MAJOR DEPRESSIVE DISORDER

Summary

The Veteran, an Air Force Veteran who served from January 1974 to December 1978, appealed the denial of service connection for a mental health condition (depression and anxiety) and Total Disability based on Individual Unemployability (TDIU). The Board denied service connection for the mental health condition, finding no current diagnosis or symptoms of a mental health condition, and no evidence of functional impairment. The Board noted the VA examiner found no diagnosed mental health condition and no symptoms, and that service treatment records and post-service medical records also lacked any mention of mental health conditions or treatment. The Board applied the preponderance of the evidence standard, finding it weighed against the claim, and thus the benefit of the doubt rule was inapplicable. The claim for TDIU was also denied. The Veteran's combined rating for service-connected disabilities (lumbosacral strain and tinnitus) was 50 percent, not meeting the minimum threshold for schedular TDIU. While the Veteran claimed unemployability due to his back injury, his own statements and examinations were contradictory, with the Veteran reporting owning and working at a bar seven days a week, while also stating his back injury prevented him from working. The Board found the evidence did not show his disabilities impeded his ability to perform occupational duties or precluded him from substantially gainful employment. The Board remanded the claim for service connection for ocular migraine (claimed as blurred vision) due to a pre-decisional duty to assist error. The VA examiner's opinion linking ocular migraines to a service-connected concussion was insufficient, failing to explain why poor diet and caffeine were more likely causes than the concussion, and relying solely on the absence of in-service complaints.

Rationale

No current diagnosis of mental health condition; No persistent or recurrent symptoms of mental health condition; No evidence of functional impairment impacting earning capacity

Full Decision Text

Citation Nr: A25033153
Decision Date: 04/09/25	Archive Date: 04/09/25

DOCKET NO. 231011-383765
DATE: April 9, 2025

ORDER 

Entitlement to service connection for a mental health condition, to include depression and anxiety, is denied. 

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

REMANDED 

Entitlement to service connection for ocular migraine (claimed as blurred vision) is remanded. 

FINDINGS OF FACT 

1. The evidence of record persuasively weighs against finding that the Veteran has or had a diagnosed mental health condition at any time during or approximate to the pendency of the claim. 

2. The evidence persuasively weighs against finding that the Veteran has been unable to secure or follow substantially gainful employment due to his service-connected disabilities.?

CONCLUSIONS OF LAW 

1. The criteria for entitlement to service connection for a mental health condition, to include depression and anxiety, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

2. The criteria for entitlement to TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16.?

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 

The Veteran served on active duty in the United States Air Force from January 1974 to December 1978. 

This matter comes before the Board on appeal of January and August 2023 rating decisions. In the October 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January and August 2023 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decisions on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence which was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim of service connection for ocular migraine (claimed as blurred vision), any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). 

1. Entitlement to service connection for a mental health condition, to include depression and anxiety, is denied. 

Service connection may be granted for a disability resulting from an event, disease, or injury incurred in or aggravated by active service. 38?U.S.C. §§?1101, 1110, 1131, 5107; 38?C.F.R. §?3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of an event, disease, or injury; and (3) a causal relationship between the current disability and the in-service event, disease, or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

The Board must assess the competency, credibility, and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Wilson v. Derwinski, 2?Vet. App.?614, 618 (1992); see Hatlestad v. Derwinski, 1?Vet. App.?164 (1991); Gilbert v. Derwinski, 1?Vet. App.?49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 

The Veteran, by and through his representative, asserts entitlement to service connection
 including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Wilson v. Derwinski, 2?Vet. App.?614, 618 (1992); see Hatlestad v. Derwinski, 1?Vet. App.?164 (1991); Gilbert v. Derwinski, 1?Vet. App.?49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 

The Veteran, by and through his representative, asserts entitlement to service connection for a mental health condition, to include depression and anxiety, as secondary to his service-connected physical conditions. 

