Citation Nr: 21040252 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-00 421 DATE: July 2, 2021 ORDER Service connection for an acquired psychiatric disorder, to include a neuropsychiatric condition, a nervous disorder, anxiety, depression, and posttraumatic stress disorder (PTSD), as secondary to service-connected disabilities is denied. A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. A preponderance of the evidence of record indicates that the Veteran's current acquired psychiatric disability, to include a neuropsychiatric condition, a nervous disorder, anxiety, depression and PTSD, did not have its onset during his active military service and was not otherwise caused by his active military service or his service-connected disabilities. 2. The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include a neuropsychiatric condition, a nervous disorder, anxiety, depression, and posttraumatic stress disorder (PTSD), as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to December 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision from a Regional Office (RO) for the Department of Veterans Affairs (VA). The Board previously considered this appeal in September 2020 and remanded this issue for further development including scheduling a VA examination. In March 2021, the Board again remanded this appeal for an addendum medical opinion. The case returned to the Board for further appellate review. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for neuropsychiatric condition to encompass any acquired psychological disorder, to include nervous disorder, anxiety, depression and posttraumatic stress disorder (PTSD). 1. Entitlement to service connection for an acquired psychiatric disorder, to include, a neuropsychiatric condition, a nervous disorder, anxiety, depression, and posttraumatic stress disorder (PTSD), as secondary to service-connected disabilities The Veteran essentially contends that his current symptomatology is related to his active duty service. The Veteran has argued direct service connection, that his symptoms first manifested during service. The Veteran has also argued secondary service connection, that his condition may be caused or aggravated by another service-connected disability. See December 2008 VA Form 21-4138 Statement in Support of Claim. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38C.F.R. §3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran is presently service connected for a kidney stone condition and De Quervain's tenosynovitis of the right hand. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Cohen v. Brown, 10 Vet. App. 128 (1997). The evidence clearly shows the Veteran has an acquired psychiatric disorder. He has a diagnosis of depression, not otherwise specified. Post-service medical treatment records reflect numerous mental health diagnoses, including adjustment reaction with anxiety. Therefore, the question in this case is whether a causal relationship exists between the Veteran's acquired psychiatric disorder and his active service. The Veteran's service treatment records (STRs) are silent as to any complaints, treatments, or diagnoses of a psychiatric disorder. In a December 1971 service enlistment examination, the Veteran was noted to be psychiatrically normal, and he reported that he did not have depression or excessive worry, loss of memory or amnesia, frequent trouble sleeping, or nervous trouble of any sort. In a November 1974 separation examination, the Veteran was found normal regarding neurologic or psychiatric problems. Post service VA treatment records show that in July 2008 the Veteran denied neuropsychiatry problems. In November 2009, the Veteran complained of forgetting where he goes or where he leaves his things and referred that this has been happing for the last 8 months. In March 2011, the Veteran reported that his "emotional condition" began in service. In July 2012, the Veteran reported depressive mood, loss of his father and recent divorce. VA treatment records show negative PTSD screenings in July 2008, April 2014 and January 2017. The Veteran underwent a VA examination in November 2012. The VA examiner diagnosed the Veteran with depression, not otherwise specified and noted that symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The VA examiner found that the Veteran's depression was less likely than not related to his service. The rationale is that there is no medical evidence of any mental condition until 2010 as the Veteran consistently denied any mental health history prior to 2010, when he had treatment for depression. In May 2013, the Veteran provided a letter from Dr. N.A.O., MD. Dr. NAO stated that the Veteran presents symptoms of decrease interest in most of his usual activities, fatigue, low energy, concentration and memory problems, frustration, sadness, isolation, crying spells, depressed mood, alteration in sleep and eating patterns, irritability, mood changes, worthless sensation, hopelessness, helplessness and diminish frustration tolerance. The physician stated that the Veteran has been presenting these symptoms since active service, that the he asked to leave service early to take care of his sick mother and because the petition was denied, he became very angry and started to behave in an irrational way, not taking care of his personal appearance, was anxious, irritant and frustrated. The physician opined that the Veteran's nervous problem is at least as likely as not is related to service due to time of presentation of symptoms and the incident he had while in service. Pursuant to the September 2020 Board remand, the Veteran was afforded a VA examination for his psychiatric condition in October 2020. He was diagnosed with unspecified depressive disorder. The examiner noted that the Veteran did not meet the diagnostic criteria for PTSD under DSM-5. The VA examiner opined that the Veteran's unspecified depressive disorder was less likely than not related to military service. The VA examiner reasoned that there is no evidence of psychiatric findings or psychiatric treatment prior, during or within one year after discharge of military service. The examiner added that the Veteran sought formal psychiatric treatment in 2010, almost 36 years after discharge. "There is no relation between military service and the mental condition found in 2010. A temporal relationship between the neuropsychiatric disorder and the Veteran's military service is not established. The above mentioned condition, unspecified depressive disorder, bears no relation with the military service. Regarding stressors: the contention of whether or not the claimed stressor is related to the Veteran's fear of hostile military or terrorist activity is not supportive by the evaluation done today by this examiner." Subsequently, in an April 2021 addendum, the same VA examiner opined that the Veteran's unspecified depressive disorder, is not due, secondary, incurred, or associated in any way to the service connected kidney stone condition and De Quervain's tenosynovitis of the right hand. The Veteran sought psychiatric care around 2010, almost 36 years after the development of medical conditions. The above-mentioned conditions in terms of etiology or pathophysiology are not related one with the other. The examiner determined that that Veteran's, unspecified depressive disorder and the service connected result of kidney stone condition and De Quervain's tenosynovitis of the right hand, are in different time frames, different etiology, different pathophysiology and different anatomical system, no relation one with the other. Regarding aggravation, the examiner added that "there is no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment prior, during, nor psychiatric treatment within one year after discharge from the military service. The veteran sought psychiatric care in 2010, thirty-six years after, his military discharge, and the events that led to his service-connected condition. A temporal relationship between the neuropsychiatric disorder and the service-connected physical conditions is not established. The Veteran failed to establish a relationship between the neuropsychiatric condition and the events that led to his service-connected condition. The service-connected physical conditions [of] kidney stone condition and De Quervain's tenosynovitis of the right hand, preceded for 36 years the veteran's neuropsychiatric condition, therefore the Veteran's neuropsychiatric condition could not be aggravated by the service-connected physical conditions." The Board acknowledge the Veteran's assertions that he experienced various stressful events while in service. However, while the Veteran, as a lay person, is competent to report factual events, he is not competent to offer an opinion regarding the etiology of his acquired psychiatric disabilities. The question regarding the etiology of such a disability involves the attribution of multiple potential etiologies and is a complex medical issue that cannot to be addressed by a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is too "medically complex" for lay diagnosis). In weighing the evidence of record, the Board finds the November 2012 and October 2020 VA mental health examinations, and the April 2021 addendum, to be the most probative evidence for determining the Veteran's acquired psychiatric disorder claim. The Board notes that these VA examinations were conducted by a clinical psychologist or psychiatrist who reviewed the Veteran's claims file and subsequently provided a detailed opinion based upon applicable DSM criteria. Prejean v. West, 13 Vet. App. 444 (2000) (among factors for assessing the probative value of medical opinion are physician's access to the claims file and the thoroughness and detail of opinion); 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Conversely, the May 2013 private internist's statement contains no evidence that the internist was also a psychologist or psychiatrist, or otherwise qualified to diagnose PTSD or other mental disorders. See e.g. Sklar v. Brown, 5 Vet. App. 140, 146 (1993) (Observing that a specialist's opinion as to a medical matter outside of his or her specialty to be given little weight); Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that mental health professionals making diagnoses 'are presumed to know the DSM requirements applicable to their practice and to have taken them into account.'). This statement does not reflect the private physician's diagnosis was based upon the DSM criteria in accordance with 38 C.F.R. §§ 3.304 (f), 4.125(a). Moreover, there is no indication that the private internist reviewed the Veteran's claims file. In light of these circumstances, the Board assigns greater probative weight to the November 2012 and October 2020 VA mental health examinations, as qualified VA psychologists and psychiatrists examined the Veteran, reviewed his medical history, and found a mental disorder based on applicable DSM criteria that is not related to the Veteran's service. In sum, the weight of the evidence shows that acquired psychiatric disorder is not related to service, to include as secondary to a service-connected disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim of service connection for an acquired psychiatric disorder is denied. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran contends that his service-connected disabilities render him unable to secure and follow substantial and gainful employment. The Veteran has been service-connected for kidney stone at non compensable from June 25, 2008 and at 20 percent from October 31, 2016 and for De Quervain's tenosynovitis, right hand, with a calcification at non compensable from June 25, 2008 and at 10 percent from August 25, 2012. The Veteran's combined evaluation is 0 percent from June 25, 2008, 10 percent from August 25, 2012 and 30 percent from October 31, 2016. As such, the Veteran does not meet the schedular rating necessary for schedular TDIU entitlement at any time during the appeal period. Where the TDIU schedular percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), to the Director of Compensation and Pension (C&P) Service for extra-schedular consideration. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). The grant of an extra-schedular rating for a TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (1996). As such, before the Board can refer a TDIU claim to the Director of C&P Service for an extra-schedular evaluation, the Board must determine that a veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disability or disabilities. Therefore, the ultimate question for the Board is whether a claimant is capable of performing the physical and mental acts required by employment; not whether he or she can find employment. Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. VA shall consider all information lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From the records available on file, the Board notes that the Veteran has a high school degree and one year of auto mechanic studies. After service, the Veteran worked as boat mechanic for 6 years. See November 2012 VA examination for mental disorders. He noted that became unable to work since November 1974. See December 2016 VA 21-8940. In a November 2012 VA examination for mental disorders, the Veteran reported that he stopped working full time due to renal disease and that he was presently working part-time as auto mechanic. On a March 2014 VA examination for hand and finger conditions, the Veteran reported his thumb is painful at the base and pain increases if he shakes someone's hand or if he has to grip with strength. The examiner noted pain could significantly limit functional ability during a pain flare up or when the right thumb is used repetitively over a period of time. The examiner noted that the Veteran's hand, thumb and/or finger condition impact his ability to work as he was a boat mechanic and use of tools is affected since he has right thumb pain with strong hand grip. On March 2017 VA examination for kidney condition, the examiner noted that the Veteran's kidney condition does not impact his ability to work. The examiner further noted that the Veteran has worked in an auto body shop doing small jobs "here and there" but does not have an employment. Upon consideration of the record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran was precluded from securing substantially gainful work by virtue of his service-connected disabilities. None of the VA examiners who have evaluated the Veteran have determined that any of the Veteran's service-connected disabilities precluded substantially gainful employment. As for the March 2014 examiner's noting that the Veteran's hand condition impact his ability to work as a boat mechanic when using a strong hand grip; however, such limitations would not result in the Veteran being precluded from securing any employment as a result of this impairment. The March 2017 examiner noted that the Veteran has been doing small jobs at an auto body shop. As such, the Board finds that the Veteran is capable of performing the physical and mental acts required by employment. (Continued on the next page) Based on its review of the evidence, the Board does not find that referral of the Veteran's claim to the Director of Compensation and Pension (C&P) Service for an extra-schedular evaluation is warranted as the evidence on file does not support the Veteran's claim that he is unable to obtain and secure substantial and gainful employment due to his service-connected disabilities. As such, the Board finds that the Veteran is not unemployable for the purposes of TDIU extra-schedular consideration. For the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the claim for a TDIU. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero, 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.