Citation Nr: 21023585 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-00 631A DATE: April 21, 2021 ORDER Service connection for a psychiatric disorder other than depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a psychiatric disorder other than the already service-connected depressive disorder at any time during or approximate to the pendency of the claim. 2. Resolving reasonable doubt in his favor, throughout the rating period on appeal, the probative evidence shows that the Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for psychiatric disorder other than depressive disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.384. 2. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1970 to December 1970. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in July 2014. In an August 2018 decision, in pertinent part, the Board reopened a previously denied claim of service connection for a psychiatric disorder, granted service connection for depressive disorder, granted an increased 30 percent rating for service-connected migraine headaches, and remanded the issues of service connection for a psychiatric disorder other than depressive disorder and entitlement to a TDIU to the AOJ for additional development. In rating decisions dated in January 2019 and August 2020, the AOJ effectuated the Board's decision, and granted service connection and a 70 percent rating for depressive disorder, effective November 2, 2012, and assigned a 30 percent rating for service-connected migraine headaches from August 28, 2013. The AOJ later granted a 50 percent rating for migraine headaches from November 18, 2020. The case was subsequently returned to the Board. Service connection for a psychiatric disorder other than depressive disorder The Veteran contends that he has a current psychiatric disorder that began in service or is due to his service-connected migraines. As noted above, service connection has already been established for depressive disorder. The question remaining before the Board is whether the Veteran has another current psychiatric disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease, or is proximately due to or aggravated by a service-connected disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability which is proximately due to, the result of, or aggravated by service-connected disability. 38 C.F.R. § 3.310. Certain chronic diseases, including psychoses, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.384. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of major depressive disorder, as evidenced by the November 2020 VA examination, but does not have a current diagnosis of a psychosis. The term “psychosis” includes any of the following disorders listed in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5): brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance/medication-induced psychotic disorder. 38 C.F.R. § 3.384. Records reflect that the Veteran was previously diagnosed with schizophrenia in 1972 and 1973. See November 1972 VA treatment note and January 1973 VA examination. Schizophrenia is an enumerated condition under 38 C.F.R. §§ 3.309(a), 3.384; Walker, 708 F.3d 1331. However, the Board finds that service connection is not warranted for a psychosis, to include schizophrenia, since the Veteran does not have a current diagnosis of a psychosis, a psychosis was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA and private treatment records show the Veteran was not diagnosed with a psychosis until November 1972, nearly two years after his separation from service and a year outside of the applicable presumptive period. Service connection for a psychiatric disorder may still be granted on a direct basis; however, the preponderance of the evidence is against finding that the Veteran has a current psychiatric disorder other than the already service-connected depressive disorder. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Veteran had active service from July 1970 to December 1970. A psychiatric disorder was not noted on entrance medical examination in July 1970. Service treatment records show that the Veteran was hospitalized from late November 1970 to early December 1970 for evaluation of his headaches. It was noted that he had been followed by neurology for these headaches, but no organic pathology could be found. He was diagnosed with passive dependency, chronic, mild; manifested by nervousness, mild depression at times over his situation, and suicidal ideation in association with the migraine headache syndrome. The examiner indicated that the condition existed prior to service. On medical examination performed for medical board purposes in December 1970, the Veteran’s psychiatric system was clinically normal on examination. A late November 1972 VA medical record reflects treatment for complaints of irritability, hostility, and aggressiveness. The Veteran reported that he came home nervous, and said that his headaches and insomnia started in service. The diagnosis was undifferentiated schizophrenia. On VA psychiatric examination in January 1973, the Veteran reported that during service, he fell from log obstacles, became confused, and was hospitalized in the psychiatric ward. Psychological testing was performed, and he was diagnosed with schizophrenia, undifferentiated, with depressive features. VA treatment records dated from 2002 to the present show that the Veteran was first diagnosed with a depressive disorder in May 2012. On initial psychiatric evaluation at that time, he was diagnosed with depression not otherwise specified (NOS), rule out major depressive disorder. Subsequent VA treatment records reflect treatment for depressive disorder. Although a private physician, Dr. O.V., noted that the Veteran had anxiety episodes and a depressed mood in August 2013, she did not specifically diagnose an anxiety disorder. VA examiners in June 2018 and November 2020 found that the Veteran has only one current psychiatric disorder under the DSM-5 criteria, specifically major depressive disorder, and VA and private medical records do not reflect a current diagnosis of another psychiatric disorder. While the Veteran contends that he has a psychiatric disorder that is related to service or service-connected migraines, he has not contended that he has a separate psychiatric disorder other than depressive disorder. The Board concludes that the Veteran does not have a current diagnosis of a psychiatric disorder other than the already service-connected depressive disorder, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a psychiatric disorder other than already service-connected depressive disorder, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to a TDIU The Veteran contends that he is unable to work due to service-connected disabilities. In a June 2014 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported that all of his service-connected disabilities prevented him from securing or following any substantially gainful occupation. He said his disabilities affected full-time employment in January 2005, and he last worked full-time in 2004. His prior employment included working on a full-time basis at the U.S. Postal Service (USPS) from 1975 to January 2005 as a postmaster. He said he left his last job because of disability and received retirement pay. He reported four years of college education. In a February 2019 VA Form 21-8940, the Veteran reported that he had to quit working due to his mental health and migraines. He reported that his service-connected mental condition and migraine headaches prevented him from securing or following any substantially gainful occupation. He stated that he earned a Bachelor of Arts degree in 1976 and worked as an administrator for the USPS on a full-time basis from 1975 to 2005. Total disability is considered to exist when there is any impairment 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). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, 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. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. 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, 529 (1993). The Court recently defined “substantially gainful employment,” holding that there is both an economic and a noneconomic component; 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,” while 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). The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran’s history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Whether a service-connected disability or disabilities renders a Veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care professionals. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). During the rating period on appeal, the Veteran’s established service-connected disabilities included major depressive disorder (rated 70 percent disabling), and migraine headaches (rated 10 percent from December 15, 1970, 30 percent from August 28, 2013, and 50 percent from November 18, 2020), with a combined disability rating of 70 percent from November 2, 2012, 80 percent from August 28, 2013, and 90 percent from November 18, 2020. Throughout the rating period on appeal, the threshold schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) are met. Throughout the rating period on appeal, VA outpatient treatment records reflect ongoing treatment for depressive disorder and migraine headaches, including hospitalization for depressive disorder in September 2018. On initial psychiatric evaluation in May 2012, the Veteran reported that he earned a bachelor’s degree in English literature and a bachelor’s degree in recreation. He began working for the USPS in 1975 until 2005, when he retired for “emotional reasons.” Upon review of the record, the Board finds that the record reflects that the Veteran was unemployed throughout the rating period on appeal. In May 2014, the Veteran’s former employer, USPS, indicated that the Veteran worked there from August 1975 to January 1, 2005, was a postmaster, and last worked in November 2004. It was noted that his employment was terminated due to disability, and he received disability retirement benefits. At a June 2018 VA examination, the Veteran reported that a USPS physician sent him for psychiatric treatment with Dr. S. after he had an anger outburst at work, and reported that she treated him for six months. VA treatment records reflect that the Veteran’s service-connected depressive disorder was described as severe during a psychiatric hospitalization in September 2018, and moderate in March 2020 and June 2020. The November 2020 VA examiner opined that the Veteran’s major depressive disorder was mild, and that he was not unemployable on account of his mental condition, since he retired from the USPS in 2005 after 31 years of labor, and began psychiatric treatment in 2012. The examiner stated that the Veteran began psychiatric treatment seven years after retirement, and therefore there was no relationship between retirement in 2005, and his mental disorder in 2012. The examiner opined that the mental disorder symptoms are not severe enough to interfere with his relationships, daily activities, family responsibility, financial debts, or social functioning. Based on the review of the medical records, and, after taking a psychiatric history and performing a mental status exam, and taking into consideration his social outcome, the examiner opined that his service-connected neuropsychiatric condition was not severe enough to render him unemployable. With regard to service-connected migraine headaches, the evidence indicates that during the period prior to November 2020, the Veteran experienced migraine headaches that were prostrating and occurred approximately once a month. On VA migraine examination in November 2020, the examiner opined that the Veteran's service-connected migraine headaches impacted his ability to work, noting that when he worked at the USPS, he had severe prostrating headaches about twice per month, which required him to miss work. He left the work premises and frequently took unscheduled breaks. The examiner opined that the Veteran had very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. After a review of all of the evidence of record, the Board finds that throughout the rating period on appeal, the evidence is at least in equipoise as to whether the Veteran's service-connected migraine headaches and depressive disorder, especially in combination, are of a nature and severity as to preclude him from engaging in the type of work for which he is qualified by reason of past education, work experience and training. The record shows that his service-connected disabilities produce significant physical and psychiatric limitations, and play a major role in his inability to obtain and maintain employment that could be considered substantially gainful, in that they affect his ability to perform this level of work on a consistent basis. Thus, with application of the benefit-of-the-doubt rule, the Board finds that the criteria for a TDIU are met under 38 C.F.R. § 4.16 (a). CHRISTOPHER J. O’DONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.