Citation Nr: 18147193 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-19 678A DATE: November 2, 2018 ORDER Entitlement to service connection for depressive disorder is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a compensable evaluation, for the period prior to October 9, 2014, and an evaluation in excess of 20 percent, for the period thereafter, for chronic right shoulder subluxation/dislocation, is remanded. Entitlement to an evaluation in excess of 20 percent for right shoulder arthritis associated with chronic right shoulder subluxation/dislocation is remanded. Entitlement to a compensable evaluation for surgical scars of the right shoulder is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis, is remanded. FINDING OF FACT The Veteran’s depressive disorder was incurred in service. CONCLUSION OF LAW The criteria for service connection for depressive disorder are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1985 to January 1987. The Veteran seeks entitlement to service connection for depressive disorder depression and contends that began in service and is aggravated by the Veteran’s service-connected shoulder disability. The Board concludes that the Veteran has a current diagnosis of unspecified depressive disorder that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In May 2018, the Veteran’s representative submitted a Disability Benefits Questionnaire (DBQ) completed by a private provider in May 2018 and statements from the Veteran’s ex-wife. The DBQ included a diagnosis of unspecified depressive disorder and that examiner’s opinion that the condition more likely than not began in military service, continued uninterrupted to the present, and is aggravated by the Veteran’s right shoulder disabilities. The Veteran was noted to deny any mental health history prior to the military. He Veteran said that became depressed and began self-medicating after he was injured in service and could no longer continue in the military. The examiner considered information provided by the Veteran and statements from his ex-wife and reviewed medical journal articles addressing a connection between psychiatric and medical issues, similar to the Veteran’s service-connected right shoulder disability. The record also includes a September 2014 VA examination provided a negative opinion, commenting that the Veteran’s depressive disorder was more likely than not related to multiple factors (e.g., chronic psychosocial stressors, lack of support system, genetic factors, chronic drug use, and poverty) and had an insidious onset (lifetime) culminating in a chronic illness. The examiner noted the Veteran’s service treatment records were silent for any mental health condition during or proximal to his military service, other than substance use disorder. The Veteran was also noted to have a diagnosis of polysubstance use disorder and he had abused substances prior to entering the military. Entitlement to service connection for a depressive disorder is warranted. The Board finds that May 2018 DBQ more probative because it considered the l impact of the Veteran’s service-connected right shoulder disabilities on his mental condition, both in service and after. The negative VA opinion does not discuss secondary service connection at all. As such, service connection for depressive disorder is granted. REASONS FOR REMAND In a statement dated in June 2018, the Veteran’s representative identified medical evidence that the Veteran’s service connected right shoulder disabilities and his depressive disorder impair the Veteran’s ability to work. As such, the claim for TDIU is raised as part of the increased rating claim before the Board and the issue has been added above. Rice v. Shinseki, 22 Vet. App. 447 (2009). Evidence indicates that there may be outstanding relevant VA treatment records. The claims file reveals that the Veteran receives consistent treatment from VA; however, VA treatment records regarding the Veteran dated subsequent to June 2016 have not been obtained and associated with the claims file. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. In a statement dated in March 2018, the Veteran’s representative noted that he was having difficulty gathering additional information in support of the Veteran, including requesting records from the Social Security Administration. Review of the claims file does not reveal that any attempt has been made to obtain any outstanding Social Security Administration records regarding the Veteran. A remand is required to allow VA to request these records. An October 2014 VA opinion for hypertension is inadequate because the examiner relied solely upon the absence of hypertension during service. A new opinion should be obtained on remand. Barr v. Nicholson, 21 Vet. App. 303 (2007). VA examinations of the right shoulder in October 2014 and November 2015 are inadequate because they do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In a Report of General Information, dated in February 2016, it was noted that in lieu of the hearing at the RO the representative wanted another VA examination for the right shoulder. VA attempted to schedule examinations but it is unclear whether the Veteran received proper notification. A March 2016 notice letter to the Veteran regarding the scheduling of one examination was returned as undeliverable in April 2016. In August 2016, February 2017 and August 2017 statements the Veteran indicated that his address had changed. The August 2017 Supplemental Statement of the Case (SSOC), noted that the Veteran failed to report for a May 2017 VA examination in May 2017. As the prior examinations regarding the Veteran’s right shoulder disability are not adequate and as it is unclear whether the Veteran was adequately notified of an attempt to afford him furhter examination, the claims regarding the right shoulder must be remanded for the Veteran to be afforded another VA examination. All appropriate action should be taken to determine the Veteran’s correct address. The TDIU claim is inextricably intertwined with the claims being remaned. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Adjudication of the TDIU claim must be deferred. The Veteran should be asked to completed a VA Form 21-8940 with regard to his education and employment history. That must be completed on remand. In the May 2018 private medical opinion it was noted that the Veteran’s service connected depressive disorder prevents him from maintaining substantially gainful employment. However, the Veteran’s service-connected disabilities do not currently meet the schedular criteria for award of a TDIU. If after the development requested in this remand the Veteran is found unemployable but still does not meet the schedular criteria, implementing the grant of service connection for depression and the development requested on the remanded claims, the Veteran does not meet the schedular criteria for award of TDIU, refer the TDIU claim VA’s Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2016. 2. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Take all appropriate action to develop the claim for TDIU, to include providing the Veteran any appropriate notice and asking him to complete a VA Form 21-8940. 4. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypertension found to be present. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must also render an opinion regarding whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated by service-connected disability (aggravation here is defined as any increase in disability). 5. Schedule the Veteran for an examination of the current severity of his right shoulder disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder surgical scar. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 7. After taking all action to implement the grant of service connection for depressive disorder and completion of the above, if and only if the evaluations of the Veteran’s service-connected disabilities do not meet the schedular criteria for award of a TDIU, refer the claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel