Citation Nr: 21024906 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 12-14 838 DATE: April 26, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and as secondary to his service-connected disabilities is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. PTSD did not originate as the result of the Veteran’s service or due to his service-connected disabilities. 2. The Veteran’s service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to establish service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). 2. The criteria to establish a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1963 to August 1966. In September 2018, the Board remanded the Veteran’s claims to obtain an addendum medical opinion. The Veteran did not report for the examination but due to irregularities in the notifications provided to the Veteran, the Board again remanded the Veteran’s claims in April 2020 in a second effort to obtain the requested examinations. Following the April 2020 Board remand, the Veteran could not be reached to schedule the requested examination. The Veteran was informed that he should expect communication to schedule an examination in an April 2020 letter. An October 2020 report of general information indicates the examination was cancelled because the Veteran could not be contacted for rescheduling. The Veteran has a duty to keep VA apprised of his current address. Jones v. West, 12 Vet. App. 98 (1998). VA is not required to “turn up heaven and earth to find him.” Hyson v. Brown, 5 Vet. App. 262 (1993). The Courts have noted that duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has been given two separate opportunities to report for a VA examination and has not complied. No mail sent to the Veteran has been returned as undeliverable and there is no evidence of an address change. Therefore, the Board will adjudicate the Veteran’s claims based on the current evidence of record. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310 (a) where it is demonstrated that a service-connected disorder has caused a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A June 1966 service treatment record (STR), indicates that the Veteran was admitted to the neuropsychiatric service after learning his wife was seeking a divorce. The clinician noted that the Veteran’s symptoms worsened when he was denied emergency leave. A separate June 1966 STR notes that the Veteran was diagnosed with situational anxiety. The Veteran’s STRs indicate that he was diagnosed with personality disorder of the emotionally unstable type during active service and was found unsuitable for further service by a July 1966 Medical Evaluation Board. In an August 1981 examination, the Veteran was noted to have complaints of a nervous condition. The clinician noted a diagnosis for generalized anxiety disorder and noted that the Veteran’s in-service anxiety appeared to be related to the separation from his wife. A May 1991 workers’ compensation report indicates that the Veteran injured his low back in September 1988. In a June 1999 psychiatric evaluation, the clinician noted that the Veteran had panic disorder with agoraphobia and recurrent major depressive episodes and chronic depression. In a May 2000 social work note, the Veteran indicated that he had not worked since 1988. The Veteran stated that he was injured on the job and collected worker’s compensation for five years. The clinician noted an assessment of maladapted coping strategies with symptoms of depression and possibly PTSD but did not opine as to the etiologies of these conditions. In a separate May 2000 treatment record, the Veteran alleged witnessing an aircraft crash while in Vietnam. The Veteran also stated that he worked in a foundry until 1988 but injured his back and has not worked since that time. In a January 2001 social work assessment, the Veteran noted difficulty maintaining a job due to “having Vietnam on his mind and drinking.” The Veteran stated that he was last employed by a steel foundry from 1967 to 1988. In a January 2002 submission, the Veteran included a telegram sent to his wife toward the end of his service indicating that he had been hospitalized due to a nervous condition. In a May 2004 treatment note, the Veteran denied feelings of depression and the clinician noted that the Veteran did not appear depressed but was irritable. In an August 2004 treatment note, the Veteran alleged that he witnessed a pilot burning in a plane crash while in-service. The Veteran could not provide researchable details or produce service records corroborating this event. The clinician noted a diagnosis for personality disorder, not otherwise specified. In a December 2005 treatment record, the Veteran had a positive depression screen. In a July 2009 application for TDIU, the Veteran noted that he began to have heart problems in 1985. He stated that his failing health and limited education made it difficult to obtain employment beyond hard physical labor which he was unable to complete due to his physical condition. In a March 2010 treatment note, the Veteran was noted to be in treatment for PTSD and depression. The clinician noted that the Veteran was alert, cooperative, with no evidence of anxiety, cognitive impairment, formal thought disorder or mania. However a December 2011 VA examiner found that the Veteran did not meet diagnostic criteria for PTSD. The examiner concluded that the Veteran had a dysthymic disorder. The Veteran noted that he was primarily bothered by being physical incapable of engaging in activities he used to enjoy, such as riding motorcycles and fishing because of his physical injuries and health problems. The Veteran told the examiner that when he engaged in these activities, he spends days recovering due to the resulting pain and fatigue. The Veteran relayed a narrative describing an injured pilot that he witnessed while in Vietnam. However, the examiner noted that an event involving an injured pilot was not discussed by the Veteran in contemporaneous statements or documentation outlining the reasons for his separation from service. The examiner indicated that the contemporary evidence documented the Veteran’s distress and anxiety began to increase in severity after he received a letter from his wife requesting a divorce. In July 2013, the Veteran was afforded a VA examination. The examiner opined that the Veteran’s dysthymic disorder and personality disorder were not the result of his service-connected medical conditions of coronary artery disease (CAD) and diabetes. The examiner indicated that the Veteran reported having feelings of depression shortly after leaving the military, and distress due to marital issues, finances, alcohol, and most recently the death of his wife. The Veteran noted that he stopped working in 1989 because his employer “went under.” The Veteran also reported that he has not been able to work due to medical problems. In August 2017, the Veteran was afforded a VA examination. The examiner stated that the Veteran may not be able to tolerate medium to heavy physical tasks due to his diabetic peripheral neuropathy. In August 2017, the Veteran was afforded a heart VA examination. The examiner noted that the Veteran’s heart conditions do not impact his ability to work. In a May 2019 treatment record, the Veteran was diagnosed with PTSD. However, the clinician did not opine as to the etiology of the Veteran’s condition, and there is no other information in the treatment record indicating the basis of the clinician’s assessment. The clinician also noted that the Veteran socializes with some friends and goes to American Veterans (AMVETS) with them. The clinician stated that the Veteran enjoys having a dog and spending time with friends and fellow veterans. The Board has considered the Veteran’s assertions that he has a mental condition caused by his military service and/or his service-connected disabilities. The Veteran is not competent, however, to offer an opinion as to the etiology of this type of condition due to the medical complexity of the matter involved. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). A preponderance of the evidence is against a finding that the Veteran has a diagnosis for a mental condition that originated during service or because of his service-connected disabilities. The Veteran was noted to have situational anxiety in-service related to a conflict with his wife and his dissatisfaction with service. However, following service the Veteran was not seen with relevant complaints until August 1981, approximately 15 years after service separation. The July 2013 examiner noted that the Veteran’s mental health conditions were not the result of his service-connected medical conditions of CAD and diabetes. There is no competent medical evidence that the Veteran’s mental conditions began in or because of service or because of the Veteran’s service-connected conditions. Therefore, service connection is not warranted, and the claim is denied. TDIU VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). The Veteran met the schedular requirements for TDIU as of January 10, 2007. However, the Veteran must also show that his service-connected disabilities make him unable to follow or secure a substantially gainful occupation. The Veteran last worked in 1988. The Veteran stopped working due to a back injury he sustained while working, as evidenced by the workers compensation documentation in the file. In an August 2017 examination, the Veteran was noted to be unlikely to be able to work in a medium to heavy labor environment due to balance issues associated with his peripheral neuropathy. In December 2011, the Veteran noted that he sometimes rode a motorcycle or fished but was sore after participating in these activities. In an August 2017 CAD examination, the examiner noted that the Veteran’s heart conditions did not limit his ability to work and in a May 2019 treatment record, the Veteran discussed socializing with friends, going to AMVETS, and caring for his dog. The Veteran’s combined disability rating is 70 percent. This rating compensates, as far as can practicably be determined, the average impairment of earning capacity resulting from the Veteran’s disabilities. 38 C.F.R. § 4.1. Thus, the currently assigned ratings already contemplate impairment in the Veteran’s ability to work. The Board has considered the Veteran’s statements regarding the difficulty of employment due to his physical limitations, however, the Board does not find that the Veteran is unemployable because of his service-connected conditions. Therefore, the Veteran’s TDIU claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wozniak, 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.