Citation Nr: 1702001 Decision Date: 01/26/17 Archive Date: 02/09/17 DOCKET NO. 12-27 133A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder and as secondary to a lumbar strain with recurrent pain and degenerative disc disease. 2. Entitlement to service connection for hypertension, to include as secondary to a lumbar strain with recurrent pain and degenerative disc disease. 3. Entitlement to an evaluation in excess of 40 percent for a lumbar strain with recurrent pain and degenerative disc disease. 4. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: David W. Magann, Attorney WITNESSES AT HEARING ON APPEAL Appellant and S.R. ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from March 1976 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) from a November 2010 and February 2015 rating decisions of the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified on the issues of service connection for an acquired psychiatric disability and hypertension in May 2016 before the undersigned Veterans Law Judge at a Travel Board hearing at the above VARO; a transcript is of record. The U.S. Court of Appeals for Veterans Claims (Court) has held that claims for service connection for a mental health disability encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). Therefore, the claim of service connection for major depressive disorder has been recharacterized as service connection for an acquired psychiatric disability, to include major depressive disorder. The issues of entitlement to an increased evaluation for a lumbar strain with recurrent pain and degenerative disc disease and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. An acquired psychiatric disability, to include major depressive disorder, was caused by a lumbar strain with recurrent pain and degenerative disc disease. 2. Hypertension was caused by a lumbar strain with recurrent pain and degenerative disc disease. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include major depressive disorder and as secondary to a lumbar strain with recurrent pain and degenerative disc disease, have been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). 2. The criteria for service connection for hypertension, to include as secondary to a lumbar strain with recurrent pain and degenerative disc disease, have been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for an acquired psychiatric disability and hypertension, which constitutes a complete grant of the Veteran's claims on these issues. Therefore, in view of the fact that the full benefit sought by the Veteran is being granted by this decision, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1131 (West 2014). Service connection may also be granted for any disease 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) (2016). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection will also be presumed for certain chronic diseases, including hypertension, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2016). In addition to the elements of direct service connection and presumptive service connection, 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) (2016). 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2016). The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. A. Acquired Psychiatric Disability The service treatment records show that in September 1977 the Veteran reported having personal problems and complained of being nervous. It was noted that he was very anxious and short tempered. This was worse upon returning from leave. He usually had difficulty falling asleep during these periods. In November 1977 the Veteran reported continued difficulty falling asleep and was diagnosed with chronic anxiety. March 2010 VA treatment records show a diagnosis of major depressive disorder. The Veteran said that his down mood was related to back pain and the loss of his job as a truck driver, which was due to his back condition. The Veteran had a VA examination in September 2010 at which he reported being depressed due to not being able to work. He had become more isolated, although said he got along "pretty well" with others, and he had problems with sleep and concentration. The Veteran said that he worried all of the time and reported feelings of "worthlessness." He was taking medication which caused him to be sleepy. The examiner diagnosed the Veteran with depressive disorder due to chronic pain and opioid dependence in remission and opined that it was less likely as not caused by or a result of the service-connected back disability. It was noted that the Veteran was treated several times in the Navy for sleep problems and anxiety and that there was no treatment after 1980. Since the symptoms of depression were not noted until after the 2009 motor vehicle accident, the current complaints were more likely associated with the exacerbation of the back problems stemming from that injury and not to the back condition prior to the accident. At July 2011 VA treatment the Veteran reported being depressed when he stopped working a couple of years before after a motor vehicle accident. He said that he enjoyed working and that the transition to being unemployed and disabled was difficult. His mood had improved with treatment. The Veteran's wife wrote in an April 2015 statement that he had depression that had progressively gotten worse as his back pain increased. He was angry and annoyed a lot due to being unable to work, and this led to strains in their marriage. The Veteran was less active and no longer wanted to leave the house. At December 2015 VA psychiatry outpatient treatment the Veteran complained of insomnia, depressed mood, anxiety, feelings of worthlessness, decreased energy, and decreased concentration. Private treatment records from April 2016 state that the Veteran felt down or depressed several days a week. A private physician examined the Veteran in April 2016 and opined that depression was most likely associated with or contributed to by the lumbar spine condition because the record showed that he became depressed when he had to stop working due to low back pain. A private psychologist examined the Veteran and reviewed the record in April 2016. The Veteran reported social isolation, avoiding leaving home, panic attacks, difficulty concentrating, disturbances of motivation and mood, and difficulty maintaining work and social relationships. The psychologist diagnosed the Veteran with major depressive disorder, recurrent, without psychotic symptoms, and alcohol abuse in remission. Major depressive disorder was a direct result of the back injury and disability from the Veteran's military service. The psychologist noted that chronic pain and depression typically occur together, particularly when the pain results in functional impairment, as with the Veteran. In reviewing the record, probative value cannot be given to the September 2010 VA examiner's opinion that it was less likely as not that depressive disorder was caused by or a result of the service-connected back disability. The examiner considered the Veteran's back condition from after 2009 to be separate from the service-connected back disability. In turn, any increase in the severity of the back symptoms from after 2009 was attributed to a non-service connected disability. However, the record shows that the rating for the service-connected back disability was increased in November 2009 and was then increased again in March 2014. Therefore, it has already been established that the service-connected back disability increased in severity after 2009. Probative value is given to the private examination opinions from April 2016 because the examiners' reports contain a careful review and analysis of the Veteran's history and the result of the examinations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (The Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiners felt that major depressive disorder was caused in whole or part or was aggravated by the service-connected back disability. Applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for an acquired psychiatric disability, to include major depressive disorder and as secondary to a lumbar strain with recurrent pain and degenerative disc disease, is granted. B. Hypertension The Veteran is seeking service connection for hypertension. The service treatment records do not show complaints, treatment, or a diagnosis related to hypertension. Furthermore, the record does not show that the Veteran had hypertension within a year of service. At December 2009 VA treatment it was noted that his blood pressure was elevated. The Veteran said that he had never been diagnosed with hypertension. March 2010 VA treatment records show a diagnosis of hypertension, and March 2014 private primary care treatment records state that the Veteran had primary hypertension and that it started in adulthood. In May 2015, a private primary care treating physician wrote that the Veteran had a history of hypertension, which is correlated to his chronic back pain. A private physician opined in April 2016 that hypertension was most likely associated with or contributed to by the lumbar spine condition because pain is known to increase blood pressure. Probative value is given to the private opinions from May 2015 and April 2016 because the reports contain a careful review and analysis of the Veteran's history and the result of the treatment or examinations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (The Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The May 2015 treating provider noted that hypertension correlated to the Veteran's chronic back pain. The April 2016 examiner noted that pain is known to increase blood pressure. Applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for hypertension, to include as secondary to a lumbar strain with recurrent pain and degenerative disc disease, is granted. ORDER Service connection for an acquired psychiatric disability, to include major depressive disorder and as secondary to a lumbar strain with recurrent pain and degenerative disc disease, is granted. Service connection for hypertension, to include as secondary to a lumbar strain with recurrent pain and degenerative disc disease, is granted. REMAND In regards to the claims for an increased evaluation for a lumbar strain with recurrent pain and degenerative disc disease and entitlement to a TDIU, in April 2015 the Veteran submitted a notice of disagreement to the February 2015 rating decision. However, a review of the record shows that the RO has not issued the Veteran a Statement of the Case (SOC) with respect to these issues. Under the circumstances, the Board has no discretion and is obliged to remand these issues to the RO for the issuance of an SOC to the Veteran. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The record shows that the Veteran receives treatment through VA. VA treatment records to July 2011 have been associated with the claims file. Therefore, the RO should obtain all relevant VA treatment records dated from July 2011 to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from July 2011 to the present. 2. Issue the Veteran a statement of the case on his claims of entitlement to an increased evaluation for a lumbar strain with recurrent pain and degenerative disc disease and for a TDIU, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on these issues. Allow him an opportunity to respond. 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). 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 2014). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs