judge_norm: JONATHAN B KRAMER

condition: psychiatric

text:
Citation Nr: 23005000
Decision Date: 01/26/23	Archive Date: 01/26/23

DOCKET NO. 16-43 716
DATE:  January 26, 2023

ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include as due to Gulf War Illness and/or in-service malaria medication is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is denied.

FINDINGS OF FACT

1. The Veteran's acquired psychiatric disorder has been attributed to a known clinical diagnosis, is not a manifestation of an undiagnosed illness, medically unexplained chronic multi symptom illness, or a qualifying chronic disability; did not manifest within one year of active service separation; and is not otherwise shown to have been incurred in or related to active-duty service to include in-service malaria medication.

2. The Veteran's service-connected disabilities have not rendered him unemployable or unable to secure and follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303(b), 3.307, 3.309, 3.317.

2. The criteria for entitlement to TDIU on an extraschedular basis are not met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.102, 3.340, 3.341, 4.15, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1975 to September 1979 and from February 1981 to June 1995.

This appeal is before the Board of Veterans' Appeals (Board) from a March 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO) and in November 2019, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) and a transcript of that hearing is associated with the claims file. The Veteran's claims were remanded in July 2020 and August 2022; and, for the reasons described herein, the Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998).

As an initial matter, the Board acknowledges the Veteran's claim to treat his service connection claims of insomnia and depression, anxiety, and a panic disorder as separate claims. However, when the Veteran filed his initial April 2013 VA Form 21-526EZ Application, he did not list insomnia and has truly never filed a separate claim for insomnia. Furthermore, the RO and the Board have developed his claim of insomnia as part and parcel of his service connection claim for depression, anxiety, and a panic disorder. Also, the Veteran himself has recognized that his insomnia is a symptom of his current psychiatric condition. See April 17, 2014, Correspondence ("Depression also claimed as anxiety, panic disorder, and insomnia."). Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claims have been combined and recharacterized to include any psychiatric disorder and they will continue to be so characterized in this decision.

SERVICE CONNECTION

1. Acquired Psychiatric Disorder

The Veteran seeks entitlement to service connection for an acquired psychiatric disorder which he alleges began during active service. He alleges his claim warrants service connection based on Gulf War Illness and simultaneously due to taking in-service malaria medication.

Service connection may be granted 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(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. � 3.303(d).

In addition, certain chronic diseases, including psychoses, may also be established on a presumptive basis by showing that such a 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. � 1112; 38 C.F.R. �� 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. � 3.307(a).

The Veteran in this case served in the Persian Gulf during the Gulf War. Under 38 U.S.C. � 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a "qualifying" chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. � 1117; 38 C.F.R. � 3.317(a)(1).

The term "objective indications of chronic disability" includes both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 U.S.C. � 1117; 38 C.F.R. � 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, menstrual disorders. See 38 U.S.C. � 1117; 38 C.F.R. � 3.317(b).

A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): undiagnosed illness; the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: chronic fatigue syndrome; fibromyalgia; functional gastrointestinal disorders (excluding structural gastrointestinal diseases). See 38 U.S.C. � 1117; 38 C.F.R. � 3.317(a)(2)(i). The term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 U.S.C. � 1117; 38 C.F.R. � 3.317 (a)(2)(ii).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. � 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. � 5107; 38 C.F.R. � 3.102.

Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Turning to the evidence of record, the service treatment records (STRs) indicate that during an October 1991 report of medical history he reported having excessive worry and mood swings occurring "rarely." During his April 1995 separation report of medical history, he indicated he had "frequent trouble sleeping; loss of memory; nervous trouble;" and answered "don't know" for depression or excessive worry. The separation report of medical examination did not include any notations or diagnoses related to any acquired psychiatric disorders.

In April 1997, VA records indicate he was prescribed Wellbutrin and underwent psychological group counseling to quit smoking.

In 1999, private medical records indicate when filling out a review of systems form, the Veteran did not circle "depression" or list any other issues in the "other problems" section but did indicate various physical ailments. See January 2014 Social Security Administration Records. Additionally, the records do not reflect the Veteran was prescribed any medication for a psychiatric disorder.

A July 2000 VA record indicates he reported no symptoms of panic attacks which he was given a prescription for "2-3 years ago at VA." An August 2000 VA initial psychologist assessment indicates he reported symptoms of panic and depression, which the Veteran attributed to recent death of his sister and "mother 2 years ago, around the time his symptoms started." He also reported increased panic attacks due to a recent diagnosis of high cholesterol. He specifically identified these symptoms beginning 2 years prior and did not mention any issues related to his active service. In November 2003, VA records indicate he experienced increased stress due to family health issues. A July 2009 private medical record indicates he was prescribed Wellbutrin in June and was diagnosed with depression. An August 2009 VA record indicates he reported issues with his mood, insomnia, depression, and anxiety "for about a year" and "probably related to some job stressors." He also stated over the prior six months his symptoms worsened due to health concerns. In May 2011, VA records indicate he received treatment for his acquired psychiatric disorders since "at least 2000."

In August 2011, the Veteran's VA physician, Dr. J.S., wrote a statement describing the Veteran's acquired psychiatric disorders. Specifically, Dr. J.S. wrote he has had sleep disturbance/insomnia since "at least" 2006 and that it is a "common complaint of Gulf War Veterans." Additionally, Dr. J.S. wrote the Veteran has had ongoing depression, anxiety, and panic disorder since "at least 2000." No other medical nexus opinion for any of the Veteran's theories of entitlement was provided.

In September 2011, he underwent a private psychiatric evaluation from a Dr. M.O. for the SSA. The Veteran subjectively reported his panic and anxiety began in the 1980's and then occurred again in 1997 and 1998 and that he was on Wellbutrin for depression. Dr. M.O. diagnosed the Veteran with "major depressive disorder and anxiety disorder NOS with panic symptoms." No medical nexus opinion for any of the Veteran's theories of entitlement were provided.

In February 2012, private treatment records indicate he received treatment for insomnia, depression, and anxiety which his attending physician indicated he has been treating the Veteran for the past 13 years.

In a November 2013 statement to the Board, he alleged his panic disorder began during active service in 1991 but he did not seek treatment because he thought it was caused by dehydration. He also stated he received treatment at the VA in 1997 for a panic attack. Lastly, he stated he has been dealing with depression since "prior to 2000."

In November 2013, he underwent a VA mental disorder examination report which included a review of the claims file, a recitation of complaints and medical history, and examination results. He subjectively reported the onset of his depressive symptoms began in 2000 and that he "doesn't remember depression in the military... the panic and anxiety attacks can be traced to Northern Iraq: I had my first panic attack then and they continued while I was stationed in Germany." No medical nexus opinion was rendered.

In January 2014, a VA medical opinion was entered into the claims file and the VA psychologist determined "It is beyond the scope of practice of this C&P clinical psychologist to render a Medical Opinion as to the likelihood that the Veteran's mental health diagnosis of Major Depressive Disorder, Recurrent, moderate, was caused by environmental hazards related to Gulf War service." Additionally, the psychologist also determined, "Results of the Mental Disorders C&P evaluation did suggest, however, a depressive symptom pattern that reportedly began to initially emerge in the early 2000's, with subsequent mental health treatment thereafter. The Veteran was unable to indicate a history of triggers and therefore the pattern of depressive symptoms has not appeared to be situational in nature."

In February 2014, another VA medical opinion was added to the claims file and the examiner ultimately opined, "There is no known Gulf War environmental hazard that would lead to depression 8-1/2 years later."

In April 2014, he submitted a statement to the Board which reiterated his allegation that his sleep disturbances, depression, and anxiety all began during active service, that he did not report such conditions, and the conditions continued after active service for which he received treatment for in 1997. Additionally, he alleged his sleep disturbances and psychiatric disorder were caused by the issuance of anti-malaria drugs in-service. Also, he cited to medical records from his VA doctor, Dr. J. S., which he alleged represented a positive nexus. Lastly, he alleged his acquired psychiatric disorders were "noted" on his separation from active service physical and that should qualify as a diagnosis.

In May 2014, he submitted a disability benefits questionnaire completed by a private physician, Dr. W.O., which stated his symptoms began in 2008 due to job related stressors. No other pertinent information was included.

In February 2016, he underwent a VA mental disorder examination report which included a review of the claims file, a recitation of complaints and medical history, and examination results. The examiner determined the Veteran had diagnosed psychiatric disorders in accordance with the DSM-5. Ultimately, after an extensive recitation of the Veteran's psychiatric history, the examiner determined his acquired psychiatric disorder was less likely than not the result of active service. Specifically, the examiner opined:

The first documented post-military psychiatric symptoms involved panic attacks in 2000, and at that time this Veteran attributed them to the deaths of his sister and his mother, as well as to the news he received that he had high cholesterol... There was then a break in his mental health treatment until 2009, when he sought treatment at his wife's request for poor sleep, a lowered libido, and a lowered interest in previously enjoyed activities. He attributed these symptoms in large part to his concern for his wife's health, as she had earlier been treated for cancer and he feared it might recur. He was also having problems at work and was concerned for his standing there... In a 2011 session, he noted that his depressive episodes (that he called "dark periods") might be related to his difficulty adjusting to the suicide of a neighbor. The 11/27/13 Mental Disorders C&P report notes that this veteran's wife "explained noticing what she referred to as "black periods" with the Veteran that began emerging in the "early 2000s" ... "I don't remember depression in the military, I remember it more when I was seeing my doctor, [Dr. S.], and that was around 2000."... Finally, a Mental Disorders DBQ completed by [W.O.], MD on 5/27/14 lists diagnoses of "Depression" and "Sleep Apnea" for this veteran. In the Relevant Mental Health History section, this MD wrote, "Depression w/ onset around 2008, associated w/ job stressor(s), back pain & medical problems. There are two documented references to psychiatric symptoms in service by this veteran, one in 1991 and one in 1995. He was not seen for psychiatric treatment either time. There are no indications that these reported symptoms spanned from the Veteran's time in service to approximately 2000, when he reported different symptoms (panic attacks) for reasons other than his military life, or to 2009, when he sought mental health treatment for depressive symptoms that he has repeatedly attributed to more recent (i.e., post-military) factors in his life.

In June 2019, he submitted an extensive statement to the Board outlining his claim of service connection which included claiming his acquired psychiatric disorder is a neurological disorder caused by Gulf War Illness. He reiterated his depression began during his active service in Germany, claimed his anxiety began during active service in Iraq, and that he reported his claims of anxiety "to the unit medic" in a combat environment. He alleged the February 2014 VA examination was inadequate because it misstated his onset date and alleged the VA examiners were not taking into account his lay statements regarding his onset date. Lastly, he alleged he received psychiatric treatment from 1996 to 1998 at a "Jewish Hospital" for his acquired psychiatric disorder, and was prescribed medication for his psychiatric disorder from the VAMC Lexington in 1999. In November 2019, he submitted another statement to the Board citing a Government and Accounting Office (GAO) report relating to inadequate VA examinations for Gulf War Illness, and that his own VA examinations were inadequate since they did not state the onset of his psychiatric disorder was during active service. He also submitted a medical article which reflected a study on the affects an anti-malaria drug has on acquired psychiatric disorders.

During the Veteran's November 2019 Board hearing, he reiterated the above referenced claims and issues and provided more evidence regarding his in-service symptoms. Also, he cited to a report regarding psychiatric symptoms being the result of an anti-malaria drug administrated to active service personnel. Lastly, when asked by the VLJ, he indicated there were no outstanding medical records.

In November 2019, the Veteran's spouse submitted a statement to the Board reiterating the Veteran's symptoms and onset of his acquired psychiatric disorder.

In July 2020, the Board remanded the Veteran's claim to acquire a VA medical opinion regarding his claim of his acquired psychiatric disorder being related to the administration of an anti-malaria drug.

In August 2020, he submitted a statement to the Board reiterating his symptoms and onset of his acquired psychiatric disorder and submitted medical studies regarding Gulf War Illness and anti-malaria drugs.

On October 14, 2020, he underwent a VA mental disorder examination report which included a review of the claims file, a recitation of complaints and medical history, and examination results. The VA examiner included a lengthy recitation of the Veteran's psychiatric history and the Veteran's statements to the Board and ultimately determined his acquired psychiatric disorder was not due to anti-malaria vaccine. Specifically, the examiner opined:

There is no conclusive evidence of a causal relationship between Chloroquine exposure and long-term psychiatric effects of depression. In the absence of scientific evidence demonstrating a correlation between depression and Chloroquine, it is not possible to attribute the veteran's current diagnosis to Chloroquine with 50% or greater probability. It would be speculation to correlate beyond the available literature. While there is compelling evidence in the literature regarding Chloroquine and psychiatric side effects, what has not been established is the long-term effects... The Veteran submitted a case study titled "Prolonged Neuropsychiatric Symptoms in a Military Service Member Exposed to Mefloquine" (Dec 2016). However, it is not possible to draw conclusions based on a case study of one individual.

Later in October 2020, he submitted multiple statements to the Board and various other VA employees. Within these statements he alleged the October 2020 VA examination was inadequate and not within the scope of the Board's remand, alleged the RO violated 38 C.F.R. � 3.326 and the M21-1 Compensation Manual because the Veteran has undergone multiple VA examinations, and alleged the October 2020 VA examination was inadequate since the examiner was "aware" of the Board remand directives and "showed clear bias" against his claim. Attached to his January 2021 notice of disagreement he included a statement alleging the purpose of the Board remand was to "[disprove]" the evidence presented in his submitted medical article. Thus, by not doing so, the VA examiner did not follow the Boards directives.

In August 2022, the Board remanded the Veteran's claim to acquire identified outstanding SSA medical records. Subsequently, SSA records and other evidence was received by the Board and included in the above recitation of evidence.

In December 2022, he submitted another extensive statement to the Board outlining deficiencies with the handling and development of his case. First, he reiterated his objection to undergoing multiple compensation and pension examinations. Second, alleged he was previously service connected for various disabilities "without a medical nexus" because of his Gulf War service and that his psychiatric disability should be similarly service connected. Lastly, that he received an inadequate medical examination in October 2020 since it did not comply with the Board's remand directives.

The Board notes, the evidence of record contains voluminous VA treatment records, which document routine treatment for the Veteran's acquired psychiatric disorder; however, none of those records contain medical nexus evidence.

After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the weight of the evidence is against finding the Veteran's acquired psychiatric disorder warrants service connection.

As an initial matter, for certain chronic diseases, including psychoses, the Board first considers entitlement to presumptive service connection under the provisions of 38 C.F.R. �� 3.307(a)(3), 3.309(a). However, presumptive service connection is not warranted because the Veteran is not shown to have been diagnosed with an applicable disability at any point during the appeal period; specifically, under 38 C.F.R. � 3.384, depression and anxiety are not considered psychoses.

As to direct service connection, the Board recognizes that the Veteran currently is diagnosed with an acquired psychiatric disorder; thus, the first element of service connection is established. See Shedden, 381 F.3d at 1167. However, the evidence of record does not support the finding of the second and third required elements; specifically, an in-service event and a medical nexus between his current disorder and his active service.

As to an in-service event, the documented evidence of record includes STRs which reflect he reported some a history of emotional symptoms in 1991 and 1995; however, he sought no clinical treatment for these symptoms. Moreover, he was not diagnosed with any acquired psychiatric disorder at any point during active service and only reported mood swings "rarely." Additionally, his separation medical examination was devoid of any notes, comments, or diagnoses of an acquired psychiatric disorder. Thus, these isolated symptoms, four years apart and unsupported by any other STRs, indicate such symptoms to be acute and transitory. Indeed, this was the conclusion reached by the January 2014 and February 2016 VA examiners.

The Board acknowledges the Veteran has continually disagreed with the VA's determination as to when his acquired psychiatric disorder began. Specifically, he has maintained the 2014, 2016, and 2020 VA examiners are erroneous by indicating his diagnosis date as the year 2000 rather than during active service. Here, the STRs are littered with treatment for other ailments and issues during his active service, which weighs against his claim that he did not report his acquired psychiatric symptoms due to the military's system of not reporting injuries. Moreover, the documented and contemporary evidence of record indicates that while reporting other injuries, he was apparently experiencing psychiatric issues while not reporting them. Indeed, he reported to the Board in November 2013 and April 2014 that he did not report his symptoms in-service; however, in June 2019 he indicated that he reported his symptoms to the "unit medic" and his complaints were dismissed as dehydration. These statements are inconsistent and undermine the Veteran's credibility. The Board further acknowledges the Veteran's April 2014 complaint that his conditions were noted on his separation physical and should qualify as a diagnosis; however, this is incorrect. His separation report of medical examination does not make any reference to an acquired psychiatric disorder and does not include any diagnosis of a disorder. On the other hand, his separation report of medical history includes the Veteran's lay complaints of such symptoms; however, that is not the same as a diagnosis. Indeed, while the Veteran is competent to report symptoms, he is not competent to diagnose himself with an acquired psychiatric disorder since it is medical in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

Additionally, even setting aside his inconsistent recounting of his STRs and his incorrect understanding of them, in statements to the Board the Veteran is unclear as to when his symptoms began. Specifically, in November 2013 he reported his depression began in 2000; however, in June 2019 he reported it began during active service. As to anxiety, in November 2011 he reported it began in the 1980's; however, in November 2013 he reported it began in the 1990's. Considering the above, the Veteran has indicated his acquired psychiatric disorder began in three separate decades both during and after active service further undermining his credibility. The VA examiners have determined his psychiatric disorder began in the year 2000 because that is the first date the evidence of record contains documented competent evidence of a diagnosed acquired psychiatric disorder. See 2014 and 2016 VA Examinations. To put it another way, medical professionals taking into account the entirety of the evidence of record, disagree with the Veteran's claim and determined his acquired psychiatric disorder began in 2000. Considering the above, the Board finds the weight of the evidence is against finding his acquired psychiatric disorder began during active service.

Nonetheless, the weight of the evidence is similarly against finding a medical nexus exists. Here, the Veteran has alleged he received treatment from private medical centers from 1996-1998 and from a VA medical center in 1999 for his psychiatric issues. However, the evidence of record does not contain any competent or credible medical evidence that this took place and the Veteran reported there are no missing treatment records. See 2019 Hearing Transcript. Indeed, the private medical records available indicate he denied depression and do not reflect any psychiatric treatment took place. Moreover, although the VA records from the late 1990's reflect he was prescribed Wellbutrin, the evidence indicates it was prescribed to quit smoking rather than psychiatric treatment and in July 1998 he reported he was "doing well, without complaints" at a time he alleges he experienced psychiatric symptoms. Moreover, in 2000 when the documented medical evidence indicates he began receiving psychiatric treatment, 5 years after active service separation, the Veteran specifically attributed such symptoms to the death of his sister and mother. Indeed, also in 2000 he even attributed his panic attacks to a diagnosis of high cholesterol and again in 2009 attributed his symptoms to job related stressors. Thus, he initially continually reported to treatment providers the onset of his symptoms occurring after active service and attributed such symptoms to events not related to active service. Indeed, the documented evidence reflects he does not attribute his acquired psychiatric disorder to active service to a medical professional until his November 2013 VA examination.

The Board further acknowledges his claims that the evidence of record contains positive medical nexus evidence. First, the May 2014 private DBQ indicates his acquired psychiatric disorder began in 2008 and runs entirely counter to the Veteran's contentions regarding his onset and the credible medical evidence of record. Additionally, the DBQ does not contain any medical nexus evidence. Second, the August 2011 Dr. J.S. statement indicates his acquired psychiatric disorder began since at least 2000 and does not contain any medical nexus evidence in favor of direct service connection. Lastly, the September 2011 Dr. M.O. statement merely recited the Veteran's medical history, confirmed his diagnosed disorders, and did not include any medical nexus evidence.

On the other hand, the Veteran underwent multiple VA examinations and the January 2014 and February 2016 VA examiners, taking into account the entirety of the evidence of record determined his acquired psychiatric disorder is not the result of active service. The Board acknowledges the Veteran's general complaints that the VA examiners have continually mischaracterized his statements; however, other than his bare contentions, there is no evidence that the examinations are inaccurate. Furthermore, while the Board acknowledges the Veteran's medical nexus claims, the evidence of record is devoid of any competent or credible medical evidence or opinion, and the Board stresses, rendered from a medical professional, indicating his acquired psychiatric disorder is the result of active service.

The Board acknowledges his claim that his acquired psychiatric disorder is a neurologic condition and thus qualifies for presumptive service connection for Gulf War Exposures; however, the Veteran is incorrect. The criteria outlined in 38 C.F.R. � 3.317(b) are signs and symptoms of a medically unexplained chronic multi-symptom illness (MUCMI) (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or a diagnosed illness that warrants a presumption of service connection rather than a singular symptom or diagnosis. 38 U.S.C. � 1117(a)(2); 38 C.F.R. � 3.317(a)(2)(i)(B)(1). While the Board acknowledges the Veteran's symptoms of his acquired psychiatric disorder are considered neuropsychological signs or symptoms as contemplated by 38 C.F.R. � 3.317(b), they have been attributed to intervening events. Here, the evidence of record contains "affirmative evidence" his acquired psychiatric disorder "was not incurred in" active service and there is "affirmative evidence that the disability was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability." See 38 C.F.R. � 3.317(a)(7)(i)(ii). Specifically, the evidence of record indicates his depression and anxiety began after active service due to various personal events in the Veteran's life. Moreover, multiple VA examiners and the Veteran's own physicians have determined his acquired psychiatric disorder has a clear and specific etiology and diagnosis to events outside of his active service. Thus, his acquired psychiatric disorder is not a medically unexplained chronic multi-symptom illness in which presumptive service connection can be granted. While the Board acknowledges the April 2011 Dr. J.S. statement that insomnia is a "common complaint of Gulf War Veterans," that lone statement without any supporting rationale or evidence is outweighed by the entirety of the evidence of record outlined above. The Board further acknowledges the Veteran's complaint that the February 2014 VA examiner's determination that his acquired psychiatric disorder was not the result of Gulf War service is inadequate in light of his submitted GAO report. Although the report documents inadequate medical opinions, there is no indication in the evidence of record that the 2014 VA opinion commits the same errors outlined in the report. Indeed, his claim of inadequacy is entirely unsupported and does not cite to the specific reasoning and issues of the proffered opinion but instead resorts to speculation and conjecture. Additionally, the evidence of record is devoid of any competent or credible medical evidence from a medical professional to support his contention that his acquired psychiatric disorder is the result of Gulf War service or refuting the VA examiner's opinion of record.

As to his claim that his acquired psychiatric disorder was due to the issuance of an anti-malaria drug, the weight of the evidence is also against this claim. Here, the October 2020 VA examiner, considering the entirety of the evidence of record, determined his acquired psychiatric disorder was not the result of in-service malaria medication. The Board acknowledges the Veteran's claims that the 2020 VA opinion is inadequate; however, the evidence again does not support these claims. First, the Veteran either misunderstood or misstated the Board's purpose in acquiring the medical opinion. The Board was not attempting to, and did not need to refute the findings of the submitted medical literature. Instead, the purpose was to provide the Veteran's submitted medical literature and the entirety of the evidence of record to a medical professional and for that professional to consider all of the evidence and render an opinion. Indeed, the Veteran's literature is and was a piece of evidence among many other pieces of evidence considered by the examiner. Second, the 2020 opinion acknowledged and recognized the Veteran's submitted medical literature and lay statements regarding his disorder. After doing so, the examiner rendered an opinion that took into account all of the evidence of record and ultimately determined his acquired psychiatric disorder was not the result of an in-service anti-malaria drug. Additionally, the evidence of record is devoid of any competent or credible medical opinion rendered from a medical professional to refute the VA examiner's opinion of record.

Lastly, the only other evidence the Veteran's acquired psychiatric disorder began during active service and is otherwise related to active service are the Veteran's and his spouses' own statements. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight to which it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may believe his acquired psychiatric disorder is related to active-duty service, the result of in-service anti-malaria drugs, and may be caused by Gulf War Illness, he is not competent to make such determinations, which are medical in nature. See Jandreau, 492 F.3d at 1372. Such opinions require specialized training and knowledge and are matters which are not capable of lay observation. Moreover, the VA opinions of record are supported by explanation, based on a review of the claims file, and supported by the clinical evidence of record and service connection principles. Accordingly, the Board finds the VA examiner's opinions to be more probative than the Veteran's claims and the alleged positive medical opinions of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the Board finds the Veteran's contentions are of little probative value.

As to the Veteran's remaining argument, in October 2020, the Veteran alleged the Board violated 38 C.F.R. � 3.326 and the M21-1 Compensation Manual by the Veteran undergoing multiple VA examinations; however, the Veteran has not alleged how undergoing multiple VA examinations has prejudiced the Veteran. Indeed, the Veteran has not cited how he has been harmed by the VA's attempts to properly characterize the Veteran's psychiatric disorder in order to adequately adjudicate his claim. As such, the Board finds the Veteran was not prejudiced by such actions and these claims do not warrant further development.

In sum, the weight of the evidence is against finding the Veteran's acquired psychiatric disorder is the result of active service to include Gulf War illness and as due to anti-malaria medication. As such, the benefit of the doubt rule does not apply. 38 U.S.C. � 5107; 38 C.F.R. � 3.102. Accordingly, the Veteran's claim of service connection for an acquired psychiatric disorder is denied.

TDIU

2. Extraschedular TDIU

The Veteran asserts his service-connected disabilities have rendered him unemployable.

TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if the veteran has only one such disability, the disability must be rated at 60 percent or more, or, if the veteran has two or more disabilities, at least one disability is rated at 40 percent or more and additional disabilities bring the veteran's combined disability rating to 70 percent or more. 38 C.F.R. �� 3.340, 3.341, 4.16(a).

VA will grant a TDIU when the evidence shows that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. �� 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991).

For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he or she still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. � 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his or her service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service ("Director") for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: the severity of the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. � 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015).

In this case the Veteran is currently service connected for right shoulder tendonitis from April 16, 2013, rated as 10 percent disabling; lumbar spine disability from April 4, 2013, rated as 10 percent disabling, sinusitis from April 16, 2013, rated as 10 percent disabling, left lower extremity radiculopathy from April 16, 2013, rated as 10 percent disabling, polyarthralgia from April 16, 2013, rated as 10 percent disabling, and various noncompensable disabilities. His total disability rating is 50 percent as of April 16, 2013. 38 C.F.R. � 4.16(a). As such the Veteran did not meet schedular criteria for TDIU because he did not have one disability ratable at 60 percent or more, or, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. � 4.16(a). However, a TDIU evaluation can still be awarded if it is established by the evidence of record that the service-connected disabilities rendered a veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. �� 3.340(a), 3.341(a), 4.16(b).

