Citation Nr: 18160673
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 10-36 826
DATE:	December 27, 2018
ORDER
Service connection for a psychiatric disability, claimed as a generalized anxiety disorder and major depressive disorder, is granted.
REMANDED
The appeal for entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) prior to Nov. 17, 2015 is remanded.
FINDINGS OF FACT
1.  The Veteran has current diagnoses of an acquired psychiatric disability, including a generalized anxiety disorder and a major depressive disorder.
2.  The Veteran’s service-connected disabilities include diabetes mellitus, coronary artery disease, hypertension, impotence, and peripheral neuropathy of both lower extremities, all of which predate the development and diagnosis of his psychiatric disability.
3.  VA medical opinion finds it is as likely as not that the Veteran’s psychiatric disabilities increased in severity beyond their natural progression due to his service-connected disabilities; additional evidence shows the original baseline severity would have been no current symptomatology.  
CONCLUSION OF LAW
The criteria for service connection for a psychiatric disability, to include a generalized anxiety disorder and major depressive disorder, have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(b) (2018).  
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty from February 1968 to April 1971.  These matters are on appeal to the Board from a September 2010 rating decision (TDIU) by a regional office (RO) and a December 2013 rating decision (acquired psychiatric disability).  The Board remanded these matters in April 2014 and September 2017.
Entitlement to Service Connection for a Psychiatric Disability
The Veteran contends that his major depressive disorder and generalized anxiety disorder were incurred due to his many service-connected disabilities, to include diabetes mellitus, coronary artery disease, hypertension, and peripheral neuropathy.  The Veteran’s attorney argues there is no evidence the Veteran’s psychiatric disabilities predate his service-connected disabilities.  It follows, he claims, that the psychiatric disabilities were either caused by the service-connected disabilities or, if they were aggravated, it is not necessary to establish the baseline severity prior to aggravation. 
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires (1) medical evidence of a current disability; 
(2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.  Consistent with this framework, service connection is warranted for a disease first 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).
Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).  Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown.  Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b).  
In order to establish entitlement to secondary service connection, there must be 
(1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).
The Veteran was afforded VA examinations for mental disorders in November 2013 and October 2018.  The November 2013 examiner found that the Veteran has a current diagnosis of a depressive disorder.  A diagnosis of a second disability was deferred.  The October 2018 VA examiner diagnosed the Veteran’s disability as an unspecified anxiety disorder.  A review of the Veteran’s VA treatment records shows that he has received counseling for what has been characterized as either a generalized anxiety disorder or a major depressive disorder from approximately 2010.  Although the VA examiners disagree on the precise nature of the Veteran’s diagnoses, clearly the initial criterion of competent evidence of a current disability that is required to establish service connection on a secondary basis has been met.  
The record shows entitlement to service connection for diabetes mellitus type II, coronary artery disease, hypertension, and impotence has been granted, effective from February 2001.  In addition, peripheral neuropathy of the left lower extremity and peripheral neuropathy of the right lower extremity has been granted, effective from September 2003.  The second criterion for secondary service connection has also been met.  
The final criterion is that of competent medical evidence establishing a nexus between the Veteran’s service-connected disability or disabilities and the current psychiatric disability.  The only medical opinion to address this matter was provided by the October 2018 VA examiner.  This examiner opined that the Veteran’s claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected disabilities.  The rationale was that the Veteran’s anxiety disorder appears to pre-date some of the medical exacerbations and is related to multiple stressors.  However, the examiner opined that it was at least as likely as not that the Veteran’s claimed condition was aggravated beyond its natural progression by the service-connected disabilities.  The rationale was that it was reasonable based on medical research that the Veteran’s mood/anxiety symptoms would be exacerbated by such conditions as diabetes and pain related service-connected disabilities.  However, the examiner determined that a baseline as to the original level of severity of the psychiatric conditions prior to aggravation could not be established as there was not enough information in the medical records to adequately establish a baseline.  
Based on the above, the Board finds that the final criterion for service connection for a psychiatric disability diagnosed as a generalized anxiety disorder and a major depressive disorder has been met.  The October 2018 VA examiner provide an opinion that that the Veteran’s psychiatric disabilities were not incurred due to his service-connected disabilities.  The rationale was based in part on this examiner’s assumption that the Veteran’s anxiety disorder pre-dated some of his medical exacerbations.  However, the examiner does not identify the evidence on which he based this rationale and, after its own review of the record, the Board finds that this assumption is not supported by the record.  
The evidence includes private medical records that demonstrate the Veteran was first diagnosed with diabetes in 1993.  VA treatment records dating from 2001 to the present confirm the date of the initial diagnosis of diabetes mellitus as 1993.  
In contrast, the earliest evidence of any psychiatric symptomatology is an October 2003 positive depression screen found in the VA treatment records.  
The examiner appears to relate this to the Veteran’s unemployment and does not render a diagnosis of a psychiatric disability, and the Veteran declined any treatment.  VA treatment records dating from 2003 to 2010 include many depression screens.  Some were negative and others were positive.  The Veteran underwent further evaluation after a December 2005 depression screen was positive, but the examiner concluded that the Veteran did not meet the criteria for a major depressive disorder.  The earliest evidence of treatment is dated May 2010, at which time the Veteran was noted to have anxiety and depression.  
A June 2010 VA treatment record diagnosed the Veteran with an adjustment disorder with anxious and depressed mood.  The Veteran denied any prior psychiatric history at that time.  Thus, it is clear that the Veteran’s service-connected disabilities were incurred, acknowledged by VA, and service-connected approximately a decade before the diagnosis of a psychiatric disability.  Even the October 2018 VA examiner notes that the Veteran first sought psychiatric treatment in 2010.  It follows that that this portion of the examiner’s opinion is not supported by the record, which reduces its evidentiary value.
The portion of the opinion that remains is the October 2018 examiner’s finding that the Veteran’s psychiatric disabilities were aggravated by his service-connected disabilities.  Therefore, the Board agrees with the Veteran’s attorney, and notes that as the evidence establishes the psychiatric disabilities developed well after the service-connected disabilities, the baseline severity prior to aggravation would necessarily have been no symptomatology, or symptom free.  In sum, the Veteran’s psychiatric disability was aggravated by his service-connected disabilities, and all criteria for secondary service connection have been met.  
REASONS FOR REMAND
TDIU prior to Nov. 17, 2015 
The evidence establishes that entitlement to TDIU has been established, effective from November 17, 2015.  The Veteran continues to assert his service-connected disabilities rendered him unable to obtain or maintain gainful employment prior to that date.  
TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).
The evidence shows that prior to November 17, 2015, the Veteran’s combined evaluation was 50 percent.  Indeed, even when looking at the disabilities from a common etiology, such as diabetes (diabetes, bilateral peripheral neuropathy of the lower extremities, and hypertension), the Veteran does not meet the schedular criteria under § 4.16(a) for TDIU prior to that date.  
However, the Board observes that the grant of service connection for a psychiatric disability by this decision may impact the Veteran’s combined rating after the RO has had an opportunity to assign the initial rating for this disability.  This in turn may impact the Veteran’s claim for TDIU, making the matters inextricably intertwined.  The claim for TDIU prior to November 17, 2015 must be remanded for further consideration by the RO after this initial evaluation has been assigned.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).
The matter is REMANDED for the following action:
Assign the initial rating and effective date for the Veteran’s now service-connected psychiatric disability.  Then, readjudicate his claim for TDIU prior to November 17, 2015.  If needed, refer the matter to the Director, Compensation Service, for consideration under § 4.16(b) prior to November 17, 2015.

 
Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. L. Prichard, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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