Citation Nr: 1751918 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-06 078 ) 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 disorder, to include depression and anxiety disorder, as secondary to service-connected disabilities. 2. Entitlement to an increased rating for a lumbar spine disability, rated as 10 percent disabling. 3. Entitlement to an increased rating for a right ankle disability, rated as 20 percent disabling. 4. Entitlement to an increased rating for peripheral neuropathy of the right lower extremity, currently rated as 10 percent disabling. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Marine Corps from October 2003 to June 2004 and from June 2005 to June 2008. This appeal arises before the Board of Veterans' Appeals (Board) from a February 2013 rating decision in which the Department of Veteran Affairs (VA) St. Petersburg, Florida, Regional Office (RO) denied entitlement to service connection for depression, secondary to right ankle osteochondritis dissecans and degenerative disc disease of lumbar spine. The Board notes that during the pendency of the appeal, the Veteran has been diagnosed with several mental disorders by medical professionals. The issue of an acquired psychiatric disorder has been recharacterized to reflect the medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Mittleider v. West, 11 Vet. App. 181 (1998). In May 2017, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. The Board notes that during the May 2017 Board hearing, the Veteran properly withdrew the issues of entitlement to a rating for a lumbar spine disability in excess of 10 percent disabling, entitlement to a rating for a right ankle disability in excess of 20 percent disabling, entitlement to a rating for peripheral neuropathy of the right lower extremity in excess of 10 percent, and entitlement to a TDIU from appeal. Thus, there remain no allegations of errors of fact or law for appellate consideration in regard to these issues, and accordingly, the above issues are dismissed. See 38 C.F.R. § 20.204 (2017). FINDING OF FACT The probative evidence of record indicates that the Veteran's acquired psychiatric disorder resulted from or was aggravated by the Veteran's service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Further, a disability which is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439. The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his acquired psychiatric disorder is the result of or aggravated by his service-connected right ankle osteochondritis dissecans and degenerative disc disease of the lumbar spine. Turning to the record of evidence, the record indicates that the Veteran was diagnosed with depressive disorder in August 2012. In May 2017, the Veteran was diagnosed with an anxiety disorder. Therefore, the element of a current diagnosis has been established. In December 2012, the Veteran was afforded a VA examination. The examiner found that the Veteran's depression was less likely than not proximately due to or the result of the Veteran's service-connected conditions. The examiner explained that the Veteran's military medical records were silent for mental health treatment during active duty, and according to the Veteran's medical records, screening measures administered in November 2008 for TBI, depression and PTSD were negative. The examiner also observed that a depression screen administered in March 2010 was also negative. The examiner noted that a depression screen administered in July 2012 was negative for clinical depression, but the Veteran did report several days of having little interest or pleasure in doing things and several days of feeling down, depressed, or hopeless. The examiner noted, however, that on that same date, the Veteran's primary care physician noted that he reported "...ongoing and progressing depression one to two years...." The examiner noted that the Veteran was referred to MHC for further evaluation and had a psychiatric evaluation in August 2012. The examiner reported that during that evaluation, he reported depression for approximately three years, which reportedly began when he was discharged from the military due to medical reason. The examiner further noted that the Veteran has been seen once by a psychiatrist and twice by a psychologist. The examiner stated that, although the Veteran appears to place a high value on his physical capabilities and his sense of self-worth appears to be associated with his physical abilities, he reports that he continues to work out and he has been able to engage in several physically demanding jobs since military separation, such as a police officer and security. The examiner reported that during this evaluation and in prior clinical documentation, it has been noted that he has multiple situational stressors that include significant financial concerns, difficulty finding suitable employment, his wife's unemployment, his home being in foreclosure, and the recent birth of their daughter. The examiner noted that, additionally, the Veteran expressed very strong, ongoing, negative feelings associated with being let go from his job with the local police department in 2011 due to, what he states, were two incidents of "lack of composure" in dealing with coworkers. The examiner found that the Veteran appeared to be experiencing a stage of life issue in terms of despair over unachieved goals and a change in the direction of his future (hopes of working in law enforcement), which, in combination with his significant situational stressors, are more likely than not contributing factors to his current level of depression. The Board notes that this examination did not state whether or not the Veteran's service-connected disabilities aggravated the Veteran's acquired psychiatric disorder. Furthermore, although the examiner's opinion statement indicates a secondary service connection analysis, the reasons and bases given conflate a direct service connection theory and a secondary service connection theory. For these reasons, the Board finds this opinion to be of low probative value. In a May 2017 appellant brief, the Veteran, through his representative, asserted that VA has already acknowledged and formally recognized that he has "chronic" disability conditions of the right ankle osteochondritis dissecans and lumbar spine degenerative disc disease. The representative then stated that the Veteran is service-connected for these conditions at compensable levels, indicating chronicity of the conditions with symptomatology. The representative noted that, during the Veteran's assessments, it was clearly documented on the examination findings that the Veteran had chronic daily pain. The representative stated that, based upon the Veteran's interviews, the chronic pain from these disabilities has led to daily negative affects within his social and vocational life, as outlined in the evidence that was submitted in support of the claim. In a May 2017 Disability Benefits Questionnaire, a private examiner diagnosed the Veteran with anxiety disorder due to chronic pain syndrome with panic attacks. The examiner went on to state that, per interview of the Veteran and medical record review, as well as recent mental health evaluation and chronic pain assessments, applied to the VHA pain primer literature and other contemporaneous chronic pain medical literature and the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition, this Veteran has symptomatology consistent with anxiety disorder due to chronic pain syndrome. The examiner noted that a chronic pain disorder is reported and recognized to be secondary to his service-connected conditions. Therefore, the examiner concluded that the Veteran's current mental health condition of anxiety disorder was more likely than not a continuation of, related to, secondary to, or aggravated by his military service-connected right ankle osteocliondritis dissecans and degenerative disc disease of lumbar spine. The May 2017 medical opinion is based on the Veteran's history and evaluation of the Veteran. Moreover, the examiner utilized medical literature in his analysis to bolster his opinion. Therefore, the Board finds the opinion to be highly probative in nature. After reviewing the record, the Board finds the probative evidence weighs in favor of granting service connection for the Veteran's acquired psychiatric disorder, secondary to his service-connected right ankle osteocliondritis dissecans and degenerative disc disease of lumbar spine. Although there is an opposing medical opinion of record, the May 2017 medical opinion provides substantially convincing evidence of a positive nexus between the Veteran's acquired psychiatric disorder and his service-connected disabilities. Therefore, service connection is warranted. Reasonable doubt has been resolved in favor of the Veteran in this matter. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety disorder, as secondary to service-connected disabilities, is granted. The appeal is dismissed as to the issue of entitlement to a rating for a lumbar spine disability in excess of 10 percent disabling. The appeal is dismissed as to the issue of entitlement to a rating for a right ankle disability in excess of 20 percent disabling. The appeal is dismissed as to the issue of entitlement to a rating for peripheral neuropathy of the right lower extremity in excess of 10 percent. The appeal is dismissed as to the issue of entitlement to a TDIU. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs