Citation Nr: 23046366 Decision Date: 08/21/23 Archive Date: 08/21/23 DOCKET NO. 10-43 892 DATE: August 21, 2023 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The most probative (meaning most competent and credible) evidence of record is against finding that the Veteran has an acquired psychiatric disorder that began during her service or is otherwise related or attributable to her service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army Reserve from April 1974 to January 1996, with periods of active duty for training, including from April 1974 to October 1974, and inactive duty for training. The Veteran also had active-duty service in Southwest Asia from February 1991 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In October 2020, the Board denied the claims. The Veteran appealed that decision, in part, to the United States Court of Appeals for Veterans Claims (Court). In October 2021, the Court, pursuant to a Joint Motion for Partial Remand (JMPR) filed by the parties, vacated the October 2020 decision to the extent it denied the claims of entitlement to service connection for an acquired psychiatric disorder and a TDIU, and remanded the appeal to the Board for compliance with the terms of the JMPR. The Board remanded the claims for further development in January 2022, September 2022, and May 2023. Entitlement to service connection for an acquired psychiatric disorder The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, which she contends began during her active service and is related to in-service stressful events. The Veteran's service treatment records (STRs) are unremarkable for complaints, findings, diagnosis, or treatment of a psychiatric disability of any sort, including a stress-related or stress-induced mental illness (keeping in mind that VA did not adopt the PTSD nomenclature until much later, in 1980 or thereabouts). The Veteran submitted a March 2009 private physician's statement in which the physician stated that the Veteran suffers from emotional problems characterized by frustration, irritability, anxiety, marked decrease in interest and pleasure in most activities, and fatigue or low energy. Treatment records from November 2017 note that the Veteran was seen by VA Psychiatry with complaints of a two-week history of trouble sleeping and anxiety manifested by teeth clenching, restlessness, and worries. She also reported a sad mood but denied other symptoms of depression. She denied having similar episodes in the past. Her current stressor was noted to be the aftermath of Hurricane Maria. The assessment was adjustment disorder with Anxiety in a "patient without past psychiatric history presenting with insomnia in contents (sic) of anxiety. Identifiable stressor is aftermath of Hurricane Maria." She was prescribed Vistaril for anxiety and insomnia and Melatonin for 14 days. Follow up two weeks later showed she continued to have difficulty sleeping but reported Vistaril helped with anxiety. She was taken off the Melatonin and prescribed Trazadone for sleep. The assessment was adjustment disorder with anxiety in a patient that presented with anxiety symptoms and insomnia in the context of Hurricane Maria aftermath, but no depression. At the end of December 2017, the Veteran was seen for a psychology consultation for behavioral management of anxiety. She reported anxiety symptoms of difficulty controlling worry, restlessness, difficulty concentrating, irritability, muscle tension, and sleep disturbances. She reported the onset of symptoms was after she had two medical emergencies with her sister because of Hurricane Maria. She denied any previous history of behavioral health. The assessment was Unspecified Anxiety. She reported significant improvement in her mood on her present medications. In February 2018, she reported significant improvement of her anxiety on behavioral management and records showed she was experiencing minimal symptoms of depression and anxiety. In March 2018, she reported continuing to feel emotionally stable despite having discontinued her medications one month before. The physician noted that the Veteran did not identify any remarkable mental health symptoms and was able to complete daily life activities. On March 2022 VA mental disorders examination, pursuant to the January 2022 Board remand, the examiner did not diagnose the Veteran with a psychiatric disorder and determined that she did not meet the DSM-V diagnostic criteria for a mental disorder based on the evidence of record. In May 2023, the Board remanded this claim for a VA opinion addressing whether the Veteran would have met the criteria for an acquired psychiatric disorder under the DSM-IV criteria, as the claim was certified to the Board prior to August 4, 2014. To this end, an addendum opinion was obtained in May 2023. The VA examiner determined that the Veteran did not meet the DSM-IV diagnostic criteria for a mental disorder. While the examiner acknowledge that the Veteran previously had received a diagnostic impression of adjustment disorder with anxiety, he noted that the identified related stressors were "adjustment difficulties in the context of Hurricane Maria Aftermath." The examiner further expounded that once the stressor resolved, the Veteran's symptoms resolved. Based on the foregoing, the weight of the evidence is against a finding that the Veteran has PTSD or any other mental disorder diagnosis. The VA examiner's opinion of record is that of a qualified mental health professional (psychiatrist). The examiner's opinion reflects a thorough in-person examination, familiarity with the Veteran's history, includes citations to clinical findings and pertinent evidence of record, and identifies the DSM criteria for a diagnosis of PTSD or any other mental disorder that are not met. The Board finds that the VA examiner's report and opinion are the most probative and persuasive evidence of record in this matter. The Board observes that service connection based on any theory of entitlement is not warranted without a current diagnosis. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The evidence demonstrates that the Veteran has no current diagnosis of an acquired psychiatric disorder, to include PTSD. Furthermore, to the extent the Veteran believes that she has a psychiatric disorder due to her time in service, she lacks the specialized medical training and expertise to address a complex medical question such as diagnosing a specific psychiatric disability in the context of the DSM-V. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the Veteran's assertion alone is insufficient to establish a diagnosis or nexus. Considering all the evidence of record, the Board has determined that the weight of the evidence is persuasively against a finding that the Veteran has a competent diagnosis of an acquired psychiatric disorder, to include PTSD, at any point during the appeal period. As the weight of the evidence is persuasively against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from her service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to her level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100-percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has a combined disability rating of 50 percent, with service-connected multilevel degenerative spondylosis of the lumbar spine rated as 40-percent disabling, multilevel degenerative spondylosis of the lumbar spine rated as 10-percent disabling, and tinnitus rated as 10 percent rating. Therefore, her service-connected disabilities do not meet the minimum schedular rating requirements for a TDIU under 38 C.F.R. § 4.16(a). That notwithstanding, the claims file contains evidence suggesting the Veteran nonetheless may be unemployable because of her service-connected disabilities. Specifically, during the September 2019 VA back condition examination, the examiner noted the Veteran's back disability impacts her ability to work due to restrictions twisting, bending, heavy lifting, carrying, pushing, pulling, and prolonged standing or ambulation. Ratings for service-connected disabilities already take into account they cause impairment of earning capacity, and so affect employment. 38 C.F.R. §§ 4.1, 4.15. Moreover, the mere fact that a Veteran is unemployed or will have difficulty obtaining employment is not dispositive of whether she necessarily is unemployable since, to reiterate, the disability rating itself is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, though, since there is at least a suggestion that the Veteran's service-connected disabilities go beyond that in terms of affecting her employability, this TDIU claim must be referred to the Director of the Compensation Service in accordance with 38 C.F.R. § 4.16(b) to determine whether this benefit is warranted on an extra-schedular basis. The Board may not assign an extra-schedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that "the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321(b)" or § 4.16(b)); accord Smallwood v. Brown, 10 Vet. App. 93, 98 (1997); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). The matters are REMANDED for the following action: Refer the Veteran's claim of entitlement to a TDIU to the Director of the Compensation Service for extra-schedular consideration. See 38 C.F.R. § 4.16(b). Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander, Porschia N. 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.