Citation Nr: 18149268 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-21 340 DATE: November 9, 2018 ORDER Entitlement to service connection for an acquired psychiatric disability (to include adjustment disorder with mixed anxiety and depressed mood, recurrent major depressive disorder, and unspecified depressive disorder), claimed as secondary to service-connected status post prostate cancer with urinary dysfunction and erectile dysfunction associated with status post prostate cancer (collectively, service-connected prostate cancer and prostatectomy residuals), is granted. REMANDED Entitlement to service connection for a lumbar spine disability (claimed as a low back disability with sciatica) is remanded. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. Entitlement to an initial compensable disability rating for hemorrhoids is remanded. Entitlement to an initial compensable disability rating for a left knee surgical scar is remanded. Entitlement to a disability rating greater than 10 percent for a left knee disability is remanded. Entitlement to a disability rating greater than 10 percent for a left ankle disability is remanded. Entitlement to a disability rating greater than 50 percent for obstructive sleep apnea (OSA) is remanded. Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The evidence is at least in equipoise that the Veteran’s current psychiatric disabilities have been caused or aggravated by his service-connected prostate cancer and prostatectomy residuals. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability on a secondary basis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to January 1985 with the U.S. Army and from May 1987 to November 2008 with the U.S. Coast Guard. The Veteran requested a Board hearing in his May 2014 substantive appeal. A hearing was scheduled for May 2018 and he was notified accordingly in April 2018. However, in April and May 2018 correspondence, he and his attorney withdrew the hearing request and asked the Board not to take action in this appeal until the attorney filed a brief; the attorney did so in June 2018. Although the record contains evidence that the AOJ has not considered, the following decision is wholly favorable to the Veteran. Therefore, a remand of the psychiatric claim is unnecessary. 38 C.F.R. § 20.1304(c). (In any event, in August 2018, the Veteran waived his right to initial AOJ review of the evidence received since the April 2014 Statement of the Case [SOC].) The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. Pertinent regulations for consideration were provided to the Veteran in the April 2014 SOC and will not be repeated here in full. The Veteran seeks entitlement to service connection for an acquired psychiatric disability (claimed as depression), which he primarily contends is secondary to his service-connected status post prostate cancer and prostatectomy residuals. Initially, the Veteran characterized his psychiatric claim as entitlement to service connection for depression. However, under Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), a claim cannot be “limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed.” Upon review of the evidence, the Board has rephrased claim as service connection for an acquired psychiatric disability to include recurrent major depressive disorder, adjustment disorder with mixed anxiety and depressed mood, and unspecified depressive disorder. After a full review of the record, the claim is granted. Affording the Veteran the benefit of the doubt, the evidence is at least in equipoise that his current psychiatric disabilities (including recurrent major depressive disorder, adjustment disorder with mixed anxiety and depressed mood, and unspecified depressive disorder) were caused or aggravated by his service-connected status post prostate cancer and prostatectomy residuals. The Board affords great probative value to the VA outpatient mental health treatment records from throughout the appeal period. His VA mental health providers competently, persuasively, and consistently attributed his current mood disorder symptoms and social impairments to his difficulty coping with his prostate cancer and prostatectomy residuals, as summarized below: • July 2010 VA psychology note (noting most of session focused on marital issues due to sexual dysfunction); • October 2011 VA psychology note (noting termination of psychotherapy session due to completion of treatment goals, including improved ability to cope with prostate cancer residuals); • multiple 2014 VA psychology notes (consistently relating Veteran’s mood disorder symptoms to stressors from prostate cancer residuals such as urinary incontinence and sexual dysfunction); • October 2014 psychology note (session summary noted Veteran reported improved mood, which he attributed to not focusing on the long-term effects of prostate cancer treatment, which he reportedly had been doing before beginning sessions with this provider; mental health provider competently and persuasively found that this tendency contributed to Veteran’s feelings of depression; also noting his concerns about disclosing prostate cancer treatment side effects with new girlfriend); • multiple 2017 VA mental health / psychiatry notes (competently, persuasively, and expressly relating Veteran’s mood disorder symptoms and relationship issues to his concerns about his prostate cancer and prostatectomy residuals, including specifically erectile dysfunction, e.g., June 2017 psychiatric consult in which VA psychiatrist found he presented with depression in the context of sequelae of prostate cancer, including erectile dysfunction, relationship avoidance, low self-esteem, and guilt; psychiatrist expressly related differential mood disorder diagnoses to erectile dysfunction and prostate cancer). Moreover, the Veteran competently and credibly reported his psychiatric symptoms and related them to his service-connected urological issues, to his VA mental health providers. Throughout the appeal period, he consistently attributed his mood disorder symptoms such as anxiety and depressed mood, and consequent relationship problems, to specific, detailed concerns about his prostate cancer and prostatectomy residuals such as erectile dysfunction. See multiple 2014 VA notes (consistently noting Veteran’s competent, credible reports of mood disorder symptoms arising from prostate cancer residuals such as urinary incontinence and sexual dysfunction, and consequent relationship issues); see also multiple 2017 VA mental health notes. The fact that he consistently attributed his mood disorder symptoms to his service-connected urological symptoms since before he filed his August 2010 service connection claim bolsters the credibility of these reports. See, e.g., May 2010 VA mental health consult (diagnosing adjustment disorder with mixed depressed mood and anxiety based in part on stressors arising from 2009 prostate cancer diagnosis and treatment, including reported sexual dysfunction since 2009 prostatectomy). The Board affords more weight to the VA outpatient mental health treatment records summarized above than to the negative August 2011 VA secondary service connection opinion. The Veteran’s VA mental health providers consistently and persuasively related his current mood disorder symptoms to his prostate cancer and prostatectomy residuals. They based these conclusions on exhaustive evaluations of the Veteran and repeated clinical interactions during multiple treatment sessions. In contrast, the 2011 VA examiner primarily based the negative opinion on one limited, isolated encounter. Moreover, the 2011 opinion’s finding that the Veteran’s concerns about his prostate cancer and prostatectomy residuals did not interfere with functioning is very inconsistent with the weight of the VA treatment records from throughout the appeal period consistently showing otherwise. In conclusion, affording the Veteran the benefit of the doubt, service connection for an acquired psychiatric disability is granted as secondary to his service-connected status post prostate cancer and service-connected prostatectomy residuals. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. • Private treatment records: The Veteran identified relevant, outstanding private treatment records in a 2010 release, but there is no indication in the file that the AOJ ever attempted to obtain them. Although the Veteran submitted some private treatment records from this provider in November 2010 along with his release identifying that physician, it is unclear whether these records are complete. A remand is required to allow VA to request these records. If they are unavailable, then the AOJ must notify him and give him an opportunity to submit the records. • VA addendum medical opinion: The Veteran contends that his current lumbar spine disability is directly related to service. The January 2011 negative VA medical opinion specifically addressed the contention that his current lumbar spine disability is related to documented, July 1991 lumbar spine issues during service. However, the opinion did not address an April 2008 retirement separation report of medical examination finding the Veteran’s spine was abnormal and noting scoliosis. Also, the examiner noted in passing summer 2010 military medical facility treatment records regarding lumbar spine issues. However, the examiner did not directly address the fact that the Veteran was diagnosed with the chronic lumbar spine conditions of degenerative disc disease and arthritis based on imaging as early as July 2010, less than two years after his November 2008 retirement from service. See July 2010 military medical facility treatment records. An addendum medical opinion addressing this evidence is needed. 2. Entitlement to a compensable rating for bilateral hearing loss is remanded. • Current VA audiological examination: The Veteran’s last VA audiological examination was in November 2010, about eight years ago. He and his attorney asserted worsening of his service-connected bilateral hearing loss since then. See 2018 brief. The AOJ must afford him a current VA examination to assess the current severity of this condition. • VA treatment records: The Veteran’s VA audiology treatment records reference relevant audiometric data that providers interpreted and entered into his electronic medical records. However, the referenced audiometric data itself is not of record. The RO must obtain all outstanding VA audiological treatment records.   3. Entitlement to an initial compensable rating for hemorrhoids is remanded. • Current VA examination: The Veteran’s last VA examination of this condition was in January 2011, almost eight years ago. A current VA examination of this condition is needed to assess its current nature, symptoms, and severity. 4. Manlincon Remands The following issues must be remanded for the issuance of an SOC: entitlement to an initial compensable rating for a left knee surgical scar; entitlement to a rating greater than 10 percent for a left knee disability; entitlement to a rating greater than 10 percent for a left ankle disability; entitlement to a rating greater than 50 percent for OSA; and entitlement to a TDIU. In November 2017, the Veteran filed a timely notice of disagreement (NOD) with all issues in the July 2017 rating decision (listed above). The AOJ has not issued an SOC. As the NOD placed these issues in appellate status, they must be remanded for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the Tampa VA Medical Center and all associated outpatient clinics from June 2017 to the present. Also, request all complete VA audiology treatment records from September 2012 and August 2016, including specifically all referenced audiometric results (pure tone testing, audiograms, speech reception thresholds, word recognition scores, speech discrimination scores, and any other audiometric data). The audiogram reports may be in electronic records sources other than CAPRI, e.g., "Tools/Audiogram Display". 2. After re-requesting the necessary release(s) from the Veteran, request all outstanding medical records from the following identified private / non-VA providers: (a.) Dr. D. Saatman, whom Veteran identified as neurosurgeon who treated low back issues (see November 2010 release); (b.) any other private / non-VA providers that the Veteran may identify in the appropriate release(s). Document any negative responses. If any private treatment records are unavailable, then notify the Veteran and his representative and give them the opportunity to submit the records. If additional, relevant care is referenced in these private treatment records, then attempt to obtain records of that care as well. 3. DO NOT PROCEED WITH THE FOLLOWING INSTRUCTIONS UNTIL ALL ACTIONS AND DEVELOPMENT REQUESTED ABOVE HAVE BEEN COMPLETED TO THE EXTENT POSSIBLE. 4. Schedule a VA addendum medical opinion to address whether it is at least as likely as not (probability of 50 percent or more) that the Veteran’s current lumbar spine disability was incurred in or is otherwise related to service. The examiner expressly must consider: April 2008 retirement separation report of medical examination (finding spine abnormal; noting scoliosis); and military medical facility treatment records showing diagnosis of lumbar spine degenerative disc disease and arthritis as early as July 2010, less than two years after Veteran’s November 2008 retirement from the U.S. Coast Guard. The VA examiner must note his or her review of the complete claims file, including this remand. If any requested findings are not possible without resort to mere speculation, then the examiner must explain why. If the examiner finds that he or she cannot make any requested findings without another VA examination, then the AOJ must schedule one. 5. Schedule VA examinations to address the current nature, symptoms, and severity of the Veteran’s service-connected bilateral hearing loss and service-connected hemorrhoids. 6. After completing the above and any other development deemed necessary, readjudicate the claims for service connection for a lumbar spine disability, entitlement to a compensable disability rating for bilateral hearing loss, and entitlement to an initial compensable disability rating for hemorrhoids, and issue a supplemental statement of the case as appropriate. 7. Issue an SOC addressing all issues with which the Veteran expressed disagreement in the November 2017 NOD (listed above). If the Veteran perfects an appeal by   submitting a timely VA Form 9, then return those issues to the Board for further appellate consideration, if otherwise in order. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel