Citation Nr: 21010957 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-51 313 DATE: February 26, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder, other than PTSD, due to an event, injury, or disease in service. 2. The evidence of record shows that the Veteran’s service-connected disabilities preclude him from following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, other than PTSD, are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1966 to May 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. 1. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, The Veteran contends that he suffers from an acquired psychiatric disorder, other than PTSD, that is related to service. The Veteran has already been awarded service connection for PTSD. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence is against finding that the Veteran suffers from depression directly related to his military service. His STRs are void for indications of an acquired psychiatric disorder, other than PTSD. The Veteran underwent an examination in November 2020. The examiner noted the Veteran did not suffer from a psychiatric condition during service. At an August 2010 mental health consult he was diagnosed with posttraumatic stress disorder (PTSD). At a subsequent August 2010 visit he was noted to have depression and anxiety. Following an examination, the examiner concluded the Veteran has one psychiatric condition, PTSD. The examiner concluded it is less likely than not that the Veteran suffers from a psychiatric disorder, other than PTSD, that was incurred in or caused by an in-service injury, event or illness. VA treatment records indicate in August 2013 he had a psychiatric screening that was negative for depression. At an April 2015 visit he was noted as being diagnosed with PTSD. In February 2017, following a psychiatric screening he was found to be negative for depression. In August 2020, he was noted as suffering from PTSD, and no other psychiatric conditions. In April 2015, a private DBQ was submitted which noted the Veteran had PTSD, major depressive disorder, and insomnia. The examiner concluded the Veteran is totally disabled as a result of his psychiatric conditions, which are related to his time in service. Although the Veteran believes he suffers from an acquired psychiatric disorder, separate from the diagnosed and service-connected PTSD, due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner’s opinion. Although there are reports of a diagnosis of depression in April 2015, throughout the course of the appeal the Veteran’s treatment records have been void for a diagnosis of an acquired psychiatric disorder, other than PTSD. At the November 2020 examination he was found to have no psychiatric diagnoses but for PTSD. The November 2020 examiner provided a detailed rationale and based the findings on the Veteran’s lay reports and medical evidence of record. The private opinion was conclusory and did not include a detailed rationale. Therefore, the private opinion is afforded little probative value. The November 2020 examiner’s findings and opinion are probative, as they are based on accurate medical history and provide explanations that contain clear conclusions and supporting data. Unfortunately, there are no probative opinions to the contrary. The most probative evidence of record does not show that the Veteran suffers from an acquired psychiatric disorder, separately manifested from his PTSD or directly due to service. Therefore, the claim must be denied. 2. Entitlement to Individual Unemployability A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. Although the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a). In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, neither the Veteran’s nonservice-connected disabilities nor advancing age may be considered. The Veteran is service connected for PTSD with a 70 percent evaluation, diabetes with a 20 percent evaluation, diabetic neuropathy of the left upper extremity and of the right upper extremity each with 20 percent evaluations, tinnitus with a 10 percent evaluation, diabetes neuropathy of the left lower extremity and of the right lower extremity each with 20 percent evaluations, and status-post fracture of the left foot with a noncompensable evaluation, and hypertension with a noncompensable evaluation. The Veteran is in receipt of a 90 percent evaluation from May 4, 2012. Therefore, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU based on his service-connected disabilities. In May 2012 the Veteran filed a claim for TDIU, reporting he worked as a security guard from January 2000 to April 2011. He reported his PTSD, depression, anxiety, diabetes, and memory loss, prevent him from securing or following a substantially gainful occupation. In a March 2014 statement from the Veteran’s spouse, she relayed that the Veteran’s diabetes, neuropathy, psychological distress, colon cancer, and thyroid nodules have resulted in a loss of the Veteran’s employment. At an August 2014 visit he was noted as having employment problems. At a December 2014 VAC visit, the Veteran was noted as being unemployed. At an October 2016 visit he was noted as being unemployed. At a May 2017 visit, he was noted as being unemployed and wanting to start a business. A September 2018 visit noted him as working part time. In an April 2015 DBQ, the examiner concluded the Veteran is totally disabled as a result of his psychiatric conditions. In November 2020, he had a PTSD examination, and was found to have occupational and social impairment with reduced reliability and productivity. He served during service as an aircraft mechanic crew chief. Following service, he worked for Pacific Electric, and reported having problems with his supervisors. He then worked in different sales positions. His last position was working as a security guard, and he reported being terminated for falling asleep on the job, and last working in 2014. He has depressed mood, anxiety, sleep impairment disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationship, and in adapting to stressful circumstances, obsessional rituals, and impaired impulse control. He has hypertension for which he takes medication daily to control, as well as diabetes for which the takes oral hypoglycemics daily. He has diabetic neuropathy and experiences numbness and tingling in his bilateral upper and bilateral lower extremities. At the November 2020 neuropathy examination, the examiner indicated the Veteran’s neuropathy would have an impact on his ability to work, is he would have limited ability in typing, writing 10 minutes at a time. In February 2021, the Veteran submitted an updated 21-8940, wherein he reported working as an Uber driver from January 2015 to March 2020. He reported being unable to continue with employment as a result of his diabetes, and diabetic neuropathy. He noted the date he became he too disabled to work as being September 5, 2020. At the Board hearing he reported driving for Uber around 20 hours per week, and that at times when he does not feel well due to his PTSD he does not drive. He reported anger issues, difficulty with authority figures, difficulty being in crowds, and difficulty remembering things. Though the Veteran has experience in a sedentary occupation driving for Uber, he last worked in March 2020. The Veteran’s employment as an Uber driver was on a part-time basis, with the last time he worked on a full-time basis being in 2013. His psychiatric symptoms would interfere with any employment be it sedentary or physical. As is stated above, he has motivation issues which would interfere with his ability to work be it from home or in an office setting. Further, his neuropathy would impact any sedentary employment, as his ability to type is impacted. The Veteran has consistently reported his service-connected conditions have a significant impact on his ability to secure employment. Based on his work history, the realistic chance of his obtaining and maintaining substantial gainful employment is low. The Board concludes the criteria for an award of TDIU are met. The Board will not assign an effective date for the award of TDIU and will allow the RO to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curium order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). (Continued on the next page)   A TDIU is granted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.