Citation Nr: 1335952 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 05-30 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, claimed as anxiety and depression. 2. Entitlement to service connection for plantar fasciitis. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from February 1988 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in November 2003 and March 2004 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction of the appeal was later transferred to the RO in Indianapolis, Indiana. In May 2005, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO. In June 2008, the Veteran testified during a videoconference Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the claims file. In September 2008, the Board remanded the appeal of these and other issues to the RO via the Appeals Management Center (AMC) for further development. In a May 2012 decision, the Board reopened and denied the claim for service connection for a psychiatric disorder, denied the TDIU claim, and remanded the claim for service connection for plantar fasciitis for further development. The Board also denied other claims no longer on appeal. The Veteran appealed the May 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), in a September 2012 Order the Court remanded the claims for service connection for a psychiatric disorder and a TDIU for readjudication consistent with the terms of the JMR. The Veteran elected not to pursue an appeal with respect to the other service connection claims. In May 2013, the service connection claim for plantar fasciitis was returned to the Board. The Board then remanded the three remaining claims on appeal for further development. They have now been returned to the Board for adjudication. The following determination is based on review of the Veteran's claims file in addition to her Virtual VA "eFolder." The issues of service connection for plantar fasciitis and entitlement to a TDIU 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. FINDING OF FACT Resolving all doubt in the Veteran's favor, the evidence shows that her depression not otherwise specified is most likely related to her period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for depression have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the Court. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the determination reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis at present for resolution of this service connection claim for an acquired psychiatric disorder without detriment to the due process rights of the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including a psychosis, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In this case, the record does not show that the Veteran served 90 days or more of continuous active military service. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, psychoses are a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Generally, in order to prevail on the issue of service connection on the merits, there must be (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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (en banc). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); 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. Psychiatric Disorder The Veteran contends that her anxiety was first manifested in service and that service connection is, therefore, warranted on a direct basis. In the alternative, she contends that it is the result of stress associated with the restrictions caused by her service-connected left hip disorder and that service connection is warranted on a secondary basis. Therefore, she maintains that service connection is warranted. During her hearings on appeal, the Veteran testified that she was depressed as a result of her inability to do the things she used to do. She stated that such inability was primarily the result of her service-connected left hip disorder and that service connection for depression is warranted on a secondary basis. The report of the Veteran's November 1987 service entrance examination is negative for any complaints or clinical findings of depression. She responded in the negative when asked if she then had, or had ever had, frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. On examination, the Veteran's psychiatric processes were normal. During service on April 11, 1988, the Veteran had an emotional outburst associated with a failure to adapt to service, including a complaint of depression about her left leg fracture. She was referred to the Neuropsychiatric Service for situational anxiety/depression. An April 20, 1988 service treatment record noted that no discharge examination would be conducted because she had recently been examined. A list of attached sick call visits indicated that she had been seen earlier that month for possible situational depression. A physician's assistant noted that all of the Veteran's noted medical problems had resolved and there was nothing outstanding. Discharge records indicated that the Veteran had been evaluated by the Neuropsychiatric Unit which did not find that she was unsuitable for further service. She was administratively separated from service for lack of reasonable effort and not for any medical disability. Post-service, a November 1990 VA medical record noted a diagnosis of anxiety when the Veteran was seen for what she thought was a reaction to medications. Some medication adjustments were made. A history of depression was noted. An appointment with neurology was noted and the observation that she was very anxious but in no acute distress. In a February 1992 signed statement, the Veteran complained of pain all the time bothered by activity. She stated that she got depressed "off and on." During an April 1994 Board hearing in an earlier appeal, the Veteran testified that she had anxiety develop from a number of orthopedic conditions and depression at times as well. See hearing transcript at p. 8. She also testified that because of her in-service accident she was no longer able to do anything that she used to be able to do and that was getting to be more and more stressful. Id. at p. 10. This testimony was amplified in more detailed comments delivered in correspondence dated in September 1994. In December 1994 correspondence, the Veteran reported bouts of depression to the point that she wished she was dead. She complained of pain and financial distress that was destroying the lives of her family. January 1995 VA treatment records showed that the Veteran was having signs and symptoms of depression. In June 1995, during treatment at a VA mental health clinic, the Veteran reported that she had been depressed since injuring her left hip in boot camp in 1988. She also complained of right leg and low back pain due to her left hip problems, sleep problems, reduced energy, and increased eating. Following her mental health treatment, the examiner stated that the Veteran was uncertain whether her problems were due to chronic pain or depression. The diagnosis was rule out major depressive disorder and rule out mood disorder. A July 1995 VA medical record noted a diagnosis of a major depressive disorder and rule out organic mood. It was noted that the Veteran had a history of depressive symptoms since 1988 which she related to chronic pain from an in-service injury. A September 1995 VA pain center evaluation noted that the Veteran felt nervous, depressed, anxious, and irritated. In January 1996, the Veteran indicated that she was in pain at numerous sites and that nothing seemed to help. The Beck Depression Inventory showed mild to moderate depressive symptoms. A February 2002 VA medical record noted that the Veteran requested Wellbutrin for depression. It was noted that she said she was under a great deal of stress. A psychiatric consultation was recommended. Following VA treatment in March 2002, the Veteran was found to have recurrent major depression. She presented problems of helping to care for a mother with cancer and bankruptcy. She also noted her history of a hairline fracture of the left hip in service. She was started on Wellbutrin. A June 2002 VA rheumatology consultation was positive for feelings of depression and anxiety. In June 2003, the Veteran underwent a psychiatric examination by the Indiana Department of Family and Social Services in conjunction with a claim for Social Security disability benefits. Following the examination, the examiner found that the Veteran had mood disorder related to fibromyalgia, chronic pain, and multiple medical difficulties. In this regard, the examiner stated that the Veteran's pain disorder was related to fibromyalgia and arthritis. In a signed statement received in July 2003, the Veteran complained of daily depression and anxiety. She said that she could not do anything that she used to be able to do, could not work, was in daily pain, and had financial worries. A September 2003 VA medical record noted an assessment of depression. In November 2003, following a VA orthopedic examination, the examiner noted that pain could cause anxiety and/or depression. In January 2004, the Veteran underwent a second psychiatric examination by the Indiana Department of Family and Social Services in conjunction with a claim for Social Security disability benefits. Following the examination, the examiner found that per the Veteran's report, she had a breathing-related sleep disorder and mood disorder with episodic depressive features related to fibromyalgia, arthritis, left hip pain, and bulging disks. The psychologist also noted that while the Veteran was not then in any type of mental health treatment she had been in treatment after the divorce to her first husband before she entered service. According to a November 2004 VA medical record, the Veteran stated her depression was very stable on Buproprion and she did not feel she needed treatment at the mental health clinic. An April 2005 VA medical record noted a positive depression screening. In November 2009, the Veteran was examined by VA to determine the nature and etiology of any psychiatric disorder found to be present. She was diagnosed with a mood disorder with depressive features due to fibromyalgia. The examiner found that it was not at least as likely as not that her depression was related to service because her depressive symptoms were already accounted for by her documented diagnosis of fibromyalgia. Despite the Veteran's complaints, her performance during mental task testing revealed very little impairment in cognitive functioning. There were some problems with delayed memory which the examiner stated could be compensated by reminder notes. Though the Veteran complained of fatigue, she denied any problems with the performance of her activities of daily living. The VA examiner concurred with a psychologist who performed a disability evaluation on the Veteran for the Indiana Department of Family and Social Services Disability Determination Bureau. He had diagnosed the Veteran with a mood disorder with episodic depressive features related to fibromyalgia. However, she disagreed with the assessment that the Veteran had arthritis, hip pain, and bulging discs associated with the depression. The VA examiner noted that the Veteran failed to mention any of those conditions in regard to her depressed mood. A January 2010 VA medical record noted that the Veteran's depression was fair on medications. An August 2011 VA medical