Citation Nr: 21028408 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-15 445A DATE: May 11, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The Veteran's diagnosed depression was not incurred in or aggravated by active service. 2. The preponderance of the evidence of record indicates that the Veteran does not have a diagnosis of PTSD related to an in-service stressor. CONCLUSION OF LAW 1. An acquired psychiatric disorder, to include depression, was not incurred in or aggravated during a period of active military service. 38 U.S.C. §§ 1131, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for establishing entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to June 1977. These matters come to the Board of Veterans' Appeals (Board) from a July 2015 Rating Decision denying service connection claims for migraine and depression. In an August 2016 rating decision, the RO denied the Veteran's claim for TDIU. The Veteran did not appeal from that decision and so the denial became final. In February 2019, the Board took jurisdiction of the claim for entitlement to TDIU because the Board found that the issue of entitlement to a TDIU was raised by the record. Also, in February 2019, the Board remanded the claims and recharacterized the Veteran's claim for depression as an acquired psychiatric disability. In July 2020 the Board considered the Veteran's claims for a migraine condition, which was denied, and for an acquired psychiatric disorder and TDIU, which were remanded. The issues of a psychiatric disorder and TDIU have been returned to the Board for adjudication. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that his diagnosed PTSD and depression are connected to service. In 2019, the Veteran described a stressor event that he stated had occurred during service at Fort Dix while he was in training. The Veteran reported that during a training exercise he was told to go through an area of water rather than around it. One of the trucks sank and 6 or 7 soldiers in it drowned. He reported that he had to pull the truck out and helped with the bodies. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110 ; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2016). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition pursuant to 38 C.F.R. § 4.125 (a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-V)); (2) credible supporting evidence that the claimed in-service stressors occurred; and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304 (f). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran's service treatment records (STRs) are negative for complaints, treatment, or a diagnosis of any psychiatric disorder. No evidence was present of a mental illness in service or at discharge, or of symptoms consistent with the Veteran's claims of PTSD or depression. On the contrary, clinical examination during his June 1977 separation examination revealed that psychiatric examination was within normal limits. Likewise, the Veteran's service personnel records are negative for markers of the stressors that the Veteran claims or a suggestion that the claimed stressor occurred. The file reflects that the Veteran served in Fort Dix, but there is no record of the claimed stressor event and no record that the Veteran sought any mental health or other treatment related to the claimed stressor event. At a June 2002 psychiatric evaluation, the Veteran indicated that he had been experiencing symptoms of depression for the past two and a half years. Notably, the Veteran did not attribute his symptoms to service. Rather, he reported that he had felt this way since a post service May 1997 motor vehicle accident. The Veteran denied any history of psychiatric or psychological treatment and there was no evidence of manic symptoms past or present. See June 2002 entry. At a July 2015 VA appointment, the Veteran was diagnosed with depression. The Veteran's post-service treatment records show that in 2005 and 2006, the Veteran was treated at the VA outpatient clinic (VAOPC) at Winston-Salem. Treatment notes indicate that in December 2005 the Veteran was positive for a depression screen and negative for a PTSD screen. In January 2006 the Veteran's medication was adjusted and he was given a mental health treatment referral. In September 2006, the Veteran's PTSD screen was negative. At a January 2014 VA appointment, the Veteran explained that he was depressed because he does not have any energy and that he was in constant pain. The treatment notes indicated that the patient reported a history of depression, but not PTSD. There are no VAOPC treatment notes discussing the Veteran's claimed stressor event at Fort Dix. Treatment records reflect a history of depression diagnosis, but no records mention PTSD or stressor events. See Salisbury VAMC records dated November 6, 2009, March 2012 Winston Salem treatment records, October 2014 Cone Health treatment records, VAOPC record July 2015 and 2016. At a June 2016 VA appointment the Veteran reported that his mood was "up and down" due to family stress. In July 2020, the Board found an August 2019 VA examination opinion inadequate. The Board found the opinion inadequate because the failure of the Veteran to report his in-service stressor prior the August 2019 VA examination was not indicative that such a stressor did not have a relationship to his diagnosed depression. In addition, there was no documentation of any efforts made to verify the Veteran's in-service stressor. For these reasons, the Board found the medical opinion inadequate and remanded the claim. It is noted that the August 2019 VA physician associated the Veteran's depression reports with family concerns and pain from his health disorders. In September 2020 the Veteran was evaluated with regard to his claimed PTSD. The Veteran again described that a stressor had occurred in service at Fort Dix during a training exercise. The examiner identified that the Veteran suffered from a current diagnosis of both PTSD and an unspecified depressive disorder and opined that it was not possible to differentiate which symptoms were attributable to each diagnosis. There was significant overlap of symptoms which the examiner opined prevented differentiation without resorting to speculation. The examiner opined that the Veteran's psychiatric conditions were at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reflected that the Veteran reported no pre-military mental health history and reported no mental health history while serving in the military. After the military, the Veteran reported he received mental health treatment. At the September 2020 evaluation, the Veteran claimed that a stressor incident occurred at Fort Dix. However, service connection for PTSD requires that the Veteran is able to present credible supporting evidence that a claimed in service stressor occurred. Despite a written request from the RO in August 2020, the Veteran did not provide information to verify his alleged in stressor. The Board reviewed the Veteran's entire claims file, including the Veteran's STRs, military personnel records, private treatment records, statements in support of the claim and evidence supplied by the Veteran. There were no records substantiating or confirming the claimed stressor and the Veteran has not provided assistance with regard to stressor information. The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012). The Veteran is advised "the duty to assist is not always a one-way street. If a 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 putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In light of the foregoing, the Board concludes that the Veteran's diagnosis of PTSD is based upon unconfirmed stressors. Thus, service connection for PTSD is not warranted. Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Moreover, neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances... we think It is inappropriate for the Board and the Veteran's Court to address only those procedural arguments specifically raised by the Veteran..."). Hence, there is no error or issue that precludes the Board from addressing the merits. The Board has considered and weighed the Veteran's statements and finds his statements made in connection with his claimed stressor to be of no probative worth and finds his reports not credible in light of the lack of documentation in his service records and the lack of confirmation of the alleged stressors. Waters v. Shinseki, 601 F.3d 1274 (2010). To the extent that the Veteran has been diagnosed with an acquired psychiatric disorder, other than PTSD, the Veteran's major depressive disorder is not connected to service, as there are no reports of any mental health disorder prior to or during service. While the September 2020 examiner attributed the current depressive disorder to service, this opinion is based on an unsubstantiated history as the Veteran's claimed experience of witnessing the drowning of soldiers during active duty is not supported by the evidence. Accordingly, this opinion is afforded no probative weight. For the foregoing reasons, the preponderance of the evidence is against the claims for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, and the benefit-of-the-doubt Doctrine is not for application. Accordingly, service connection for an acquired psychiatric disorder, to include PTSD and/or depression is denied. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran contends that he is totally disabled and suffers from right hand and shoulder pain and numbness caused by his service connected injuries. In addition, the Veteran stated that several knots were removed from his face due to a medical condition and that scars cover his body from frostbite. See November 2015 VA forms 21-8940 Application for Increased Compensation based on Unemployability and a Statement in Support of Claim VA Form 21-4138. In an August 2016 rating decision, the RO denied the Veteran's claim for TDIU. The Veteran did not appeal from that decision and it became final. In February 2019, the Board added a claim for entitlement to TDIU because the Board found that the issue of entitlement to a TDIU was raised by the record. The matter was remanded for further development. Subsequently, in March 2019 and August 2019, the Veteran associated VA forms 21-8940 Application for Increased Compensation based on Unemployability with the claims file. The Veteran indicated in March 2019 that he was prevented from securing or following any substantially gainful occupation and indicated that service connected disabilities interfere with employment: as due to "cold", a reference to frostbite related conditions. He further reported that he had not been under a doctor's care or hospitalized within the last 12 months for these conditions. The Veteran did not identify any employment in the last five years and indicated instead that during that time he was disabled. The Veteran reported that he left his most recent job because of his disability and has not tried to obtain employment since that time. The Veteran explained in April 2011 correspondence that he is totally disabled due to his service-connected right hand, shoulder, and scar disabilities. Social Security (SSA) records associated with the Veteran's file in November 2015 reflected that the Veteran reported in 2006 that he most recently worked as a driver from 1994 to 1999 and then intermittently performed various odd jobs working on cars for friends. SSA records dated 2002 indicated that the Veteran's last employment was in August 1998 working at a marketing company for five years performing a variety of jobs and that he left the job due to his physical injuries. Notes in the Veteran's SSA records indicate that he still had some capacity for part-time employment but there was a recommendation that the Veteran have access to healthcare for long term rehabilitation of his right arm deficiencies. See December 2001 entry SSA records. In July 2009, a Salisbury VAMC examination reflected that the Veteran broke his shoulder and hand in the 1980s. The Veteran reported sensory abnormalities, numbness in his right hand and weakness of his entire right upper extremity that was constant with no flares. The Veteran reported that he needed help dressing and used his left upper extremity more than his right even though he is right handed. The Veteran reported that in 1996 he was injured in a motor vehicle accident and has not been able to work since then. He indicated that prior to 1996 his arm did not affect him. In January 2011 the Veteran submitted a statement indicating that he was disabled and in November 2011 he submitted a statement indicating that his service connected illnesses had worsened. In December 2011 at the Winston Salem VA outpatient clinic, the physician notes indicated that the Veteran reported pain all over his body, his joints locked up in the cold weather, his feet and hands were numb which was ongoing for several years and he used prescription pain medication. He reported left shoulder pain that caused an inability to raise his arm due to pain which he reported had been ongoing for several years. In July 2013, the medical treatment records reflect that the Veteran experienced a stroke. In October 2019 the Veteran was afforded VA medical examinations. The Physician Assistant (PA) reported on the Veteran's peripheral nerve condition and cold injury residuals. He opined that the Veteran's inability to work was caused by the residuals of his 2013 stroke (CVA). The PA opined that it was the 2013 stroke, and not the Veteran's ulnar neuropathy or his cold injury residuals, that prevented him from working. It is noted that in addition to the Veteran's service connected upper left arm neuropathy and lower extremity cold weather injuries, the Veteran suffers from nonservice connected disabilities such as residuals of a stroke, low back, right shoulder, cataracts, Paget's disease, migraines, and depression. In addition, file notes indicated that after separating from service, the Veteran reportedly broke his shoulder and hand in the 1980s and was injured in a motor vehicle accident in 1996. An August 2019 VA examination reflected that the Veteran's non-service connected depression caused occupational and social impairment with reduced reliability and productivity. These non-service connected injuries and/or disabilities are not to be considered in determining whether TDIU is warranted. A TDIU contemplates the impact of service-connected disabilities only, and may be assigned 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 the service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. In this case, the Veteran's cold weather injuries stem from a common etiology. The left upper extremity, right upper extremity, and left lower extremity disabilities resulted from the Veteran's exposure to cold temperatures. While the Veteran's upper left extremity has a fracture, the record shows that he also has bilateral upper extremity cold weather residuals. Accordingly, the Veteran's combined rating of 60 percent for these disabilities is to be considered as one disability. This 60 percent satisfies the schedular consideration for TDIU under 38 C.F.R. § 4.16(a), Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. 57 Fed. Reg. 2317 (1992). A TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, in the matter herein, there are inconsistent medical reports regarding the medical conditions that contribute to the Veteran's claimed unemployability. The Board may only consider independent medical evidence of record to support its findings but cannot render its own medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, the Board cannot conclude on its own that the Veteran is unable to work due solely to his service-connected disabilities. This is a medical determination which the Board is not competent to render. See 38 C.F.R. § 3.159(a)(1). Accordingly, the Veteran shall be afforded a VA medical addendum opinion on the TDIU claim to assess the impact of his service-connected conditions on his employability. The matters are REMANDED for the following action: 1. If there are any outstanding medical treatment records, they should be associated with the file. 2. After obtaining any such records, obtain an addendum opinion from an appropriate practitioner to determine the combined effects of the Veteran's service-connected disabilities and any resulting impairment. The examiner should specifically address how the Veteran's service-connected disabilities alone result in functional impairment and comment on how the service connected disabilities impact the Veteran's ability to function in an occupational environment. The examiner is advised that the Veteran has been awarded service connection for left upper extremity neuropathy; residuals of a cold weather injury of the right lower extremity; and residuals of a cold weather injury of the left lower extremity The examiner is requested to consider and discuss the following: the October 2019 medical opinion, the Veteran's service connected disabilities prior to experiencing his 2013 stroke, the Veteran's reports predating his 2013 stroke reflected in the SSA records that he was unable to work, the two different referenced accident/injury events in 1980 and 1996, and the other medical diagnoses suffered by the Veteran that are not service connected. The examiner should opine as to the impact of the Veteran's service connected disabilities on the Veteran's vocational pursuits. The examiner should opine as to the service connected disabilities only, the levels of occupational impairment and symptoms, to include their frequency and severity. The examiner should review the entire record. All findings should be reported in detail and a complete rationale is requested for each opinion that is rendered. 3. If the RO determines that an opinion is deficient in any manner, corrective action should be taken. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.M. Schneider 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.