Citation Nr: 21030280 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-26 583 DATE: May 18, 2021 ORDER Entitlement to a separate compensable rating for a psychiatric disorder as a residual of the Veteran's service-connected prostate cancer is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not have a mental condition that conforms to a DSM-5 diagnosis. 2. The Veteran's current disabilities are not so severe as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for separate compensable rating for a psychiatric disorder as a residual of the Veteran's service-connected prostate cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1968 to February 1970, to include service in the Republic of Vietnam and at Camp Lejeune. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge. In August 2019, the Board granted an initial 40 percent rating for prostate cancer residuals and remanded the issues of entitlement to a TDIU and entitlement to a separate compensable rating for a psychiatric disorder as a residual of the Veteran's service-connected prostate cancer. 1. Entitlement to a separate compensable rating for a psychiatric disorder as a residual of the Veteran's service-connected prostate cancer is denied. During the August 2019 Board hearing, the Veteran and his representative asserted that a separate compensable rating is warranted for an acquired psychiatric disorder, specifically depression, as a residual of the Veteran' service-connected prostate cancer. In Esteban v. Brown, the United States Court of Appeals for Veterans Claims (Court) held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. 6 Vet. App. 259, 261 (1994). VA may only award compensation for a mental condition that conforms to a diagnosis within the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020), analyzing 38 C.F.R. §§ 4.125, 4.130. Here, the Veteran's claim turns on the whether he has a mental condition that conforms to a DSM-5 diagnosis. At the time of the August 2019 Board hearing, the Veteran's VA and private medical records show that he did not have a diagnosed mental condition. Following the hearing, the board remanded the appeal, in part, to obtain a VA psychiatric examination to identify the nature and severity of any current psychiatric disorder. Following the examination in March 2020, a psychologist determined that the Veteran does not have a current psychiatric disorder that conforms to a DSM-5 diagnosis. The psychologist reported that the Veteran completed the Symptom Checklist 90 (SCL90) and the Beck Depression Inventory as part of the examination: scoring in the non-distressed level on the SCL 90, but in the very depressed range on the Beck Depression Inventory. The psychologist highlighted that the Veteran had more than a dozen depression screenings in his VA treatment records, including several after his 2013 prostate cancer surgery. Each of the screenings revealed no distress. The psychologist explained that such results were consistent with his Veteran's presentation during the examination, which revealed a lack of interest in seeking professional behavioral healthcare and positive quality of life (employed, appears to enjoy the work, spends time with good friends at breakfast 1-2 times per week, very attentive, and loving to his two young adult daughters who have successfully almost completed college, and his long-term marriage). The psychologist further noted that the Veteran has never experienced suicidal or homicidal ideation and has not history of mental health hospitalizations. The Board finds that the psychologist's opinion that the Veteran does not have a psychiatric disorder that conforms to a DSM-5 diagnosis is highly persuasive. In this regard, a determination as to whether the Veteran has a current psychiatric disorder is well within the psychologist's expertise. Additionally, the psychologist's opinion was based on diagnostic testing, in-person examination and review of the lay and medical evidence of record. Furthermore, the psychologist's opinion is consistent with the fact that none of the medical evidence of record shows that the Veteran has been diagnosed with a DSM-5 disorder. In light of the psychologist's uncontroverted opinion that the Veteran does not have a mental disorder that conforms to a DSM-5 diagnosis, the Board cannot assign a separate compensable rating for a psychiatric disorder as a residual of his service-connected prostate cancer. Martinez-Bodon; see also Long v. Wilkie, 33 Vet. App. 167 (2020) (en banc) In reaching this decision, the Board considered the Veteran's report of depression, but finds that a DSM-5 disorder, such as depression, is not a simple medical condition that the Veteran is competent to self-diagnose. In this regard, the Veteran has not indicated, and the evidence does not suggest, that he possesses the requisite, specialized clinical training to diagnosis a DSM-5 disorder. Accordingly, he is not competent to diagnose a mental disorder that conforms to a DSM-5 diagnosis, and thus, his opinion to this effect carries no probative value. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In sum, as the Veteran does not have a current psychiatric disability, to include depression, a separate compensable rating for a psychiatric disorder as a residual of the Veteran's service-connected prostate cancer is not warranted. 2. Entitlement to a TDUI is denied. The Veteran also seeks entitlement to a TDIU. Throughout the appeal, the Veteran's prostate cancer residuals have been rated 100 percent from June 25, 2013, and 40 percent disabling from February 1, 2014; and his erectile dysfunction has been rated noncompensably disabling. During the August 2019 Board hearing, the Veteran testified that service-connected voiding dysfunction impacts his employment to the extent that he has to change absorbent undergarment 3-4 times per day. He explained that as a bus driver, he is unable to get off the bus to relieve himself, and, as a result, often has to sit in a soiled undergarment. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall 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). Where, as here, the Veteran does not meet the schedular criteria for a TDIU, an extraschedular TDIU may be warranted where the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 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, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board finds that the Veteran has been engaged in substantially gainful employment throughout the appeal. In this regard, the Veteran has been employed as a bus driver since 2008. He works 30 hours per week and his earned annual income is approximately $26,000.00 per year. See VA Form 8940 (December 2019). The Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court explained that the phrase "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16(b) has two components: an economic one and a noneconomic one. 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." Id. The Veteran's employment does not meet the economic component of unable to secure and follow substantially gainful employment. In this regard, the Veteran's earned annual income has exceeded the poverty threshold for one person throughout the appeal. Additionally, the Veteran has been an employee of a county school system and there is no indication, from the Veteran, or otherwise, that he is employed in a protected environment. Additionally, the fact that the Veteran is employed affirmatively opposes the noneconomic component of "unable to secure and follow a substantially gainful occupation." This component goes to the Veteran's individualized ability to "secure and follow" such employment, with specific attention to the following: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray, 31 Vet. App. at 73. (Continued on the next page) Critically, the Board cannot find that the Veteran's service-connected disabilities are so severe as to preclude substantially gainful employment, where, as here, he has been employed throughout the appeal. As such, the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU. For these reasons, a TDIU is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.