Citation Nr: 21041994 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-45 996 DATE: July 10, 2021 ORDER Service connection for a psychiatric disorder, to include depression and unspecified neurocognitive disorder, is denied. Entitlement to total disability individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence shows that the Veteran's psychiatric disorder is not secondary to service-connected disabilities, and is not otherwise related to an in-service injury or disease. 2. The evidence shows that the Veteran's service-connected disabilities do not render him unable to obtain and to maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1-4.14, 4.21, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from July 1971 to November 1973. This claim is before the Board of Veterans Appeals (Board) following a December 2018 remand by the Board for further development. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The current issue before the Board claimed as depression was first considered by the Regional Office (RO) in an August 2013 rating decision. Therefore, there is a distinct claim before the Board. In light of Clemons, Board has recharacterized the appeal as encompassing unspecified neurocognitive disorder and depression and refers to them collectively as a psychiatric disorder. Psychiatric disorder To establish service connection on a direct basis a Veteran must generally 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). As for service connection on a direct basis, the Veteran satisfies the first element because the Veteran is diagnosed with an unspecified neurocognitive disorder. However, the claim fails on the second element because the record does not show that the Veteran experienced an in-service incurrence or aggravation of a disease or injury. The Veteran's separation examination fails to show that the Veteran had a mental health disability upon exiting the armed services. Moreover, none of the VA examiners found that the Veteran's psychiatric disorder began in or within a year of separation from the military. The evidence does not show that the Veteran had an inservice incurrence or aggravation of a disability. As a result, the claim fails on a direct basis. Because the Veteran does not meet the criteria on a direct basis, the Board will analyze the claim on a secondary basis. In order to establish service connection on a secondary basis, there must be (1) a current non-service-connected disability, (2) a service-connected disability, and (3) evidence showing that the current non-service-connected disability is either proximately due to or the result of, or aggravated (increased in severity) beyond its natural progress by the service-connected disability. 38 C.F.R. § 3.310. The claim also fails on a secondary basis. The first two elements of secondary service connection are met. The Veteran has a non-service connected disability, unspecified neurocognitive disorder, and multiple service connected disabilities: residuals from a lumbosacral strain, hemorrhoids, tinnitus, radiculopathy in the left lower extremity associated with residuals from the lumbosacral strain, prepyloric ulcer with antrum scarring and hiatal hernia, and bilateral hearing loss. The Veteran argues that his psychiatric order stems from service-connected disabilities. The record does not support a finding that the Veteran's psychiatric disorder, which encompasses the Veteran's claim for depression and also unspecified neurocognitive disorder, is proximately due to or the result of, or aggravated (increased in severity) beyond its natural progress by service-connected disabilities. By way of background, the Veteran was afforded an August 2010 VA examination. The VA examiner did not find a current psychiatric disability. In October 2013, a private examiner opined the Veteran would miss a significant amount of work due to the Veteran's mental health problems and the Veteran would be unable to work because of his depression. However, she does not discuss the Veteran's symptoms beyond a brief recitation of statements made by the Veteran. It does not appear she reviewed the medical record prior to rendering this opinion. She states pain from the Veteran's service-connected disabilities, including bilateral hearing loss, cause depression. She does not support her assertion that hearing loss causes pain to the Veteran. Moreover, she does not articulate how any particular disease causes the Veteran's depression, how much pain the Veteran experiences, or when the Veteran is in pain. In July 2016, the Veteran saw a VA examiner. The examiner articulated that the Veteran's unspecified neurocognitive disorder could be caused by comorbidities, such as sleep apnea, seizure disorder and hepatitis C. The examiner does not list the Veteran's service-connected disabilities as ones that could cause a psychiatric disorder. Instead, the examiner specifically listed disabilities that could cause memory loss. While the examiner could not pinpoint the exact date of the onset of the psychiatric disability, the examiner stated the start of it appeared to correspond to the stroke the Veteran experienced five years prior to the examination. In January 2017, the examiner who issued the October 2013 report opined again that the Veteran's comorbid disabilities were causing the Veteran's depression. In support of her statement, the Ph.D. cited two articles one stating that pain and depression are linked another stating that disabilities can cause depression. She added that the Veteran's psychiatric disorder cannot be attributed to one particular medical condition rather, all conditions may indeed contribute to the overall decompensation and disability of this Veteran. Thereafter, in August 2020, another VA examiner found that the Veteran did not exhibit any of the criteria needed to meet the DSM-V criteria to be diagnosed with depression. Instead the examiner found that the Veteran had unspecified neurocognitive disorder. He further found that the Veteran's unspecified neurocognitive disorder was largely related to the Veteran's memory loss and that memory loss would not be caused by the Veteran's service-connected impairments. Therefore, the examiner found that the Veteran's psychiatric disorder was not service connected. The record regularly indicated that the Veteran does not have depression. He had a positive screen for depression in 2002 and was prescribed medication for depression in 2005, but since then, the record is largely devoid of a positive depression screen and indicates the Veteran is not currently diagnosed with or treating for depression. In rendering her opinion, the private examiner did not state which symptoms the Veteran has that leads her to believe the Veteran has depression and how the Veteran's specific disabilities produced a given symptom or even if that is possible to tell. Her statements are conclusory. Moreover, she cites to the July 2016 VA examination. However, that examination does not support the Ph.D.'s opinion because when it cites comorbidities that could cause the psychiatric disorder, it only lists comorbidities that cause memory loss. Moreover, the Ph.D.'s opinion fails to discuss the Veteran's drinking and marijuana use or any record in the claim file other than the 2016 VA examination. Furthermore, there is no reference of a contemporaneous examination, but rather just reference to an interview. The January 2017 private medical opinion states, "[A]ll conditions may indeed contribute to the overall decompensation and disability of this Veteran." The opinion expressed is not determinative. As a result, the Board gives the Ph.D.'s statement little weight. As for the VA examiners, their opinions are very similar to one another. Specifically, the August 2020 examiner thoroughly reviewed the medical records and specifically articulated why the symptoms for depression were not met and why unspecified neurocognitive disorder was not secondarily connected. The August 2020 examiner's thoroughness leads to a finding of great credibility. The Board acknowledges that the Veteran attributes his psychiatric disorder to service-connected disabilities. However, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). While the Veteran does have a psychiatric disorder, the preponderance of the evidence does not show that the disorder was caused an/or advanced beyond its normal progression because of his service-connected disabilities. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current disability is related to the Veteran's active military service or a service-connected disability, or that a chronic disability was incurred in service. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and service connection must be denied. TDIU A TDIU may be assigned where the scheduler rating is less than total, when, in the judgment of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Gainful employment contains economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58 (2019). 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," while the noneconomic component requires consideration of a Veteran's ability to secure or follow that type of employment. Id. The central inquiry is determining whether a TDIU is warranted 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). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran passed a General Educational Development Test (GED). The Veteran is entitled to schedular consideration because as of January 20, 2009, the Veteran was rated 40 percent for residuals of his lumbosacral strain and had a combined disability rating of 70 percent. The Veteran's service-connected disabilities consist of residuals from a lumbosacral strain, hemorrhoids, tinnitus, radiculopathy in the left lower extremity associated with residuals from the lumbosacral strain, prepyloric ulcer with antrum scarring and hiatal hernia, and bilateral hearing loss. Moreover, the record does not show that the Veteran maintained substantial gainful employment since that time. Still, evidence does not indicate that the Veteran's service-connected disabilities render him incapable of working and, therefore, the Veteran is not entitled to TDIU. A November 2011 VA examination indicated that the Veteran had less movement than normal because of a back disability with pain on movement. He had disturbance of locomotion, interference with sitting, standing and/or weight-bearing, along with intermittent pain in his left lower extremity. The Veteran also had moderate paresthesias and/or dysesthesias. The Veteran's reported difficulty with walking, lifting, and carrying was said to cause moderate to severe effects on physical labor and mild to moderate effects on sedentary work. During that examination, the examiner added that the Veteran's leg condition would affect his ability to perform jobs that require physical exertion. At another VA examination in November 2011, a VA examiner opined that the Veteran's stomach condition might cause intermittent discomfort, but would not cause him to be incapacitated. In May 2015, the Veteran reported low back pain and knee pain. This was contrary to August 2016, when the Veteran denied joint pain. During a VA examination in September 2016 the Veteran's stomach issues were reported to cause 10 days or more of nausea four or more times a year and vomiting was expected about ten times a year. During a September 2016 VA examination, the Veteran stated that his hemorrhoids prevent him from lifting. However, the Board notes, the Veteran performs manual labor. In January 2017, the Veteran reported being able to make simple meals, perform chores, and go grocery shopping, but reported difficulty doing so. He added that he had to stop working because it hurt to stand. In May 2017, the Veteran complained of low back pain, but it was not enough to prevent him from walking a mile a day. These statements are measured with other statements that the Veteran has made. For example, during VA examinations in August 2020, he reported taking his mother shopping and having a good relationship with brother, sister, and mother, and that he had friends. He reported building things and being able to use power tools. He stated he could build anything he wanted. He was able to restore a motor vehicle. In making these statements, the Veteran admits that he is capable of performing activities that require multi-step planning and physical exertion. Furthermore, the record lacks evidence that the Veteran's other service-connected disabilities would cause functional impairments rendering the Veteran incapable of working. Thus, even if the Veteran may not be able to perform at all exertional levels, the record does not support a finding that he is unable to work at reduced exertional levels. While the private examiner opined the Veteran cannot work because of depression secondary to service-connected disabilities, that opinion is given no weight because the Board does not find that the Veteran has a service-connected psychiatric disorder. While the evidence shows that the Veteran's service-connected disabilities cause some functional impairment, the evidence does not establish that the Veteran's service-connected disabilities combine to render him unemployable or incapable of maintaining substantially gainful employment. Accordingly, entitlement to a TDIU is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.