Citation Nr: 18140931 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 13-25 238 DATE: October 9, 2018 ORDER Entitlement to service connection for major depressive disorder is granted. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability, is remanded. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s major depressive disorder is due to service. CONCLUSION OF LAW The criteria for service connection for major depressive disorder have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1975 to June 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Service Connection To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service—the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). 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 will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for an acquired psychiatric disability, to include depression, claimed as posttraumatic stress disorder (PTSD), anxiety, depression and memory loss The Board has reviewed the record of evidence comprehensively. Although the Board has an obligation to provide reasons and bases to support a decision, there is no requirement to discuss, in detail, all the evidence submitted by or on behalf of a Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and the most relevant evidence—about what this evidence shows, or fails to show, about the issue on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not discussed explicitly. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran seeks service connection for an acquired psychiatric disorder, which he contends was incurred in active duty service. At the onset, the Board notes that the Veteran has a current diagnosis of an acquired psychiatric disorder. See February 2014 VA psychological assessment note; March 2018 VA examination. Though the Board recognizes that the record contains conflicting evidence as to the Veteran’s PTSD diagnosis, the diagnosis of major depressive disorder is consistent throughout the record, and it is clear the Veteran has a current acquired psychiatric disability. Therefore, the first Shedden element for service connection has been met. The Veteran’s service records reflect that the Veteran was married to a Korean national in service, and that she was killed in a bus accident in December 1976. See June 2011 statement. The Veteran conveys that subsequent to this tragedy, he was placed on suicide watch, was escorted throughout the funeral, and never fully recovered. In an August 2013 memorandum, the Joint Services Records Research Center verified the incident. Therefore, the Board finds that the second Shedden element of service connection, that of an in-service incurrence, has also been met. Thus, review of the third Shedden element of nexus remains. In that connection, following two inadequate VA examinations and an August 2017 remand by the Board, the Veteran was afforded a VA examination in March 2018. The examiner reviewed the entire claims file, as well as the lay statements of record. The examiner agreed with prior examination findings that the Veteran does not meet the criteria for a PTSD diagnosis but diagnosed him with major depressive disorder. Most pertinently, the examiner opined that the Veteran’s major depressive disorder is at least as likely as not due to the in-service death of his wife. The examiner reasoned that the Veteran had no mental health issues prior to service. Furthermore, the examiner stated that the Veteran’s current, clear symptoms of depressive disorder have been persistent since the time of the in-service accident. The examiner further specified that the Veteran developed symptoms of depression and memory loss after the in-service loss of his wife and unborn child, and that even though his symptoms varied somewhat over time, this is not inconsistent with a recurrent course of depression, limited coping resources, and the differing perspectives of VA clinicians. The Board finds that there is no need to discuss any additional evidence of record, as it places much probative weight in the March 2018 VA examiner’s opinion in that it suggests that the Veteran’s major depressive disorder is rooted in service and has been continuous since service. The Board accepts this evidence of record as the requisite nexus prong of establishing service connection. Furthermore, as noted above, the other VA examinations of record, which contain the only other etiological opinions, have both been found to be inadequate. The 2018 VA examination is probative, as it was based on a thorough review of the Veteran’s lay statements and medical treatment history, and contains an etiological opinion which is very well-supported by a detailed rationale. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that the Veteran’s current major depressive disorder is linked to active service. The Veteran is therefore entitled to the benefit of the doubt, and service connection is granted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability, is remanded. The Veteran seeks entitlement to service connection for a left knee disability either on a direct basis, or as secondary to his service-connected right knee disability. The Veteran was afforded a VA examination in November 2015 to assess the nature and etiology of his left knee disability. However, this examination was found to be inadequate by the Board in its August 2017 decision, because it not only lacked a rationale for the negative etiological opinion, but the examiner also failed to consider documented reports of knee pain since 2011. An additional VA examination was sought and obtained in March 2018. The examiner diagnosed the Veteran with left knee degenerative arthritis. The examiner further noted atypical stepping motions. The examiner opined that the Veteran’s left knee disability is less likely than not related to his service connected right knee disability. The examiner reasoned that arthritis in one joint does not cause arthritis in another joint, per medical literature, and further, that the development of arthritis in the Veteran’s left knee is separate from his right knee MCL sprain and arthritis. The Board finds the examiner’s opinion to be inadequate, as it is supported by a conclusory, incomplete rationale, and fails to consider the Veteran’s contentions. The Board acknowledges the examiner’s explanation regarding the lack of a causal relation between arthritis of the right knee and left knee. However, the examiner fails to explain the claimed lack of a causal relation between the right knee MCL sprain and the left knee arthritis. Furthermore, the Veteran reported abnormal stepping motion as a symptom of his right knee disability, and while the examiner acknowledges this symptom, its effects on the opposing left knee are not addressed. The Board also notes that the examiner opined that the Veteran’s left knee disability was not aggravated beyond its natural progression by the right knee disability. However, here too the rationale is inadequate. The examiner essentially reasons that there is no aggravation because there are no symptoms attributable to the Veteran’s left knee arthritis. This rationale is both conclusory, and is in direct contradiction to the rest of the examination, in which the examiner specifically noted symptoms of pain, tenderness to palpation, and flare ups, requiring the regular use of a knee brace. Consequently, the Board finds that the March 2018 medical opinion is inadequate to fairly adjudicate the Veteran’s claims. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, a remand for a new medical opinion is necessary to fairly adjudicate the Veteran’s claims. On remand, VA must provide a medical opinion that adequately considers the Veteran’s service-connected right knee disability, including arthritis and an MCL sprain, as well as associated symptoms of pain and abnormal stepping motion as potentially causing or aggravating his left knee disability; considers the Veteran’s lay statements; considers the medical evidence of record, to include all VA examinations; and provides reasons and bases to support each opinion provided. 2. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. The Veteran claims entitlement to a total disability rating based on unemployment. The Veteran does not meet the schedular criteria for an award of a TDIU benefits under 38 C.F.R. § 4.16. However, the issue of entitlement to service connection for major depressive disorder has been granted herein, and the issue of entitlement to service connection for a left knee disability has been remanded herein. Thus, the Veteran’s claim for TDIU is inextricably intertwined with these issues, and a final decision on the issue of entitlement to TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). A rating must be assigned by the AOJ for the Veteran’s major depressive disorder, and the claim of entitlement to service connection for a left knee disability must be further developed as set forth herein, before the Board renders a decision on the TDIU claim. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2018). The matter is REMANDED for the following action: 1. Obtain and associate any outstanding VA and/or private medical records with the Veteran’s claims file. 2. Once the above has been completed, obtain an addendum opinion regarding the nature and etiology of the Veteran’s left knee disability, with a detailed rationale for the findings rendered. The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the addendum. The examiner must provide well-reasoned opinions as to the following: • Whether it is at least as likely as not that the Veteran’s left knee disability was caused by his service-connected right knee disability or symptoms thereof, to include right knee MCL sprain and abnormal stepping motion; and • Whether it is at least as likely as not that the Veteran’s left knee disability was aggravated by his service-connected right knee disability or symptoms thereof, to include right knee MCL sprain and abnormal stepping motion. The examiner must address the Veteran’s lay contentions regarding left knee pain, tenderness, and flare-ups, as well as the current VA examinations and opinions of record. A complete rationale must be given for all opinions and conclusions expressed. If the examiner finds that an in-person examination is necessary, then a new examination should be conducted. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel