Citation Nr: 1327130 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 07-35 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression. 2. Entitlement to an initial disability evaluation in excess of 10 percent for mesenteric panniculitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from November 1975 to November 1979, and as an activated member of the Puerto Rico Air National Guard from February 2004 to June 2004. There are additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The case is in the jurisdiction of the RO in Atlanta, Georgia, and it is from here that the appeal arises. The entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed in this case. The issues of entitlement to higher initial ratings for mesenteric panniculitis is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's acquired psychiatric disability, manifested by anxiety and depression, was, at least partially, caused by service-connected mesenteric panniculitis. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include anxiety and depression, have been met 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303; 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires 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 Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic conditions, such as psychoses, if manifest to a compensable degree within the first post-service year, will be presumed to have been incurred in active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice- connected disability caused by a service-connected disability. See Allen v. Brown, 7 Vet.App. 439 (1995). The United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service" (or, as in this case, a relationship between a current disability and a service-connected disability). See Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability" (by analogy, between a current disability and a service-connected disability). See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Veteran in this case alleges that a current acquired psychiatric disability, inclusive of anxiety and depression, was either caused or aggravated beyond the natural course of the disease process by service-connected mesenteric panniculitis. The post-service treatment records include a VA examination report, dated in December 2007, which stated that the Veteran's diagnosed adjustment disorder "[was] not caused by or a result of service-connected panniculitis." There was no rationale offered for this, with a simple statement that the Veteran sought psychiatric care in 2007 due to conflicts with co-workers. Aggravation was not addressed. Given this, the Board cannot conclude that the opinion is particularly probative in its addressing of the contended etiology. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has had numerous psychiatric and social work consultations with VA providers from approximately 2007 to the present. He has been consistently diagnosed with adjustment disorder; however, more recently, he was assessed with both depression and anxiety. Indeed, in March 2011, a private psychiatrist wrote a letter describing the Veteran as his patient. It was noted that a February 2011 mental status evaluation was conducted, and that "available medical records were reviewed." The examiner stated that he had reviewed the "treatment records and history," and that it was his conclusion that "anxiety and depression are likely related to mesenteric panniculitis." The examiner described how the mesenteric panniculitis had a "protracted period of evaluation for ongoing abdominal pain that was significantly impacting his life in negative ways." It was explained that the treatment for the condition made the Veteran "greatly fearful" of "dying from a severe illness that had not been discovered by his treating physicians." It was the associated fear and worry that "led to his clinically significant depressive and anxious symptoms." In clarifying his opinion, the examiner stated that while "the mesenteric panniculitis did not directly cause the psychiatric deterioration, the lengthy period of work-up and the associated fear and worry about dying from the at-the-time undiagnosed pain-causing illness was likely the immediate cause of his emotional deterioration" (emphasis added). From this, the Board can gather that while the Veteran had been previously diagnosed with adjustment disorder, which may, as noted by the 2007 examiner, have been caused by occupational problems, the treatment regimen associated with establishing a diagnosis for the service-connected mesenteric panniculitis, and the associated fear stemming from that uncertainty, has led (if not directly as the sole cause, in part, as the listed immediate cause) to the current depression and anxiety. That there are other portions of the overall psychiatric disability picture which are due to nonservice factors is not debated, and with respect to establishing service connection, are not particularly relevant. Indeed, the 2011 private psychiatrist has established, via a well-rationalized opinion, that the fear associated with the treatment for panniculitis has had an immediate cause on the current emotional deterioration associated with diagnosed depression and anxiety. The psychiatrist fully explained his reasoning for his opinion, and noted that he had reviewed the relevant treatment records and history (which would include, by necessity, the previous VA examination report). The only other evidence of record which contradicts this is the 2007 VA assessment, and that opinion is cursory, conclusory, and does not contain an adequate rationale to support its conclusions. Thus, it is not probative, and the Board can rely on the 2011 private assessment as being a more thorough assessment. Given this, the evidence supports a secondary relationship between service-connected mesenteric panniculitis and depression/anxiety, and as such, the claim is granted. The nature and extent of this depression/anxiety associated with the service connected condition (and no other condition) is not before the Board at this time. ORDER Entitlement to service connection for an acquired psychiatric disability is granted. REMAND The Veteran was awarded service-connected compensation benefits for mesenteric panniculitis in a September 2007 rating decision. A 10 percent disability rating was established at this time, and the Veteran has taken exception to the assigned rating. There are two VA examinations of record, dated in August 2007 and August 2009, which purport to show the current level of severity of the Veteran's condition. On the surface, there does not appear to be anything wrong with these assessments; however, a search of the VA clinical records in the electronic "Virtual VA" system has revealed some potential worsening of the condition since the last examination of record. Mesenteric panniculitis has been described throughout the appeal as an infiltration of fat into the mesentery. The RO has rated the Veteran pursuant to Code 7301 on an analogous basis (there is no regulatory criteria directly applicable to mesenteric panniculitis), which pertains to peritoneal adhesions (the mesentery is, anatomically, part of the peritoneum). For the next highest rating to be warranted under this criteria, it would be necessary for the Veteran to show that he experiences a partial obstruction that is confirmed by delayed motility of barium meal. See 38 C.F.R. § 4.114, Diagnostic Code 7301. In the most recent examination of 2009, there was no demonstrated obstruction; however, it isn't readily apparent that barium was utilized as a testing agent. Regardless, there appear to have been some consultations for increased symptoms subsequent to this last evaluation. Indeed, the Veteran, in May 2011 reported to VA clinicians with complaints of increased abdominal pain. The condition had been noted as being stable prior to this; however, at the time of consultation, radiographic studies were needed. The radiology report of the same time, done after a computerized tomography scan (CT), noted that there was an "increase in density of mesenteric fat tissue." The radiologist also noted that a "possible pseudocapsule" was present. Clinical notes of October 2011, which were not accompanied by radiographic evidence, noted that there had been inflammation, but "no mass." Essentially, the Board takes the consultation in 2011 as evidence of some potential increase in severity of the condition, although it was not accompanied by a comprehensive examination. To the extent that the noted "possible pseudocapsule" represents a possible obstruction of the bowel, it is suggestive of a worsening of the condition, though this is not clear. The evidence is, however, rather equivocal, and is not, in itself, useful to assign a current disability rating. As noted, though, it does serve to indicate a potential worsening of the service-connected gastrointestinal disability. In cases where an increase in rating is at issue, it is first and foremost necessary to have a current understanding of the service-connected disability picture. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Hyder v. Derwinski, 1 Vet. App. 221 (1991). The last VA examination of record was afforded in August 2009, or four years ago. While this is a fairly dated report, the date of the most recent examination, in itself, is not a sufficient reason to remand. However, as there is evidence of increased pain complaints and potential blockage as of 2011, the Board notes that there is, at least potentially, an indication of worsening, and the Board is not satisfied that it has the most current assessment of the service-connected disability picture of record. Thus, in order to ensure fairness in consideration of the Veteran's claim, a VA examiner should evaluate the Veteran's service-connected mesenteric panniculitis, and should elaborate as to the level of severity associated with the disability. Additionally, as there is evidence of continuing VA treatment, all outstanding VA treatment records pertaining to gastrointestinal disability should be obtained Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all outstanding VA medical records pertaining to treatment of the service-connected mesenteric panniculitis (if any). 2. Schedule the Veteran for a VA examination. The examiner is asked to conduct all necessary testing to determine the current level of severity associated with the service-connected mesenteric panniculitis. It would be most helpful if the examiner could elaborate as to the presence of any intestinal obstruction (if any). Any conclusions reached in the examination report should be accompanied by supporting rationales. 3. Following the above-directed development, re-adjudicate the Veteran's claim. Should the disposition remain less than fully favorable, issue an appropriate supplemental statement of the case to the Veteran and his representative and forward the claim to the Board for adjudication. The appellant 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs