Citation Nr: 22006751 Decision Date: 02/07/22 Archive Date: 02/07/22 DOCKET NO. 20-27 771 DATE: February 7, 2022 ORDER New and material evidence having been received, the application to reopen the previously denied claim of service connection for depressive reaction is granted. A total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT 1. In an unappealed November 1983 rating decision the Agency of Original Jurisdiction (AOJ) denied service connection for depressive reaction; evidence received since then relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. 2. The Veteran's service-connected disabilities have precluded her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The November 1983 rating decision that denied service connection for depressive reaction is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence having been received, the claim of entitlement to service connection for depressive reaction is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1964 to March 1966, and from June 1970 to January 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Thus far, the RO has at least nominally limited its consideration of the Veteran's psychiatric claim to the matter of his entitlement to service connection for depressive reaction. However, the Board finds that the Veteran's claim should be expanded. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the issue on appeal has been recharacterized as entitlement to service connection for an acquired psychiatric disability. Reopening Service Connection for a Psychiatric Disorder Although an unappealed decision is final, a claim will be reopened if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened; and must raise a reasonable possibility of substantiating the claim. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). In November 1983, the Agency of Original Jurisdiction denied service connection for depressive reaction as no mental disorder was found. The evidence considered by the Agency of Original Jurisdiction in reaching the November 1983 decision included service medical and personnel records, and a VA examination. The November 1983 VA examiner determined the Veteran had no mental disorder. The Veteran did not appeal the November 1983 rating decision; therefore, it became final. Evidence added to the record since the final November 1983 rating decision includes a VA examination, VA treatment records, and hearing testimony. In particular, the report of an April 2017 VA examination states the Veteran was diagnosed with a mental disorder. Thus, the evidence added to the record since the final November 1983 rating decision constitutes new and material evidence, as it demonstrates a previously unestablished fact necessary to substantiate the claim, and when taken with the other evidence of record raises a reasonable possibility of substantiating the claim. Moreover, the evidence of record necessitates obtaining a VA examination and therefore is considered new and material evidence. See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim). Entitlement to TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board reflects that the Veteran filed a claim for TDIU on March 30, 2017. Since that time, the Veteran's service-connected disabilities have been rated as follows: degenerative joint disease and degenerative disc disease of the lumbar spine (rated as 40 percent disabling), neurogenic bladder with urinary incontinence (rated as 40 percent disabling since August 1, 2017), degenerative joint disease and degenerative disc disease of the cervical spine (rated as 30 percent disabling), radiculopathy of the left upper extremity (rated as 20 percent disabling), varicose veins of the right leg (rated as 20 percent disabling), mitral valvae prolapse (rated as ten percent disabling), degenerative joint disease of the thoracic spine (rated as ten percent disabling), and thrombophlebitis of the left leg (rated as non-compensable). Throughout the appeal period, her combined rating has been either 80 or 90 percent disabling. Therefore, she meets the schedular criteria for a TDIU. The Veteran has a college education and prior work experience as a nurse. The report of a September 2011 VA examination states that due to the Veteran's cervical and thoracolumbar spine disability she would experience difficulty in carrying or lifting and she could not lift/carry/push/pull greater than ten pounds. The report of an April 2017 VA examination report states that the Veteran's disabilities prevent her from being able to lift/carry/push/pull greater than 30 pounds, and that she would require frequent changes of position. The report of a May 2017 VA examination report states that due to the Veteran's varicose veins, and thrombophlebitis, she was not prevented from sedentary employment, she should be allowed to elevate her legs, and could not engage in prolonged standing. The report of an August 2017 VA examination states the Veteran's back condition would impact activities that involved bending, twisting of the trunk, lifting greater than 15 pounds, prolonged sitting, prolonged standing, frequent use of stairs, and she would have to be allowed to change positions frequently. The report of an February 2020 examination states that due to the Veteran's bladder condition she would require flexible and easy access to a bathroom. Based on this evidence the Veteran is limited to non-physical, sedentary employment. Further she requires frequent changes of position, should elevate her legs, is limited in twisting her trunk, and cannot engage in prolonged sitting. The nature of sedentary employment requires extended periods of sitting and the August 2017 VA examiner opined she could not engage in prolonged sitting. Further, the need for frequent changes in position and limited ability to twist the trunk would conflict with the performance of even sedentary employment. Due to her limits in engaging in prolonged sitting, twisting her trunk, and need for frequent position changes, the Veteran would not be able to perform the occupational requirements of non-physical, sedentary employment. The Board finds that the Veteran is not able to secure and follow a substantially gainful occupation by reason of her combined service-connected disabilities. Given the Veteran's level of education, her primary employment history as a nurse, and her level of disability due to her service-connected disabilities, the Board finds that the combined effects of those disabilities made it unlikely that the Veteran could secure or follow a substantially gainful occupation consistent with her educational level and occupational experience. Therefore, entitlement to a TDIU is granted. In arriving at this conclusion, the Board intimates no opinion, either legal or factual, as to the appropriate effective date of the award. That matter will be addressed by the agency of original jurisdiction when the award is effectuated. While the evidence shows the Veteran has been employed for portions of the period on appeal. During the November 2020 hearing she reported that she was working six hours a week in 2019 and as of the hearing she was not working. The appropriate effective date for the award of TDIU, while considering her periods of employment, will be addressed by the agency of original jurisdiction. Given the evidence, at the hearing, she was not working at all a TDIU is warranted. REASONS FOR REMAND Regarding the reopened service connection claim for a psychiatric disorder, the report of an April 2017 VA examination states "[t]here has been aggravation of Adjustment Disorder related to stroke." It is not clear if this was the examiner's opinion, however the Veteran is not service connected for a stroke disability. Nor was any rationale provided, therefore the opinion is not adequate. The report of an August 2017 VA examination states it is "less likely that the [V]eteran has depression secondary to [service connected] medical conditions." Although the examiner discussed the sequelae of stroke as stated above the Veteran is not service connected for a stroke disability and the examiner did not provide any rationale related to any of the Veteran's service-connected disabilities. Furthermore, during the November 2020 hearing the Veteran reported that she has had depression since her military service, and it was exacerbated by her back. The record does not contain a medical opinion that addresses whether the Veteran's psychiatric disorder is directly related to her service, or an adequate opinion that addresses whether such is secondary to a service-connected disability. Accordingly, a remand is necessary in order to obtain such opinions. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records and associate those documents with the claims file. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA mental disorders examination. The examiner(s) should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran, and reviewing the record, together with the results of any testing deemed necessary, the examiner(s) should identify any psychiatric disabilities that are present. Then, with respect to each such disability, the examiner(s) should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability had its onset in, or is otherwise attributable to, the Veteran's period of active service. If the Veteran's psychiatric disorder is not found to be directly related to military service, the examiner should then opine whether such is at least as likely at not (a) caused by; or (b) aggravated (i.e., worsened) by the Veteran's service-connected disabilities. A complete medical rationale for all opinions expressed must be provided. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.