Citation Nr: 1317897 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-16 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a major depressive disorder. 2. Entitlement to service connection for a left hip disability. 3. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from May 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2007 and February 2009 decisions of the Montgomery, Alabama, Regional Office (RO). The August 2007 decision denied left hip and left knee disability service connection claims and the February 2009 decision denied a major depressive disorder service connection claim. The Veteran's April 2009 statement and the April 2009 statement of a VA physician have raised the issue of entitlement to a total disability evaluation, based on individual unemployability, but the matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for respective left hip and left knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection is in effect for right upper extremity chronic muscle pain and right lower extremity chronic muscle pain, residuals of an electrical shock injury. 2. Resolving all reasonable doubt in the Veteran's favor, the competent evidence of record indicates the Veteran's service-connected disabilities of chronic muscle pain of the right upper and lower extremities, residuals of an electrical shock injury, caused the Veteran's major depressive disorder. CONCLUSION OF LAW The criteria to establish service connection for a major depressive disorder have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits; however, in this case, the Board is granting the service connection claim for a major depressive disorder. This is a full grant of the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). A July 2007 VA treatment note reflects that the Veteran's Axis 1 diagnosis of depression was related to stressors of "chronic pain" and finances. A June 2007 VA treatment record notes that although a different VA examiner did not directly link the Veteran's current depression to his in-service electrical shock injury, she did link it to the Veteran's chronic pain. The June 2007 VA treatment provider noted that because the current chronic pain stems from the in-service injury, it would be possible to conclude that there is a link between the current depression and the in-service electrical shock injury. The Veteran's treating VA psychologist provided an July 2008 statement confirming the Veteran's continued monthly psychiatric treatment for depression, stating that treatment of the psychiatric disability was unsuccessful because it was augmented or caused by the Veteran's chronic pain. In September 2008, the Veteran was provided a VA psychiatric evaluation. The examiner detailed the Veteran's account of psychiatric symptoms and right upper and lower extremity pain. The examiner provided a diagnosis of major depressive disorder. The examiner opined that the major depressive disorder was likely related to several stressors, including the Veteran's childhood, his recent loss of a job, and chronic pain. The examiner also opined that "to some degree", long-term narcotic use and recently found hypothyroidism could contribute to his depression as well. The examiner stated that Veteran's electric shock injury of the right limbs during military service was a precipitator of his pain, but that his limb pain from the military injury is less likely to be the only cause of his current depression. The Board finds the competent evidence of record weighs in favor of the Veteran's claim. As noted above, several medical records/treatment providers specifically relate the Veteran's current depression to his service-connected chronic pain of the right extremities. Although the September 2008 VA examiner indicated that it was less likely that the Veteran's chronic pain was the only cause of his current depression, the Board notes there is no legal requirement that a service-connected disability be the only cause of a disorder in order to establish entitlement to service connection on a secondary basis. Therefore, when the competent evidence is viewed in the totality, and after resolving any benefit of the doubt in favor of the Veteran, the Board finds that service connection for the Veteran's current depressive disorder is warranted, based on being secondary to the Veteran's service-connected chronic pain disorder of the right extremities. ORDER Service connection for a major depressive disorder is granted. REMAND The July 2007 VA examination indicated the Veteran denied any left extremity symptomatology, and the examiner reported the absence of any orthopedic abnormalities; however, in a May 2008 statement, a VA physician indicates radiological tests "suggest [the Veteran] may have some mild osteoarthritis of the [left] hip and [left] knee." Additionally, the record reflects that the Veteran continues to allege symptomatology of the left extremities. As the record now contains competent medical evidence that the Veteran may have a left hip or knee disability during the pendency of the appeal, the Board finds that a VA examination is warranted.. See McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). In a July 2008 statement, the Veteran reported that he is now receiving Social Security Administration (SSA) disability benefits. These records have not been associated with the Veteran's claims file. VA has a duty to obtain SSA records when they may be relevant to a Veteran's claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). The AOJ should contact SSA and obtain and associate with the claims file copies of the Veteran's records regarding SSA benefits, including the complete medical records upon which any decision was based. 38 C.F.R. § 3.159(c)(2). Finally, there are no VA treatment records associated with the claims file after July 2009. Thus, on remand, the AOJ should associate with the claims file any relevant VA treatment records from July 2009 to present. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. With any needed assistance from the Veteran, obtain from SSA records pertinent to any claim made by the Veteran for disability benefits as well as the medical records relied upon concerning such claim. If such records are unavailable, the Veteran's claims file should be clearly documented to that effect and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain all outstanding VA treatment and/or hospitalization records related to the Veteran's left hip and left knee, dated since July 2009. If such records are unavailable, the Veteran's claims file should be clearly documented to that effect and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. After the above development has been completed, schedule the Veteran for an appropriate examination to determine the nature, extent, onset and etiology of his left hip and left knee conditions. The claims folder must be made available to and reviewed by the examiner. The examiner should record the full history of the condition, including the Veteran's account of symptomatology. The examiner must diagnose all left hip and left knee pathology, specifically ruling in or excluding a diagnosis of osteoarthritis. Then, as to each condition, please opine as to whether it is at least as likely as not that the condition: (a) was caused by military service, including an electrical shock injury; (b) had its onset during military service or within one year of separation; (c) was caused by any service-connected disability, including right upper and right lower extremity disabilities; and (d) was aggravated by any service-connected disability, including right upper and right lower extremity disabilities. In providing the requested opinions, the examiner must acknowledge and discuss (i) the Veteran's report of symptomatology; (ii) July 2007 VA examination report; (iii) the May 2008 statement of the VA physician; and any other medical or lay evidence deemed pertinent. All necessary test and/or studies should be conducted and reported in detail in the provided examination report. All findings and conclusions should be set forth in a legible report. 4. Then readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs