working since 1995. Id. At an August 2012 Mental Disorders VA examination, the VA examiner noted the Veteran’s report of working “odd jobs” after military service, and that the janitorial work was too physically strenuous. See August 2012 Mental Disorders VA examination. In an April 2019 VA examination, the Veteran also reported previously working as a police officer following active service, and that he stopped working in late 1995-1996 due to a heart condition. See April 2019 VA examination. In light of the above, and in resolving reasonable doubt in the Veteran’s favor, the Board finds that TDIU is warranted from May 7, 2011, the same effective date the Veteran was awarded service connection for IHD. Given the restrictions on the Veteran’s employability, the Board finds that the effects of the manifestations of the Veteran’s service-connected IHD are sufficiently incapacitating as to result in unemployability in light of the severity of his symptoms, occupational history, and experience as evidenced by the Veteran’s private and VA treatment records. Moreover, the RO awarded TDIU based on the same evidentiary record at the time of the January 2016 rating decision. Therefore, the evidence sufficiently establishes that the Veteran was prevented from securing or following substantially gainful employment since May 7, 2011. Accordingly, TDIU is warranted effective May 7, 2011. REASONS FOR REMAND Entitlement to an initial rating in excess of 60 percent prior to April 24, 2019, and a rating in excess of 100 percent thereafter for service-connected IHD is remanded. The issue was last adjudicated in a May 2015 Statement of the Case (SOC). Since the prior adjudication, VA has obtained additional records relevant to the claim, to include an April 2019 VA examination. Although such evidence was considered in a July 2019 rating decision which awarded the Veteran an increased 100 percent rating, effective April 24, 2019, the Veteran has not been issued a Supplemental Statement of the Case (SSOC) reflecting consideration of the additional evidence. Accordingly, remand is required for the issuance of a SSOC as indicated in the Board’s prior August 2018 remand directives. See Stegall, 11 Vet. App. at 271; 38 C.F.R. §§ 19.31(b), 19.37. The Board also notes that the Veteran was afforded a VA examination in April 2019. The VA examiner indicated the Veteran had a scar that was painful or unstable, had a total area equal to or greater than 39 square centimeters, or located on the head, face or neck associated with his service-connected IHD indicating a separate rating could be assigned. See April 2019 VA examination. However, the VA examiner did not provide a separate VA examination of the Veteran’s scar associated with his service-connected IHD as required and did not provide any further critical evaluative facts about the Veteran’s scar. As such, on remand, the Veteran should be afforded a VA examination to assess the Veteran’s scar associated with his service-connected IHD and increased rating claim. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of the Veteran’s scar associated with his service-connected IHD indicated in the April 2019 VA examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s scar with VA rating criteria. 3. Then, readjudicate the issue on appeal in light of all of the additional evidence added to the record since the May 2015 SOC. If any benefit sought on appeal is denied, the Veteran and his representative should be provided a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.