Turning to the evidence of record, the Veteran has continually stated he last worked in August 2010 and that he left his job as an IT Specialist due to his service-connected physical disabilities and his non-service connected acquired psychiatric disorder. See May 2011 VA Record, November 2013 Examination, and January 2014 VA Form 21-8940. Additionally, his VA Form 21-8940 indicates he completed two years of college.

As of July 2011, the Veteran is in receipt of disability benefits from the Social Security Administration (SSA), which determined his primary diagnosis was his acquired psychiatric disorder and his secondary diagnosis included various physical disabilities including service-connected disabilities. See November 2019 Letter.

The Board notes a letter from the Office of Personnel Management (OPM) dated April 2012, indicates OPM determined after a review of his medical records that his acquired psychiatric disorder and various physical disabilities rendered the Veteran "disabled" for his employment position.

In February 2012, his VA physician, Dr. J.S. submitted a statement to the Board that attested that his acquired psychiatric disorder and various physical disabilities some of which are service connected, prevent him from "full return to his work duties."

In a June 2019 statement to the Board he stated, "I resigned my [job] in great part [due] to the depression, anxiety, panic attacks."

The evidence of record also contains multiple statements indicating he should be granted a total disability rating because other federal agencies, specifically, SSA and OPM have determined he is unable to work due to various disabilities.

Upon a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the weight of the evidence is against finding that referral to the Director of the Compensation Service for consideration of an extraschedular TDIU is warranted.

The Board acknowledges the Veteran's complaints regarding other federal agencies determining the Veteran is unable to work. However, under the VA standard, which is different from that of other federal agencies, he does not meet the criteria for a schedular TDIU and thus is not initially eligible. Therefore, although probative evidence in favor of the Veteran's claim, those determinations alone do not dictate the Board's decisions; hence, in addition to the reasons further described below, the Veteran's claim has not been granted outright prior to the date of this decision. However, in cases such as this and as previously stated, if there is evidence the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation, the case is to be sent to the Director of the Compensation Service for extraschedular consideration as the Board is not allowed to award TDIU in the first instance. See 38 C.F.R. �� 3.340(a), 3.341(a), 4.16(b).

In this case, the Board has only previously remanded the Veteran's TDIU claim as intertwined (i.e., pending development may affect any determination concerning entitlement to TDIU) with the development and ultimate determination of his claim of service connection for an acquired psychiatric disorder. In this decision, that claim was denied; thus, the Veteran no longer has any outstanding service connection claims which could raise his total disability rating to the point where he meets the schedular criteria for TDIU. The Board apologizes for any confusion this may have caused the Veteran.

Nonetheless, the Board finds the weight of the evidence does not support the Veteran's claim. Here, the Board acknowledges the Veteran's contentions his service-connected disabilities make it difficult for him to work and the Board does not doubt that the Veteran's service-connected disabilities impact his employability. However, that difficulty is contemplated by his 50 percent combined schedular evaluation, which recognizes industrial impairment resulting from his disabilities. Additionally, the evidence further indicates his non-service-connected acquired psychiatric disorder to be a substantial, if not overriding, factor in the Veteran's unemployability rather than his service-connected physical disabilities. Indeed, the SSA and OPM determinations and his private opinions all include his acquired psychiatric disorder as a hinderance to his employment and SSA determined that to be his primary hinderance. Furthermore, and most importantly, the Veteran himself stated in his June 2019 statement to the Board he left his employment "in great part" due to his acquired psychiatric disorder and did not cite to any physical disabilities. Moreover, the Veteran has not provided any evidence indicating how his service-connected physical disabilities, alone, preclude him from continuing to work as an IT Specialist or utilizing his two years of college education to obtain a substantially gainful occupation in another field. Although the Board acknowledges the SSA and Vocational determinations, the Board notes that such findings, while probative evidence, are not decisive in determining entitlement to TDIU as other federal adjudicators must utilize standards and regulations other than those employed by VA in making their decisions. Considering the above, the Board finds the evidence of record does not indicate the Veteran's service-connected disabilities by themselves render him unable to secure and follow a substantially gainful occupation.

