Citation Nr: 21041992
Decision Date: 07/10/21	Archive Date: 07/10/21

DOCKET NO. 18-30 989
DATE: July 10, 2021

ORDER

Entitlement to service connection for an acquired psychiatric disorder is denied.

Entitlement to service connection for osteoarthritis and psoriatic arthritis is denied.

Entitlement to a temporary total rating following a total right hip replacement on June 8, 2016, is denied.

The appeal of the issue of entitlement to a temporary total rating following a total left hip replacement on January 5, 2018, is dismissed as moot.

Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.

Entitlement to an earlier effective date than June 25, 2017, for the grant of service connection for tinnitus is denied.

Entitlement to eligibility for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only is denied.

FINDINGS OF FACT

1.  The record evidence shows that the Veteran's current psychiatric disorder, to include alcohol dependence, cocaine dependence, alcohol-induced anxiety, alcohol-induced mood disorder, and major depressive disorder, is not related to active service, to include his reported in-service military sexual trauma.

2.  The record evidence shows that service connection already is in effect for degenerative joint disease of the right and left hips secondary to steroid injections to treat his service-connected asthma; there otherwise is no evidence of any other current diagnosis of osteoarthritis or psoriatic arthritis.

3.  The record evidence shows that service connection was not in effect for a right hip disability at the time of his June 8, 2016, right total hip replacement surgery.

4.  The record evidence shows that the Veteran already is in receipt of a temporary total rating based on his January 5, 2018 left total hip replacement surgery.

5.  The record evidence shows that the Veteran's service-connected disabilities, alone or in combination, do not prevent him from securing or maintaining a substantially gainful occupation.

6.  The record evidence shows that the Veteran's original claim of service connection for tinnitus was received on July 3, 2017.

7.  The record evidence shows that the Veteran's service-connected disabilities do not result in loss or loss of use of a hand or foot, permanent impairment of both eyes, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of a knee or hip.

CONCLUSIONS OF LAW

1.  The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f).

2.  The criteria for service connection for osteoarthritis and psoriatic arthritis are not met. 38 U.S.C. §§ 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a).

3.  The claim of entitlement to a temporary total rating following a total right hip replacement on June 8, 2016, is denied as a matter of law. 38 C.F.R. §§ 4.29, 4.30; Sabonis v. Brown, 6 Vet. App. 426 (1994).

4.  The appeal of the issue of entitlement to a temporary total rating following a total left hip replacement on January 5, 2018 is dismissed. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.22.

5.  The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16.

6.  The criteria for an earlier effective date than June 25, 2017, for the grant of service connection for tinnitus are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

7.  The criteria for entitlement to eligibility for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only are not met. 38 U.S.C. §§ 3901, 3902, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.808.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served a period of active duty for training (ACDUTRA) in the U.S. Army from June to August 1987.

This case is before the Board of Veterans' Appeals (Board) on appeal from August 2017 and October 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

Service Connection

1. Acquired Psychiatric Disorder

Here, the Veteran is seeking service connection for posttraumatic stress disorder (PTSD), which he contends was caused by in-service military sexual trauma. Service connection for PTSD in particular requires 1) medical evidence diagnosing PTSD, 2) a link established by medical evidence between the Veteran's current symptoms and an in-service stressor, and 3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f).

Having reviewed the record evidence, the Board finds that neither the Veteran's claimed PTSD nor his other diagnosed psychiatric conditions are related to his active duty service. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). First, the Board finds that the evidence does not support the Veteran's report of an in-service military sexual trauma. An August 2020 VA examiner concluded that it was less likely than not that the trauma occurred since the record does not reflect any indications of trauma or mental health problems in service. The examiner noted that the Veteran "had no disciplinary infractions, he was not seen at sick call for an unusual amount of visits, [and] he did not use drugs or alcohol for means to cope." In a separate opinion, the examiner further noted that the Veteran also had no "somatic complaints," was not sent to the Army Substance Abuse Program (ASAP) or Alcohol and other Drug Abuse Prevention Training (ADAPT), and was not absent without leave. The Board's review of the record evidence confirms these findings. The Board finds that there is no evidence that the Veteran's reported military sexual trauma occurred. In addition, there is no evidence of any other in-service injury or event related to the Veteran's current acquired psychiatric condition, nor has he claimed or reported any etiological relationship.

Second, the Board finds that the evidence indicates that the Veteran's current psychiatric impairment likely is related to post-service stressors, including stressors experienced during his time in prison. Particularly significant in this regard is the Veteran's report at an October 2013 VA telemedicine appointment for anxiety and depression that "he suffers from PTSD after being incarcerated for 8 [years]...and seeing many people target and murdered." He reported that he started receiving mental health treatment after his release from prison. In addition, at an August 2010 VA psychiatric examination, he reported that "his emotional issues have to do with family, financial, and situational stresses...with no indication that the issues are related" to his active duty service. Finally, an August 2020 VA psychiatric nexus opinion concluded that the Veteran's psychiatric conditions were related to his post-service "pattern of chronic legal involvement and seeing a person killed in prison."

In sum, the only evidence showing that the Veteran experienced an in-service military sexual trauma that caused his current psychiatric disabilities are his own statements to this effect. Moreover, these statements were made directly to VA in pursuit of a claim for benefits, whereas the other statements indicating that his psychiatric disabilities are related to post-service stressors were made either to care providers or medical examiners. The Board notes in this regard that statements made for the purpose of medical diagnosis or treatment are considered exceptionally trustworthy, because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment.  White v. Illinois, 502 U.S. 346, 355-56 (1991); Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Therefore, the Board finds the Veteran's statements attributing his disability to post-service stressors more probative than his statements attributing his disability to his active duty service.

As already noted, this lay evidence is supported by the Veteran's service record (which contains no evidence of in-service trauma) and the competent medical evidence of record. Therefore, the Board finds that the Veteran's current acquired psychiatric disability, to include alcohol dependence, cocaine dependence, alcohol-induced anxiety, alcohol-induced mood disorder, and major depressive disorder, neither had its onset in nor is otherwise related to his active duty service, to include reported in-service military sexual trauma. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection.  Accordingly, service connection for an acquired psychiatric disorder is not warranted.

Osteoarthritis and Psoriatic Arthritis

The Veteran also seeks service connection for osteoarthritis and psoriatic arthritis. He contends that these conditions are related to repeated steroid injections he received to treat his service-connected asthma. The Board notes initially that service connection already is in effect for "degenerative joint disease," or arthritis, of the right and left hips, as related to his steroid asthma treatment. Although he has claimed arthritis as "regarding his entire body," there is no evidence throughout the claim period of any arthritis of any kind affecting a joint other than the hips. For instance, a December 2017 private treatment records notes "severe endstage hip arthritis." A November 2020 VA arthritis examination notes no arthritis symptoms in any joints. And a November 2020 VA hips examination notes diagnoses of bilateral avascular necrosis and degenerative arthritis with current symptoms of left hip stiffness, right hip catching and giving out, and radicular symptoms in the right thigh. 

A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced osteoarthritis and psoriatic arthritis at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic.  McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board finds that there is no evidence of any arthritis at any point during the appeal period other than the right and left hip arthritis for which service connection already is in effect. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for osteoarthritis and psoriatic arthritis. Accordingly, service connection for osteoarthritis and psoriatic arthritis is not warranted.

Increased Ratings

2. Temporary Total Rating for Right Hip Replacement

The Board notes that, generally, VA regulations provide that a temporary total disability rating is warranted under two circumstances. First, a temporary total disability rating is warranted when a service-connected disability has required either hospital treatment in a VA or other approved hospital or hospital observation at VA for a period in excess of 21 days. 38 C.F.R. § 4.29. Second, a temporary total disability rating is warranted when it is established by report at hospital discharge or outpatient release that the Veteran's service-connected disability resulted in either: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30.

Here, the Veteran is seeking a temporary total rating following a right total hip replacement surgery June 8, 2016. Unfortunately, service connection was not in effect for the Veteran's right hip at the time of this surgery. In other words, there is no legal basis to award a temporary total rating based on the need either for hospitalization or post-surgical convalescence for a non-service-connected right hip disability. Therefore, the claim of entitlement to a temporary total rating following a total right hip replacement on June 8, 2016, is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994).

3. Temporary Total Rating for Left Hip Replacement

Under the Legacy Appeal System, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.22. Here, the Veteran is seeking a temporary total rating following a left total hip replacement surgery January 5, 2018. The RO granted this benefit in an April 2020 rating decision. Because this benefit has been granted, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board finds that the appeal for a temporary total disability rating for a left hip replacement surgery on January 5, 2018, is dismissed.

4. TDIU

The Veteran is seeking a TDIU on the grounds that his combined service-connected disabilities prevent him from securing or maintaining a substantially gainful occupation. He is in receipt of a combined 70 percent rating with one disabilityasthmarated as at least 40 percent disabling from June 25, 2017. Therefore, the schedular criteria for a TDIU are met as of that date. See 38 C.F.R. § 4.16(a).

The remaining issue is whether the Veteran's service-connected disabilities, alone or in combination, precluded him from securing and following a substantially gainful occupation.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In other words, the question is whether the Veteran's service-connected disabilities prevented him from working, taking into consideration his education, training, and special work experience but not his age or impairment caused by nonservice-connected disabilities or other factors. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Board finds that a TDIU is not warranted because the Veteran remains capable of sedentary employment. The Veteran's work and educational history reflect both training for and experience in namely teaching. He reported having college and graduate level education and 2 years' experience teaching community college. As a matter of ordinary experience, teaching may be performed either standing or seated, from a wheelchair if necessary. The evidence reflects that the service-connected hip disabilities produce impairment in walking and other activities. There is no evidence of impairment of sitting for extended periods.

The Veteran contends that his service-connected asthma and obstructive sleep apnea (OSA) prevent him from arriving at work on time due to "sleeping problems" which lead to tiredness and an inability to breathe. This self-reported functional impairment is contradicted by the objective evidence of record. For instance, at a November 2020 VA OSA examination, he made no reference to problems oversleeping and the only noted symptom of OSA was fatigue. He also reported that his sleep had improved with the use of a CPAP machine, though he still experienced shortness of breath. Significantly, at VA medical appointments throughout the appeal period, he consistently denied shortness of breath and VA clinicians consistently noted normal breath sounds and respiratory effort. The Board notes that an August 2019 outpatient treatment record notes both that the Veteran denied experiencing shortness of breath and reported "slight difficulty breathing" with "no new" shortness of breath. Finally, a November 2020 VA Individual Unemployability Assessment concluded that the Veteran was able to perform "light work" in an eight-hour workday, including "physical demand requirements . . . in excess of those for Sedentary Work."

In sum, the objective medical evidence of record reflects functional impairment due solely to service-connected disabilities comprising at most "slight difficulty breathing" and fatigue. The Board does not doubt that the Veteran finds his symptoms debilitating when they occur. Rather, the Board merely finds that these symptoms are not sufficiently severe to prevent him from securing or maintaining a substantially gainful sedentary occupation for which he is qualified by education and experience. He otherwise has not identified or submitted any evidence demonstrating his entitlement to a TDIU.  Thus, the Board finds that a TDIU is not warranted.

5. Earlier Effective Date for the Grant of Service Connection for Tinnitus

Generally, the effective date of a grant of service connection is either the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Here, the Veteran's claim for service connection for tinnitus was received July 3, 2017. There is no indication in the claims file of any intent to file a formal or informal claim for this benefit prior to this date.  The medical evidence shows that the Veteran's tinnitus was related to his active service in a VA medical nexus opinion dated in August 2017 after he filed his service connection for this disability.  Thus, it appears that he is in receipt of service connection for tinnitus as of the date that he filed this claim. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than July 3, 2017, for the grant of service connection for tinnitus.  In summary, the Board finds that the criteria for an earlier effective date than June 25, 2017, for the grant of service connection for tinnitus have not been met.

6. Automobile Allowance

The Veteran is service connected for asthma with OSA, disabilities of the bilateral hips, bilateral hip scars, and tinnitus. There is no evidence of loss or permanent loss of use of one or both hands, permanent impairment of vision of both eyes, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of one or both knees or hips  any of which is required for consideration of eligibility for entitlement to for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only. 38 U.S.C. §§ 3901, 3902; 38 C.F.R. §§ 3.350, 3.808. Therefore, the Board considers only whether the evidence supports a finding of loss or permanent loss of use of one or both feet. In this regard, there is some evidence that the Veteran was confined to a wheelchair for a time before his January 2018 left hip replacement. Specifically, he reported at a December 2017 private orthopedic appointment that he had been "relegated to a wheelchair" the past several months, although he used crutches as well "to get around . . . where the wheelchair cannot fit." Likewise, at a November 2020 VA hip examination, he reported that he was "wheelchair bound" for four years before his hip surgeries.

In contrast, VA outpatient treatment records from throughout the claim period suggest that he was ambulatory both before and after his January 2018 left hip replacement. Records from July 2017 note normal strength in all extremities and that he ambulated "with sticks." An August 2017 record noted that he walked 50 feet independently with forearm crutches. After the left hip replacement, an October 2019 treatment record noted he was ambulatory on arrival and discharge from the emergency department. And a July 2020 VA social work record noted under "Physical ambulation" that he "goes about grounds or city." In sum, the objective medical evidence indicates that the Veteran has been capable of ambulating with crutches throughout the appeal period. Moreover, the record contains no direct evidence of any impairment of the feet, whether due to a service-connected disability or otherwise. Therefore, the Board finds that the Veteran's service-connected disabilities, in particular his service-connected right and left hip disabilities, do not result in loss or permanent loss of use of one or both feet. The Board also finds that entitlement to eligibility for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only is not warranted.

 

 

MICHAEL T. OSBORNE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P. Timmerman, 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.