Citation Nr: 18150405 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 17-47 246 DATE: November 15, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include an unspecified depressive disorder, is denied. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for neuropathy of both lower extremities is remanded. FINDING OF FACT A chronic psychiatric disorder was not shown in service; and, the preponderance of the evidence is against finding that an acquired psychiatric disorder, to include an unspecified depressive disorder, was incurred in active service or is otherwise etiologically related to the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for an acquired pscyhiatric disorder are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f)(2), (f)(3) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1986 to September 1993. The Veteran’s active service included deployment to Southwest Asia during Operation Desert Shield and Operation Desert Storm, and he was awarded the Combat Action Ribbon. Entitlement to Service Connection for Unspecified Depressive Disorder The Veteran contends that he is entitled to service connection unspecified depressive disorder. The question for the Board is whether the Veteran’s current unspecified depressive disorder began during active service or is at least as likely as not etiologically related to the Veteran’s active service. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) held that an initial claim of entitlement service connection for PTSD should also be read as including other psychiatric disorder diagnoses reasonably raised by the symptoms described and all information obtained in support of the claim. The issue on appeal as to this matter has been revised to include consideration of the other applicable diagnoses of record. Generally, direct service connection requires credible evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In a February 2017 VA examination, a VA examiner diagnosed the Veteran with unspecified depressive disorder. The examiner noted the Veteran’s symptoms to be a chronic irritable mood, anhedonia, general lack of interest or motivation to do anything, sleep impairment, and fatigue. The examiner also noted frequent arguments with his wife and absenteeism from work that resulted in termination. Accordingly, the first element of service connection is satisfied here. Service treatment records are negative for any complaints, treatment, or diagnosis of a psychiatric disorder, to include depression. The Veteran’s psychiatric condition was noted to be normal at service discharge, Nevertheless, in his April 2017 Notice of Disagreement, he stated that he has a combat action ribbon and is entitled to service connection if he “had issues based on ‘fear easing standards.’” There is no dispute that the Veteran experienced a stressor during his deployment in support of Operation Desert Storm. Indeed, the February 2017 examination report notes that the Veteran witnessed the aftermath of death and destruction on a regular basis, and his combat-related service satisfied criteria A of the diagnostic criteria for post-traumatic stress disorder (PTSD). See 38 C.F.R. § 3.304(f)(2), (3). The examiner concluded that the Veteran did not satisfy any of the other diagnostic criteria for PTSD. Even though the Veteran was not diagnosed with PTSD, his stressor of satisfies the second element of service connection requiring an in-service event, injury, or disease. See id. §3.303. This is not the end of the inquiry, however. Even though the Veteran’s statements may establish the occurrence of an in-service stressor, they do not on their own entitle the Veteran to service connection or satisfy the third element of service connection. See id. § 3.304(f)(2), (3). There must be an etiological relationship between unspecified depressive disorder and his active service, and here, the competent, probative evidence of record weighs against finding the required etiological relationship. According to the VA examiner, the Veteran did not develop unspecified depressive disorder until well after his separation from active service. The examiner noted that the symptoms underlying the diagnosis emerged over the preceding five years. Thus, the examiner concluded the Veteran’s unspecified depressive disorder is less likely than not related to events or activities during the Veteran’s active service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation for the examiner’s clear conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that other medical evidence of record accords with the VA examiner’s conclusion. As of a June 2014 VA examination, the Veteran did not satisfy the diagnostic criteria for unspecified depressive disorder or any other acquired psychiatric disorder. While the Veteran may believe his unspecified depressive disorder is related to his combat experience during active service, he is not competent to provide a nexus opinion in this case. The etiology of psychiatric diagnoses is medically complex and requires knowledge that the Veteran does not possess based on the evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 & n.4 (Fed. Cir. 2007). The VA examiner’s opinion is both competent and more probative than the Veteran’s opinion that his depressive disorder is etiologically related to his active service. Because the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection for an acquired unspecified depressive disorder is therefore denied. REASONS FOR REMAND 1. Entitlement to Service Connection for a Back Disorder Is Remanded The Veteran has a current back disorder, to include stenosis of the cervical spine and mild degenerative changes the lumbar spine. See Private Treatment Records, dated June 2017 & May 2017. In a statement accompanying his April 2017 Notice of Disagreement and September 2017 VA Form 9, the Veteran recounts two in-service events purportedly resulting in back injuries. The first occurred in 1989 while the Veteran was stationed in Okinawa, Japan. The Veteran reports that he was lifting a tow bar off a wrecker and felt something pop or pull in his back. He could not receive medical attention because he was “on the road” at the time and he was the only wrecker driver. The second event occurred when the Veteran was in Saudi Arabia in support of Operation Desert Shield. The Veteran reported that he was downloading a ship and lifting tow bars when he again felt something pull in his back. He states he saw a corpsman and was assigned light duty for a few days. He reported that he had not incurred other back injuries since his separation from active service. In his October 2016 application, the Veteran also contends in his current back disorders are secondary to his service-connected pilonidal cysts and residual scar. The Veteran has indicated an association between his current back disorders and events during service; however, he has not been afforded a VA examination to determine the etiology of his current low back disorders. The medical evidence of record is inadequate to adjudicate the Veteran’s claim for entitlement to service connection; therefore, a VA examination is warranted to determine the etiology of any current back disorder. See 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to Service Connection for Neuropathy of Both Lower Extremities Is Remanded In his October 2016 application, the Veteran contends that neuropathy of both lower extremities is secondary to his back disorder or his service-connected pilonidal cysts and residual scar. A decision on whether the Veteran is entitled to service connection for a back disorder directly impacts whether the Veteran is entitled to secondary service connection for peripheral neuropathy of both lower extremities; therefore, the two issues are inextricable intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). In this circumstance, the appropriate remedy is a remand of the issue of entitlement to service connection for neuropathy of both lower extremities pending resolution of the inextricably intertwined issue. See id. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disorder. The examiner must opine on the following: (a.) Whether any current back disorder(s) is(are) at least as likely as not related to an in-service injury, event, or disease, including a back injury purportedly incurred in Okinawa, Japan or a back injury purportedly incurred in Saudi Arabia. (b.) Whether any current back disorder(s) is(are) at least as likely as not (1) proximately due to service-connected pilonidal cysts and residual scar, or (2) aggravated beyond its (their) natural progression by service-connected pilonidal cysts and residual scar. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of peripheral neuropathy of both lower extremities. The examiner must opine on the following: (a.) Whether peripheral neuropathy of both lower extremities is at least as likely as not related to an in-service injury, event, or disease, including a back injury purportedly incurred in Okinawa, Japan or a back injury purportedly incurred in Saudi Arabia. (b.) Whether peripheral neuropathy of both lower extremities is at least as likely as not (1) proximately due to current back disorders, to include stenosis of the cervical spine or mild degenerative changes in the lumbar spine, or (2) aggravated beyond its natural progression by stenosis of the cervical spine or mild degenerative changes in the lumbar spine. (c.) Whether peripheral neuropathy of both lower extremities is at least as likely as not (1) proximately due to service-connected pilonidal cysts and residual scar, or (2) aggravated beyond its natural progression by service-connected pilonidal cysts and residual scar. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel