Citation Nr: 21040476 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-59 517 DATE: July 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include depression, is denied. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. An acquired psychiatric disorder was not documented during service, nor was a psychosis shown within one year of separation from service, and the weight of the competent evidence is against finding a nexus between a post-service diagnosis of any psychiatric disorder and service or a service-connected disability. 2. The most probative evidence indicates that the Veteran's service-connected back disability, bilateral lower extremity radiculopathy, bilateral shoulder disabilities, tinnitus, right hand disorder, hemorrhoids and scarring, did not preclude him from substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for a TDIU, on an extraschedular basis, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1988 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was remanded in January 2019 and September 2020, for additional development, which has been completed. 1. Entitlement to service connection for an acquired psychiatric disability Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including psychosis and arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking entitlement to service connection for depression, which he contends was incurred in service, to include as due to medication taken therein. Specifically, he asserts that his psychiatric symptoms were due to in-service administration of the antimalarial drug mefloquine. In support of his claim, he submitted a drug information sheet for mefloquine, which noted that potential side neuropsychiatric side effects of the drug that could persist after discontinuing administration of the drug, including nightmares, visual and auditory hallucinations, anxiety, depression, unusual behavior, and suicidal ideations, among others. In the alternative, the Veteran argues that his psychiatric disorder is secondary to his service-connected traumatic arthritis of the lumbar spine with thoracic strain. In this case, the medical evidence shows that the Veteran has been diagnosed with an acquired psychiatric disorder. The service treatment records show that upon returning from deployment to Somalia in March 1993, the Veteran was dispensed two pills of mefloquine to prevent/treat malaria. He was advised to continue treatment for a total of four weeks. The service treatment records are entirely negative for complaints, treatment or diagnosis of a psychiatric disorder. On separation examination in February 1996, the Veteran's psychiatric system was clinically evaluated as normal and he denied a history of depression or excessive worry. A VA examination report in May 1996, noted that imaging studies of the lumbar spine showed alignment within normal limits with minimal degenerative changes. An August 1996 rating decision granted service connection for traumatic arthritis of lumbar spine with thoracic strain (a back strain). After service, treatment records show that Veteran sustained five to six work-related injuries while working for a trucking company. On VA examination on January 5, 2008, the Veteran reported back pain. The examiner noted no decreased motion or limitation to walking. He was diagnosed with degenerative joint disease of the lumbar spine. On January 18, 2008, years after service, the Veteran suffered a severe back injury that required surgical treatment. Treatment notes show that he developed severe stenosis at L3-4 with moderate changes at L2-3 and L4-5. The Veteran underwent compression and laminectomy of L2-L5 for spinal stenosis in April 2008. The surgery damaged the nerves in his back and worsened his back pain. As a result of his back surgery he required extensive physical therapy and a cane for ambulation. Records from the Veteran's employer at that time indicated that the Veteran was off of work from January 2008 until September 2008 on Workers Compensation and that he last worked in November 2008. VA treatment records in January 2011 documented a diagnosis of depression. While he reported being depressed for most of his life, he stated that his current depression of three years was associated with his second divorce and also reported that he felt unable to work due to back pain. It is important for the Veteran to understand that, at some points, like the above, the Veteran's own prior statements provide highly probative evidence against his claim. Mental health treatment notes after 2011, identified multiple stressors including chronic pain, general medical condition, unemployment, raising multiple children, problems with his ex-wife, family relationship problems and history of childhood physical abuse, but his primary stressors were financial in nature. Based on the evidence noted above, the Board finds that an acquired psychiatric disorder was not shown in service, and psychosis was not shown in service or within one year following discharge from service. Accordingly, competent evidence linking the current disability to service or a service connected disability is needed to substantiate the claim. On VA mental health disorders examination in March 2013, the examiner diagnosed dysthymic disorder and opined that the condition was less likely as not proximately due to or the result of his traumatic arthritis lumbar spine with thoracic strain. The examiner explained that the Veteran reported that he was most distressed by his finances. The examiner determined that although his pain issues were a real source of distress, it was one of wide variety of sources of stressors unrelated to physical pain, including employment, marital and divorce problems. A VA examiner in August 2016, noted that the Veteran reported that he felt depressed because he could no longer be the breadwinner in his family. However, the examiner noted that the evidence was inconsistent with a finding that the Veteran was incapable of working, and in fact, he was capable of sedentary employment. Psychologically, there were no significant limitations to his functional abilities, but rather the Veteran felt he was unable to work. Therefore, the examiner opined that the Veteran's depression appeared to be based on his perceived limitations, as opposed to actual limitations or even actual physical pain. Such a report only provides more evidence against this claim. A VA examiner in June 2019, noted that a review of the treatment records supported diagnoses of persistent depressive disorder and unspecified anxiety disorder began subsequent to Veteran's back surgery in 2008, which is when the Veteran sought treatment for his mental health disorder. There was no evidence of a mental health disorder prior to his back surgery in 2008. The examiner explained that the Veteran's psychiatric symptoms were a response to his efforts to control or cope with his (post-service) back disability after the work-injury and surgical treatment in 2008. The examiner opined that it was less likely than not that the currently diagnosed disorders were etiologically related to the Veteran's period of active service. The examiner explained that the service treatment records failed to document any psychiatric symptoms and in fact, none were noted prior to 2008 before his back surgery. As noted above, the Veteran served on active duty in the Army from July 1988 to March 1996. On VA examination in May 2020, it was noted that the Veteran experienced mild depression related to his restricted workability, inadequate income, frequent pain, and other psychosocial matters. In the past, his difficulty with two failed marriages was a major concern, but he downplayed these stressors on examination. The examiner noted that the Veteran reported his major regret and resentment was connected to his 2008 work-related back surgery. Therefore, it was less likely than not that the Veteran's depression was related to service, or his service-connected arthritic lumbar spine with thoracic strain. The examiner attributed the Veteran's depression and anxiety disorders, which were initially diagnosed after 2008, to his work-related back surgery, as consequence from that treatment. In an addendum opinion report in September 2020, the examiner addressed the Veteran's contentions that his psychiatric disorder was caused by the in-service administration of mefloquine, and opined that the condition was less likely than not due to treatment with mefloquine. The examiner acknowledged that it had been reported that mefloquine could be associated with symptoms of depression and anxiety. The literature suggested that people taking mefloquine should stop this medication, or consult with their physician, if certain neuropsychiatric conditions developed during said treatment. If depression and/or anxiety developed while taking mefloquine, then these psychiatric symptoms could persist into the far future. The prevalence of the concurrence between mefloquine and psychiatric symptoms was not known. However, here the Veteran's psychiatric symptoms did not develop concurrent with mefloquine treatment in March 1993 persisting after cessation of treatment, but rather his psychiatric symptoms initially manifested approximately 15 years after he had used mefloquine. The medical literature did not warn against the delayed development of depressive/anxious symptoms long after the cessation of treatment with mefloquine. The Board finds the 2020 VA examiner's opinions to be highly probative. The opinions were based on a thorough review of the claims file, including the service treatment records and examination of the Veteran, and the opinions are internally consistent and consistent with other evidence of record, including other VA examination findings. Moreover, the examiner provided adequate rationale for the opinions. Accordingly, the VA examiner's opinion is entitled to great probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position). In this regard, the Board must find that the service and post-service treatment records provide particular negative evidence against this claim clearly indicating a back disability not associated with the Veteran's service-connected back strain. The competent medical evidence unequivocally supports a finding that the Veteran's psychiatric disorder is a result of the 2008 back injury and surgery, as well as other post-service stressors in his life that the Veteran himself has noted in treatment. To the extent the competent medical evidence associates the psychiatric disorder with the current back disability, the evidence is clear that the 2008 post-service back injury was very severe and necessitated surgery followed by extensive treatment, including physical therapy. Very notably, a VA examination conducted a few days prior to the January 2008 occupational injury was negative for any complaints or clinical findings noted in connection with treatment rendered after the 2008 injury. The post-service injury and the treatment that followed this serious injury is unrelated to the service-connected back disability. It has a separate and distinct etiology with acute onset in January 2008, and it was not caused or aggravated by his service-connected back disability. Significantly, there is no competent medical opinion linking the Veteran's psychiatric disability to any aspect of his service, or the service connected back disability. The evidence on this point, for the reasons noted above, is unusually clear: With each medical opinion the VA obtains, more evidence is provided clearly and unmistakably against the claim that the Veteran's service-connected back strain had any connection with the Veteran's current back problem or the service-connection issue before the Board. Concerning the mefloquine drug information sheet and potential neuropsychiatric effects, the Board observes that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998). The medical article submitted by the Veteran in this case was not accompanied by the opinion of any medical expert linking his psychiatric disability to in-service administration of mefloquine. Thus, the medical article submitted by the Veteran is insufficient to establish the medical nexus opinion required for causation. See Sacks, 11 Vet. App. at 317 (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996). While the Board has considered this issue (it was, in part, the basis for the two prior remands in this case), the evidence in this case now fully supports a finding that the current problem is not related to service. While the Veteran is competent to report as to the observable symptoms he experiences and their history, the ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d at 1376-77. The Board finds that the specific, reasoned opinions of the VA examiner of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which he relied to form the opinions, and the examiner provided adequate rationale for the conclusions reached. While it is clear that the Veteran has problems, the key issue is what has caused those problems. More importantly, the service and post-service medical records clearly provide evidence against the claim that the Board cannot ignore, indicating a problem that is not related to the Veteran's service or the service-connected disability. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claim. In sum, a psychiatric disorder was not shown in service or for many years thereafter, and the most probative evidence is against a finding that the Veteran has a diagnosed psychiatric disorder that is causally related to service or a service connected disability. Accordingly, the preponderance of the evidence is against the claim, and it is denied. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Owens v. Brown, 7 Vet. App. 429, 433 (1995). In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. 2. Entitlement to a TDIU The Veteran contends that his service-connected disabilities, to specifically include his back disability, render him unemployable. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching that 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 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to 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). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, 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 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). Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration. Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration. Here, service connection is currently in effect for: A back disability, evaluated as 20% disabled Left lower extremity radiculopathy, evaluated as 20% disabled; Right lower extremity radiculopathy, evaluated as 10% disabled; Right shoulder tendonitis, evaluated as 10% disabled; Left shoulder impingement syndrome, evaluated as 0% disabled; Tinnitus, evaluated as 10% disabled; Fractured right hand, evaluated as 0% disabled; Hemorrhoids, evaluated as 0% disabled; Scar from removal of cyst on chest, evaluated as 0% disabled; Scar of the left little finger, evaluated as 0% disabled; and Left side hernia scar, evaluated as 0% disabled. The Veteran's combined disability evaluation is 60 percent. The question before the Board is whether the Veteran is unemployable by reason of his service-connected disabilities, taking into account his educational and occupational background. The Board finds that the greater weight of the probative evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. In a 2009 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran reported that his service-connected low back disability prevented his employment. The evidence shows that the Veteran was employed as a truck driver from September 2002 to November 2009. The Veteran's employer reportedly terminated the Veteran due to layoffs. Thereafter the Veteran worked in an assembly line for a few weeks in 2009. His educational background is somewhat unclear. While in 2009 he reported having completed two years of college, it is apparent that after 2009 the Veteran pursued a bachelor's degree. Concerning his back disability, on VA back examination in October 2011, the Veteran reported that after he was laid off as a truck driver, he worked at a factory assembly line for a short time until he stopped. He looked for other employment but was unsuccessful. The examiner noted that the low back condition with radiculopathy, did not impair the Veteran's ability to obtain and maintain gainful sedentary and physical employment, with the ideal job incorporating both types of work. There were some restrictions to sitting or standing for more than 30 minutes without being able to change positions. He would not be able to lift or carry more than 50 pounds. The examiner noted that the Veteran was morbidly obese and his body habitus was a significant comorbidity complicating his service connected low back disease. A VA examiner in August 2016, determined that while the Veteran's back disability impaired his ability to perform work activities associated with manual labor, however, medium or light work, sedentary work was possible with appropriate restrictions and accommodations. With regards to the service-connected tinnitus, a VA examiner in November 2011 determined that the condition had no impact on his ability to work. Concerning the Veteran's right shoulder tendonitis, left shoulder impingement syndrome, fractured right hand, hemorrhoids and scarring, the evidence did not show, nor did the Veteran claim, that these service-connected disabilities precluded employment. The Veteran was awarded disability benefits from the Social Security Administration (SSA) effective November 2012, due to his back disability with radiculopathy, as well as his nonservice connected psychiatric disability and obesity. However, an SSA award is not controlling as to his TDIU claim. SSA benefits are based on different criteria than are VA disability benefits. Moreover, while the Veteran has been found to be disabled by the SSA, it was not based solely on his service-connected disabilities. Overall, the findings of SSA provides evidence against this claim as it indicates multiple nonservice-connected problems are, in part, the cause of the issue. The SSA records and treatment records clearly indicate significant post-service disabilities that are not related to service. The detailed evidence that the Board has reviewed does not always supports the current evaluations, let alone a higher evaluation or TDIU. The post-service treatment records provide particularly negative evidence against this claim. In some cases, as noted above, the Veteran's own statements do not support the claim that it is his service-connected problems that have caused the Veteran to not work. Therefore, the Board finds that while the Veteran's service-connected disabilities were productive of some occupational limitations, the objective medical evidence, to include VA examination reports, did not support a finding that the Veteran's service-connected disabilities, separately or combined, precluded his employment. The VA examiners addressed the question of employability directly and their opinions are consistent. Moreover, the VA examination opinion reports, as outlined above, fail to show that the Veteran's service-connected disabilities either singularly or jointly, precluded the Veteran from gainful employment, and collectively provided evidence against this finding. The reports, as a whole, clearly suggest that the Veteran is either exaggerating his service-connected problems or attempting to associate post-service issues/disability/injuries with a finding of TDIU caused by his service. The Board acknowledges lay statements from the Veteran addressing the impact of his service-connected disabilities on his ability to work during the period of the appeal. No one is suggesting the Veteran's service-connected disabilities do not cause the Veteran some problems. If he did not have issues with his service-connected problems, there would be no basis for compensable evaluations for these disabilities. While the Veteran is competent to report symptoms he experiences, an opinion as to the limitations on gainful employment due to his service-connected disabilities (and not his age or nonservice-connected problems) is beyond his medical expertise. See Jandreau, supra. Thus, any such lay statements regarding him being unable to work are not competent or sufficient. Simply stated, both the best factual evidence, including occupational history reported by the Veteran, and the best medical evidence, in the form of the examinations cited above, provides evidence against this claim. As noted above, the Veteran appears to be attempting to use disabilities not related to service as the basis for why he cannot work (which may, in fact, be true), but does not provide a basis to grant TDIU based on the service-connected problems. Accordingly, the Board concludes that referral of this issue for extraschedular consideration of TDIU pursuant to 38 C.F.R. § 4.16 (b), is not appropriate, and that a TDIU is not warranted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.