Consequently, the Board finds the weight of the evidence is against finding for referral to the Director of the Compensation service for consideration of TDIU on an extraschedular basis. Hence, the benefit of the doubt doctrine does not apply. See 38 U.S.C. � 5107(b); 38 C.F.R. �� 3.102, 4.3. Accordingly, the Veteran's TDIU claim is denied.

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Attorney Advisor, Tyler R. Masters

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.


series: legacy

judge_norm: M MILLS

judge_role: Acting Veterans Law Judge

disposition: remanded

text:
Citation Nr: 23006000
Decision Date: 01/31/23	Archive Date: 01/31/23

DOCKET NO. 18-42 441
DATE: January 31, 2023

REMANDED

Entitlement to service connection for bilateral hearing loss is remanded.

Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1973 to July 1978, with additional service in the Reserves. These matters were most recently remanded in April 2020 and return to the Board for readjudication. Unfortunately, the matters must be remanded as the Board is unable to make a fully informed decision.

1. Entitlement to service connection for bilateral hearing loss.

The standard for aggravation was incorrectly applied in the August 2020 and January 2021 VA opinions. The correct standard is whether there is any increase in disability and not beyond its natural progression. As a result, the matter must be remanded for another opinion.

2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD.

The Board finds the AOJ did not meet its duty to assist the Veteran in corroborating his claimed stressor. In March 2015, the Veteran submitted a statement that he witnessed a little girl being hit by a vehicle he was in. The Veteran reported the incident occurred in March 1975 and that he was stationed with the 227th maintenance battalion. See also May 2018 Statement in support of claim for PTSD. The record shows only one attempt by the VA to corroborate the Veteran's claim in June 2015. The VA memorandum stated there was not enough information to forward to records management directorate. On remand, the Veteran was provided with another opportunity to provide information regarding his claimed stressors for PTSD. The Veteran provided another statement that he had been involved in a MVA that involved the death of a little girl. As the VA has not assisted the Veteran in verifying his stressor, the matter must be remanded. Furthermore, the Board finds the May 2022 VA examination inadequate as the examiner stated the witnessing of a little girl being killed had no impact on the Veteran and the Veteran has had no nightmares. During the period on appeal, the Veteran has stated several times that he has had dreams and flashbacks to the accident.

The matters are REMANDED for the following action:

1. Take the appropriate steps to attempt to corroborate the Veteran's alleged in-service stressor, that he was involved in a motor vehicle accident in March 1975 with the Records Management and Declassification Agency (RMDA). If no record of an MVA is found, the AOJ must inform the Veteran.

2. After completion of the foregoing, forward copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion for the Veteran's psychological disorder claim. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. The AOJ must specifically provide the examiner with a statement identifying any verified stressor. If there is no stressor verified, the examiner must be informed of that.

After reviewing the file, the examiner is asked to answer the following questions:

(a) During the period on appeal, has the Veteran been diagnosed with PTSD?

(b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently diagnosed psychological disorder was incurred in or is otherwise related to service? In providing the opinions, the examiner must specifically discuss the following: (i) the stressor, if any, as identified by the AOJ prior to the examination, (ii) the November 2021 private medical opinion, and (iii) the Veteran's lay statements that he has had nightmares and flashbacks of the event.

A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made.

3. Forward copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion for the Veteran's bilateral hearing loss claim. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled.

After reviewing of the record, the examiner is asked to answer the following questions:

(a) Does the evidence of record clearly and unmistakably (i.e. it is undebatable) show that the Veteran's left ear hearing loss preexist his entry onto active duty? The examiner must consider the 1973 and 1978 inservice examinations, as well as the 1982, 1987, and 1991 reserve examinations. If the examiner finds hearing loss preceded service, the examiner must discuss the normal hearing findings in the 1987 and 1991 reserve examinations.

(b) If the answer is yes, does the evidence of record clearly and unmistakably (i.e. it is undebatable) show that his left ear hearing loss was not aggravated by service or that any increase in disability was due to the natural progression of the disease?

The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression

(c) If the answer to either (a) or (b) is no, is it at least as likely as not (i.e., 50 percent or greater probability) that his left ear hearing loss was incurred or related to his active service, to include any periods of ACDUTRA or INACDUTRA?

(d) Is it at least as likely as not (50 percent probability) that any currently diagnosed right hearing loss disability was incurred in or is otherwise related to service, to include ACTDURTA and INACTDUTRA?

A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made.

4. Confirm that the VA medical opinions provided comports with this remand.

M. Mills

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Jarman, 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.