In December 2022, the Veteran was afforded a VA examination. The examiner noted the Veteran experienced frustration due to his physical limitations, but did not diagnose the Veteran with a mental health condition and did not record any symptoms. The examiner submitted several accompanying medical opinions addressing service connection for a mental health condition as secondary to the Veteran's service-connected physical disabilities, but all opinions reported the Veteran did not have a diagnosed mental health condition. 

The Veteran's military entrance and separation examinations do not note any mental health conditions or symptoms, and his service treatment records do not contain any complaints of mental health symptoms or any documentation of mental health treatment. Likewise, the Veteran's post-military medical treatment records do not contain a diagnosis for or symptoms or complaints of a mental health condition, nor do they contain evidence of treatment for a mental health condition. 

Based on a review of the record before the Board, there is no diagnosis for a mental health condition, no persistent or recurrent symptoms of a mental health condition, and no evidence of functional impairment impacting earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1362 (Fed. Cir. 2018).?Therefore, the Board concludes that the Veteran does not have a current diagnosis of a mental health condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26?Vet. App.?289, 294 (2013); McClain v. Nicholson, 21?Vet. App.?319, 321 (2007).?

As the first required element for direct service connection for a mental health condition has not been met, the remaining elements will not be discussed. Romanowsky, 26?Vet. App.?at 294; McClain, 21?Vet. App.?at 321. As the evidence is not in approximate balance and persuasively weighs against the claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Therefore, entitlement to service connection for a mental health condition, to include depression and anxiety, is denied. 

2. Entitlement to TDIU due to service-connected disabilities is denied. 

A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.?38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).? 

The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal which permits the individual to earn a living wage).?See Moore v. Derwinski, 1?Vet. App.?356 (1991); see also Ray v. Wilkie, 31?Vet. App.?58 (2019).?The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.?Van Hoose v. Brown, 4?Vet. App.?361 (1993
 gainful employment (i.e., work which is more than marginal which permits the individual to earn a living wage).?See Moore v. Derwinski, 1?Vet. App.?356 (1991); see also Ray v. Wilkie, 31?Vet. App.?58 (2019).?The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.?Van Hoose v. Brown, 4?Vet. App.?361 (1993). Factors to be considered are the veteran's education, employment history, and vocational attainment. See Pederson v. McDonald, 27?Vet. App.?276, 281 (2015).?

Here, the Veteran is in receipt of a 40 percent rating for lumbosacral strain, a 10 percent rating for tinnitus, and four 10 percent ratings for bilateral hip and sciatic radiculopathy disabilities associated with lumbosacral strain. However, per 38 C.F.R. § 4.16(a)(2), disabilities resulting from a common etiology or single accident are rated as one disability. As such, the Veteran has a 40 percent rating for lumbosacral strain and a 10 percent rating for tinnitus for a total 50 percent disability rating. 

The Veteran does not meet the criteria for schedular TDIU as he does not have one service-connected disability rated at 60 percent or higher or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. Therefore, the Veteran does not meet the minimum threshold requirements for consideration of schedular TDIU under 38 C.F.R. § 4.16(a).?

In accordance with 38 C.F.R. § 4.16(b), the Board will consider whether the Veteran's claim for TDIU should be referred to the Director of the Compensation Service for extraschedular consideration. Bowling v. Principi, 15?Vet. App.?1, 10 (2001) (the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted). 

In September 2022, the Veteran submitted VA form 21-8940 Application for Increased Compensation Based on Unemployability in which the Veteran reported his lower back injury prevented him from securing or following substantially gainful occupation. He stated the physical limitations caused by his service-connected disabilities made it difficult to move and "impossible to continue to work." He stated he last worked full time in June 2018 and became too disabled to work in March 2022. The Veteran reported his prior employment as a bar manager from March 2020 to September 2022. 

However, in the November 2022 VA examination regarding a mental health condition, the Veteran reported he owned a bar since 1988 and worked there seven days a week. Furthermore, in January 2023, the Veteran submitted VA form 21-4138 Statement in Support of Claim reporting he continued to work at the bar, albeit with reduced hours. He reported functional impacts of difficulty standing, sitting, walking, and lifting. The most recent VA examinations regarding the Veteran's service-connected back disability noted functional impacts of difficulty walking and standing for long periods of time and noted two to four weeks of lost work time in the last 12 months. 

As such, the evidence of record does not show that the Veteran's service-connected disabilities impeded his physical or mental ability to perform the activities required by his occupation. Additionally, the evidence of record does not show that the Veteran's service-connected disabilities precluded him from securing and following a substantially gainful occupation consistent with his education, skills, training, and work history. Therefore, the Veteran does not meet the criteria for an extraschedular TDIU. As the Veteran has not met the criteria for a schedular or extraschedular TDIU, the appeal for TDIU is therefore denied. 

REASONS FOR REMAND 

3. Entitlement to service connection for ocular migraine (claimed as blurred vision) is remanded. 

After a review of the record, the Board determines a remand is necessary to correct a pre-decisional duty to assist error. 

The Veteran's service treatment records show he sustained a concussion after a swimming accident in July 1976, during active service. A VA medical opinion dated June 9, 2023, addressed whether the Veteran's
. Therefore, the Veteran does not meet the criteria for an extraschedular TDIU. As the Veteran has not met the criteria for a schedular or extraschedular TDIU, the appeal for TDIU is therefore denied. 

REASONS FOR REMAND 

3. Entitlement to service connection for ocular migraine (claimed as blurred vision) is remanded. 

After a review of the record, the Board determines a remand is necessary to correct a pre-decisional duty to assist error. 

The Veteran's service treatment records show he sustained a concussion after a swimming accident in July 1976, during active service. A VA medical opinion dated June 9, 2023, addressed whether the Veteran's ocular migraines were as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by or due to the concussion sustained in service. The provider concluded the Veteran's ocular migraines were less likely than not (likelihood is less than approximately balanced or nearly equal) caused by or due to the concussion sustained during service. The provider reasoned the Veteran's medical records show his "ocular migraine symptoms are due to a poor diet with too much daily caffeine." 

Unfortunately, this opinion does not explain why the Veteran's ocular migraines are more likely caused by poor diet and caffeine than the concussion sustained in service. Furthermore, a November 2021 medical treatment record shows improvement in ocular migraine symptoms while the Veteran was still consuming six to eight diet cokes and at least three beers per day. A May 2022 medical treatment record also documented improved symptoms while the Veteran was still consuming four to six diet cokes and two to three beers per day. 

A June 28, 2023, VA medical opinion concluded the Veteran's ocular migraines were less likely than not caused by the concussion sustained in service as there was no eye condition listed on the Veteran's separation examination. 

Again, this opinion does not explain why the Veteran's ocular migraines were less likely than not caused by the concussion sustained in service. Furthermore, a negative opinion based solely upon the lack of evidence of complaints or treatment for symptoms in the Veteran's service treatment records is insufficient. See Dalton v. Nicholson, 21?Vet. App.?23 (2007) (holding that an examination was inadequate where the examiner relied entirely on the absence of evidence in the service treatment records to provide a negative opinion). 

As such, remand is necessary to obtain a medical opinion addressing whether the Veteran's ocular migraines are as likely as not caused by or due to the concussion he sustained during active service, or otherwise related to active service. 

The matters are REMANDED for the following action: 

Obtain a VA opinion regarding the nature and etiology of the Veteran's ocular migraines. The Veteran's electronic claims file, including a copy of this remand, must be accessible to the examiner for review. The examiner must provide a detailed rationale for any opinion they provide, and the opinion must state that the examiner reviewed the Veteran's electronic claims file and this remand.  Whether an additional examination of the Veteran is warranted to provide the requested opinion is left to the discretion of the examiner.  The examiner is to address the following: 

Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's ocular migraines were caused by or the result of the concussion he sustained during active service in July 1976? 

Is it at least as likely as not that the Veteran's ocular migraines were caused by or the result of an in-service injury, event, or disease? 

A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles should be considered. 

 

ANTHONY C. SCIRÉ, JR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mills, D.

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.