record noted that the Veteran's depression was stable on medication and that her VA rheumatologist managed this aspect of her case. An August 2012 VA medical record noted the Veteran was positive for a depression screening. The Veteran underwent a VA mental examination in June 2013. The VA examiner diagnosed depression not otherwise specified with symptoms of irritability, dysphoria, and thoughts of personal failure. The examiner also noted that the numerous medications prescribed for the Veteran might cause symptoms consistent with a depressive disorder. Further, the examiner explained that depressive symptomatology was common in persons diagnosed with fibromyalgia. Even though the Veteran was not employed she thought the Veteran was currently quite high functioning in her daily life. It was the examiner's view that while a mental condition had been formally diagnosed, the symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. It was noted that the Veteran was not currently being treated by any mental health provider, but was prescribed Bupropion by her VA rheumatologist. According to the June 2013 VA examiner, the clinical scale of the Personality Assessment Inventory (PAI) suggested that the Veteran was someone with an unusual degree of concern about her physical functioning who saw her life as severely disrupted by a variety of complex and hard-to-treat physical problems. Her level of depressive symptoms, including some degrees of anxiety and stress, fell within the normal range. The June 2013 VA examiner opined that the Veteran's depressive disorder was less likely as not caused or aggravated by her service-connected left hip disability. The VA psychologist said this was because during a two-hour plus interview the Veteran presented as euthymic and never focused on pain stemming from her service-connected femur impairment. In fact, according to the examiner, the Veteran related the onset of a general decline in functioning with her diagnosis of fibromyalgia. The VA examiner also quoted from a treatise on arthritis care and research to the effect that depressive symptomatology was common in those diagnosed with fibromyalgia because medical treatments were often ineffective. Based upon a review of all the evidence of record, the Board finds that service connection for depression is warranted in this case. As noted above, the Veteran has been diagnosed with a mood disorder with depressive features due to fibromyalgia, according to the November 2009 VA mental examination, and is currently diagnosed with depression not otherwise specified, according to the June 2013 VA examiner. Therefore, the Veteran has a current psychiatric disorder and she meets the first requirement for a grant of service connection. With respect to the second and third requirements for service connection, upon review of the medical evidence and the VA medical opinions of record, the Board finds that the preponderance of the evidence is, at the very least, in equipoise as to whether the Veteran's current depressive disorder is related to her brief period of active service. As noted above, during service the Veteran was referred for situational anxiety/depression. According to the clinical psychologist's record, the Veteran had complained of depression regarding her left leg stress fracture. It was also noted that the Marines wanted her to go home and this too increased her stress. The psychologist indicated that the Veteran then did not have a diagnosed psychiatric disorder. However, a little more than two years after discharge from boot camp a November 1990 VA medical record showed a diagnosis of anxiety and a history of depression. As noted above, medical records in the 1990s also showed signs and symptoms of depression. A June 1995 VA medical record reported that the Veteran had been depressed since an injury in service. In July 1995 she was given a diagnosis of a major depressive disorder. The Board notes that the November 2009 VA examiner has opined against a finding of direct service connection for her depressive symptoms and the June 2013 VA examiner has opined against a finding of depression as secondary to the Veteran's service-connected left hip disorder. Both of the VA examiners felt that the Veteran's current depressive symptoms were associated with her fibromyalgia. The Veteran has not been service-connected for fibromyalgia. As the Veteran has consistently complained of depression or anxiety since service, and the November 2009 and June 2013 VA examiners failed to specifically comment on the April 1988 service treatment record showing her in-service complaint of depression due to her left leg fracture, the Board could find that there is sufficient evidence in this case of in-service incurrence of a psychiatric disease as well as medical evidence of a nexus between the claimed in-service disease and her current depression. This would satisfy both the second and third requirements for direct service connection. It could also find sufficient evidence that her currently diagnosed depression was also caused or aggravated by her now service-connected left hip disorder, but for recent medical evidence of record that strongly suggests any current depression is associated with her fibromyalgia. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence, which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. In this case, the Board finds that the evidence found within the claims file is, at the very least, in equipoise as to the question of whether the Veteran's depression is related to service. There can be no doubt that further efforts could be undertaken to obtain thorough and adequate VA medical opinions with a view towards resolving whether service connection is warranted in this case. However, granting the Veteran the benefit, the Board finds that under the circumstances of this case, there is sufficient evidence of in-service incurrence as well as proof of a nexus, or relationship, between the Veteran's currently diagnosed depression and her period of service. Resolving all doubt in the Veteran's favor, the Board further finds that the second and third requirements for direct service connection for depression are met in this case. Thus, there is no need to further explore whether secondary service connection is also viable. In view of the above, and in affording the Veteran the benefit of the doubt as the law requires, the Board finds that service connection is warranted for the Veteran's depression disorder. As the Board finds that the Veteran has provided evidence of all three elements required for a grant of service connection for her claim, the claim for service connection for depression is granted. ORDER Service connection for an acquired psychiatric disorder, currently diagnosed as depression not otherwise specified, is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Unfortunately, a remand is required for the issues remaining on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). While the Veteran was afforded a VA foot examination in July 2012 to determine whether her foot disabilities were related to active service or secondary to her service-connected left hip disorder, the Board's review of the opinions provided in connection with the July 2012 examination and the subsequent August 2013 VA medical opinion reveals that the opinions were based on inadequate rationales. More specifically, the July 2012 VA examiner concluded that the Veteran's current bilateral plantar fasciitis was not related to service primarily based on the fact that there was inadequate documentary evidence of complaints and/or treatment for this disability. In this regard, the case of Dalton v. Nicholson, 21 Vet. App. 23 (2007), held that the lack of documented findings is not an adequate basis for a negative opinion. In addition, the August 2013 reviewer, who found that the Veteran's plantar fasciitis was not aggravated by her left hip disorder, based her opinion on an inaccurate factual premise. She stated that the Veteran's bilateral plantar fasciitis was first diagnosed or noted in September 1999. Given that the Veteran's service treatment records clearly note that she had plantar fasciitis during service, the Board finds that this opinion is based on an inaccurate or contradictory factual premise and, therefore, is of little probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that regardless of the RO's receipt of the additional evidence noted above, the Veteran should be afforded another examination, before an examiner other than those who conducted the July 2012 VA examination and the August 2013 review, for an opinion as to whether any current plantar fasciitis disability is related to the Veteran's period of active service or, in the alternative, whether her current plantar fasciitis was caused or aggravated by her service-connected left hip disorder. Concerning the Veteran's claim for a TDIU, the Board finds that the TDIU claim is inextricably intertwined with the pending service connection claim for plantar fasciitis. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and her representative and ask them to specify all private and VA medical care providers who have treated her for her claimed plantar fasciitis disability. After the Veteran has signed the appropriate releases, attempt to obtain and associate with the claims file or the Veteran's eFolder any records identified by the Veteran that are not already associated with the claims file, in particular any records of treatment or evaluation from VA since May 2013 to the present. 2. Regardless of whether additional evidence is received, the Veteran should be afforded another examination before an examiner, other than those who provided the July 2012 and August 2013 VA examination and medical opinions, for an opinion as to whether any current bilateral plantar fasciitis disability is related to the Veteran's period of active service or, in the alternative, whether her current plantar fasciitis is secondary to her service-connected left hip disorder. The Veteran's claims file, including a copy of this Remand, must be made available to the designated examiner for review of the pertinent medical and other history. (a) The examiner is asked to state whether it is at least as likely as not (50 percent probability or greater) that any current bilateral plantar fasciitis disorder is related to any injury, event, or disease during the Veteran's period of active service from February 1988 to April 1988. (The examiner is to consider the Veteran's complaints of continuing foot symptoms since service.) (b) If not, then the examiner is asked to state whether any currently diagnosed bilateral plantar fasciitis was at least as likely as not (50 percent probability or greater) caused by the Veteran's service-connected left hip disorder. (c) If not, then the examiner is asked to state whether any currently diagnosed bilateral plantar fasciitis was at least as likely as not (50 percent probability or greater) aggravated by the Veteran's service-connected left hip disorder. (d) In addition, the examiner should state whether the Veteran's bilateral plantar fasciitis renders her unable to secure or follow a substantially gainful occupation. (e) A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. The RO/AMC should then re-adjudicate the claims. If any claim remains denied, the RO/AMC should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs